9420437, Callado v. Town of Fairfield, et al., Final Decision

CHRO # 9420437 

Commission on Human Rights and : Opportunities, ex rel. Orlando Callado, Complainant
v.
Town of Fairfield, et al, Respondents : October 15, 1999

FINAL DECISION

Orlando Callado ("complainant") filed a complaint dated March 15, 1994 with the Commission on Human Rights and Opportunities ("commission") in which he alleges that he was illegally discriminated against by the Town of Fairfield and its agent, Paul Audley, First Selectman (collectively, "respondent"). He alleges that he was denied participation in the respondent’s pension plan on the basis of age in violation of General Statutes §§ 46a-60(a)(1) and 46a-60(b)(2) and of the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621-634. The complainant subsequently filed an amended complaint to include a claim that the respondent also violated General Statutes § 46a-60(b)(2)(B). For the reasons stated below, the respondent is found to have illegally discriminated against the complainant on the basis of age. Relief is ordered as set forth herein.

I PARTIES

The complainant is Orlando Callado. His address is 45 Charles Street, Fairfield, CT 06430. The Commission on Human Rights and Opportunities is located at 21 Grand Street, Hartford, CT 06106. The respondents are the Town of Fairfield, a Connecticut municipality, and its agent, Paul Audley, First Selectman, both of whose address is Independence Hall, 725 Old Post Road, Fairfield, CT 06430.

II PROCEDURAL HISTORY

The complaint was filed with the commission and assigned to an investigator. The investigator found reasonable cause for believing that a discriminatory practice was committed as alleged in the complaint. On May 8, 1996, he certified the complaint and the results of the investigation to the executive director of the commission and to the Attorney General. Upon certification of the complaint, John F. Daly, III was appointed as the presiding officer to hear the complaint. On or about October 4, 1996, the respondent filed a Motion to Dismiss. On October 7, 1996, Hearing Officer Daly voluntarily recused himself and Ruben Acosta was designated as presiding officer. On October 28, 1996, the parties had a status conference with Hearing Officer Acosta. At the status conference it was agreed that a public hearing on the merits of the complaint would be held on January 27, 1997. On January 27, 1997, the public hearing was held at which the parties submitted a stipulation of facts and Hearing Officer Acosta presided. Subsequently, the parties filed briefs. Pursuant to P.A. 98-245 and by the agreement of the parties, the undersigned Human Rights Referee was appointed on August 31, 1999 as presiding officer in substitution of Hearing Officer Acosta. The parties subsequently submitted additional stipulations on alternative calculations of damages.

III PARTIES’ POSITIONS

The commission and the complainant argue that respondent’s pension plan violates the plain language of General Statutes § 46a-60(b)(2) by excluding the complainant from membership in the plan because of his age. The commission and the complainant also argue that the respondent’s refusal to allow the complainant to enroll in its pension plan conflicts with the plain language of the pension plan’s amendment in 1986 that gave the complainant the option of becoming a member of the plan. The commission and the complainant further maintain that the respondent’s repeated denials of the complainant’s request to enroll in the plan constitute a continuing violation.

The respondent contends that the pension plan complies with both federal and state law. The respondent argues that its age-based exclusion of the complainant is permissible under 29 U.S.C. § 621 et seq., 29 CFR 1625.10 and General Statutes § 46a-60(b)(1)(E). The respondent also contends that the complaint is time-barred.

IV FINDINGS OF FACT

Based upon a review of the factual stipulations of the parties, the pleadings, the exhibits, and the transcript, the following facts relevant to this decision are found:

All procedural, notice, and jurisdictional prerequisites have been satisfied and this matter is properly before this presiding officer to complaint and render a decision.

The complainant is a member of a protected class as his date of birth is February 3, 1921 and he was 62 years old when hired by the respondent and 73 years old when he resigned in 1994.

The respondent employs at least 20 people.

The respondent hired the complainant on March 14, 1983 as a general foreman in the public works department at an annual salary of $22,258.

The complainant’s performance on the job throughout his employment was satisfactory or better.

The complainant’s title changed in 1989 to Supervisor of Street Maintenance.

When the respondent hired the complainant in 1983, the complainant requested to be enrolled in the respondent’s retirement and pension plan. The complainant’s request was denied because under the terms of the plans then in effect employees who were hired after March 16, 1966 and who were age 50 or older at the time of hire were not eligible to participate.

In 1986, the respondent and the union representing some of the municipal employees entered into a new collective bargaining agreement that was effective July 1, 1986. Among the changes, the new agreement altered the terms for participation in the pension plan. The new agreement provided that:

Following the amendments that took effect on July 1, 1986, the complainant again requested on numerous occasions through December 28, 1993 that he be allowed to participate in the pension plan, directing his requests to the respondent’s employees including its successive personnel directors. In all instances the complainant was told he was not eligible to participate in the plan because of his age.

