CHRO: 9710649, Harrington - Decision

9710649, Harrington - Decision

CHRO NO. 9710649 and 9710650

Commission on Human Rights and Opportunities ex rel. :
Wayne Harrington, Complainant

v.

United Technologies Corporation, et al., Respondents

April 25, 2000

FINAL DECISION and ORDERS

THE PARTIES:

COMPLAINANT:
Wayne Harrington
15 Chapman Drive
Glastonbury, CT 06033

COMPLAINANT COUNSEL:
Kathleen Eldergill, Esq.
Beck and Eldergill, P.C.
447 Center Street
Manchester, CT 06040-1010

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES:
Regina M. Hopkins, Esq.
Assistant Commission Counsel II
21 Grand Street, 4th Floor
Hartford, CT 06106

RESPONDENTS:
United Technologies Corp., Hamilton Standard Division
C/o Albert Zakarian, Esq.
Day, Berry & Howard, L.L.P.
City Place I
Hartford, CT 06103-3499

I. PROCEDURAL HISTORY:

On or about May 27, 1997 the Complainant, Wayne Harrington, whose date of birth was April 21, 1946, filed a complaint affidavit against the Respondent, Hamilton Standard. This affidavit alleged that the Respondent violated the provisions of C.G.S. Section 46a-60(a)(I) (hereinafter "FEPA") and the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. (hereinafter "ADEA") by virtue of its alleged failure to hire him on and after March 31, 1997 on account of his age. In this complaint, assigned as CHRO Case No. 9710649, and in a companion matter against the Respondent United Technologies Corp. (CHRO Case No. 9710650), the Complainant also alleged that both Respondents had engaged in a pattern and practice of discrimination on the basis of age in their selection and hiring of employees going back to at least 1992.

The Commission on Human Rights and Opportunities (hereinafter "CHRO") investigated the complaint(s) and issued Findings of Reasonable Cause. After efforts at conciliation were made, and upon the failure thereof, the complaint was certified to a Public Hearing on or about May 4, 1998.

On or about May 12, 1998 the CHRO transmitted an Original Notice of Public Hearing to all Parties and Counsel, and in reply the Respondent filed its answer on July 2, 1998.

The Office of Public Hearings sent out a Notice of Status Conference on February 23, 1999 which included a case reassignment to the undersigned as the presiding Human Rights Referee. At the status conference held on March 23, 1999, dates for discovery through production were established, and Public Hearing dates scheduled for October 18, 19, 20, and 21, 1999.

On March 31, 1999, the Complainant filed a Motion to Consolidate Case Numbers 9710649 and 9710650, which was granted by the undersigned on April 26, 1999.

As a result of the production ordered in this case, a substantial number of positions were identified by the Complainant which were filled by the Respondents after March 31, 1997, for which the Complainant alleged he was qualified. Shortly before the commencement of the Public Hearing, the Respondents filed a Motion, on October 15, 1999, objecting to the Complainant being allowed to assert claims for these additional positions at the Public Hearing. This Motion to Exclude was denied.

The Public Hearing commenced on October 18, 1999 and continued thereafter on various dates up to and including November 5, 1999. During the course of the Hearing the Complainant indicated that he would abandon his claim to some of the positions at issue in order to concentrate on those which needed to be covered in the parties Briefs. On December 13, 1998, Complainant requested leave to amend his complaint and specified 15 positions at which he was directing his claims. The Complainant also sought to amend his prior complaint by adding, in paragraph 11b thereof, a claim of discriminatory impact which had not previously been asserted. The Respondent filed an Objection to Complainant’s Amended Complaint on December 23, 1999, insofar as it added this disparate impact theory of recovery. After oral argument on this issue held January 20, 2000, the undersigned issued an Order on January 21, 2000 granting Complainants request to amend his complaint.

However, in his brief dated February 14, 2000, and in the cover letter enclosing it, the Complainant indicated that he was abandoning his discriminatory impact claim, as well as his claim to one of the 15 enumerated positions put at issue in his December 13 Amended Complaint. The Amended Complaint reasserted the general claim with respect to a pattern of discriminatory hiring based on age.

This decision is made after a careful review of the voluminous record in this case, including the transcripts of ten days of hearings and the numerous exhibits offered, as well as the comprehensive briefs filed by both parties.

In the Findings of Fact that follow, there will be specific references to the transcript pages and/or Exhibits which support those particular findings. However, because of the size of the record, the conflicting testimony, and the subjective aspect of some of the factual issues in dispute, some findings represent my considered evaluation of a considerable amount of testimony and the record as a whole. These are not as susceptible to narrow designations of the Record, and will be discussed in the Analysis and Discussion Section of this Decision.

