Slootskin v. John Brown Engineers & Construction - 9320167, Final Decision on Remand
CHRO No. 9320167
Commission on Human Rights and Opportunities ex rel.
Inessa Slootskin
v.
John Brown Engineers and Construction, Inc.
April 29, 2003
Final decision on remand
I. Summary of order
Inessa Slootskin ("complainant") is awarded back pay in the amount of $184,246 for the period of April 1, 1994 to February 19, 1999; front pay in the amount of $70,492 for the two-year period of February 20, 1999 to February 19, 2001; prejudgment and post-judgment interest; and fringe benefits as set forth herein.
II. Parties
The complainant resided at 87 Maxwell Road, Stamford, CT 06901 at the time of the public hearing. Attorney David M. Cohen of Wofsey, Rosen, Kweskin & Kuriansky of Stamford, Connecticut represented her. John Brown Engineers and Construction Inc. (now known as Kvaerner Process, A Division of Kvaerner, USA) ("respondent") was located in New Jersey and represented by Attorney Marc L. Zaken, now of Edwards & Angell, LLP, 301 Tresser Blvd., Suite 1310, Stamford, CT 06901. The respondent's mailing address is in care of Attorney Zaken. The Commission on Human Rights and Opportunities ("commission"), located at 21 Grand Street, Hartford, Connecticut, was represented by Attorney Raymond P. Pech.
III. Procedural history
The complainant filed her complaint with the commission on November 4, 1992. Her allegations included a claim that the respondent's termination of her employment as an engineer in its heating, ventilation and air conditioning ("HVAC") department was the result of age discrimination. The public hearing was held on ten days over a two-year period from October 12, 1995 to October 30, 1997.
Hearing officer Gail Kotowski ("Kotowski") issued her final decision on February 19, 1999 and issued an amended order of final decision on April 6, 1999. In her decision, as amended, Kotowski concluded that the complainant's termination was the result of age discrimination and awarded damages that included back pay from June 1992 through March 1994. In her decision, Kotowski limited the back pay award to March 1994 because she found that by March 1994 the respondent had relocated its offices from Stamford to New Jersey and only one engineer from the HVAC department remained.
The complainant and the commission appealed to the Superior Court Kotowski's limitation to March 1994 of the back pay award. The court concluded that substantial evidence did not exist in the record to support Kotowski's finding that by March 1994 only one engineer remained. Slootskin v. Commission on Human Rights and Opportunities, 2001 Conn. Super. LEXIS 1028 (2001). The respondent unsuccessfully appealed the Superior Court's decision to the Appellate Court. 72 Conn. App. 452 (2002), cert. denied, 262 Conn. 910 (2002). The courts remanded the matter to the commission for further proceedings consistent with their opinions.
This matter was reassigned to the undersigned on November 18, 2002 and a status conference was held on December 3, 2002. The parties filed prehearing briefs. Oral argument was held on March 6, 2003, at which time the commission and the complainant filed and served a supplemental brief regarding the demarcation date between front and back pay and an updated damage calculation. The parties were given until March 27, 2003 to file a response to these documents.
IV. Issues and parties' positions
On remand, the issues are limited to damages, as the courts did not reverse Kotowski's finding of liability.
Although Kotowski issued her final decision on February 19, 1999 and amended it on April 6, 1999, she awarded back pay only through March 1994. Therefore, the issues on remand include determining (1) the demarcation date between back pay and front pay; (2) at what point back pay and fringe benefits should terminate; and (3) whether front pay and fringe benefits should be awarded and, if so, the appropriate time period.
The commission and the complainant seek relief including additional back pay from March 1994 to the date of this decision and front pay from the date of this decision to November 1, 2004. The commission and the complainant also seek the monetary value of lost fringe benefits, post-judgment interest on the back pay award ordered by Kotowski, and pre- and post-judgment interest on any award issued in this decision. (Joint Damages Brief of Complainant and the Commission on Human Rights and Opportunities, February 14, 2003 ("Joint Brief").)
