CHRO: Saunders v. City of Norwalk, Board of Ed., Final Decision

Saunders v. City of Norwalk, Board of Ed., Final Decision
Saunders v. City of Norwalk, Board of Ed., Final Decision

CHRO NO. 9820124

Commission on Human Rights and Opportunities ex rel. 
Saunders, John J.
Complainant
v.
City of Norwalk, Board of Education :
Respondent

September 29, 2000

FINAL DECISION

I.    Preliminary Statement

The Public Hearing (hereinafter "Hearing") on the above-captioned matter was held on April 25, 26, and 27, 2000 pursuant to a Conference and Summary Order dated October 21, 1999. Pursuant to the granting of a continuance, the Hearing scheduled for April 28, 2000 was postponed and continued to May 10, 2000. Attorney Robert A. Richardson appeared on behalf of John J. Saunders (hereinafter "Complainant"). Regina M. Hopkins, Assistant Commission Counsel II, appeared on behalf of the Commission on Human Rights and Opportunities (hereinafter "Commission"). Attorney Nathaniel G. Brown appeared on behalf of the City of Norwalk, Board of Education (hereinafter "Respondent"). The issues addressed in this decision are: 1) whether the Respondent wrongfully discriminated against the Complainant when it denied Complainant a promotion and 2) if so, whether the Complainant is entitled to any damages or other relief.

For the reasons set forth below, judgment is entered in favor of the Complainant, damages are awarded in the amount of $56,390 for back pay plus 10% interest and $18,796.67 a year for front pay along with other relief as set forth herein.

II.    Parties

The Complainant, John J. Saunders resides at 86 Yarwood Street, Stratford, CT 06497. The Commission is located at 21 Grand St., 4th Floor, Hartford, CT 06106. The Respondent, City of Norwalk, Board of Education is located at 125 East Avenue, Norwalk, CT 06856.

III.    Procedural History

On September 10, 1999, John J. Saunders filed a complaint with the Commission alleging that the City of Norwalk, Board of Education, discriminated against him in the terms and conditions of his employment and denied him a promotion because of his race, African American; his color, Black; and his age, 49, in violation of General Statutes ß 46a-60(a)(1); Title VII of the Civil Rights Act of 1964 as amended 42 U.S.C. ß 2000e, et seq. and the Civil Rights Act of 1991; and the Age Discrimination in Employment Act ("ADEA") of 1967, 29 U.S.C. 621-634 as enforced through General Statutes ß 46a-58(a). 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 to public hearing on November 2, 1998, in accordance with General Statutes ß 46a-84(a). On December 3, 1998, the Office of Public Hearings (hereinafter "OPH") sent to all parties of record the Original Notice of Public Hearing along with the complaint affidavit. The Respondent filed an answer to the complaint on June 22, 1999. The Hearing was held on April 25, 26, 27, 2000 and May 10, 2000. All statutory and procedural prerequisites to the public hearing were satisfied and this complaint is properly before the undersigned Human Rights Referee for decision. The jurisdictional matters regarding this complaint were satisfied as the record herein establishes.