II. FINDINGS OF FACT:

  1. All statutory and procedural prerequisites to the public hearing were satisfied and this complaint is properly before the undersigned Human Rights Referee. The jurisdictional matters regarding this complaint were satisfied as the record herein establishes.
  2. Complainant was born April 21, 1946. (Tr. 47). He had 27 years of experience working at Pratt & Whitney, a division of UTC, beginning in 1970 (Tr. 89), 19 of which were in a managerial position.
  3. Complainant holds a Bachelors Degree in Accounting and a Masters of Science Degree in Accounting. (Exhibit C-4).
  4. After graduating from college, Complainant worked at Peat, Marwick & Mitchell, a big 5 accounting firm, for approximately 18 months. (T 10/18/99 at p. 61; Exhibit C-4.)
  5. After working in public accounting, Mr. Harrington joined UTC in 1970 as a member of its financial management training program. In that program, he spent 1-1/2 years in UTC’s Internal Audit Department, conducting financial and operations type audits. (T 10/18/99 at p. 54; Exhibit C-4)
  6. While in the financial management training program, Mr. Harrington also worked at Pratt & Whitney in their business analysis, contracts accounting and sales accounting departments as a trainee. (T 10/18/99 p. 61; Exhibit C-4.)
  7. In 1973, Complainant left the UTC training program and became a Supervisor of Accounting Services for Pratt & Whitney’s Overhaul & Repair Operations. In that position, Mr. Harrington was responsible for the general accounting, cost accounting, and facilities accounting departments, which reported to him. (Tr. 10/18/99 at p. 65; Exhibit C-4.) While there, Mr. Harrington implemented a sales/cost of sales system and also headed up a project to implement an integrated purchasing accounts payable system. (T 10/18/99 at p. 66.)
  8. In 1977, Mr. Harrington went to Pratt & Whitney’s Facilities Accounting Department on a special assignment to develop a response to Cost Accounting Standard 409, which the Government had issued, involving asset service lives and allowable cost recovery methodologies. He was successful in justifying to the Government an eight-year life which allowed Pratt & Whitney to depreciate the costs of these assets over eight years. (T 10/18/99 at p. 67; Exhibit C-4.)
  9. In 1978, Mr. Harrington went to Pratt & Whitney’s General Accounting Department as a Project Analyst, where he was responsible for the forecasting and analysis of all fringe benefit costs being incurred by the company. (T 10/18/99 at p. 113; Exhibit C-4.)
  10. In 1979, Complainant became Supervisor of Payroll Services in Payroll Accounting. (Exhibit C-4.) As Supervisor in Payroll Services area, Mr. Harrington headed up the Retirement Income Office, which provided retirement counseling to employees contemplating retirement. (T 10/18/99 at p. 118.)
  11. In 1984, Complainant became Manager of Pratt & Whitney’s General Accounting Department where he was responsible for all of the financial reporting requirements for Pratt & Whitney as well as the consolidated reporting for all of UTC’s Power Group entities. (T 10/18/99 at p. 68; Exhibit C-4.)
  12. While working as Manager of General Accounting, Mr. Harrington served as the sole financial interface with two joint ventures in Israel for six years. He traveled to Israel frequently and conducted quarterly reviews of their financial statements, business plans and capital plans. (T 10/18/99 at p. 68-69.) Mr. Harrington provided advice to the Board of Directors and company management on operations at their quarterly Board of Director meetings and annual stockholder meetings. In 1985 he received a UTC special award for his outstanding efforts in dealing with these joint ventures. He was also recognized by one of the joint venture companies in 1989 at its annual stockholders’ meeting. (T 10/18/99 at p. 70; Exhibit C-14.)
  13. In 1989, while Manager of General Accounting, Mr. Harrington was put on special assignment to assist the corporation in the design and implementation of a flexible employee benefit program. (T 10/18/99 at p. 114.)
  14. In 1990, Mr. Harrington became Manager of Pratt & Whitney’s Payroll Department, an area where a crisis situation existed. (T 11/9/99 at p. 1505; Exhibit C-4.) At that time, major internal control deficiencies, which had existed for a number of years, had been identified, account reconciliations were incomplete and serious employee morale problems existed. During his two-and-a-half year tenure as manager, Mr. Harrington succeeded in addressing all of the outstanding issues that were present and reduced the annual operating costs of the department by nearly one million dollars. (T 11/9/99 at p. 1506.)
  15. In 1993 Complainant was promoted to a Labor Grade 51 in recognition of his accomplishments in this area. (T 10/18/99 at p. 100.)
  16. In 1994, Complainant was chosen by Pratt & Whitney’s Vice President of Finance and Human Resources to evaluate Human Resource Payroll systems for possible use by Pratt & Whitney. (T 10/18/99 at p. 72; Exhibit C-4.) Upon completion of his review and selection of an integrated Human Resources/Payroll system, Mr. Harrington was appointed as the Project Manager of this system. As such, he supervised a staff of 18 human resources, information systems and payroll professionals in the design, development and implementation of this new system. The project required merging four main frame databases into one fully integrated client server-based platform (Exhibit C-4.) As a result of the implementation of the project, staffing levels were reduced and data processing costs decreased nearly $1 million annually. (Exhibit C-4.)
  17. In 1996, Complainant was assigned to the International Accounting Department where he traveled to foreign subsidiaries to review accounting systems and procedures, and was exposed to international accounting and merger and acquisition accounting issues. (T 10/18/99 at p. 74; Exhibit C-4.) While in this position he was sought out by Guy Cyr, a Financial Executive at UTC’s Turbo Power & Marine division, and was asked to become Manager of his Cost Accounting Department. (T 11/9/99 at p. 1508-1509.)
  18. On January 26 or 27, 1997, Mr. Harrington learned that he was going to be laid off from his position as manager at Pratt & Whitney. (T 10/18/99 at p. 48.)
  19. Upon learning of his impending layoff, Complainant looked for other positions within the UTC "family" on its intranet, which contained various internal job postings. (T 10/18/99 at p. 48-50 and Exhibit C-16.)
  20. In response to job listings Complainant sent out a resume, and attached with it his most recent performance appraisal to the Internal Audit Department of UTC, seeking consideration for employment there. (T 10/18/99 at p. 49; Exhibits C-4 and C-5.) He also sent a resume and the performance appraisal to Hamilton Standard, in care of Joe Guest and Ed Dunn, in order to apply for a Finance Manager Level 4 position he had noticed on the corporate-wide intranet. (T 10/18/99 p. 83; Exhibits C-1, 2, 4 and 5.)
  21. Mr. Harrington was seeking consideration for positions in Mr. Guest’s organization, and that of Kevin Lawlor, then Chief Financial Officer at Hamilton Standard. (paragraph 20 supra).
  22. On March 31, 1997, Hamilton Standard, through its recruitment manager, James E. Goodman, indicated to Mr. Harrington that he would be given thorough consideration and contacted if a suitable employment opportunity arose. Hamilton Standard also indicated that Mr. Harrington’s resume would be kept on file for a year. (T 10/18/99 at p. 86; Exhibit C-9.)
  23. Mr. Harrington sent letters on April 4, 1998, to Andrea Yurcak, a Human Resources representative of Hamilton Standard and to Hamilton Standard, Professional Recruitment. Both of these letters requested that Mr. Harrington’s credentials be submitted for all external and financial management and project financial analyst positions until March 31, 1999. (T 10/18/99 at p. 86; Exhibit C-10.)
  24. Hamilton Standard responded, promising that his materials would be carefully reviewed and considered for current employment needs and that he would be contacted if his background and career interests matched current openings. Hamilton Standard further informed Mr. Harrington that his resume would be kept on file for one year. (T 10/18/99 at p. 86; Exhibits C-13.)
