Samuel v Pond Point Health Care Center 0230332 Final Decision

Samuel v. Pond Point Health Care Center - 0230332, Final Decision

CASE NO. 0230332

EEOC NO. 16aa200653

Commission on Human Rights and Opportunities ex rel.

Henrietta Lorraine Stevens Samuel
Complainant

Pond Point Health Care Center d/b/a
Lexington Health Care
Respondent

September 9, 2004

FINAL DECISION

I Preliminary Statement

A Hearing in Damages ("Hearing") on the above-captioned matter was held on July 13 and August 19, 2004 pursuant to an Order of Default issued April 27, 2004 against the Respondent for failure to answer the complaint and failure to appear for the hearing conference. The Order of Default established the liability of the Respondent for the discrimination against the Complainant. Attorney Caleb Pilgrim appeared on behalf of the Complainant. Attorney Alix Simonetti appeared on behalf of the Commission on Human Rights and Opportunities ("Commission"). The Respondent did not appear at the Hearing. At the completion of the Hearing, the Complainant and the Commission requested an award of back pay of $17,788.95 plus 10% interest¹ and an order for the Respondent to cease and desist from any further discriminatory actions in addition to other relief specified under the Order section of this decision. Since liability has been determined, I will only address damages.

II Parties

The Complainant is Henrietta Lorraine Stevens Samuel ("Complainant"), who resides at 116 Rose Street, Bridgeport, CT 06610. The Commission is located at 21 Grand St., Hartford, CT 06106. The Respondent is Pond Point Health Care Center dba Lexington Health Care ("Respondent") located at 64 Summitt Road, Prospect, CT 06712 and 1577 New Britain Ave., Farmington, CT 06032.

III Procedural History

On January 30, 2002, the Complainant filed a complaint with the Commission alleging that the Respondent (her employer) discriminated against her when it terminated her employment on or about August 10, 2001; harassed her on or about September 26, 2001; and retaliated against her on or about August 8, 2001 because of her race, color (Black) and physical disability (hypertension cardiac) in violation of General Statutes §§ 46a-58(a), 46a-60(a)(1) and (a)(4) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C 2000e and the Civil Rights Act of 1991 and the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. The Commission investigated the allegations of the complaint affidavit, found reasonable cause to believe that discrimination had occurred, and attempted to conciliate the matter.

After conciliation failed, the complaint was certified on March 10, 2004 to public hearing in accordance with General Statutes § 46a-84(a). I entered an Order for Default on April 27, 2004. The Hearing was held on July 13 and August 19, 2004 and resulted in an award of damages for back pay, interest and other relief. This decision confirms the previously ordered award for damages on the record. All the statutory and procedural prerequisites necessary for the Hearing have been satisfied and this complaint is properly before me for a decision.

References made to the transcript pages will use the abbreviation "Tr. at (page number)". References made to the Findings of Fact will use the abbreviation "FF. at (paragraph number)".

IV Procedural Facts

1. On March 16, 2004, the Notice of Public Hearing was mailed by certified mail, return receipt requested to all parties notifying them that a public hearing would commence with a hearing conference to be held on April 8, 2004 at 2:00 p.m. See Commission Exhibit 3.

2. The Respondent did not appear at the hearing conference on April 8, 2004.

3. On April 12, 2004, the Complainant filed a Motion for Judgment of Default against the Respondent, for failure to appear at the duly noticed hearing conference. On April 27, 2004, I granted the default and ordered the Hearing to be held on July 13, 2004 at 2:00 p.m. See Commission Exhibits 5 and 6.

4. The Respondent was given proper notice of the complaint, the Motion for Judgment of Default, the Order of Default, and the Notice of the Hearing in Damages.

5. The liability of the Respondent for violations of law alleged in the complaint was established pursuant to the Order of Default.

IV Findings of Fact

1. The Respondent discriminated against the Complainant in regard to her race, color and physical disability when it terminated her, harassed her and retaliated against her during the course of her employment. See Complaint Affidavit, Commission Exhibit 1.

2. The Complainant began working at the Respondent's business on January 13, 1994 as a registered certified nurse's aide. Tr. at 5.

3. From August 10, 2001 through September 26, 2001, the Complainant was paid $13.62 per hour. Tr. at 29 and Commission Exhibit 9. The Complainant's shift was for an eight (8) hour day. Tr. at 19.

