Ramseur v. Colonial Chimney and Masonry, Inc. - 0440130, Final Decision

CHRO No. 0440130

Fed No. 16aa400024

Commission on Human Rights and Opportunities ex rel. :
Cecil Ramseur

v.

Colonial Chimney & Masonry, Inc.

November 28, 2005

FINAL DECISION

On September 19, 2003, Cecil Ramseur ("complainant"), now of Westerly, Rhode Island, filed an affidavit of illegal discriminatory practice ("complaint") with the Commission on Human Rights and Opportunities ("commission"). In his complaint, he alleged that Colonial Chimney & Masonry, Inc. ("respondent"), of Stonington, Connecticut, his former employer, illegally discriminated against him in violation of the federal Age Discrimination in Employment Act ("ADEA") and General Statutes § 46a-60(a)(1) when it terminated his employment because of his age.

For the reasons stated herein, the respondent is found to have illegally discriminated against the complainant and the complainant is awarded relief as set forth herein.

I. PROCEDURAL HISTORY

Filed on September 19, 2003, the complaint was retained for investigation by the commission after its merit assessment review. On June 29, 2005, the investigator issued his finding that, after preliminary investigation, there was reasonable cause to believe that an unfair practice had been committed as alleged in the complaint and certified the complaint to the attorney general and the commission's executive director. Thereafter, the undersigned was appointed as the presiding human rights referee in this case. The parties were notified that a hearing conference would be held on July 28, 2005.

At that conference, the commission and the complainant appeared; however, the respondent did not appear and also failed to file an answer as required by General Statutes § 46a-84(f) and section 46a-54-86a of the Regulations of Connecticut State Agencies. On August 19, 2005, the commission filed and served a motion to default the respondent for its failure to appear and failure to file an answer. The respondent did not file a response to the motion. The commission's motion was granted on September 1, 2005 and a hearing in damages scheduled for September 29, 2005 pursuant to § 46a-84(f) and section 46a-54-88a of the Regulations of Connecticut State Agencies. Notice of the default and hearing in damages was sent by facsimile to the commission and by certified mail, return receipt requested, to the complainant and the respondent. The respondent's certified mail went unclaimed. The complainant and the commission appeared at the hearing in damages; the respondent did not appear.

II. FINDINGS OF FACT

References to testimony are to the transcript page ("Tr.") where the testimony is found. The commission was the sole party to introduce exhibits. Its exhibits are denoted as "CHRO Ex." followed by the exhibit number. The record also includes "all petitions, pleadings, motions and intermediate rulings …." General Statutes § 4-177(d). Allegations in the complaint that were not answered by the respondent are deemed admitted without the need for further proof. Regs., Conn. State Agencies § 46a-54-86a(b).

Based upon the complaint, exhibits, and testimony, the following facts relevant to this decision are found ("FF"):

III. ANALYSIS

A. Service of notice

As a procedural matter, it should be noted that the respondent's failure to claim the certified mail containing notice of the default and hearing in damages does not deprive the commission of its ability to proceed with the hearing in damages. Rogers v. Commission on Human Rights and Opportunities, 195 Conn. 543 (1985). According to the U. S. Postal Service's notations on the returned unclaimed mail, it made three unsuccessful attempts to deliver the notice to the respondent. The attempts were unsuccessful because the respondent failed to claim the mail. "The [respondent's] own inaction in response to actual notice [of the attempted deliveries] cannot be made the basis of a claim that he was not afforded due process." Id., 548.

B. Section 46a-60(a) claim

1.

General Statutes § 46a-60(a) provides in relevant part that "It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age …."

Held pursuant to the entry of an order of default, this hearing in damages is limited to determining the relief necessary to eliminate the discriminatory practice and make the complainant whole. § 46a-84(f); Regs., Conn. State Agencies § 46a-54-78a(b)(5). The presiding officer is authorized to award relief including (1) retroactive and prospective monetary relief (back pay and front pay), State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989); (2) prejudgment and postjudgment compounded interest on the award of front and back pay, Silhouette Optical Limited v. Commission on Human Rights and Opportunities, 10 Conn. L. Rptr. No. 19, 604 (February 28, 1994); and (3) ordering the respondent to pay to the commission the amount of unemployment compensation or welfare assistance paid to the complainant, which the commission shall then transfer to the appropriate state or local agency. General Statutes § 46a-86(b).

2.

In the present case, the entry of the order of default, as well as the uncontradicted testimony by the complainant that Booker told him he was being terminated because of his age, establish the respondent's liability for terminating the complainant's employment because of his age in violation of § 46a-60(a)(1). (FF 1,7.)

With respect to the relief necessary to make the complainant whole, the complainant and the commission seek the following: emotional distress damages, back pay, overtime, prejudgment and postjudgment interest, an order requiring the respondent to attend intensive and on-going diversity training courses, and an order requiring the respondent to post Commission posters at all of its facilities. (Commission's calculation of damages.)

In October 2004, the respondent offered to reinstate the complainant. Although an offer of reinstatement can in some situations terminate the accrual of damages, in this case the complainant reasonably declined reinstatement. Based on the credible testimony of the complainant (Tr. 34-35, 44, 50-55), I find that the animosity of Booker toward the complainant based on his age, and unrelated to the filing of this complaint, reasonable excuses the complainant's decision not to accept reinstatement. Therefore, the complainant is awarded back pay for the period from August 25, 2003, the date of his termination, to September 29, 2005, the date of the hearing in damages, in the amount of $35,535.99 based on the earnings the complainant would have received had he remained employed by the respondent ($47,960.00), less the amount he earned through reasonable attempts at mitigation ($12,424.01)(FF 10, 13, 14.). The date of the hearing in damages, rather than the date of judgment, is used as the benchmark in this case because at the time of the hearing the complainant was employed and his current wages are comparable to what he would have been paid had he remained employed with the respondent. (FF 10, 12.)

The complainant is not awarded front pay as his current wages are comparable to what he would have been paid had he remained employed with the respondent. (FF 10, 12.)

The complainant is not awarded overtime because of his brief employment with the respondent and the inconsistency of his overtime during that time. (Tr. 6-8.) Under such conditions, an award of overtime would be speculative.

The complainant is entitled to prejudgment and postjudgment interest on the award of back pay at the rate of 10% per annum, compounded annually, from August 25, 2003 until the complainant receives full payment.

The respondent is legally obligated to pay to the commission the amount of unemployment compensation paid to the complainant totaling $2,352.00.

C. Section 46a-58(a) and ADEA claim

The complainant alleged that the respondent violated the ADEA, thereby violating General Statutes § 46a-58(a), and sought emotional distress damages pursuant to §§ 46a-58(a) and 46a-86(c). However, the commission does not have jurisdiction of this claim under § 46a-58(a) for two reasons. First, § 46a-58(a) does not enumerate age as a protected class. Second, the respondent is not subject to the ADEA because it employs fewer than 20 people. (FF 3.) Therefore, the complainant is not awarded emotional distress damages.

IV. CONCLUSION OF LAW

V. ORDER OF RELIEF

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

C:
Mr. Cecil Ramseur
Colonial Chimney & Masonry, Inc.
Cheryl A. Sharp, Esq.
Connecticut Department of Labor