  25. As of the time Mr. Harrington applied for positions in Internal Audit, the job of Manager, Internal Audit (Labor Grade 50) required that an applicant meet the following qualifications:
    a.  Education: Bachelor’s or Graduate degree in Accounting, Finance or Business Administration.
    b.  Work experience: at least 9 years of audit or related financial and accounting experience in public accounting and/or private industry, with emphasis in manufacturing operations;
    c.  Prior managerial positions with supervisory and personnel development experience.
    d.  Knowledge: a broad understanding of business organizations, functions, management concepts and a thorough understanding of audit techniques. (Exhibits C-63 and C-125.)
  26. Mr. Harrington met the qualifications of Manager, Internal Audit as described on the job posting (T 10/18/99 at p. 93-4; Exhibit C-4; See Analysis and Discussion.)
  27. At the time Complainant applied for lower level positions in the Internal Audit department (Labor Grade 47 and Labor Grade 48), those jobs required that an applicant have the following qualifications:
    a.  A bachelor’s degree;
    b.  At least five years of progressively responsible experience;
    c.  A willingness to travel domestically and/or internationally (40%-50%). (Exhibit C-122.)
  28. Complainant met the qualifications necessary to work at Labor Grade 47 and Labor Grade 48, Internal Audit positions according to the descriptions in the job posting. (T 10/18/99 at p. 57, 93, 94; Exhibit C-4; See Analysis and Discussion.)
  29. As of the time Complainant applied for staff positions, senior positions and manager positions in the Information Systems Audit group, an applicant for those jobs was required to meet the following qualifications:
    a.  Education: Bachelor’s or Graduate degree in Information Systems Management or related field;
    b.  3-10 years of progressively responsible experience in a combination of Information Technology, Finance and Manufacturing gained through operational positions or consulting;
    c.  A thorough knowledge of technical hardware and software platforms and applications, as well as a current understanding of the information technology market and industry.
    d.  Domestic and international travel required (approximately 40%-60%). (Exhibits C-61, C-118, C-119 and C-123.)
  30. Complainant did not have the qualifications, as thus specified, for a position in the Information Systems Audit Group, especially in connection with the third requirement spelled out above.
  31. When Complainant applied for Manager, Employee Insurance (also known as Manager, Welfare Benefits), that job required that an applicant have the following qualifications:
    a.  An undergraduate degree;
    b.  Broad experience in the insurance benefit area, including precise knowledge of all instruments constituting formal plans, regulations, contracts with insurance carriers, consultants and government agencies.
  32. Mr. Harrington did not have the qualifications necessary for the position of Manager, Employee Insurance a.k.a. Manager, Welfare Benefits.
  33. As of the time Mr. Harrington applied for a Finance Manager, Level 4 position at Hamilton Standard, that position required that one meet the following "minimum" qualifications:
    a.  Bachelor’s degree in accounting, finance or business;
    b.  Supervision of up to eight employees;
    c.  Eight or more years prior experience as a supervisor;
    d.  Direct responsibility for an operating budget up to $2 million annually;
    e.  Indirect responsibility for an operating budget of up to $90 million annually (Exhibit C-17.)
  34. Based on his educational credentials, work experience and knowledge, as described above, Mr. Harrington possessed the minimum qualifications for Finance Manager, Level 4 at Hamilton Standard. He directly supervised an area with an operating budget of $4.5 million and managed an activity with an operating budget of $1.5 billion. (T 10/18/99 at p. 89; Exhibit C-4.)
  35. As of the time Mr. Harrington applied for a Finance Manager, Level 4 position at Hamilton Standard, that position required that one meet the following standards in order to meet the "full" qualifications:
    a.  Bachelor’s degree in accounting, finance or business administration with an MBA or equivalent;
    b.  Supervision of up to 12 people;
    c.  Ten or more years of supervisor experience;
    d.  Direct responsibility for an operating budget up to $1.5 million annually;
    e.  Indirect responsibility for an operating budget up to $75 million annually. (Exhibit C-17.)
  36. Based on his educational credentials, work experience and knowledge, as described above, Mr. Harrington possessed the full qualifications for Finance Manager, Level 4 at Hamilton Standard. (T 10/18/99 at p. 89; Exhibit C-4.)
  37. The "advanced" requirements for Finance Manager, Level 4 position at Hamilton Standard Division were as follows:
    a.  Bachelor’s degree in accounting, finance or business administration with an MBA or equivalent;
    b.  Supervision of up to 16 people;
    c.  Experience: Fifteen or more years of supervisor experience;
    d.  Direct responsibility for an operating budget up to $2 million annually;
    e.  Indirect responsibility for an operating budget up to $90 million annually. (Exhibit C-17.)
  38. Based on his educational credentials, work experience and knowledge, as described above, Mr. Harrington possessed the advanced qualifications for Finance Manager, Level 4 at Hamilton Standard. (T 10/18/99 at p. 89; Exhibit C-4.)
  39. Between February 1997 and April 1999, UTC hired 67 people into positions in its Internal Audit and Human Resources departments. All but one of these employees, Marlene Goldstein, were substantially younger than the Complainant. (Exhibit C-157.)
  40. Between February 1997 and April 1999, Hamilton Standard hired 20 people into Financial Manager, Level 4 positions, including the position of Business Unit Controller. All of these individuals, with the exception of William Monroe and Kenneth Allard, were substantially younger than Mr. Harrington. (Exhibit C-157.)
  41. Respondents have alleged that their legitimate, non-discriminatory business reasons for not hiring Mr. Harrington to any open position was that he was not qualified to fill any of them and that the individual hired into each was more qualified. (See Analysis and Discussion)
  42. Ronald Parlengus was hired as a Senior Internal Auditor on March 17, 1997. This took place prior to Mr. Harrington’s termination and is therefore outside the scope of this failure to hire case.
  43. The essential audit function, and the prerequisites of the position of an internal auditor, have not fundamentally changed during Complainant’s career with UTC. (Tr. p. 580, 808, 1390-91.)
  44. The field of Internal Audit was not especially attractive and it was "tough to get people in this field" (Tr. 286.) It was a "beginner" position in that a selling point for new hires in the UTC Internal Audit Department was that you were hired with an opportunity to grow and move elsewhere in the company. (Tr. 376.)
  45. Respondent’s preference was for new hires to come from a "Big Five" audit environment (Tr. 506.) This preference, along with the "beginner" nature of Internal Audit positions, and the repeated insistence on "current, relevant experience" (e.g. Tr. 506, 622, 690, 816-17, 832, 1010, etc.) necessarily mitigated against older applicants in favor of those younger (See Analysis and Discussion).
  46. Mr. Harrington has very good communication skills notwithstanding the claims to the contrary by the Respondents. (Exhibit C-5, Tr. 1410-12; See Analysis and Discussion.)
  47. Richard Nissen served as Regional Director for Financial and Operations Audit at UTC from May 1996 through the present date. (T 10/26/99 at p. 1008, 1126.) Throughout this time, he has been heavily involved in interviewing and hiring for financial and operations audit positions and has participated in all hiring decisions. (T 10/26/99 at p. 1030.)
  48. According to Mr. Nissen, people who work in Financial and Operations Audit need communication skills, as well as analytical and problem solving skills. (T 10/26/99 at p. 1019.) He testified that he looks for people "with a very broad scope" of experience. (T 10/26/99 at p. 1085.)