IV.    Findings of Fact

  1. The Complainant was born November 29, 1947 and was forty-nine years of age at the time of the filing of the complaint. See complaint affidavit.
  2. The Complainant is a Black, African American man. Id.
  3. The Complainant began employment with the Respondentís Nathan Hale Middle School in 1974 as a teacher and had been employed twenty-three years at the time of the filing of the complaint. He is still employed as a teacher with the Nathan Hale Middle School. Tr. at 18-19.
  4. On May 19, 1997, the Complainant applied for the assistant principal position at Nathan Hale Middle School. Exhibit C-2; Tr. at 19 and 22.
  5. An interviewing committee consisting of a teacher, Karen Kinlock; a student, Alexandria Reilly; a parent, Joanna Seiter; and the Principal, Mr. Cloherty, interviewed the Complainant along with other applicants, including Michael McGrath. Tr. at 80-83 and 91.
  6. Prior to the interview, Mr. Cloherty told Ms. Seiter that his main needs were to have the assistant principal possess computer scheduling1 and pupil placement team (hereinafter "PPT") experience. He did not mention the special education (hereinafter "SPED") experience at this time. Tr. at 177-178 and 191.
  7. PPTs are held for evaluating students in need of special education. Tr. at 353-354.
  8. The Respondent maintains an Affirmative Action Policy.2 Exhibit C-12 and Tr. at 250-251.
  9. The Respondentís Affirmative Action Policy requires that the interviewing committee be "composed of the Director of Personnel, Director of Curriculum and Assessment and other administrators selected by the SuperintendentÖTeachers and parents may be included in the interviewing process". Exhibit C-12.
  10. The Respondentís Affirmative Action Policy requires the superintendent and the principal of the school interview all applicants for assistant principal positions when a vacancy exists. Exhibit C-12 and Tr. at 91-93.
  11. The Respondentís Affirmative Action Plan also requires that "minority representation will Ö be included as part of the interviewing team". Id.
  12. The minority representative on the interviewing team was a student, Alexandria Reilly, who is African American. Tr. at 92 and 82-83.
  13. The student, Alexandra Reilly, chose the Complainant for the assistant principal position. Tr. at 224
  14. The Complainant had been on many interviewing committees with Mr. Cloherty and had never seen a student on any of them before. Tr. at 84.
  15. Ms. Kinlock had been on approximately six interviewing committees and this was also the first interviewing committee that she was on with a student. Tr. at 451-452.
  16. The Superintendent, Dr. Sloan, did not participate in the interview for the assistant principal position in question. Tr. at 251.
  17. Dr. Sloan also was not involved in that process at the Fox School. Tr. at 272.
  18. In practice, Dr. Sloan routinely did not follow the Affirmative Action Policy and hence did not interview assistant principal candidates. Tr.at 251.
  19. The Complainant sent a letter to Mr. Turner, the Human Relations Representative for the Respondent, informing him of his dismay and concerns with the interviewing process. Tr. at 83-85 and Exhibit C-10.
  20. In response, Mr. Turner sent a letter to the Complainant informing him that he sent a letter to Dr. Sloan reminding Dr. Sloan to comply with the Affirmative Action Policy when hiring administrators. Tr. at 86 and Exhibit C-11.
  21. No further action was taken by the Respondent in response to Mr. Turnerís letter to Dr. Sloan. Tr. at 88.
  22. The present principal of Nathan Hale Middle School created the job posting (which informs employees that a position is available) for the assistant principal position by completing a personnel requisition form. Tr. at 203, 346-347 and 141.
  23. The personnel requisition form includes the nature of the position, the job description, the necessary certification, the qualifications, the salary range, and related information. Tr. at 141 , 203 and 248.
  24. The job posting of the assistant principal position consists of duties and responsibilities, required qualifications and any preferred qualifications. Exhibit C-8.
  25. The preferred qualifications are job characteristics "unique to the specific school" and are determined by the person filling out the requisition form and again, in the present case, that person was Mr. Cloherty. Tr. at 141-142.
  26. Mr. Cloherty did not include the PPT and SPED experience on the requisition form in order for them to be listed as required or preferred qualifications on the job posting for the assistant principal position. Exhibit C-8 and Tr. at 205 and 355.
  27. The job posting listed as some of the "duties and responsibilities" of the assistant principal position that she/he attend PPTs and work closely with SPED. Exhibit C-8.
  28. The job posting did not list computer scheduling as a required qualification but instead listed it under preferred qualifications and requested that the applicant be "familiar" with such qualification. Exhibit C-8.
  29. The job posting contained a list of the following required qualifications:
  1. Connecticut Intermediate Administrative and Supervisor Certificate;
  2. Administrative and supervisory ability;
  3. Knowledge of educational policies and practices, including curriculum trends, especially at the middle school level;
  4. Considerable human relations skills to work effectively with school staff, central office staff, parents and students;
  5. Demonstrated ability in leadership and supervision of adolescents and adults;
  6. Demonstrated knowledge of the developmental needs of pre-adolescents;
  7. Demonstrated ability as an effective teacher;
  8. Ability to communicate clearly orally and in writing with a wide variety of groups;
  9. Demonstrated leadership in a middle school setting; and
  10. Experience in student management, teaching/counseling experience, computer literate. Exhibit C-8
  1.     
    1. The Complainant held a Connecticut Intermediate, Administrative and Supervisor Certificate for eleven years at the time of the interview. Tr. at 15 and 60.
    2. The Complainant completed an internship with the former assistant principal, Mr. William Bray. Tr. at 16.
    3. The Complainant also holds a Sixth Year Certificate in supervision and administration which is an advanced certificate focusing on the changing laws. Tr. at 18.
    4. The Complainant has administrative and supervisory experience in that at times he was placed in charge of the school when the principal was absent. Tr. at 61.
    5. He was a department head of the Applied Arts Department. He was responsible for classroom supervision and he determined the budgetary needs of the Applied Arts Department. Exhibit C-9.
    6. The Complainant had been teaching at the Nathan Hale Middle School and was knowledgeable in the educational policies, practices, and curriculum trends. He was also aware of the applicable laws and regulations relating to education and the changes in the policies and practices. Tr. at 61.
    7. The Complainant also developed curricula for the school and interpreted them to parents as well as explaining school policies to the parents. Tr. at 62.
    8. The Complainant worked effectively and had a good rapport with school staff, students, teachers and parents. Tr. at 57.
    9. The Complainant took many courses in child development and adolescence and overall teacher effectiveness. Tr. at 53.
    10. The Complainant always received "Excellent to Outstanding" evaluations and various certificates and awards for his teaching abilities. Tr. at 32.
    11. The Complainant had leadership and supervisory abilities. He was the Department Chairman and Team Leader for the Applied Arts Department. Tr. at 67-68.
    12. The Complainant possessed the ability to communicate orally and in writing. He had experience in lecturing as well as communicating with parents and school staff. Tr. at 70.
    13. The Complainant possessed experience in managing students both in and outside of the classroom. Tr. at 71.
    14. The Complainant often volunteered his time in the community and was well liked by the students. Tr. at 71.
    15. The Complainant interacts and works with SPED children that are placed in his art class and Complainantís Applied Arts Department has the most contact throughout the building with the majority of SPED children. Tr. at 28, 30, 44 and 65.
    16. The Complainant is computer literate. Tr. at. 72-73.3
  1. The job posting also contained a section listing the following preferred qualifications:
    1. Participation in an administrator apprenticeship program is desirable;
    2. Experience scheduling students;
    3. Familiar with computer scheduling;
    4. Experience with student counseling and discipline, strong rapport with students, faculty and parents; and
    5. Evaluation and assessment experience. Exhibit C-8.