The respondent contends that there is no support in the record to conclude that the complainant would have remained employed with the respondent through March 1994, would have been offered a transfer to New Jersey in 1994 or would still be employed by the respondent. The respondent argues that any additional damage award relies on assumptions and speculation. (Brief of Respondent John Brown Engineering and Construction, Inc. on Remand, February 24, 2003 ("Respondent's Brief"), 5-6.) The respondent also argues that the complainant is not entitled to any additional damages because she would have been terminated for a non-discriminatory reason, lack of work, during the respondent's reductions in force after 1992 and before the office relocated in March 1994. (Respondent's Brief, 18.)
V. Findings of fact
References to testimony are to the transcript date and page where the testimony is found. References to an exhibit are by party designation and number. References to Kotowski's finding of facts in her final decision dated February 19, 1999 are indicated as "FOF". References to the undersigned's Findings of Fact are indicated as "FF".
Based upon a review of the pleadings, exhibits and transcripts, the following facts relevant to this decision are found:
1. The respondent employed the complainant from April 1984 to September 1986, when she voluntarily left employment. The respondent rehired the complainant in October 1988 and laid her off on June 5, 1992. (10/12/95, Tr. 48-49, 55; 4/9/96, Tr. 355, 357, 360, 375-76, 382, 384; 9/12/96, Tr. 672, 787-78; CHRO Exs. 17, 18; FOF 8.)
2. At the time of her termination, the complainant was 54 years of age and had worked for the respondent for approximately six, nonconsecutive, years. (FOF 10.)
3. As manager of the HVAC department, Richard Rogulski ("Rogulski") was the complainant's supervisor from April 1984 to September 1986 and from October 1988 to August 1991. (10/12/95,Tr. 48-49; FOF 6.)
4. Joel Parisy ("Parisy") replaced Rogulski as manager of the HVAC department, and complainant's supervisor, in August 1991. (Resondent Ex. 48; FOF 7.)
5. The complainant received only three job performance evaluations, one dated 2/18/85 by Rogulski, one dated 4/8/86 by Snell and one dated 9/23/91 by Parisy. (Resp. Ex. 31.)
6. Although he had been the complainant's supervisor for only one month prior to conducting his performance review of her, Parisy did not discuss his performance review of the complainant with Rogulski. Parisy did not have enough information to evaluate the complainant's job performance. (10/12/95,Tr. 89; 4/9/96, Tr. 413; 5/21/97, Tr. 1000-01.)
7. The complainant was a good engineer, above average and experienced, with no significant job performance problems. (10/12/95,Tr. 63-65, 69.)
8. As department managers, Rogulski and Parisy reported to Joseph Cozza ("Cozza"), the vice president and director of engineering. (10/12/95, Tr. 46; 5/20/97, Tr. 882; FOF 21.)
9. Cozza was responsible for the hiring and firing decisions in the HVAC department. (FOF 20.)
10. Cozza frequently urged Rogulski that the company needed "new blood." Rogulski understood this to mean to terminate older employees and hire younger employees. (10/12/95, Tr. 38-39; FOF 22.)
11. Cozza advised Parisy "to bring some young engineers on board, people out of college." ( FOF 23.)
12. As managers of the HVAC department, first Rogulski and then Parisy were responsible for assigning work within the department. (9/5/96,Tr. 487-88; 5/21/97, Tr. 1030.)
13. When new projects came in, Parisy did not assign them to the complainant. The complainant did assist with one new project, but she received no assignments as lead engineer. (9/5/96,Tr. 487-88.)
14. Parisy assigned work and overtime to the younger engineers in the department to the exclusion of the older engineers. (4/9/96,Tr. 421; 9/5/96,Tr. 487-90; 5/21/97, Tr. 1040; Ex. C 22.)
15. The work given to the younger engineers was work that the complainant could have done. She was available to work on projects to avoid having the younger engineers work overtime. (9/5/96,Tr. 490, 534-35.)
16. During the eight months that preceded her termination, the complainant received the fewest new projects. (4/9/96, Tr. 384; FOF 11.)
17. The complainant had done substantial work for General Electric Corp. ("GE"), a client of the respondent's. GE was satisfied with her performance. (FOF 12.)
18. In 1992, the complainant was asked to update her resume for the purpose of participating in a new GE project. (FOF 13.)