  49. Mr. Nissen met with Complainant in March 1997 at the request of Mr. Nissen’s boss. (Tr. 1038.) During the meeting Mr. Nissen did not ask Mr. Harrington about any of his experiences as they related to positions in Financial and Operations Audit. (Tr. 1038, 1170.)
  50. Mr. Nissen considered his interview of Complainant to be a "courtesy interview;" that is, the latter wasn’t being seriously considered for the position, but rather was given the interview as a courtesy. (Tr. 11/19/99 377.)
  51. Mr. Nissen indicated that there was no Grade 51 (Mr. Harrington’s labor grade at the time) Manager position available at the time, but that there was a labor grade 48 position open. (Tr. 75.) Mr. Harrington told Mr. Nissen that he was willing to take a lower level position in Internal Audit in order to preserve his benefits. (Tr. 75-76.) Mr. Harrington thus sought either the Grade 51 Manager or a Grade 48 Audit position as available. (Tr. 75-76.)
  52. Joan Richwine was an Audit Manager reporting to Mr. Nissen in March 1997 (Tr. 1029), and was asked by the latter to speak to Mr. Harrington. Ms. Richwine testified differently than Mr. Nissen as to the existence of an open manager position; she said there was one. (Tr. 813, 823-24, 829.)
  53. Ms. Richwine testified that she was looking for a "diversity of experience," broad depth of experience as well as expertise in a variety of areas in accounting, financial areas, and that a graduate degree was not imperative. (Tr. 775.) She said she was further looking for increasing roles in an applicant’s experience. (Tr. 777.)
  54. As did numerous Respondent witnesses, Ms. Richwine stated that "recent relevant audit experience" was important, in that the audit function had changed a lot in the last ten years. (Tr. 805.) However Ms. Richwine herself had no audit experience or responsibility for the period of 1989-95, but claimed she had no difficulty in assuming a internal audit manager position in 1995 and staying abreast of auditing in the interim. (Tr. 807.)
  55. Mr. Nissen admitted that Mr. Harrington had indicated that he was willing to take a lower level position in Internal Audit in order to gain entry into the internal audit department. However, Mr. Nissen stated that he was reluctant to hire Mr. Harrington into a job grade lower than the one he had previously held. Nissen said that such a decision would be a mistake since Mr. Harrington "expected to prove himself and move up into a management position which in my opinion was not going to happen." (T 11/3/99 at p. 1172; T 10/26/99 at p. 1047.)
  56. Ms. Richwine testified that she interviewed Mr. Harrington for approximately 45 minutes. She testified that based on her discussion with him that he lacked confidence and the ability to present or communicate. (T 10/21/99 at p. 780, 783.) She also testified that he did not describe any relevant recent audit experience. (T 10/21/99 at p. 817.)
  57. During Mr. Harrington’s interviews with Mr. Nissen and Ms. Richwine, neither one asked questions about the information in his resume or performance evaluation, and neither showed any interest in his background (T 10/18/99 at p. 76-77.), or gave him an opportunity to relate his actual experiences to positions in the Internal Audit Department. (See Analysis and Discussion).
  58. Although Complainant received exceptional ratings for communication, customer satisfaction, taking initiative and achieving results from his most recent supervisor at Pratt & Whitney, Vinnie Golia (Exhibit C-5), Mr. Nissen discounted all of that information in evaluating Mr. Harrington for a position in Internal Audit. Mr. Nissen never spoke to Mr. Golia about Mr. Harrington’s qualifications. (T 10/26/99 at p. 1106.)
  59. Although Mr. Nissen testified that Lee Warren, Director of Internal Audit, informed him that Mr. Harrington was "not a strong performer" based on his dealings with him, Mr. Warren did not recall saying that to Mr. Nissen. (T 11/9/99 at p. 1480-1482.)
  60. Mr. Warren did not deal directly with Mr. Harrington, but rather through two subordinates, Jim Jeffers and Robert Messier. Mr. Jeffers testified that the project Mr. Harrington was leading was well-managed. (T 11/4/99 at p. 1384.) He stated that, because of Mr. Harrington’s knowledge of the process, and operation, he was able to assist in identifying risks and picking out ways to test those risks. (T 11/5/99 at p. 1439.) He also testified that Mr. Harrington was "pretty much the backbone to the project". According to Jeffers Harrington was communicating between all the groups, tracking milestones and keeping the project moving forward, making sure that everyone was on the same path and coordinating all of the weekly executive level steering committee meetings. (T 11/5/99 at p. 1410-1411.)
  61. Mr. Nissen did contact Peter Longo of Pratt & Whitney to seek out his opinion of Mr. Harrington. Although Mr. Longo testified that he informed Mr. Nissen that Mr. Harrington was "not a strong performer," Longo had virtually no direct experience working with Mr. Harrington. (T 11/9/99 at p. 1491-1493.)
  62. Jim Jeffers worked at UTC from September 1994 until February 12, 1996, reporting to Lee Warren as an Information Systems Auditor. For six to eight months, he worked with Harrington, performing an information system audit of the integrated human resource/payroll project, for which Mr. Harrington was a project manager. (T 11/4/99 at p. 1381-1382.)
  63. Mr. Jeffers found Mr. Harrington to be very knowledgeable about the system, both on its payroll side and its benefit side, and very helpful in terms of providing information. Mr. Jeffers found the project to be well managed. (T. 11/4/99 at p. 1383-1384.)
  64. Mr. Jeffers worked as an auditor for approximately two years. In his opinion, it was not necessary to have extensive prior experience in auditing in order to be able to do the job. (T. 11/4/99 at p. 1390.) At UTC, people generally work at Internal Audit for a few years then transfer out to other positions. There is constant turnover, hiring, and recruiting in that area. (ibid)
  65. During March 1997 April Woods was a Human Resources Manager at the Respondent UTC. She agreed that if a manager communicated to an applicant, such as Mr. Harrington, that he would be considered for future open positions then an obligation to do so was created. (Tr. 367.)
  66. In addition to the positions actually filled by the Respondents from March 1997 to the date of the Hearing, the "hiring" managers themselves were almost all substantially younger than Mr. Harrington. (See Analysis and Discussion).
  67. Respondents’ stated criteria for hiring individuals for positions at issue frequently differed from either the qualifications specified in relevant job postings and/or from the background from those actually hired in lieu of Mr. Harrington. (See Analysis and Discussion; Findings infra).
  68. Thaddeus Turney, date of birth 03/28/58, was hired July 14, 1997 by Richard Nissen for the position of Manager, Internal Audit. This was the position which Nissen testified didn’t exist (Finding #51 supra), but which Ms. Richwine testified did (Finding #52).
  69. Mr. Turney’s application showed less than 7 years financial and accounting experience even though the job posting specified a minimum of 9 years of such experience (Finding #25). Additionally, his application did not display any prior audit experience at the time of his hire (Exhibit C-76) even though the Respondent UTC claimed that strong, current, relevant audit experience was critical a condition precedent to being hired for that position.
  70. Similarly, Edward Kelly, date of birth 04/28/57, was also hired as Manager, Internal Audit, had only 6-1/2 years of audit or related financial and accounting experience (Exhibit C-105) as of his hire date in October 1998, therefore failing to meet the ostensible qualifications for the position (Exhibit C-63, Exhibit C-125).
  71. Paul Bailey, date of birth 06/17/69, was hired as a Senior Auditor, Internal Audit on July 6, 1998. His application indicates that all of his prior work experience had been in the health insurance industry, and thus he did not have the "very broad" experience that was described by the Respondent as necessary (Tr. p. 1036), and which was one of the stated reasons why Nissen felt Harrington unqualified. Further, Bailey had no experience of any kind in a manufacturing environment, even though Respondent’s witnesses testified to the need for experience in a manufacturing environment (Tr. 1017; 1148), this also being an alleged deficiency in the Complainant. Mr. Bailey was described as being "a very confident young man" (Tr. 799) in apparent contrast to the allegedly less confident appearing and older Complainant.