4. The Complainant was suspended from August 10 until September 26, 2001 (49 days) and lost a total of $5,143.04 in back pay. Tr. at 29-30.

5. Because of the suspension between August 10 and September 26, 2001, the Complainant lost eight (8) vacation days valued in the amount of $839.69; lost seven (7) sick days valued in the amount of $734.72; lost holiday time valued in the amount of $600.74 and lost a uniform allowance valued in the amount of $149.00. Tr. at 33-44; Tr. at 69 and Exhibit entitled "Collective Bargaining Agreement".

6. From February 18 through February 27, 2002, the Complainant was paid $14.12 per hour. Tr. at 44 and Commission Exhibit 8. From June 26 through July 7, 2002, the Complainant was paid $14.62 per hour. Tr. at 45.

7. The Complainant was suspended February 18 through February 27, 2002 (9 days) and lost a total of $1,016.64 in back pay. Tr. at 44-45.

8. The Complainant was suspended from June 26 through July 7, 2002 (12 days) and lost a total of $1,403.52 in back pay. Tr. at 46.

9. Because of the suspensions in 2002, the Complainant lost eight (8) vacation days valued at $935.68; she lost seven (7) sick days valued at $818.72; she lost holiday time valued at $571.84; and she lost a uniform allowance valued at $298.00. Tr. at 46-50 and Exhibit entitled "Collective Bargaining Agreement".

10. From May 20 through May 27, 2003, the Complainant was paid $15.12 per hour. Tr. at 50.

11. The Complainant was suspended from May 20 through May 27, 2003 (7 days) and lost a total of $846.72 in back pay. Tr. at 50.

12. Because of the 2003 suspension, the Complainant lost three weeks (21 days) of vacation time valued at $2,540.16; she lost three (3) days of sick time valued at $362.88; she lost holiday time valued at $1,229.60 and a uniform allowance valued at $298.00. Tr. at 51-65 and Exhibit entitled "Collective Bargaining Agreement".

13. The Complainant did not receive any other income during the periods of time that she was suspended. Tr. at 8-9.

14. The Complainant's total monetary loss for the years 2001, 2002 and 2003 is $17,788.95, which is the amount she would have received in pay or in kind but for the Respondent's discrimination. Tr. at 71.

VI Discussion

The issue before me is to decide the award to the Complainant and the Commission for back pay and any other relief. The Order of Default in this case established that the Respondent violated General Statutes §§ 46a-58(a), 46a-60(a)(1) and (a)(4), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C 2000e and the Civil Rights Act of 1991 and the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. General Statutes § 46a-86(b) expressly authorizes the presiding Human Rights Referee to award compensatory damages and to order such relief as is necessary to eliminate the discriminatory practice and make the complainant whole.

The presiding Human Rights Referee also is authorized to award back pay to a Complainant, who has suffered employment discrimination, in order to make her economically whole. Commission on Human Rights and Opportunities, ex rel. Isabel Gomez v. United Security Inc., No. 9930490, p. 5 (Jan. 28, 2000), citing Silhouette Optical Ltd. v. Commission on Human Rights & Opportunities, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-92-520590 (January 27, 1994, 10 Conn. L. Rptr. 599). The amount of back pay awarded must be reduced by the amount that the Complainant has earned through reasonable mitigation. See General Statutes § 46a-86(b).

The Respondent's liability for back pay begins when the discriminatory act causes economic injury. The period during which the Respondent is liable for back pay ends when the Complainant obtains a comparable or higher paying job. Commission on Human Rights and Opportunities, ex rel. Isabel Gomez v. United Security Inc., supra, 5, citing Harkless v. Sweeney Independent School District, 466 F. Supp. 457, 469 (S.D.Tex.) aff'd 608 F.2d 594, 22 FEP1571 (5th Cir. 1979).

General Statutes § 37-3a authorizes the Human Rights Referee to award interest on the back pay award. The award of interest on back pay is within the discretion of the Human Rights Referee. See Silhouette Optical Limited v. Commission on Human Rights and Opportunities, supra, pp. 21-22.