19. The respondent received the anticipated GE project contemporaneous with the complainant's termination. (FOF 14.)
20. The GE project was assigned to Frank Tierno ("Tierno"), age 40, shortly after the termination of the complainant's employment. (FOF 15.)
21. On the day of her termination, additional work on the complainant's American Cyanamid project was assigned to Dan Liang ("Liang"), age 26. (FOF 16.)
22. Although the respondent claimed that lack of work was the basis for the complainant's termination, new work continued to come into the company and every remaining engineer in the HVAC department remained busy. (FOF 17.)
23. Parisy recommended to Cozza that the complainant's employment be terminated. Cozza, as the final personnel decision maker, approved the termination. (5/20/97, Tr. 951-52.)
24. Although performance appraisals would normally be taken into account in making a decision as to who to terminate in a layoff, the termination of the complainant's employment was not based on her personnel appraisals. (11/2/95, Tr. 216; 5/21/97, Tr. 983-85.)
25. When the complainant was involuntarily laid off in June 1992, she was told by Parisy that Ashok Krishnamurthy ("Krishnamurthy") was not being laid off because Krishnamurthy was getting married and because the complainant had a husband with a good job. Parisy also told the complainant that Tierno was not being laid off because he had just bought a new house and his wife was going to have a baby. (9/5/96, Tr. 567-68, 571.)
26. Of all the employees Parisy laid off, the complainant is the only one he would have rehired. (5/20/97, Tr. 943.)
27. As of January 31, 1992, there were twelve engineers in the respondent's HVAC department. The employee's name, age and years of service with the respondent are:
Stanley Armistead ("Armistead"), 28 y.o., 3 years service;
Complainant, 54 y.o., 6 years service;
Vishu Desai ("Desai"), 53 y.o., 10 years service;
Yasushi Endo ("Endo"), 45 y.o., 6 years service;
Carl Halpern ("Halpern"), 62 y.o., 8 years service;
Krishnamurthy, 34 y.o., 2.5 years service;
Dan Liang ("Liang"), 29 y.o., 1.5 years service;
James Morris ("Morris"), 49 y.o., 2 years service;
James Mulligan ("Mulligan"), 26 y.o., 4 years service;
Parisy, 49 y.o., 4 months service;
Rogulski, 59 y.o., 9 years service;
Tierno, 39 y.o., 2 years service.
(10/12/95, Tr. 85-86;CHRO Ex. 19.)
28. Of these twelve employees, four were laid off in 1992 without being offered transfers to New Jersey: the complainant (10/12/95, Tr. 92), Rogulski (10/12/95, Tr. 33, 50), Endo (10/12/95, Tr. 92; 5/20/97, Tr. 878, 900) and Desai (10/12/95, Tr. 92; 5/20/97, Tr. 878, 900.) Two more employees were laid off in 1993 without being offered transfers to New Jersey: Morris and Liang. (5/20/97 Tr. 875-77; CHRO Ex. 19.) Armistead and Krishnamurthy transferred out of the HVAC department to another of the respondent's departments prior to its relocation to New Jersey. (5/20/97, Tr. 856-57, 861, 863, 876.) Armistead declined a subsequent offer to relocate to New Jersey to work in a non-HVAC department. (5/20/97, Tr. 877-878.) Krishnamurthy was offered, and accepted, a transfer to New Jersey to work in a non-HVAC department. (5/20/97, Tr. 856-57, 876.) Mulligan left respondent's employment prior to the relocation but was rehired in April 1992 at the respondent's New Jersey facility as a senior engineer in the HVAC department. (5/20/97, Tr. 804, 877; Ex. C 7.) Halpern, Parisy and Tierno were offered transfers to New Jersey, although only Halpern accepted. (5/20/97, Tr. 803-04, 875-76.) Thus, of the twelve employees in the HVAC unit, six of the twelve were either offered transfers to the respondent's HVAC or non-HVAC departments in New Jersey (Armistead, Krishnamurthy, Parisy, Halpern and Tierno) or subsequently re-employed by the respondent in New Jersey (Mulligan).