32

  1. The Complainant participated in an apprenticeship program under the supervision of Mr. Vaughn, Complainantís mentor. The Complainant accompanied Mr. Vaughn on his administrative rounds and did research and wrote reports on the school environment. The program lasted three weeks. Tr. at 73-74.
  2. The Complainant was knowledgeable in block scheduling of students. Tr. at 74-75.
  3. The Complainant had not been trained in computer scheduling but was familiar with the concept. Tr. at 72 and 76-77.
  4. The Complainant had experience through his teaching position in student counseling and discipline. Tr. at 77 and 211.
  5. The Complainant had a strong rapport with the students. Tr. at 77 and 78.
  6. The Complainant trained teachers and student teachers during his time with the Beginning Educatorís Support and Training team ("BEST"). The Complainant evaluated and assessed student teachers striving to become full-time teachers. Tr. at 78-79.
  1. he Respondent concedes that Complainant met the minimum qualifications for the position of assistant principal. Respondent brief at 13.4
  2. Mr. Cloherty was aware of the Complainantís experience in the BEST program. Tr. at 559.
  3. The Complainant had reported to Mr. Mola, the Supervisor for the district in the area of art, music, gifted and talented and other areas, that there was a problem with the lack of computers in his classroom to accommodate the students. Tr. at 237, 358-359, 563 and 362-363.5
  4. The Complainant received a letter dated June 26, 1997 from the Respondentís representative informing him that he did not receive the position and that it was awarded to Mr. Michael McGrath. Mr. McGrath is White and was twenty-eight years old at the time of the interview. Tr. at 94-95; Exhibit C-13.
  5. Mr. McGrath was hired as a guidance counselor at Nathan Hale Middle School in 1996 and had been employed one year at the time the assistant principal position was posted. Tr. at 95.
  6. In May 1997, McGrath applied for the assistant principal position. Tr. at 95.
  7. At the time that Mr. McGrath applied for the position he had two years of classroom experience and had worked as a guidance counselor for four years, partly including working in New York. Tr. at 458-461, 523 and Exhibit C-13.
  8. Mr. McGrath had held a Connecticut Provisional Educator Certificate for School Counselor that did not permit him to teach. Tr. at 103, 150 and 411.
  9. At the time that Mr. McGrath applied for the assistant principal position, his Provisional Educator Certificate possessed a deficiency. Tr.at 55. The deficiency was due to a course in special education that had not been taken. Tr.at 155 and 400.
  10. Mr. McGrath had to complete the course in special education before receiving an initial certificate that still would not permit him to teach. Tr.at 55.
  11. Mr. McGrath eventually cured his deficiency, which allowed him to be an administrator but did not permit him to teach a course. Tr. at 410.
  12. During Mr. McGrathís time as a guidance counselor, Mr. Bray, the former assistant principal, had trained him in computer scheduling and thereafter Mr. McGrath assisted with the computer scheduling at Nathan Hale Middle School. Tr. at 466-467 and 512-513.
  13. Guidance counselors were being trained to do computer scheduling to free up time for the assistant principals. Tr. at 515-516.
  14. Mr. Cloherty was Mr. McGrathís supervisor when he was a guidance counselor. Tr. at 376.
  15. Also, Mr. Bray had trained and assisted Mr. McGrath with the computer scheduling once Mr. McGrath began working as the Assistant Principal. Tr. at 333-334, 351-353 and 511-514.6
  16. Mr. Cloherty did not participate in Mr. McGrathís apprenticeship and does not remember with whom McGrath did the apprenticeship. Tr. at 348,376 and 526.7
  17. Mr. McGrath does not hold a Masterís degree in education but in guidance and counseling.8 Mr. McGrath has a Bachelorís degree in music. Tr. at 521-522 and Exhibit C-16.
  18. The Complainant possesses a Master of Science degree in education and a Bachelor of Science degree in elementary/secondary education. Exhibit C-2.
  19. The Nathan Hale Middle School has a large population of SPED students and these students mainstream into the Applied Arts Department, which is where the Complainant teaches. Tr. at 213-215.
  20. Mr. Cloherty believed that the Complainant had more experience in teaching than Mr. McGrath and was an effective teacher. Tr. at 257.
  21. Ms. Kinlock also believed that Complainant had excellent teaching skills. Tr. at 439.
  22. Ms. Seiter did not put much weight on teaching experience when deciding her choice for assistant principal. Tr. at 194.
  23. Ms. Seiter chose Mr. McGrath for the assistant principal position because he had PPT and computer scheduling experience, which were the primary areas that were to assist the principal. Tr. at 179-180 and 195.
  24. Dr. Sloan did not believe it would be difficult for someone to learn the computer scheduling. Tr. at 286.
  25. The Complainant had no deficiencies on his Connecticut Intermediate Administrative and Supervisor certificate. Tr. at 156, 355 and 404.
  26. The Respondent never has hired any African American assistant principals for the middle schools. Tr. at 370-371.
  27. Of the four housemaster positions in the high school, two of them are filled with African Americans. Tr. at 375. Damages
  28. The Complainant did not apply for any principal positions that had became available after 1997 because he did not believe that Respondent would consider him after denying him the promotion in question. Tr. at 134.
  29. A housemaster position became vacant and posted to be filled after the assistant principal position in question was filled. Tr. at 136, Exhibit R-8.
  30. The Complainant was not aware that the housemaster position became available. Tr. at 136.
  31. The assistant principal position is a twelve-month job and the teacher position is a ten-month job. Tr. at 145.
  32. The following is the assistant principal salary list:

Year Asst. Princ        step         Asst Princ. Salary

1997-1998                1            $86,525
1998-1999                2            $89,956
1999-2000                3            $94,090

Exhibit R-15.

  1. The Complainant earned $750.00 from employment with EastConn and $69,650 from the Respondent in 1998. Tr. at 383-387 and 391; Exhibit R-14; and Exhibit C-18.
  2. The Complainant earned $975.00 from employment with EastConn in 1999 and $70,860 from Respondent Tr. at 386, 387, 389-391; Exhibits- R-14 and C-18.
  3. The Complainant earned $71,940.00 from the Respondent in 2000. Tr. at 391; Exhibit R-14.

V    Discussion

The issue is whether or not the Respondent violated General Statutes ß 46a-60(a)(1) when it did not promote Complainant to the position of assistant principal.9 It is well established that Connecticutís anti-discrimination statutes are coextensive with the federal law. In that regard, reference will be made to the prevailing federal case law that is used by our state courts. See Harrington vs. United Technologies Corporation, et al CHRO No. 9710649-50 dated April 25, 2000, (Hearing Referee Allen) citing State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn 464 (1989). The established law is clear as it recently was clarified in Reeves v. Sanderson Plumbing Products, Inc. 2000 WL 743663 (U.S.), June 2000. "A plaintiffís prima facie case [as defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L.Ed.2d 668, and subsequent decisions], combined with sufficient evidence to find that the employerís asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Products, Inc., supra, 9. In the present case, as in Reeves v. Sanderson Plumbing Products, Inc., supra, 5, no party has disputed the use of the McDonnell Douglas framework to determine the ADEA action. Therefore, it will be applied in the analysis here to determine if discrimination has occurred.