The complainant was denied participation in the retirement and pension plan solely because of his age.

On or about June 9, 1994, the complainant resigned from his employment with the respondent. His position with the respondent at the time of his resignation was Supervisor of Street Maintenance, and his annual salary was $51,943.

The complainant had a total of 11 years and three months of continuous employment with the respondent.

The complainant had three years of military duty that he had the ability to purchase and apply toward his retirement provided that he made application to purchase such military credit within one and one-half years of his hire. The complainant did not purchase said military credit.

The retirement and pension plan negotiated between the respondent and its municipal union was a defined benefit plan. All employees covered by the plan contributed a certain percentage of their annual base salary depending on the applicable collective bargaining agreement. In the complainant’s case, the contractual contribution would have been 4.4% of his annual base salary. The complainant’s required contribution from March 14, 1983 to June 9, 1994 would have totaled $18,273.

In addition to a monthly pension, participation in the respondent’s retirement plan also provided the retiree and spouse with a Medicare "carve out" health benefits plan, with Medicare designated as the primary provider and the respondent designated as the secondary provider. No retiree contributions were required for health insurance benefits under the "carve out" plan, but the retiree was required to pay the Medicare Part B premium.

From his resignation on June 9, 1994 through September 30, 1999, the complainant paid $25,091 to continue his health care benefits that would otherwise have been covered through the retirement and pension plan.

From June 1994 through October 30, 1999, the complainant would have received $71,783.32 in pension benefits had he been permitted to enroll in the plan based upon 11 years three months of continuous employment service.

V ANALYSIS

A Statute of Limitations

The respondent argues that the complaint is barred by the statute of limitations because it was not filed within one hundred eighty days of the act. The respondent argues that the "acts" relevant to the complainant’s claim occurred as early as 1983, with the complainant’s hiring and the initial enrollment rejection, or as late as 1986, with the initial rejection of the complainant’s request to enroll in the amended plan. Under either date, according to the respondent, the complaint is time barred. The commission and complainant contend that the plan was a continuing violation of the law. I conclude that the complaint was timely filed.

The theory of continuing violations relative to a pension plan was addressed by the Connecticut Supreme Court in State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464 (1989). In that case, the complainant filed a complaint against the State of Connecticut alleging sex discrimination because the gender-based actuarial tables used to calculate his benefits discriminated against him and other males. Since the complaint was filed approximately two years after the complainant had received written notice that his pension benefits had been formally approved, the state argued that his claim was untimely because it was not filed within one hundred eighty days of that written notice. The court, however, held "that each separate payment of retirement benefits to [the complainant] constituted a fresh violation of [the statute]." Id., 476. Importantly, the court then went on to say that "[w]e decline to follow other cases cited by the plaintiffs holding that discriminatory pension benefit payments are the ‘present effects’ of a past violation and therefore cannot be considered a ‘discriminatory act’ in determining whether a complaint is timely." Id.

The court’s decision appears to be premised on the recognition that where a pension plan is in itself a discriminatory system, the limitations period begins to run from the date of the last discriminatory act (the "fresh violation") in furtherance of the policy of discrimination. Applying that line of reasoning to this case, a pension plan as in the State case that discriminates on the basis of gender is analogous to the plan in this case that discriminates on the basis of age. Likewise, the inadequate pension payment resulting from gender discrimination in the State case is analogous to this case where both the refusal to allow enrollment in the plan and also the failure to make a pension payment results from illegal age discrimination. Therefore, the 180 day time period in which the complainant must have filed his complaint began to accrue with his last request to participate in the plan and the respondent’s refusal. As the complainant last requested and was denied participation on December 28, 1993 and the complaint was filed on March 15, 1994, the complaint was timely filed.

B Applicable Statutes

The applicable statutes in this case are General Statutes §§ 46a-60(a)(1) and 46a-60(b)(2).

Section 46a-60(a)(1) provides in part that "[i]t shall be a discriminatory practice in violation of this section [f]or an employer, by himself or his agent … to discriminate against [any individual] in compensation or in terms, conditions or privileges of employment because of the individual’s … age".

Section 46a-60(b)(2) provides that "[n]o employee retirement or pension plan may exclude any employee from membership in such plan or cease or reduce his benefit accruals or allocations under such plan on the basis of age. The provisions of this subdivision shall be applicable to plan years beginning on or after January 1, 1988, except that for any collectively bargained plan this subdivision shall be applicable on the earlier of (A) January 1, 1990, or (B) the later of (i) the expiration date of the collective bargaining agreement or (ii) January 1, 1988."

