Ramseur v. Colonial Chimney and Masonry, Inc. - 0440130, Ruling Re: R's Motion etc.

CHRO No. 0440130

Fed No. 16aa400024

Commission on Human Rights and Opportunities ex rel.
Cecil Ramseur, Complainant

v.

Colonial Chimney & Masonry, Inc., Respondent

December 30, 2005

Ruling re: the respondent's motion for stay of proceedings,
motion for reconsideration and/or articulation,
and motion to set aside default and final decision

On December 8, 2005, the respondent filed three motions: a motion for a stay of the proceedings, a motion for reconsideration and/or articulation of the final decision resulting from the hearing in damages, and a motion to set aside the default and final decision. At least fourteen days having elapsed since the filing of the motion; Regs., Conn. State Agencies § 46a-54-87a(b); and neither the commission nor the complainant having filed a response, it is hereby Ordered:

I.

The respondent moved for a one month stay. The motion is denied. As to the request for tapes of any testimony given by the complainant, the Office of Public Hearings possesses no such tapes.

II.

The respondent further moved for a reconsideration and/or articulation of the award of back pay damages. After careful review of the record and the respondent's arguments, the back pay damages and other relief awarded remain unchanged for the reasons set forth.

General Statutes § 4-181a(a)(1) provides for reconsideration of a decision if "(A) An error of fact or law should be corrected; (B) new evidence has been discovered which materially affects the merits of the case and which for good reasons was not presented in the agency proceeding; or (C) other good cause for reconsideration has been shown." The respondent appears to argue that errors of fact and/or law were committed because "pay for masons is substantially decreased in the winter months", "Mr. Ramseur worked less than two months" with the respondent, and "then worked at least four jobs after he left" the respondent. The respondent provided no substantiation for its assertion that masons are paid less in the winter months. The respondent also provided no legal authority for its proposition that the complainant's back pay award for having been illegally, discriminatorily terminated should be based on the length of his employment with the respondent.

With respect to the calculation of back pay, as stated in the final decision, back pay is calculated from the date of the discriminatory act to the date of the issuance of the final decision; Silhouette Optical Limited v. Commission on Human Rights and Opportunities, 10 Conn. L. Rptr. No. 19, 603 (February 28, 1994); less interim earnings and "amounts which could have been earned with reasonable diligence". General Statutes § 46a-86(b). This was the method utilized in determining the complainant's back pay award.

The respondent erroneously claims that it is being "improperly punish[ed]" because back pay continued to accrue after the complainant left his post-termination employment. In Brenlla v. Lasorsa Buick Pontiac Chevrolet, Inc., 202 U.S. Dist. LEXIS 9538 (S.D.N.Y), the court found that voluntarily leaving subsequent employment limits front pay only "if it is the result of the failure to exercise reasonable diligence or if there are no compelling or justifiable reasons for having left the job." (Internal citations omitted.) Id., 34. Likewise, termination from subsequent employment only limits a front pay award "where the employee's discharge from interim employment was the result of 'gross' or 'egregious' misconduct or where the discharge for cause was due to [the] willful violation of company rules." Id., 35. Although the award in that case was for front pay, the court's analysis is also applicable to an award of back pay. Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1169 (6th Cir. 1996); Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1273, 1276-79 (4th Cir. 1985); Reiner v. Family Ford, Inc., 146 F. Supp. 2d 1279, 1288 (M.D. Fla. 2001). In this case, there was no evidence that the complainant's separation from his post-termination employment was the result of conduct that would bar the accrual of back pay.

III.

The respondent also moved to set aside the default judgment and final decision. For the reasons set forth, the motion is denied.

The standard for setting aside a default judgment in an administrative proceeding is similar to that resulting from a judicial proceeding. It is a discretionary ruling that may be set aside upon a showing that the respondent's conduct which resulted in the entry of the default, when viewed in the totality of the circumstances, can be attributable to mistake, accident, inadvertence, misfortune or other reasonable cause. Lalli Co., Inc. v. Commission on Human Rights and Opportunities, 1998 Conn. Super. LEXIS 363, 5 - 8. However, "[n]egligence is no ground for vacating a judgment …." Wilson v. Troxler, 91 Conn. App. 864, 872 (2005). The respondent failed to establish any of the grounds that justify setting aside a default judgment. According to the respondent, the personal hardships of its president "caused severe depression (requiring medication) and indifference and were the major reasons for his failing to respond to the requests" of the commission. "Illness is not a per se reasonable cause for the setting aside of a default and the opening of a judgment." Commission on Human Rights and Opportunities ex rel. Deborah and Raymond Aguiar, Jr. v. Nancy and Ralph Frenzilli, CHRO No. 9850105 (Ruling re: Setting Aside Default After Judgment, p. 23, April 22, 2002) citing Jaquith v. Revson, 159 Conn. 427, 431-32 (1970). The respondent also provided no documentation substantiating the claimed hardships. Likewise, negligence, in the form of indifference, is also not reasonable cause.

The respondent also claims that there "appears to be legal and jurisdictional issues which need to be reviewed and resolved i.e., notice issues (in terms of mail not being sent to the correct address of the Respondent) …." While lack of actual notice can constitute reasonable cause justifying setting aside the default judgment; Wilson v. Troxler, supra, 91 Conn. App. 873; the respondent did not identify any conferences, hearings or other procedures of which it did not have actual notice.

Further, a review of the record indicates that mail was sent to both the respondent's business address and its president's home address. "[T]he respondent has a continuing duty to inform the commission and the complainant of any and all changes in its address and in the identification and address of its representative not later than fifteen (15) days after such change." Regs., Conn. State Agencies § 46a-54-19a(d). Therefore, its failure to provide the commission with its proper mailing address, even assuming that the known address was wrong, cannot be attributable to the commission. If the respondent's claim is that certified mail sent to it went unclaimed, its failure to claim certified mail did 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).

__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

c:
Mr. Cecil Ramseur
Stephen M. Reck, Esq.
Cheryl A. Sharp, Esq.