The Complainant has the burden of proof to present evidence of a prima facie case of discrimination and once that is done, the Respondent has the burden of production of a legitimate nondiscriminatory reason and, if the Respondent satisfies that burden, then the Complainant has the burden to present evidence that the proffered legitimate reason/s "were not the true reasons, but were a pretext for discrimination. That is, the plaintiff may attempt to establish that he was the victim of intentional discrimination by showing that the employerís proffered explanation is unworthy of credence." Reeves v. Sanderson Plumbing Products, Inc., supra, 5, citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

To establish a prima facie case the Complainant must be in a protected class, have applied for the position in question, qualified for the position, and Respondent had to reject Complainant and hire someone not in the protected class. Reeves v. Sanderson Plumbing Products, Inc., supra, 5. The Complainant is Black, African American, and over the age of forty, he is forty-nine. Finding of Fact ("FF") 1-2. The Complainant did apply on May 19, 1997 for the position of assistant principal with the Respondentís school, Nathan Hale Middle School. FF 4. To be qualified, the Complainant need only meet the minimum qualifications for the job to establish a prima facie case. Owens v. New York City Housing, 934 F.2d 405 (2d Cir. 1991) citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Complainant testified that he possessed the minimum qualifications that were necessary to qualify him for the position of assistant principal. FF 30a-p and 32a-f. The Respondent also conceded that Complainant met the minimum qualifications of the position and therefore was qualified. FF 33. The Respondent rejected Complainant and hired Mr. McGrath, who is both younger than the Complainant and White, and thus not in the same protected classes. FF 36. In a letter dated June 26, 1997, the Complainant was notified that he did not receive the position and that Mr. McGrath filled it. Id. Thus, the Complainant has met his burden of proving a prima facie case.

Next, the Respondent must put forth a legitimate nondiscriminatory reason for promoting Mr. McGrath instead of the Complainant in order to satisfy its burden of production. Overall, the Respondent states that the Complainant was not the "most qualified of the applicants." Respondent brief at 13. It is not my job to determine whether Mr. McGrath was the most qualified candidate, but rather to determine according to the McDonnell Douglas and Burdine framework, whether I believe Respondentís proffered reasons for choosing Mr. McGrath over the Complainant. Therefore, I will not go into detail concerning whether or not Mr. McGrath satisfied the qualifications but rather with the credibility of the evidence concerning the Respondentís proffered legitimate nondiscriminatory reasons.

The Respondent offers as its legitimate nondiscriminatory reasons for not promoting Complainant that Mr. McGrath was the most qualified in that he had more experience with PPTs, computer scheduling and that he interviewed better by giving more detailed responses. Tr. at 214 and 231-236.

The Respondent has met its burden by producing legitimate nondiscriminatory reasons which I find lacking in credence for at least two reasons: 1) the inconsistency between the written job posting with the testimony on the hiring criteria and; 2) the inconsistent testimony among the Respondentís own witnesses. Now, the Complainant has to satisfy its burden of proof by producing evidence that Respondentís proffered legitimate nondiscriminatory reasons are false. Reeves v. Sanderson Plumbing Products, Inc., supra, 5.

The Respondent uses a system of posting job openings with a list of "required" and "preferred" qualifications. This has been the process by which positions have been filled (Exhibits C-8, C-15, R-2 through 10), and therefore I will use the qualifications listed on the job posting to determine whether or not the Respondentís proffered legitimate nondiscriminatory reasons are worthy of credence. Both Respondentís witnesses, Dr. Sloan and Ms.Gallagher testified that the principal provides the personnel office with the required and preferred qualifications on a requisition form to be later reflected on the job posting. Tr. at 141, 248 and FF 25. The PPT experience was not included on the requisition form to be listed on the job posting. FF 26. The Respondent contends in its brief that Mr. McGrath had possessed the SPED, PPT and computer scheduling experience that it believed satisfied the "needs" of the Nathan Hale Middle School and that is what created the distinction between Mr. McGrath and the Complainant. Respondent brief at 13 and 15. I immediately discount these reasons because, first of all, if the needs of SPED and PPT were so dire and important and considered the deciding factors to receiving the assistant principal position, they would have been placed on the job posting under job qualifications. Exhibit C-8. The fact that the computer scheduling requirement was listed will be discussed later in this decision.

Mr. Cloherty informed the interviewing committee of those items, which he believed were important to the role of assistant principal. These were PPT experience and computer scheduling. FF 6. Mr. Cloherty did testify to the importance of SPED and PPTs at the Respondentís school. Tr. at 355. However, there is no testimony as to the reason the items of PPTs and SPED experience were not listed as either required or preferred qualifications on the job posting.

In choosing Mr. McGrath, the Respondent seems to have ignored some of the qualifications that it did list as "required" for the assistant principal position. The Respondent incorrectly states in its brief that the Complainant did not provide evidence that any "specific qualifications of Complainant were ignored or unexplainably overlooked". Respondent brief at 15. The Complainantís teaching experience was definitely overlooked. The "teaching/counseling experience" and being an "effective teacher" were both listed in the job posting as required qualifications but Respondentís witness, Ms. Seiter did not consider it as an important part of obtaining the assistant principal position. FF 54. Ms. Seiter testified that teaching experience did not play a role in her decision. Id. She testified that she only considered the fact that all of the candidates were teachers. Tr. at 194. This does not seem logical because "effective teaching experience" was one of the required qualifications, but the focus was placed on items that were not listed qualifications (SPED and PPT). Ignored by the Respondent, the Complainant had truly proven his abilities as an effective teacher and, of having teaching experience, thus exceeded these requirements. The Complainant had 23 years teaching experience with only "excellent" performance evaluations along with awards and certificates. FF 30j.