29. Other than Halpern, the engineers who were offered transfers were younger than the complainant was. They also had less service with the respondent, less education and/or fewer years of engineering experience than the complainant had. (10/12/95, Tr. 103-108, 112, 115; 4/9/96,Tr. 392; 5/21/97,Tr. 1092-93; Ex. CHRO 19.)
30. Mulligan had no engineering experience prior to being hired by the respondent. Previous to being hired by the respondent, Mulligan had worked as a waiter. (10/12/95,Tr. 105; Ex. C 6.)
31. Krishnamurthy had twice the non-billable hours that the complainant had. (5/21/97,Tr. 1049; Ex. C 32.)
32. Between the termination of her employment in June 1992 and late 1995, the complainant was unable to find employment in her field, despite diligent efforts. The complainant was willing to relocate outside of Connecticut to take a job in her field. She applied for over 200 positions, including approximately 170 engineering positions out of state. (9/5/96, Tr. 595 - 603; Ex. C 26.)
33. Because of her termination from the respondent, the complainant was required to work as a clerk in a liquor store, a home care worker, a sales clerk at Loehman's, a pollution intervention specialist for the National Counsel for Senior Citizens and a real estate agent. (9/5/96, Tr. 607-16.)
34. The highest salary that the complainant was able to earn through reasonable attempts at mitigation after being terminated by the respondent was in 1996 at $22,000 per year. (9/5/96, Tr. 615.)
35. In her last year of employment with the respondent, the complainant's salary was $45,860. (9/5/96, Tr. 630.)
36. In addition to her salary, the complainant received fringe benefits that amounted to 12.335% of her salary. (10/30/97, Tr. 1325; Kotowski's Amended Order of Final Decision, 2.)
37. Subsequent to her termination from the respondent, the complainant filed two applications for employment with the respondent at its New Jersey facility. The respondent did not act on these applications. (9/5/96, Tr. 618-19.)
38. At the time of the original hearing, the complainant sought reinstatement with the respondent. (9/5/96, Tr. 625.) At the time of this decision on remand, the complainant concedes that reinstatement is no longer a viable option. (Joint Brief, 11.)
39. The complainant received salary increases each year she was employed by the respondent. (9/5/96, Tr. 630; Ex. C 23.)
40. In her last year of employment with the respondent, the complainant's increase in salary was 3.5%. (9/5/96, Tr. 630; Ex. C 23.)
41. The complainant's income through reasonable mitigation from 4/1/94 to 12/31/94 was $2,321. She received $60.00 from the May Department Store, $3,672.00 in unemployment compensation, and $290.00 as a real estate broker. From this amount, expenses of $1,701.00 incurred as a real estate broker are deducted. (Commission Ex. C 28.)
42. The complainant's income through reasonable mitigation in 1995 was $8,028 (rounded to the nearest whole dollar). She earned $6,846.65 from the National Senior Citizens Education, $2,376.50 from Loehmann's Inc., and $539.00 as a real estate broker. From this amount, expenses of $1,734.00 incurred as a real estate broker are deducted. (Commission Ex. D 28.)
43. The complainant's income through reasonable mitigation in 1996 was $22,000 per year. (9/5/96, Tr. 615.).
VI. Analysis
Upon a finding that a respondent has engaged in a discriminatory employment practice, the presiding officer may order the reinstatement of the complainant, back pay, front pay, the monetary value of lost fringe benefits, prejudgment interest and post-judgment interest. General Statutes § § 37-3a, 46a-86(b); State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 481(1989); Silhouette Optical Limited v. Commission on Human Rights and Opportunities, judicial district of Hartford, Docket No. CV 92520590 (January 27, 1994)(10 Conn. L. Rptr. No. 19, 599, 601-04); Commission on Human Rights and Opportunities ex rel. Roberta A. Dacey v. The Borough of Naugatuck, CHRO No. 8330054, 15-16 (August 10, 1999). Awards of back pay and front pay must be reduced by the amount the complainant earned or could have earned with reasonable diligence. § 46a-86(b); Silhouette Optical Limited, supra, 10 Conn. L. Rptr. 601-03.