I find the Complainant credible and that her testimony is supported by the documentary evidence. The Complainant began working at the Respondent's business on January 13, 1994 as a registered certified nurse's aide. FF. at 2. From August 10, 2001 through September 26, 2001, the Complainant was paid $13.62 per hour. FF. at 3. The Complainant's shift was for an eight (8) hour day. Id. The Complainant was suspended from August 10 until September 26, 2001 and lost a total of $5,143.04 in back pay. FF. at 4. Because of the suspension between August 10 and September 26, 2001, the Complainant lost eight (8) vacation days valued in the amount of $839.69; she lost seven (7) sick days valued in the amount of $734.72; she lost holiday time valued in the amount of $600.74 and lost a uniform allowance valued in the amount of $149.00. FF. at 5.

From February 18 through February 27, 2002, the Complainant was paid $14.12 per hour. FF. at 6. Again the Respondent suspended the Complainant from February 18 through February 27, 2002 and she lost a total of $1,016.64 in back pay. FF at 7. From June 26 through July 7, 2002, the Respondent paid the Complainant $14.62 per hour. FF. at 6. The Respondent suspended the Complainant for a third time from June 26 through July 7, 2002 and caused the Complainant to lose a total of $1,403.52 in back pay. FF. at 8. Because of the two suspensions in 2002, the Complainant lost eight (8) vacation days valued at $935.68; she lost seven (7) sick days valued at $818.72; she lost holiday time valued at $571.84; and she lost a uniform allowance valued at $298.00. FF. at 9.

From May 20 through May 27, 2003, the Complainant was paid $15.12 per hour. FF. at 10. For a fourth time, the Respondent suspended the Complainant from May 20 through May 27, 2003 and caused her to lose a total of $846.72 in back pay. FF. at 11. Because of the 2003 suspension, the Complainant lost three weeks (21 days) of vacation time valued at $2,540.16; she lost three (3) days of sick time valued at $362.88; she lost holiday time valued at $1,229.60 and a uniform allowance valued at $298.00. FF. at 12.

The Complainant's claim for back pay damages is limited to the periods of time for which she was suspended. The Complainant did not claim damages beyond the last suspension period in 2003. The Complainant did not receive any other income during the periods of time that she was suspended and therefore there is no mitigation to be calculated with the damages. FF. at 13. The Complainant's total monetary loss for the years 2001, 2002 and 2003 is $17,788.95, which is the amount she would have received in pay or in kind but for the Respondent's discrimination. FF. at 14.

Therefore in confirming my order on the record at the Hearing, I order $17,788.95 in back pay damages plus 10% pre-judgment interest of $1,778.89 for a total award of $19,567.84. Tr. at 71-72; also see Affidavit of Debt and Itemized Damages (record exhibit filed August 17, 2004) along with corresponding transcript pages as referred to in the Findings of Fact for the award calculation.

ORDER

1. The Respondents shall cease and desist from any further discriminatory practices on the basis of race and disability status.

2. The Respondent shall require its supervisors and managers to undertake three hours of sensitivity training by a trainer approved by the Commission to prevent race and disability discriminatory practices in the future.

3. The Respondent shall prominently post the Commission's antidiscrimination posters in conspicuous locations of the work place so that they shall be visible to all employees and applicants for employment.

4. The Respondent shall pay to the Complainant $17,788.95 for back pay plus 10% pre- judgment interest of $1,778.89.

5. The Respondent shall pay to the Complainant post-judgment interest at the rate of 10% per annum from the date of this decision until full payment.

SO ORDERED this ____ day of September 2004 at Hartford, Connecticut.

______________________________
Honorable Donna Maria Wilkerson
Presiding Human Rights Referee

c.:
Alix Simonetti, Assistant Commission II
CCHRO
21 Grand St., 4th Floor
Hartford, CT 06106

Joseph Brodzinski
Lexington Healthcare Group, Inc.
1577 New Britain Ave.
Farmington, CT 06032

Pond Point Health Care Center dba Lexington Health Care
64 Summitt Road
Prospect, CT 06712

Katherine Sacks, Esq.
165 Bishop Street
New Haven, CT 06511

Henrietta Lorraine Stevens Samuel
116 Rose Street
Bridgeport, CT 06610

Caleb M. Pilgrim, Esq.
PO Box 3649
New Haven, CT 06515

Endnotes

¹At the start of the Hearing on August 19, 2004, the Complainant requested damages in the amount of $18,625.68 plus 10% interest for a total award of $20,488.24. Tr. at 27. The award ordered is a result of the evidence submitted prior to and during the Hearing. See Transcript of the Hearing.