It is not consistent that Respondent would put certain criteria on the job posting as required qualifications that it did not believe important enough to inform the interviewers about when Mr. Cloherty was asked what were the important areas of the job. FF 6. If that were the case it would seem that "computer scheduling" is not all that important either. Exhibit C-8. It too was placed on the list of qualifications but not as a "required" as was "teaching experience" but as a "preferred" and should not have been considered in high regard. Ms. Seiterís testimony seems all too implausible. As an interviewer who reviewed the posting as well as discussed the requirements with the principal, it is unlikely that she would put in such low regard a required qualification that was mentioned twice in that category. Id. and FF 29g-j.

Another contradiction is that Respondentís witness, Ms. Hilary Freedman, the Bureau Chief for Certification in Professional Development for the State Department of Education, testified that one does not have to be a teacher to be an administrator. The assistant principal is an administrator. Hence, it would not be necessary to require teaching experience under "required qualifications" if not a perquisite to the assistant principal position, but this was not the case. Teaching was a required qualification. FF 29g and j. Therefore, it would seem that the Respondent wanted and required that the applicant for assistant principal have teaching experience. However, there is no testimony to support this conjecture that gives way to more inconsistency.

Ms. Seiter also testified that she chose Mr. McGrath instead of the Complainant because he possessed the main qualifications that would be needed to assist the principal. The qualifications she was referring to were PPTs and scheduling which were told to her by Mr. Cloherty. FF 55. I agree with the Complainant that Mr. Cloherty guided the interviewing committee to focus on the SPED, PPT and computer scheduling criteria.

The Respondent seems to think that SPED and PPT experience were listed as required qualifications but it is incorrect and mistakenly stated such in its brief. The Respondent also contends that the preferred qualifications on each job posting will vary per the needs of the school but two of the so-called needs was SPED and PPTs which both were not listed as preferred qualifications on the job posting for the assistant principal position. Exhibit C-8, FF 6. If I was to believe the Respondent that SPED was a qualification for the promotion, Mr. McGrath had experience working with SPED children but he still had not completed a course in SPED to complete his certification for the Connecticut Intermediate and Supervisory certificate at the time of the interview. FF 41-42. Also, the Complainant had many years of contact with the SPED students and had completed courses that encompassed special education. FF 30o, 51 and Tr. at 50.

SPED and PPTs were listed on the job posting as the jobís "duties and responsibilities" but that doesnít mean they are qualifications that are necessary for receiving the assistant principal position. There is a separate category for "qualifications" on the job posting. Typically, once a person qualifies for the position and is awarded the position then he/she will be expected to perform those particular job duties and responsibilities. This was also Respondentís view when it stated in its brief "all assistant principals are expected to work closely with the Special Education and Guidance Departments. (Exh. C-8Ö)". Respondent brief at 2 (emphasis added) and FF 26-27. Again, I emphasize that these qualifications were not listed on the job posting. It just does not seem logical that certain criteria are warranted for a job position but one does not list them in the required or preferred qualifications, especially since Mr. Cloherty testified to the particular needs of the Nathan Hale Middle School and he drafted the job posting himself. FF 25-26.

I agree with the Complainant that Mr. McGrath was not more qualified per the job postingís qualifications and the Respondentís legitimate nondiscriminatory reasons of SPED and PPTs experience are false. SPED and PPTs were not listed under either of the qualifications, which is where one would expect the principal would have listed those qualifications if they were tantamount to the needs of the school. FF 6 and Exhibit C-8.

Next, as far as the computer scheduling requirement is concerned, Respondentís witness, Mr. McGrath, testified during cross examination that computer scheduling was being taught to the guidance counselors so that the assistant principalís time would be available for more "traditional" assistant principal duties. FF 45. This raises the question of why did the Respondent need the assistant principal to be experienced in computer scheduling if the guidance department had gained that responsibility. The actual requirement was not "experience" in computer scheduling but being "familiar" with computer scheduling as was the Complainant. FF 32c and Exhibit C-8. Also, Mr. Bray remained with the Respondentís school to assist Mr. McGrath with the computer scheduling in the beginning of his first school year as the assistant principal. FF 46. Therefore, Mr. Bray would have been available to acclimate the Complainant to the computer scheduling if he had received the promotion. Dr. Sloan believes that it doesnít take a "rocket scientist" to learn the computer scheduling which implies that those who did not know could have been taught. FF 56. The Complainant is an intelligent man, computer literate and, according to Mr. Clohertyís testimony, was willing to learn or be trained in the computer scheduling. Tr. at 325. It is clear that he could have learned the computer scheduling, even though he would not actually be doing it, since the guidance department is more involved with that task now, according to Mr. McGrath. FF 45.

For all of the above-mentioned reasons regarding the computer scheduling issue, I find the Respondentís proffered legitimate nondiscriminatory reason to be false as to Mr. McGrath being chosen because he had more computer scheduling experience.

Also, the Respondent claims that the Complainant spoke with more generalizations as to his qualifications during the interview than Mr. McGrath who spoke with details (Tr. at 229 and 231), but contrary to this, Mr. Cloherty received enough adequate responses from the Complainant at the interview, to be able to testify at the Hearing that the Complainant was indeed qualified. Tr. at 226-236 and 323-327.

This proffered reason seems fabricated. Looking at this reason alone, Respondent is claiming that because Mr. McGrathís responses at the interview were more specific, he was the most qualified. Nowhere on the job posting does it say that in order to receive the assistant principal position, one must interview with specific responses. Mr. Cloherty testified that he thought that direct answers were "very often what a group of interviewers is looking for." Tr. at 236. How this makes Mr. McGrath more qualified than the Complainant is unfounded, especially since Mr. Cloherty testified that the Complainant fulfilled the required qualification to "communicate clearly orally and in writing with a wide variety of groups." FF 30,l and Tr. at 236. In addition, contrary to Mr. Clohertyís description of the Complainantís ability to communicate in specifics, I found that the Complainant was responding in detail to the questions posed at the Hearing. With all of this in mind, I do not believe that the Complainant did not respond in specifics during the interviewing process and therefore do not believe that this was one of the reasons that the Complainant was denied the promotion.