The commission and the complainant contend that once discrimination has been found, the burden of proof with respect to limiting back pay shifts to the employer. They also argue that any uncertainty as to how long the complainant would have remained employed with the respondent should be resolved against the respondent. (Joint Brief, 7-8.) The respondent argues any additional award is too speculative because the complainant could have been terminated for any number of nondiscriminatory reasons between June 1992 and the relocation in March 1994. (Respondent's Brief, 18.)
A. Demarcation date between back and front pay
The commission and the complainant contend that back pay continues until the date of this decision on remand. The respondent contends that the demarcation date between back and front pay is the date of Kotowski's decision on February 19, 1999.
I agree with the respondent that the demarcation date is February 19, 1999. The issue on remand is not what a hearing officer should do as of the date of the remand but what the original hearing officer should have done on the date of the original decision in light of the instructions from the superior and appellate courts. Also, the commission and the complainant offer no persuasive policy reason or case law as to why the date of this decision on remand should be the operative date. Further, the commission has previously addressed the demarcation issue. In her decision on a remanded case, human rights referee Donna Maria Wilkerson concluded that back pay accrues only through the date of the hearing officer's original decision. Commission on Human Rights and Opportunities ex rel. Roberta A. Dacey v. The Borough of Naugatuck, supra, 13.
B. Back pay
Having established the demarcation date as February 19, 1999, the remaining issues relative to back pay are (1) whether back pay should still be terminated on March 31, 1994 for reasons other than the reason given by Kotowski; (2) what party bears what burden in determining when back pay should be terminated; and (3) if back pay continues past March 31, 1994, at what point should it be terminated. Regardless of whether the burden of disputing back pay shifts to the respondent or whether the burden is on the commission and the complainant to establish damages, the record is clear that the respondent failed to establish that the complainant is not entitled to an award of additional back pay and front pay, while the complainant and the commission did establish that additional damages are due and reasonably ascertainable from the record. For the reasons set forth herein, I conclude the complainant is entitled to additional back pay from April 1, 1994 to February 19, 1999.
The respondent's argument that any additional award is too speculative because the complainant could have been terminated for any number of nondiscriminatory reasons between June 1992 and the relocation in March 1994 is flawed for several reasons. First, Kotowski knew of the 1993 layoffs when she found liability and awarded damages through March 1994. Kotowski could have, but did not, limit damages to 1993 had she found as a matter of fact that a nondiscriminatory reason existed in 1993 that would have justified a layoff of the complainant.
Second, contrary to the respondent's claim that the complainant could have been terminated for lack of work, the record is replete with evidence that work continued to arrive at the company. But, rather than assign the work to the complainant, the respondent required overtime from the younger employees. (FF 12-16; 22.) Even work that came in from clients that the complainant had previously done work for was assigned instead to younger employees. (FF 17-21.)
Third, the complainant was the victim of an overt policy by upper management of age discrimination, and employment decisions affecting her were made based on criteria unrelated to her job performance. Both of the complainant's supervisors were pressured by the vice president to favor younger people at the expense of older employees. (FF 10, 11.) The selection of the complainant for termination was not based on her job performance or non-existent performance appraisals, but rather on the personal situations of younger engineers who had less education, less experiences and/ or less seniority than the complainant had. (FF 5, 6, 24, 25, 27, 30.) The respondent also opted to rehire Mulligan, who was younger and had less experience and education than the complainant, rather than act favorably on the complainant's two applications for reemployment. (FF 28, 37.)
Fourth, absent the discrimination, a reasonable probability existed for the complainant to be offered a transfer when her HVAC department relocated to New Jersey in March 1994. Of the twelve engineers in the HVAC department, six of the 12 were offered transfers to New Jersey or subsequently rehired for the New Jersey facility. (FF 28.) Also, since the respondent offered three engineers transfers to New Jersey, and two of those three declined, there were at least two HVAC positions the complainant would have been eligible for had she been still employed by the respondent in March 1994. The complainant was, after all, a good engineer. She was above average, experienced and with no significant job performance problems. Even the supervisor who laid her off would have rehired her. (FF 7, 26.)