  72. Rajip Saritabak, date of birth 02/18/63, was hired as a Senior Auditor, Internal Audit (Government Contract Operations Audit) on May 13, 1998. (Exhibit C-94; T 10/20/99 at p. 531.) Mr. Saritabak was hired by Richard Pierpoint, who stated that good, strong, current relevant audit experience was his first preference in hiring. (T 10/20/99 at p. 506.) Mr. Saritabak had no prior experience as an Auditor at the time of his hire. (Exhibit C-94.) Because he lacked prior audit experience it was understood at the time of hire that UTC would be a "difficult" experience for him. (T 10/26/99 at p. 1018.) Mr. Saritabak also failed to meet the minimum qualifications required for the position of Senior Auditor, in that he did not have five years of "progressively responsible experience" (Exhibit C-61) as well as the preferred qualities that hiring management expressed above.
  73. Sunita Mulchandani, date of birth 04/23/68, was hired as a Senior Auditor, Internal Audit (GCOA) on July 6, 1998. (Exhibit C-100; Tr. at p. 529.) Her application indicates she previously worked as a financial analyst for 7-1/2 years from October 1990 until June 1998. Her application does not demonstrate at least five years of progressively responsible experience. She also did not have any knowledge of, or prior experience with, government procurement regulations, which would have played an integral role in the position which she was hired to perform. Ms. Mulchandani did not meet the minimum qualifications for the position of Senior Auditor (GCOA). (Exhibit C-61)
  74. Gregory Fedele, date of birth 06/25/71, was hired August 31, 1998 as a Senior Auditor, Internal Audit (GCOA). (T 10/20/99 at p. 624). Mr. Fedele obtained a bachelor’s degree in Accounting-Finance in May 1992. As of the time of his hire, he had no prior experience working at any UTC company, no prior experience in auditing, no prior experience in interpreting or working with federal regulations of any kind. (T 10/20/99 p. 663; Exhibit C-103.) In fact, Mr. Fedele was hired in spite of the fact that he didn’t meet the criteria used to screen people and to decide whom to interview and to hire. (Tr. 10/20/99 at p. 664.)
  75. Albert Naples, date of birth 02/04/60, was hired as a Financial Manager, Level 4 by Hamilton Standard on or about August 16, 1997 (Tr. 1244). As of the date of his hire he had had only 5 years prior experience as a Supervisor, little more than half of the 8 years required under the posted "minimum" qualifications of the position. (Exhibit C-17; Finding #33; Exhibit C-48).
  76. Brian Roy, date of birth 02/09/67, was hired on or about August 31, 1998 as a Financial Manager, Level 4. (T. 10/25/99 at p. 932; Exhibit C-142.) Mr. Roy received his bachelor’s degree in Accounting in May of 1990. He worked as a Senior Accountant performing and supervising audits from August 1990 to November 1993 and worked as a manager at Price Waterhouse Coopers from November 1993 until August 1998. His record does not indicate that he had direct responsibility for an operating budget of up to $1 million annually or indirect responsibility for an operating budget of up to $50 million annually (Exhibit C-142), and he therefore fails to meet the minimum qualifications for Financial Manager, Level 4. (Exhibit C-17.) Mr. Roy was hired in late summer or early fall to replace Michael Nesbit (T 10/25/99 p. 932), who had moved in February 1998 into a Manager of Accounting Services position that encompassed transactional accounting departments – the payroll group, invoicing, cash applications, accounts payable, and customer and vendors address book. (T 10/25/99 at p. 929.)
  77. Karen Sun, date of birth 08/31/64, was hired as a Financial Manager, Level 4 on July 11, 1998. (T 10/21/99 at p. 718.) Ms. Sun received a bachelor’s degree in Administration/Business Education in 1984 and an MBA in 1987. The only document submitted in support of Ms. Sun’s qualifications, her application for employment, lists employment as a Financial Analyst from 1993 until July 1998. Based on this evidence, Ms. Sun did not have 8 or more years of prior experience as a supervisor as of the time of her hire, nor had she supervised up to eight employees. In addition, her application shows neither direct responsibility for an operating budget up to $1 million annually, nor indirect responsibility for an operating budget of up to $50 million annually. (Exhibit C-143.) She therefore failed to meet the minimum qualifications for Finance Manager, Level 4 at the time she was hired. (Exhibit C-17.)
  78. James Lonsdale, date of birth 06/24/55, was hired as Business Unit Controller, a Financial Manager, Level 4 position on June 30, 1997. (T 10/21/99 at p. 698.) At the time Mr. Lonsdale was hired, Mr. Lawlor was seeking to fill the Business Unit Controller position with an individual who had recent experience in the after-market business. (T 10/21/99 at p. 687.) Mr. Lonsdale was hired although he had no such experience. The reason Mr. Lonsdale was deemed an attractive candidate was because he had a proven track record of coming in and fixing problems. (T 10/21/99 at p. 737.) Mr. Harrington had a similar record in his years at Pratt. (See Findings 20, 24, 26, 28, supra..) Mr. Lonsdale held only a bachelor’s degree and his "recent, relevant" experience as a controller was similar to that of Mr. Harrington, including an emphasis on maintaining controls and systems, general accounting, payroll and facilities accounting. (Exhibits C-4, C-18.)
  79. Salary ranges for UTC employees are associated with labor grades. As of 1997, the salary ranges for Labor Grades 47/48 and 51 were as follows:
    Labor Grades 47/48: $70,000 - $90,000
    Labor Grade 51: $70,000 - $120,000
    (T 10/18/99 at p. 141-142.)
  80. In the hiring process at UTC, a decision on salary would generally be based upon the level of experience and prior salary of the person hired. The job posting would generally list a series of positions and the title given to the applicant hired would be chosen based on the amount of money to be paid. (T 10/20/99 at p. 435.)
  81. At the time he left Pratt & Whitney, Complainant was a Labor Grade 51. If he had obtained a position at either UTC or Hamilton-Standard within two years of his layoff from Pratt & Whitney, all of his benefits would have been reinstated, including pension benefit, vacations and sick time, his service record for the purpose of calculating sick and vacation time, savings plan, health insurance. (T 10/18/99 at p. 75-76.)
  82. The following employees were hired by the Respondent UTC on the following dates, into positions with the labor grades indicated:
    Thaddeus Turney July 14, 1997 LG 51
    Rajip Saritabak May 13, 1998 LG 47-48
    Paul Bailey July 6, 1998 LG 47-48
    Sunita Mulchandani July 6, 1998 LG 47-48
    Gregory Fedele August 31, 1998 LG 47-48
    Edward Kelly October 15, 1998 LG 51
    (Exhibit C-147 and exhibits listed therein; Exhibit C-132.)
  83. If an employee is downgraded due to a reduction in force, that employee might be hired or transferred into a lower position, but would keep his higher salary – the position would be "red-circled." (T 10/21/99 at p. 750.)
  84. The salary range for a Finance Manager, Level 4 position at Hamilton Standard was equivalent to a Labor Grade 49-51 at UTC, between $70,000 and $120,000, as of 1997. (T 10/21/99 at p. 703; T 10/18/99 at p. 141-142.)
  85. The following employees were hired by Hamilton Standard into the position of Finance Manager, Level 4 on the following dates:
    Timothy Keenan 05/23/97
    James Lonsdale 06/30/97
    Albert Naples 08/16/97
    Karen Sun 07/31/98
    Brian Roy 08/31/98
  86. Mr. Harrington earned other income totaling $63,296 from the period March 25, 1997 to November 9, 1999, the date the hearing concluded. (Exhibit C-44.)
  87. Mr. Harrington additionally received unemployment compensation benefits totaling $5,675 during the same period. (Exhibit C-44.)
  88. Mr. Harrington failed to fully mitigate his damages by virtue of his quitting his job at the Mashantucket Pequot Gaming Resort (See Analysis and Discussion).