Complainantís testimony was never contradicted and, in addition, his demeanor and presence were very genuine. I found him to be extremely credible. On the other hand, the testimony of Respondentís witnesses, in particular, Mr. Cloherty and Mr. McGrath possessed contradictions and inconsistencies and thus, I did not find them completely credible. In particular, the participation in an apprenticeship was a preferred qualification on the job posting and Mr. McGrath testified that Mr. Cloherty supervised his apprenticeship. FF 48. As stated earlier, Ms. Gallagher, whom I found to be credible, testified that the principal determines what the preferred qualifications are by filling out a requisition form. FF 22. Strangely enough, Mr. Cloherty had testified earlier that he did not even recall the reason for listing the apprenticeship qualification under the preferred qualifications because he wasnít sure what it was and then he testified that he did not know with whom McGrath did his apprenticeship and also did not know if it was done with him. FF 48. This is extremely implausible since Mr. Cloherty was Mr. McGrathís supervisor when he was a guidance counselor, which was during the time that he would have done the apprenticeship. FF 46. This was an inconsistency that brought both witnessesí credibility in question.

Computer literacy was listed as a required qualification and the Respondent was attempting to discredit the Complainantís capabilities with computers by having Mr. Cloherty testify that Mr. Mola was the first person who complained to Mr. Cloherty about Complainantís lack of use of the one computer in the classroom. FF 30p and 35. Then in later testimony, Mr. Cloherty testified that the Complainant actually might have been the first person who brought the problem of the computer to his attention. FF 35. The problem was that there were not enough computers to instruct all of the students in the classroom and this was a concern of the Complainantís. Id. This is just another example of inconsistent testimony of which there was a considerable amount.

The Respondent maintains an Affirmative Action Policy that requires Respondent to place minorities on the interviewing committee for the hiring of administrative positions and to have the Superintendent interview the candidates for these positions. FF 10-11. Here, the Respondent placed a Black student on the interviewing committee and believed that doing so fulfilled the requirement for minority representation pursuant to the Affirmative Action Policy. FF 11-12. In their past experience, neither Complainant nor Respondentís witness, Ms. Kinlock, had ever seen students participating on interviewing committees. FF 14-15. According to the Affirmative Action Policy, no students were allowed on the interviewing committee for the assistant principal position. FF 9 and Exhibit C-12. Also, Dr. Sloan did not interview the Complainant and hence did not follow this policy when attempting to fill the assistant principal position in question or any other similar positions in the past. Tr. at 91-92; FF 12, 16-18.

Dr. Sloan testified that he delegated his responsibility to interview the assistant principal candidates but as the Complainant articulated in his brief, there was no testimony as to who received the responsibility. Tr. at 251 and 252. Also, if this delegation actually occurred, I doubt seriously that Mr. Turner, the Human Relations Representative for the Respondent, would have sent a letter to Dr. Sloan reminding him to comply with the Affirmative Action Policy as he did. FF 20. Mr. Turner did not mention any such delegation in the letter to Dr. Sloan and Dr. Sloan did not respond with a letter to Mr. Turner or the Complainant with the information about delegating his responsibility. FF 21 and Exhibit C-11. Again, here is another instance of inconsistent, contradictory testimony.

It is not necessary for me to discuss in detail the Respondentís deviation from the Affirmative Action Policy, only that Respondent does not value its Affirmative Action Policy highly and does not take the hiring of minorities seriously, much like the situation in Taylor v. Teletype Corp., 648 F.2d 1129, 1135 n.14 (8th Cir. 1981). In Taylor, the court held that "evidence, such as [Respondentís] failure to live up to its Affirmative Action ProgramÖ is also relevant to discerning the Companyís attitude regarding race." In the present case, it seems obvious that the Respondent is not taking its role in Affirmative Action seriously. Ms. Alexandria Reilly, the student, chose the Complainant for the assistant principal position but was probably not taken seriously, being the only non-adult, with her view that Mr. Saunders was the best candidate. FF 13, Tr. at 224 or 327.

Because of Respondentís noncompliance with the Affirmative Action Policy, as mentioned earlier, the Complainant voiced his concerns in a letter to Mr. Turner in which he complained about the hiring process. Mr. Turner sent a letter to the Complainant informing him that he sent a letter to Dr. Sloan reminding him that the Respondent has an obligation to comply with p.6, paragraph 5 of the affirmative action plan. Tr. at 90 and Exhibit R-12. There was no further follow up to this situation by Dr. Sloan. This is more proof of Respondentís careless attitude toward its Affirmative Action Policy.

More importantly, the Respondent does not employ any Black, African American assistant principals in the middle schools. FF 58. The Respondent does employ two African American housemasters in the High school. FF 59. However, according to Reeves v. Sanderson Plumbing Products Inc., supra, 12 citing Furnco Constr. Corp. v. Waters, 438 U.S. 567, at 580 (1978), "evidence that employerís work force was racially balanced, while not wholly irrelevant, was not sufficient to conclusively demonstrate that the employerís actions were not discriminatorily motivated." The evidence of two housemasters out of four who are African American is not enough evidence to outweigh the evidence in favor of the Complainant.

As previously articulated in this decision, not only did Respondentís witnesses contradict and create inconsistencies in their various testimonies, but also the Respondentís own brief contained inconsistencies and inaccurate information casting more doubt on its credibility.