Finally, the complainant's mitigation of damages must also be considered in determining whether to restrict back pay. The complainant is required to demonstrate that she exercised reasonable diligence to obtain subsequent employment. The respondent has the burden to demonstrate that suitable work existed and that the complainant made no reasonable effort to find such work. Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 - 54 (2d Cir. 1998); Ann Howard's Apricots Restaurant, Inc. v. Commission on Human Rights, 237 Conn. 209, 229 (1996); Commission on Human Rights and Opportunities v. Truelove and Maclean, Inc., 238 Conn. 351 n. 18 (1996). In this case, the complainant did make extensive and diligent efforts to find subsequent employment. She applied for approximately 200 jobs, 170 of them out of state. (FF 32.) She also sent two applications to the respondent for employment at its New Jersey facility. (FF 37.) The respondent has offered no credible evidence that the complainant made no reasonable efforts to find suitable work.
Kotowski's final decision as amended assumes a 3.5% annual increase in the salary that the complainant would have earned had she remained employed by the respondent. Assuming both an annual 3.5% increase in the salary that the complainant would have earned had she remained with the respondent and, as suggested by the commission and the complainant in their Joint Brief, a 3.5% annual increase beginning in 1997 in the income she would have obtained through reasonable mitigation, her salary with the respondent, her mitigation and the differential amounts are as follows:
Salary at respondent mitigation differential
4/1/94-12/31/94 $37, 283 $2,321 $34,962
1995 $51,303 $ 8,028 $43,275
1996 $53,956 $22,000 $31,956
1997 $56,879 $22,770 $34,109
1998 $58,870 $23,567 $35,303
1/1/99 - 2/19/99 (7 wks) $ 7,925 $ 3,284 $ 4,641
Total $266,216 $81,970 $184,246
In summary, Kotowski awarded back pay through March 1994 and issued her decision on February 19, 1999. For the reasons discussed, the complainant is awarded additional back pay from April 1, 1994 to February 19, 1999 in the amount of $184,246.
C. Front pay
An analysis of a front pay award consists of two parts. The first part is a determination of whether front pay is warranted. If front pay is warranted, then the second part of the analysis is a determination of the length of time front pay should be awarded.
Front pay is warranted "where the hearing officer determines in his discretion that it (1) is an appropriate remedy; (2) is in lieu of reinstatement; (3) is not too speculative; and (4) is for temporary relief only. Reinstatement remains the preferred remedy, and front pay is appropriate only where reinstatement is impracticable or inadequate." Frank's Supermarket v. Donald Michaud, 1996 Conn. Super. LEXIS 1046 * 20 (1996). The award of front pay "is particularly appropriate in cases such as this, where the claimant took steps to mitigate her damages by seeking work elsewhere but had to settle for a lower paying job." Silhouette Optical, supra, 10 Conn. L. Rptr. 603.
Applying these factors to this case, front pay is warranted. Reinstatement is not an option because the two-year period for which front pay is being awarded (1999-2001) has already elapsed. Also, in 1999, the complainant would have been subject to the same age bias of upper management, and her two applications to the respondent for reemployment were not acted upon even though the respondent rehired Mulligan, a younger, less experienced engineer. (FF 9-11, 27, 30, 37.) The award is limited to two years, and reasonably based on the complainant's salary history while employed at the respondent and her diligent efforts to mitigate her damages. (FF 32 - 35, 37, 39 - 43.)
Having determined that the complainant should receive front pay, the second step of the analysis is determining the length of time for which front pay should be awarded. Factors for determining an appropriate length of time include the age of the complainant, her reasonable prospects of obtaining comparable employment, her continuing duty to mitigate damages by seeking re-employment, her education and skills, and the job market. Dominic v. Consolidated Edison Company of New York, Inc., 652 F. Sup. 815, 819-20 (S.D.N.Y. 1986), aff'd, 822 F. 2d 1249 (2d Cir. 1987), rehearing denied 44 Empl. Prac. Dec. (CCH) P37341, (2d Cir. 1987).