III. Analysis and Discussion:

1.  The Burden of Proof:

The burden of proof in age discrimination cases is well established and understood. See e.g. Taggert v. Time, Inc., 924 F.2d43 (2nd Cir. 1991); Kline v. Tennessee Valley Authority, 128 F.3rd 337 (6th Cir 1997). Under the standard set in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d668 (1973), and followed in innumerable non-direct evidence cases thereafter, the Complainant (in a failure to hire case) must first establish a "prima facie" case of discrimination by showing (1) membership in a protected class; (2) that he applied for and was qualified for open positions at the Respondent employer; (3) that he was not selected for those positions; and (4) that the positions were ultimately filled by – as in this case – younger persons. St. Marys Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2747, 125 L.Ed, 2nd 407 (1993). In this connection, since the intention of the Legislature was to make Connecticut’s anti-discrimination statutes coextensive with Federal Law, my analysis will be largely based on the applicable federal cases that serve as a guide to our State Courts. See State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn 464 (1989).

The establishment of a prima facie case creates a presumption that the employer unlawfully discriminated against him. This presumption requires the respondent to produce a legitimate, non-discriminatory reason for their failure to hire the Complainant. Hicks, supra, 509 U.S. at 506-507. If such a reason is presented, the Complainant then retains the ultimate burden of persuading the fact finder that he has been the victim of discrimination. Id at 507-208. "This ultimate burden can be met on the basis of the evidence presented in support of the prima facie case, and (emphasis added) the factfinders disbelief of the reasons put forward by the Respondent, which taken together may suffice to show intentional discrimination. This rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination and no additional proof of discrimination is required." Hicks, supra, 125 L.Ed.2d 418-419, As the Court stated in Taggert, "this inference of discrimination may be shown by direct evidence, statistical evidence, or circumstantial evidence such as documentation of preferences for younger employees, all of which is aimed at persuading the trier of fact that the more likely reason for plaintiff not being hired was because of his age and the employer’s proffered reasons were pretextual and not worthy of belief." Taggert at p. 45.

Respondents cite various authorities for the proposition that some additional level of evidence is needed, or in its words "only a specific quality and kind of evidence will support a finding of discrimination", (See Respondent’s Brief p. 10) and refer to, among other cases, Fisher v. Vassar College, 114 F.3rd 1332 (2nd Circuit 1997) for support. In fact Fisher in no way contradicts Taggert or Hicks as referenced above, holding explicitly (at p. 1333) that "evidence constituting a prima facie case prior to the employer’s proffer of a reason, coupled with the error or falsity of the employer’s proffered reason may – or may not – be sufficient to show illegal discrimination by a preponderance of the evidence." Therefore it is up to the trier of fact to ascertain the level of sufficiency provided by a false or pretextual reason. "To the extent that an actor in the defendant’s position is unlikely to have proffered a false explanation except to conceal a discriminatory motive, then the false explanation will be powerful evidence of discrimination." Fisher, at p. 1338.

2.  Complainant’s Prima Facie Case:

There is no dispute as to the fact that the Complainant, whose date of birth was April 21, 1946, falls within the protected class (age). There is equal clarity in the Record that all but three of the eighty-seven (87) positions at issue during the course of the Hearing (October 18 – November 9, 1999) were filled by persons who were considerably younger than Mr. Harrington, a factor that has some significance in and of itself. However, more immediately pertinent to this issue are the fourteen (14) positions specifically named, and therefore claimed at issue, by the Complainant in his December 13, 1999 Amended Complaint, and briefed by him. All fourteen were filled by younger persons (Finding of Fact Nos. 68-78; Record). Therefore, at least two of the four prongs of the prima facie test were easily met and not in dispute.

The Respondents have, however, vigorously challenged the two remaining elements, namely the requirements that he applied for the positions (Respondents Brief, Section III A) and that he was qualified to fill them (Section III C). In point of fact, the latter issue is central to the Respondents case, as at bottom its legitimate non-discriminatory reason(s) for not hiring the Complainant rests on its dual assertions that Mr. Harrington was not qualified for any of them and/or the selected candidates were better qualified. Consequently an extended discussion on this point is necessary and will be addressed subsequently. For the purpose of the prima facie case requirement it is sufficient to note my previous findings of fact Nos. 26, 28, 34, 36 and 38 which establish that Mr. Harrington had the qualifications for the positions of Manager, Internal Audit, Senior Auditor (Financial & Operations Audit), Senior Auditor (Government Compliance and Operations Audit), Financial Manager Level 4, and Business Unit Controller. The third prong is therefore also in place.

a.  Mr. Harrington applied for the positions.

Respondent argues, citing inter alia Brown v. Coach Stores, Inc., 163 F.3 706 (2nd Cir. 1998), that as a matter of law "Harrington had to prove that he specifically applied for each position to which he now claims entitlement and/or made a specific effort to apply for each particular position" (Respondents Brief p. 21). This argument is not only false in my view, but illustrative as well of the disingenuous nature of the Respondents actions in this case as a whole.

In the first place the Record as established by Respondent’s own witnesses clearly shows that in many instances interviews were conducted and individuals hired prior to an application being filed. An example in point was Charles Warren, I.S. Director of Internal Audit, who when asked "isn’t it true that someone coming in for a job they don’t fill out an application – they fill out the application after they’ve been given the job, correct?" answered, Yes! (Tr. p. 313). This is a case of Respondent’s seeking to impose on the Complainant criteria and requirements it did not similarly impose on the younger individuals it actually hired.

Secondly, Respondent did not post the positions at issue in public forums or outlets, thereby rendering it impossible for the Complainant to even know that any specific openings even existed. The Record in this case shows that the Respondents actively opposed Complainant’s Requests for Production of information relating to specific positions filled from 1997 to 1999, and only the undersigned’s granting of a Motion to Compel filed by the Complainant resulted in the disclosure in September 1999 of the eighty-seven (87) positions referenced in Finding of Fact Nos. 39 and 40. To require the standard requested by the Respondent would be to reward wrongdoing and encourage intransigent non-disclosure. In Mauro v. Southern New England Telecommunications, Inc., 2000 W.L. 332007 (2nd Cir. (Conn) March 30, 2000, the court affirmed that "Brown" does not apply where, as here the plaintiff indicated to the employer an interest in being promoted to a particular class of positions but was unaware of specific available positions because the employer never posted them.