In Bray v. Marriot 110 F.3d 986, 990 (3d Cir. 1997), the court held that "a Title VII plaintiff must demonstrate weaknessesÖcontradictions in employerís proffered reasons for its action that a reasonable fact finder could rationally find them unworthy of credence and hence, infer that the employer did not act for the stated nondiscriminatory reasons". Also, "an inference of pretext may arise if the plaintiff can raise suspicions with respect to the defendantís credibility or the employerís treatment of the employee." Id. citing Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638-39 (3rd Cir. 1993). Similarly, in the present case, too many weaknesses, contradictions, inconsistencies, and implausibilities as mentioned above combined with Complainantís prima facie case and additional evidence concerning Respondentís noncompliance with its Affirmative Action Policy as well as the lack of African American assistant principals employed by the Respondent cause me to disbelieve Respondentís proffered legitimate nondiscriminatory reasons. I find that all of the Respondentís reasons are false and extremely unworthy of credence. Therefore, I reject Respondentís reason of Mr. McGrath having been the most qualified because he possessed PPT and SPED experience, that he possessed computer scheduling experience and that Mr. Saunders was too general in his responses during the interview.

For all of the foregoing reasons, I find that the Complainant has met their burdens of proving a prima facie case and proving Respondentís reasons to be false. Therefore, Respondent is liable for race, age, and color discrimination against the Complainant.

VI    Damages and Relief

Pursuant to General Statutes ß 46a-86(b), the Presiding Referee has the authority "to order the hiring or reinstatement of employees, with or without back pay". The Connecticut Supreme Court has further stated that "the victim of a discriminatory practice is to be accorded his rightful place in the employment scheme, that is he has a right to be restored to the position he would have attained absent the unlawful discriminationÖsuch an order for relief may include retroactive and prospective monetary reliefÖwhere prohibited discrimination is involved the hearing officer has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Commission on Human Rights and Opportunities ex rel. Wayne Harrington v. UTC Corporation, supra, 47 citing State v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989); Silhouette Optical Limited v. Commission on Human Rights and Opportunities, 10 Conn. L. Rpt No. 19, 599 (Feb. 28, 1994)(Superior Court, J.D. of Hartford/New Britain, CV92-520590). Consistent with federal law, the goal of the courts is to make the complainant whole and put him in the position he would have been in absent the discriminatory conduct. Commission on Human Rights and Opportunities ex rel. Wayne Harrington v. UTC Corporation, supra, 47-48 citing Landgraf v. USI Film Prods., 511 U.S. 244, 254 (1994).

General Statutes ß 37-3a authorizes the Human Rights Referee to award prejudgment interest on the back pay award. The award of interest on back pay is within the discretion of the Human Rights Referee. Commission on Human Rights and Opportunities ex rel. Brelig v. F&L., CHRO No. 9540683, p. 7, Feb. 2, 2000 (Referee Wilkerson) citing Silhouette Optical Limited v. Commission on Human Rights and Opportunities, Superior Court, Judicial District of Hartford/New Britain, Docket No. 92-520590, pp.21-22 (January 27, 1994).

The Complainant has requested in his prayer for relief the amount of $67,640 for back pay damages in the damages section (see Complainant brief at 42) but in his conclusion he requested $67,000 (see Complainant brief at 44). Also, in the calculation for back pay loss, the figures do not compute correctly when adding the 10% interest and the "salary if promoted" column is not consistent with Respondent Exhibits R-14 and 15 that I find to be reliable. Therefore, I will use Exhibits R-14 and 15 for calculating the back pay award. The Respondent asserts that the calculation for back pay should take into account the fact that the assistant principal position is a twelve-month job versus a ten-month job of a teacher and hence, calculate the back pay according to a per diem basis of 184 days, which represents the ten-month position which is and has been the teacher position of the Complainant. I disagree. The correct way to calculate the back pay in order to make the Complainant whole and put him in the position he would have been in absent the discrimination is to use the salary based upon the twelve-month position of assistant principal that the Complainant did not receive due to the discrimination. Therefore, in order to make the Complainant whole, he must receive the salary of the assistant principal position on the twelve-month basis.

The amount of the back pay award must be reduced by the amount that the Complainant has earned through reasonable mitigation. See General Statutes ß 46a-86(b). Commission on Human Rights and Opportunities, ex rel., Brelig v. F&L Inc., d/b/a Lucianoís Boathouse Restaurant, CHRO No. 9540683, at 7, Feb. 2, 2000 (Referee Wilkerson). The Respondent contends that the Complainant is not entitled to back pay or any back pay awarded should be greatly reduced because he did not mitigate. It is in the discretion of the Presiding Referee to determine whether the Complainant took reasonable efforts to mitigate. See Ann Howardís Apricot Restaurant v. CHRO, 237 Conn. 209 (1966) citing Vespoli v. Pagliarulo, 212 Conn. 1, 3, 560 A.2d 980 (1989).

Respondent contends that Complainant should have applied for the principal positions that became available with the Respondentís schools and the housemaster position that was equivalent to the assistant principal position that became available at Respondentís Norwalk High School. Exhibit R-8 and FF 61-62. I disagree with Respondent and agree with the Complainant that it would not have been reasonable for Complainant to continue to apply for positions when his efforts would have been useless under the circumstances. As stated in Nagarajan v. Tennessee State Univ., 187 F.3d 637 (6th Cir, 1999), the duty to mitigate does not require a plaintiff to re-apply for a position if his/her efforts would have been futile. The Complainant did not think the Respondent would have considered him for any of the principal positions, which became available since it did not promote him to the assistant principal position in question. FF 60. The Complainant was not aware of the housemaster position, which became available and without further evidence to the contrary and in light of the lack of credibility of Respondentís witnesses, I find that the Complainant was not aware of the opening. FF 60 and Tr. at 134-136.

Complainant testified that he obtained work in the summers of 1998 and 1999 at EastConn when he found out that he did not receive the assistant principal position and would not have worked at EastConn if he had received the assistant principal position. Tr. at 120-121. The award of back pay does take into account the summer positions because they are considered "moonlighting income" and are required to be deducted because they are temporary jobs that were occupied during the time of the position not received. See Bing v. Roadway Express Inc., 485 F.2d 441, 454 (5th Cir.1973). "If a supplemental or moonlighting job is one that the discriminatee cannot perform when he wins his new position, the supplemental job is necessarily temporary, provisional or [interim]Ö" Bing v. Roadway Express Inc., supra, 454. The earnings should be deducted from back pay because they are earnings that could only continue until he won his new position. Id . These were jobs that the Complainant only had occupied because he did not receive the promotion, he would not have worked these jobs if he had been promoted. The assistant principal position is a twelve-month position and therefore, the Complainant would not have been able to work in the summer. FF 63.