Front pay awards have a wide range. For instance, a front pay award of seven weeks was found reasonable in one case, Reed v. A. W. Lawrence & Co., Inc., 95 F. 3d 1170, 1182 (2d Cir., 1996), while in another fact pattern, an award of eleven years was found to be reasonable. Jackson v. Cookville, 31 F. 3d 1354, 1358-61 (6th Cir. 1994). The reason for this wide range is because an award of front pay must be limited to a reasonable time period and supported by the evidence. Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 33-34 (1995).
Applying the factors discussed above to this case, a two-year award of front pay is a reasonable time period and supported by the evidence. At the time of her termination, the complainant was 54 years old. (FF 1, 2.) She had worked for the respondent for only six, nonconsecutive, years. (FF 2.) This period of employment with the respondent was not continuous, as she had voluntarily left employment with the respondent for approximately two years. (FF 1.) She had a master's degree, and extensive and varied marketable experience. (CHRO Ex. 17.) She had made diligent, reasonable efforts to seek new employment and mitigate her damages. (FF 32, 33.) Also, it is not unusual for 40 - 60 year old engineers to be hired, as engineers with experience are difficult to find. (11/2/95, Tr. 219.) Also, historically, the respondent was not immune from making layoffs when business declined. (11/2/95, Tr. 194-96; 4/9/96, Tr. 375-76.)
Even if, as the respondent argues, the complainant's HVAC position would have been eliminated through a reduction in force prior to 1999, the elimination does not preclude an award of front pay. The question remains whether she would have remained employed by the respondent absent the age discrimination, not whether her position would have remained. Curtis v. Electronics & Space Corp., 113 F. 3d 1498, 1504 (8th Cir. 1997). In the present case, positions outside of the HVAC department were available. For example, both Armistead and Krishnamurthy transferred into non-HVAC positions. (FF 28.) When Armistead decided not to transfer to New Jersey, his non-HVAC position became available. (FF 28.)
Although the complainant originally sought front pay until age 65, October 30, 2003 (10/30/97, Tr. 1335-36), the commission and the complainant now argue that the complainant should receive front pay until she reaches the age of 66 on October 30, 2004. The cases cited by the commission and the complainant are inapplicable to this case, however, as in those cases the complainant was seeking reinstatement and the award of front pay would terminate on the complainant's reinstatement. In this case, the complainant no longer seeks reinstatement. (FF 38.)
Kotowski's final decision as amended assumes a 3.5% annual increase in the salary the complainant would have earned had she remained employed by the respondent. Again assuming both an annual 3.5% increase in the salary the complainant would have earned had she remained with the respondent and, as suggested by the complainant and the commission in their Joint Brief, a 3.5% annual increase beginning in 1997 in the income she would have obtained through reasonable mitigation, the salary with the respondent, the mitigation and the differential amounts are as follows:
Salary at respondent mitigation differential
2/20/99-12/31/99 (45 wks) $50,945 $21,108 $29,837
2000 $60,930 $25,246 $35,684
1/1/01- 2/21/2001(7 wks) $ 8,489 $ 3,518 $ 4,971
Total $120,364 $49,872 $70,492
For the reasons discussed, the complainant is awarded front pay for the two-year period of February 20, 1999 to February 19, 2001 in the amount of $70,492.
D. Fringe benefits
The complainant's total net award of front pay and back pay is $254,738. Fringe benefits amount to 12.335% of the complainant's salary. (FF 36.) The complainant is awarded 12.335% of $254,738 in the amount of $31,422.
E. Post-judgment interest on back pay awarded by Kotowski
In her decision as amended, Kotowski awarded the complainant back pay of $78,388.00 and pre-judgment interest of $37,386.73. According to the commission and the complainant, the respondent did not make payment until May 19, 2001. The commission and the complainant seek an award of post-judgment interest on the back pay award ordered by Kotowski.
The request for post-judgment interest on that award is denied. Kotowski had the opportunity to award post-judgment interest at the time of her initial decision on February 19, 1999 and again when she issued her amended decision on April 6, 1999. In neither case, in the exercise of her discretion, did she order post-judgment interest.
F. Prejudgment interest on the back pay ordered in this decision on remand
The presiding officer is also authorized to award prejudgment and post-judgment interest on the award of front and back pay. The award of interest and its method of calculation are within the discretion of the presiding officer, who may choose the interest calculation best suited to making the complainant whole and may compound the interest. Silhouette Optical Limited, supra, 10 Conn. L. Rptr. 604.