Thirdly, Complainant did, in fact, "apply" for the Grade 51 Manager, Internal Audit and Senior Auditor positions as well as the Finance Manager Level 4 positions; the Respondent effectively concedes as much in Footnote No. 10 on p. 25 of its Brief. As the testimony and exhibits establish, Mr. Harrington sent a cover letter, resume, and most recent performance evaluation to Mr. Nissen, and interviewed with both Nissen and Richwine. Both understood that he was interested in the Manager positions but would take a Senior Auditor position if offered. Similarly, he sent the same material to Hamilton Standard (Finding No. 20) and was assured that his resume would be kept on file for a year. He received similar assurances when in April 1998 he followed up his requests (Finding No. 23).

Lastly, Complainant brought this case by filing a complaint affidavit in May of 1997 against the Respondents alleging discrimination in their failure to hire him and a generalized pattern of age discrimination in new hires. Although the investigative record is not part of this proceeding, per se, I can take notice of the fact that it took over a year to complete and that such proceedings entail both fact finding and attempts at conciliation. It is a reasonable assumption that Respondents were made aware of Mr. Harrington’s desire to be hired (i.e. "application") for the above positions during this process; in fact that was the point of the Complaint in the first place.

That the four elements of a prima facie case cannot apply identically to all factual scenarios and represent only a guideline on how one can be established is so well understood that it virtually needs no citation, and was enumerated clearly in McDonnell Douglas, supra itself 411 U.S. 792 (1973). In a case somewhat similar to this one, at least as to the application issue, Human Rights Referee Lara L. Manzione held that "although the Complainant did not complete a formal written job application, she sufficiently conveyed her interest in the position…" (Hodge v. Department of Public Health, CHRO No. 9710032, 1999, p. 13), "noting that she was doing everything in her power to express her interest in being advanced and I find her expectation that someone contact her to be reasonable" (Hodge p. 13). That is equally if not more true in this case.

For all these reasons I find that the fourth and final prong of the prima facie case requirement has been conclusively met. The Complainant has therefore established his prima facie case.

3.  Respondents Articulated Legitimate Non-Discriminatory Reasons:

Having presented a prima facie case a presumption is created that the Respondents unlawfully discriminated against him. This presumption places on the employer the burden of advancing or articulating legitimate, non-discriminatory reasons for its actions. Hicks, supra, 509 U.S. at 506-507 (Citations and quotations omitted). The Respondents met this burden by asserting that the Complainant failed to apply for the positions and that he was not qualified for any of them, or in the alternative the persons selected, while younger, were better qualified.

The application issue has already been discussed and dismissed in the preceding paragraphs, especially as it relates to the Internal Audit and Financial Manager Level 4 positions. It is these positions, which were both briefed by Complainant and which I have found Complainant fully qualified on, that will occupy nearly all my subsequent attention. It is these positions that are genuinely at issue.

Since that is the case, it is not necessary to deal at much length with Respondent’s argument in Section II B of its Brief that the "Commission is without jurisdiction to consider claims that are not timely filed." Presumably this relates to some of the 87 positions put at issue during the Hearing, which indisputably took place more than 180 days after the Complainant’s May 1997 affidavit alleging discrimination, or alternatively more than 180 days before the Amended Complaint of December 13, 1999.

However, all of the positions now forming the determinative issue of this case were generally referred to in the May 1997 Complaint, or as it was amended and therefore related back to.

In any event, the Respondents would be estopped from making this argument under the doctrine of equitable tolling. See Cerborne v. International Ladies Garment Workers Union 768 F.245 (2nd Cir 1985), a doctrine applicable where "the employer concealed from the employee existence of causes of action." Id at p. 49. Since it took a Motion to Compel to pry information loose from Respondents in September 1999 about positions filled from 1997 to 1999, they can hardly be credibly heard advancing a statute of limitations argument.

Therefore, the heart of this case revolves around the legitimacy of Respondents arguments as to Complainants lack of qualifications and/or whether such arguments are pre-texts for the real reason which was age based discrimination.

For the reasons hereinafter set forth I have concluded that Respondents reasons were indeed pre-textual, and that the facts and circumstances surrounding their falsity necessarily give rise to and support an inference of age discrimination.

a.) Respondents Reasons With Respect to Qualifications Are Pre-textual

A conclusion that the Respondent’s stated reason is a pretext can be drawn from both the demonstration that the Complainant had equal or greater qualifications than those younger people actually hired (See Kline v. Tennessee Valley Authority, 128 F.3rd 337, 340-41 (6th Cir. 1997), or from a pattern or accumulation of inconsistencies, irregularities, or outright falsehoods present in the Respondent’s testimony. See: Williams v. Vitro Services Corp; 144 F.3rd 1438 (11th Cir. 1998) Kline v. Tennessee Valley Authority; Taggert v. Time, supra.

The length of the Hearing on this matter was dictated in large measure because of the number of positions put in question by Mr. Harrington and the reasonable reaction of the Respondent, which was to go through a position by position comparison of Complainant’s qualifications vis a vis those of the individuals actually hired. It will not be necessary to do a similar analysis here, since the Complainant himself reduced his claims to fourteen (14) positions. This reduction undoubtedly resulted from a number of factors, such as salary (Complainant’s stated minimum being $60-$65,000 per annum) or the positions being in-line promotions as opposed to new hires. In my findings of fact I have effectively reduced this number further to eleven (11), having eliminated Ronald Parlingus’ position because he was hired prior to the date of Mr. Harrington’s termination, and the positions filled by Diane Gagnon and Natalie Morris by virtue of my finding that Complainants qualifications did not match the job requirements (although only barely so). Further, as is obvious, Mr. Harrington cannot receive back pay or otherwise be compensated for more than one position. I decline to accept Attorney Eldergill’s suggestion (Brief p. 27) that if it is found that he should have been hired for more than one position but for his age, then the award should be based on the position with the highest salary figure. For reasons hereinafter stated it should more appropriately be based on the first one available, whatever the salary.

Therefore, I do not believe that an equally elongated side by side comparison of each position’s requirements is necessary to the task at hand. More important and relevant is a careful review of the evidence which leads me to conclude that the Respondents reasons were pre-textual, and that age discrimination was the underlying reason therefore. However, as my Finding of Facts fully attests, I have found Mr. Harrington fully qualified for the eleven (11) positions and equally if not more so than, those actually hired. (Findings 26, 28, 34, 36, 38, 66-78).