The respondent contends that its exclusion of the complainant from the pension plan is permissible under General Statutes § 46a-60(b)(1)(E). Originally enacted as P.A. 79-303, the statute provides that "[t]he provisions of [§ 46a-60] concerning age shall not apply to … the observance of the terms of a bona fide seniority system or a bona fide employee benefit plan for retirement, pensions or insurance which is not adopted for the purpose of evading said provisions, except that no plan may excuse the failure to hire any individual and no such system or plan may require or permit the termination of employment on the basis of age."

However, subsequent to the adoption of this language in P.A. 79-303(b), the legislature adopted P.A. 88-303, codified in part as § 46a-60(b)(2). Section 46a-60(b)(2) clearly and plainly states that "[n]o employee retirement or pension plan may exclude any employee from membership in such plan or cease or reduce his benefit accruals or allocations under such plan on the basis of age." The plain language of the statute clearly prohibiting age discrimination in pension plans is reinforced by its legislative history. In explaining the bill to his colleagues, state Representative Adamo reported that:

"[t]he bill has received a favorable report by Labor Committee, the Insurance Committee and the Judiciary Committee and basically does the following three things.

"One, the bill eliminates mandatory retirement for most public employees. The federal law already permits that mandatory requirement for public employees except for tenured or public higher education institutions.

"Secondly, the bill requires that employers [sic] and their spouses receive the same medical coverages [as] employees and their spouses under 65, regardless of their eligibility for Medicare. This also is presently required by federal law.

"And thirdly, the bill prohibits employees [sic] from excluding employers [sic], I’m sorry, excluding from pension plans because of their age or reducing or stopping pension accruals because of their age."

31 H.R. Proc., Pt. 6, 1988 Session, pp. 2096-2097.

State Senator Spellman delivered a similar report on the bill to the senate when he explained:

31 S. Proc., Pt. 8, 1988 Session, p. 2922.

In addition, "[i]t is a well settled principle of (statutory) construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling." (Internal quotation marks and citations omitted.) Commission on Human Rights and Opportunities v. Truelove and Maclean, Inc., 238 Conn. 337, 346 (1996). Accordingly, to the extent that there is any conflict between §§ 46a-60(b)(1)(E) and (b)(2), the specific prohibition on age discrimination contained in § 46a-60(b)(2) supercedes the general exemption of § 46a-60(b)(1)(E).

From its plain language and legislative history, I conclude that under § 46a-60(b)(2) the respondent could not legally deny the complainant the opportunity to participate in the pension plan on the basis of his age.

C Standard

Connecticut courts in state employment discrimination cases have adopted federal standards. Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53 (1982). "Nevertheless, we have also recognized that, under certain circumstances, federal law defines the beginning and not the end of our approach to the subject." (Internal citations and quotation marks omitted.) State, supra, 211 Conn. 470.

"Under federal law, there are four general theories of employment discrimination: disparate treatment, adverse or disparate impact, perpetuation into the present of the effects of past discrimination, and failure to make reasonable accommodation. To date, in Connecticut, we have recognized the disparate treatment and adverse impact theories of employment discrimination. … Used in this general sense, ‘disparate treatment’ simply refers to those cases where certain individuals are treated differently than others. The principal inquiry of a disparate treatment case is whether the plaintiff was subjected to different treatment because of his or her protected status. Under the analysis of the disparate treatment theory of liability, there are two general methods to allocate burdens of proof: (1) the mixed-motive/Price Waterhouse model; Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989); and (2) the pretext/ McDonnell Douglas-Burdine model. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." Levy v. Commission On Human Rights and Opportunities, 236 Conn. 96, 103-105 (1996).

"A ‘mixed-motive’ case exists when an employment decision is motivated by both legitimate and illegitimate reasons. … In such instances, a plaintiff must demonstrate that the employer’s decision was motivated by one or more prohibited statutory factors. Whether through direct evidence or circumstantial evidence, a plaintiff must submit enough evidence that, if believed, could reasonably allow (a fact finder) to conclude that the adverse employment consequences resulted because of an impermissible factor." (Internal citations and quotation marks omitted.) Levy, supra, 236 Conn. 105. "Direct evidence of discriminatory intent may include evidence of actions or remarks of the employer that reflect a discriminatory attitude or comments that demonstrate a discriminatory animus in the decisional process." (Internal quotation marks and citations omitted.) Id., 109.