The complainant is awarded prejudgment interest, at the rate of 10% per annum, compounded annually, on her annual back pay wage loss in the amount of $40,671 calculated as follows:
Salary is deemed accrued on December 31st of each year; interest is deemed accrued on and as of ("a/o") December 31st of each succeeding year.
1994 annual salary loss - $34,962
a/o 12/31/95 $34,962 x 10% = $3,496
a/o 12/31/96 $34,962 + $3,496 = $38,458
$38,458 x 10%= $3,846
a/o 12/31/97 $38,458 + $3,846 = $42,304
$42,304 x 10% = $4,230
a/o 12/31/98 $42,304 + $4,230 = $46,534
$46,534 x 10% = $4,653
a/o 12/31/99: n/a - decision issued February 19,1999 $ -0-
$16,225
1995 annual salary loss - $43,275
a/o 12/31/96 $43,275 x 10% = $4,328
a/o 12/31/97 $43,275 + $4,328 = $47,603
$47,603 x 10% = $4,760
a/o 12/31/98 $47,603 + $4760 = $52,363
$52,363 x 10% = $5,236
a/o 12/31/99: n/a - decision issued February 19,1999 $ -0-
$14,324
1996 annual salary loss - $31,956
a/o 12/31/97 $31,956 x 10% = $3,196
a/o 12/31/98 $31,956 + $3,196 = 35,152
$35,152 x 10% = $3,515
a/o 12/31/99: n/a - decision issued February 19,1999 $ -0-
$6,711
1997 annual salary loss - $34,109
a/o 12/31/98 $34,109 x 10% = $3,411
a/o 12/31/99: n/a - decision issued February 19,1999 $ -0-
$3,411
1998 annual salary loss - $35,303
a/o 12/31/99: n/a - decision issued February 19,1999 $ -0-
1999 annual salary loss - $4,641
a/o 12/31/00: n/a - decision issued February 19,1999 $ -0-
Total $40,671
G. Post-judgment interest on the back pay and front pay ordered in this decision
Because Kotowski did not explain why she was not awarding post-judgment interest, the undersigned, at my discretion, award post-judgment interest on my awards of back pay and front pay. The complainant is awarded post-judgment interest, at the rate of 10% per annum, compounded annually, on her total award of back pay and front pay of $254,738. Interest commences accruing on February 20, 1999.
VII. Conclusions of law
1. The complainant is entitled to an additional back pay award from April 1, 1994 to February 19, 1999.
2. The complainant is entitled to a front pay award from February 20, 1999 to February 19, 2001.
3. The complainant is entitled to an award of damages representing her loss of fringe benefits from April 1, 1994 to February 19, 2001.
4. The complainant is entitled to an award of prejudgment and post-judgment interest on the back pay and front pay awarded in this decision.
5. The complainant is not entitled to an award of post-judgment interest on the back pay awarded by Kotowski.
VIII. Order
1. The respondent is ordered to pay the complainant an additional back pay award from April 1, 1994 to February 19, 1999 in the amount of $184,246.00.
2. The respondent is ordered to pay the complainant front pay from February 20, 1999 to February 19, 2001 in the amount of $70,492.00.
3. The respondent is ordered to pay the complainant $31,422.00, representing the value of fringe benefits the complainant lost from April 1, 1994 to February 19, 2001.
4. The respondent shall pay the complainant $40,671.00, representing an award of prejudgment interest at 10% per annum, compounded annually, on the back pay awarded for April 1, 1994 to February 19, 1999.
5. The front and back pay awards total $254,738.00. The respondent shall pay the complainant post-judgment interest on the back pay and front pay awards. Interest on these awards commences accruing on February 20, 1999 (the date of Kotowski's decision) and continues until payment. Interest shall accrue on the unpaid balance at the rate of 10% per annum, compounded annually.
__________________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
C:
Ms. I. Slootskin
Atty. D. Cohen
John Brown Engineers and Construction, Inc. c/o Atty. M. Zaken
Atty. M. Zaken
Atty. R. Pech