The Respondent has the burden to prove that the Complainant failed to mitigate his damages. Ann Howardís Apricot Restaurant v. CHRO, supra, 229. There was no evidence presented by Respondent showing that Complainant did not make efforts to mitigate other than the fact that other principal positions and a housemaster position were available which as mentioned earlier, I believe it would have been unfruitful for the Complainant to apply.

The Complainant did mitigate his damages by obtaining additional work during the summers of 1998 and 1999 and by continuing to work as a teacher at the Respondentís school during this litigation.

Therefore, I calculated the back pay award to be as follows:

Year Asst. Principal Salary Current Salary Summer work Difference
1997-1998 $86,525 $69,650 $750 $16,125
1998-1999 $89,956 $70,860 $975 $18,115
1999-2000 $94,090 $71,940 $22,150
Subtotals: $270,571 $212,450 $1,725 $56,390

Total back pay award: $56,390

Average Difference for three years: ($56,390 / 3) = $18,796.67

In the above calculations, the Complainantís respective salary for each year and summer earnings for the respective years have been deducted from the stated assistant principalís salary per each year. The amount of back pay is $56,390.

The Complainant has requested $160,000 in front pay damages and the front pay will be $18,796.67 a year, which is the average difference of the total three years as calculated above, until the very next assistant principal position becomes available and at that time the Complainant shall be given the opportunity to fill the position. The front pay of $18,796.67 shall cease whether or not the Complainant chooses to fill the position.

VII    Conclusion

The Respondent violated General Statutes ß 46a-60(a)(1); Title VII of the Civil Rights Act of 1964; ADEA of 1967 and General Statutes 46a-58(a) by failing to promote Complainant to the position of assistant principal at Nathan Hale Middle School because of his age, race, and color. Complainant is entitled to an award of back pay, with 10% interest, pre and post-judgment, and front pay along with other relief as ordered hereinafter.

VIII    Orders of Relief

  1. Respondent is ordered to pay to the Complainant the sum of $56,390.00 as back pay for his economic loss, with 10% interest compounded annually from the date of this complaint.
  2. Respondent shall pay post-judgment simple interest on the award of back pay. Said interest shall accrue daily on the unpaid balance, from the date of this decision at the rate of 10% per year.
  3. Respondent is ordered to pay to the Complainant the sum of $18,796.67 a year as front pay until Respondent gives Complainant the opportunity to fill the next vacant assistant principal position or until he retires whichever occurs first. Once the Complainant fills or rejects the next assistant principal position or retires, the front pay shall cease.
  4. Respondent shall cease and desist from all acts of discrimination prohibited under federal and state law and shall provide a non-discriminatory working environment for its employees pursuant to law.

Dated this _______ day of September, 2000 at the Office of Public Hearings, 21 Grand Street, Hartford, Connecticut.

The Honorable Donna Maria Wilkerson
Presiding Human Rights Referee

C: Atty. Nathaniel G. Brown
Atty. Regina M. Hopkins, Assistant Commission Counsel
Atty. Robert A. Richardson, John J. Saunders, City of Norwalk Board of Education
Atty. Raymond Peck, Deputy Commission Counsel
Ann Galer-Pasternak, Public Hearing Administrator

END NOTES

1Ms. Seiter testified using the term scheduling referring to computer scheduling. These two terms will be used interchangeably throughout this decision.
2 Dr. Sloan testified regarding an Affirmative Action Policy, but the actual Exhibit C-12 is entitled Affirmative Action Plan. These terms will be used interchangeably throughout this decision.
3 The Complainant testified in much detail concerning his experience with the various computers and the different computer languages utilized at the Respondentís school.
4 In its brief, the Respondent admitted that the Complainant was qualified and therefore I find it as a fact.
5Mr. Cloherty testified on direct examination that Mr. Mola had told him of his disappointment with the Complainantís lack of use of the computer placed in his classroom. Tr.at 237. In a later testimony, Mr. Cloherty stated that he didnít recall who first brought up the issue of the computer problem. Tr.at 359. The Complainant had testified that there was only one computer in his classroom to accommodate all of his students and that at the only time when he could take his students to the computer lab to instruct all the students on the computers at once, the lab teacher was utilizing the computers there. Tr. 561-562. The Complainant had brought this to Mr. Molaís attention and made Mr. Cloherty aware of the situation before Mr. Cloherty had any discussions with Mr. Mola. Tr. 563.
6 Mr. Cloherty testified that he did not recall the fact that Mr. Bray trained Mr. McGrath in the beginning of the 1997-1998 school year but in a later testimony stated that he might have stated said fact in an earlier sworn testimony.
7 Mr. Cloherty testified that he did not recall with whom Mr. McGrath did his apprenticeship. Tr.at 348. Mr. McGrath testified that the apprenticeship was done with Mr. Cloherty, Mr. Bray and to some extent Mr. Daddona, Director of Guidance. Tr. at 491. Mr. McGrath also testified that upon completion of the apprenticeship he received a letter/memo from Mr. Cloherty to Dr. Tobin and that Mr. Cloherty gave direction to Mr. Bray for the apprenticeship. Tr. at 526-527.
8 Mr. McGrath fumbled his way through answering Attorney Richardsonís questions on cross-examination regarding his masterís degree, to the point when he finally stated he wasnít sure what his masterís degree was in. Mr. McGrath then referred to his resume for the answer. Tr. at 521-522 and Exhibit C-16.
9 General Statutes ß 46a-60(a)(1) provides: (a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his 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 him in compensation or in terms, conditions or privileges of employment becaue of the individualís race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness[.]





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