1 Prima facie criteria

Under the mixed-motive model, "the plaintiff’s prima facie case requires that the plaintiff prove by a preponderance of the evidence that he or she is within a protected class and that an impermissible factor played a ‘motivating’ or ‘substantial’ role in the employment decision." Levy, supra, 236 Conn. 106. "The critical inquiry is whether the discriminatory motive was a factor in the decision ‘at the time it was made.’" Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 205 (1991) (citing Price Waterhouse, supra, 490 U.S. 241). The complainant "has the burden of persuading the fact finder that the defendant’s employment decision was motivated at least in part by an impermissible factor, while the defendant bears the burden of persuading the fact finder that the same decision would have been reached absent the impermissible factor." Levy, supra, 236 Conn. 106 n. 18. The complainant "must focus his proof directly at the question of discrimination and prove that an illegitimate factor had a ‘motivating’ or ‘substantial’ role in the employment decision." (Internal cites and quotation marks omitted.) Levy, supra, 236 Conn. 106. The complainant retains "the burden of persuasion on the issue of whether a discriminatory motive played a part in the decision." Miko, supra, 220 Conn. 205 (citing Price Waterhouse, supra, 490 U.S. 246).

2 Burden shift to respondent

"Once the plaintiff has established his prima facie case, the burden of production and persuasion shifts to the defendant. ‘The defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken (the impermissible factor) into account.’" Levy, supra, 236 Conn. 106 (citing Price Waterhouse, supra, 490 U.S. 258). "An alleged discriminator ‘may not prevail in a mixed motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.’" Miko, supra, 220 Conn. 205 (citing Price Waterhouse, supra, 490 U.S. 252). "The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision." Price Waterhouse, supra, 490 U.S. 252; Miko, supra, 220 Conn. 207.

3 Application

From the direct evidence presented, the mixed-motive method is the appropriate method for the allocations of burden of proof in this case and the complainant has established both elements of his prima facie case. First, he is a member of a protected class on the basis of his age. The second element is also established. The respondent admits that the complainant’s age was a substantial, if not the sole, reason for its decision to deny him participation in the pension plan. (Stipulated Exhibit 1). Therefore, the complainant has demonstrated by direct evidence that an impermissible factor played a motivating or substantial role in the employment decision.

Once the complainant has established its prima facie case, the respondent then has the burden of production and persuasion to offer a legitimate and sufficient reason for its decision. The respondent has not met its burden. The respondent admits that the complainant’s age was the basis for his exclusion from the plan. (Stipulated Exhibit 1.) The respondent’s arguments that the exclusion was permissible under federal and state law are insufficient for its decision. Even if the exclusion were permissible under federal law, federal requirements provide only a floor, not a ceiling, for protection from discrimination. Absent federal preemption, states may grant its citizens greater protection than Congress has granted. Zamore v Dyer, 597 F. Sup. 923, 928 (D. Conn. 1984) (citing Huron Portland Cement Co., v. Detroit, 362 U.S. 440, 80 S. Ct. 813, 4 L.Ed 2d 853 (1960). The state can grant and has granted greater protection. The respondent’s reliance on § 46a-60(b)(1)(E) is misplaced given the clear and unambiguous language of § 46a-60(b)(2) prohibiting exclusion from a pension plan on the basis of age.

VI CONCLUSIONS OF LAW

The respondent illegally discriminated against the complainant by not allowing him to enroll in the retirement and pension plan after the passage of General Statutes § 46a-60(b)(2). As the time had already elapsed for the complainant to purchase his military service, he had 11 years three months of employment service for pension purposes when he resigned.

VII ORDER OF RELIEF

The respondent shall pay to the complainant the sum of $71,783.32 as back retirement pay due from June 9, 1994 through October 31, 1999, less $18,273 the complainant would have contributed for a net retirement back award of $53,510.52.

The respondent shall reimburse the complainant $25,091 for expenditures the complainant made to continue health care benefits that would otherwise have been covered through the retirement and pension plan.

The respondent shall enroll the complainant in its retirement and pension plan. This includes immediate coverage under the medical benefit program offered to retirees and a monthly pension check beginning November 1, 1999.

The respondent is prohibited from denying to its employees enrollment in its retirement and pension plan on the basis of the employees’ age in violation of General Statutes § 46a-60(b)(2).

Post-judgment interest at the rate of ten per cent a year is awarded to the complainant on the sum of $78,601.52.

The respondent shall post in prominent and accessible locations such notices regarding statutory provisions as the commission shall provide. The notices shall be posted within three working days of their receipt.

__________________________

Hon. Jon P. FitzGerald, Presiding Human Rights Referee

C:  Mr. Orlando Callado
Atty. Matthew M. Hausman
Atty. David L. Kent
Atty. Raymond P. Pech