It will not be difficult to discern that my Findings of Fact are much more aligned with those proposed by the Complainant than by the Respondents. This is simply because I found the testimony offered by the Complainant, and the two rebuttal witnesses called on his behalf, to be substantially credible, and especially so with regard to the central issues giving rise to liability on the part of the Respondents. As to the latter’s witnesses, I found a distinct lack of credibility. I particularly found the testimony of Richard Nissen, Joan Richwine, Charles Warren, Peter Longo and Kevin Lawlor to be substantially lacking in credibility. This conclusion stems not only from my contemporary evaluation of what they said, but also from my careful attention to their tone, attitude, and demeanor. Re-reading the transcripts in light of the record as a whole reinforced my conviction in this regard.

The Respondent’s contradictory and inconsistent testimony with respect to Mr. Harrington’s qualifications as compared to those actually hired, and to the specifications publicly listed for the positions, as well as their own criteria, sound familiar. As Judge Cardomone, in writing for the Second Circuit, said "It seems that often an old employee who is cashiered [or not hired] never has the right combination of credentials to fit into the existing opening. Taggert v. Time, 924 F.2d 43, 45 (2nd Cir. 1991)." In that case the terminated employee (age 58) applied for 32 positions unsuccessfully. In each case he was not hired because "he was overqualified for some positions, under qualified for others, his supervisors recommendation was not wholly positive, and he performed poorly at interviews" Taggert at p. 45. The Court found that the few interviews actually held "were simply courtesy, as distinguished from regular interviews with no real intent to consider him as a serious applicant." The same can be said for the Nissen and Richwine interviews with Mr. Harrington (Finding No. 50).

Similarly, in a case involving one of the Respondents here, Judge Covello ruled against the Defendants Motion for Summary Judgment in Elliot v. United Technologies Corp., U.S. Dist Ct., Conn. (Docket No. 3:94CV01577, 5 Conn. Ops 1230 (October 25. 1999) in a wrongful termination case. In opposition to the Motion, the plaintiff argued that "despite its argument that it needed to retain employees with a "depth and breadth" of experience, it [the Defendant] retained four (4) 22 to 26 year old Human Resource Associates with a combined total of two years experience … and that UTC deploys the terms "Specialist" and "generalist" in an opportunistic manner to take on whatever meaning is most helpful in its rebuttal to the plaintiffs case … specifically "almost every single defense witness employs a different and conflicting definition of those terms. Plaintiff further testified that the defendant claimed that labor relations experience was a critically needed factor, but when he put evidence forward about his experience in a 1985 Strike and 1989 leadership workshop, the defendant changed their argument to claim that the experience was not ‘recent or significant’ enough" Elliot, supra at p. 1232. The similarity to the repeated refrain of the need for "current, relevant" experience, and shifting requirements in this case is striking.

a.1.) Respondents Hired Younger Persons Who Were Less Qualified Than Complainant And/Or Did Not Meet Specified Job Requirements.

In Finding of Facts Nos. 66-78 discrepancies between the credentials required in job postings, as in the declared criteria for the positions, and the backgrounds of those actually hired – all younger than Mr. Harrington – were highlighted. It is unnecessary to repeat them. Since they did not have all of the qualifications, in some respects, for the positions they filled, whereas the Complainant did, an inference of discrimination is certainly warranted. Kline, supra; McCullough v. Real Foods, Inc., 140 F.3d 1123, 1129 (8th Cir. 1998). As the Court said in the latter case, "when the best qualified candidate is not picked a reasonable inference arises that the employment decision was based on something other than the relative qualifications of the applicants". Id at p. 1129.

Respondent’s characterizations to the contrary, the Complainant had a diverse background that in most instances clearly eclipsed those of the younger persons hired in his place. He graduated from a "Big Five" accounting firm, worked in financial and operational audits as a Financial Management Trainee, worked with UTC auditors throughout his entire career, had 4 years of experience in Overhaul and Repair (ie. "manufacturing environment"), a Masters Degree in Managerial Accounting, which deals with process and operations, seven years in General Accounting, substantial "on the floor" (ie. "manufacturing environment") experience in working with the UTC joint ventures in Israel, substantial interface with Government Compliance Regulations, Payroll and Human Resources Systems, and, as Manager, International Accounting, with mergers and acquisitions. In the course of his career he rose from a Grade 44 to a Grade 51, and had 19 years of Supervisory/Managerial experience. He clearly had the background and skills necessary to perform the tasks associated with the above-referenced eleven (11) positions.

Mr. Harrington therefore had an abundance of the "diversity of experience, broad depth of experience … in a wide variety of areas of accounting and financial areas, and the increasing responsibility and roles" (Tr. at 775-76) which Ms. Richwine claimed was needed in a Manager of Internal Audit, but which she was allegedly unable to discern in Mr. Harrington. As Complainant’s last supervisor wrote in his final performance evaluation (Exhibit C-5) in July 1996, "Mr. Harrington is very knowledgeable about Pratt and brings a much needed historical perspective to the department." Yet this same operational knowledge of the manufacturing environment at Pratt, lacking substantially in the new, younger hires, was claimed as a deficiency in Mr. Harrington’s background. (Tr. 1086, Nissen).

None of this rings true. Rather, it appears to be an attempt at redefining job characteristics, criteria, and credentials "on the run", so to speak, for the sole purpose of defeating Mr. Harrington’s claims. As such, it must be rejected. See Carter v. Three Springs Residential Treatment, 132 F.3rd 635, 643 (11th Cir. 1998).

a.2.) Respondents’ Inconsistent and Contradictory Statements Support An Inference of Discrimination.

As the courts have noted, logically enough, "subjective criteria are particularly easy for and employer to invent in an effort to … mask discrimination" McCullough, supra p. 1129. Interview performance and communication skills certainly fall within the category of subjective criteria, and both were cited heavily by Mr. Nissen and Ms. Richwine as reasons for discarding Mr. Harrington as a candidate. (e.g. Richwine Tr. 785). Both emphasized how important "communication" skills were (e.g. Nissen Tr. 1021) to adequate performance in the "new, changed audit environment". (Nissen Tr. 1018).

The undersigned had an opportunity over hours of testimony to evaluate the communication skills of these individuals. Suffice it to say, Mr. Harrington succeeded in communicating to me the essential credibility of his testimony; Mr. Nissen and Ms. Richwine did not.

Be that as it may, the record reflects that in the only performance evaluation submitted into evidence (Exhibit C-5), Complainant’s supervisor found Mr. Harrington’s communication skills to be "exceptional". The testimony of Mr. Jeffers and Mr. Messier, former employees in the Respondent’s internal audit department, is persuasive to the effect that Complainant had excellent communication skills and the ability to use those skills successfully in the coordination of the integrated human resource/payroll project of which Mr. Harrington was Project Manager (Finding No. 62; Tr. 1410-11). I found their testimony particularly credible since, at the time of the Hearing, neither were still working at UTC, nor with Mr. Harrington, and in fact had not been in contact with him for several years. They had no reason to tailor their testimony, as opposed to virtually all of Respondents witnesses, who were still employees of Respondents.

Significantly, as well, both contradict the testimony of Charles Warren, who, although he could not remember whether Nissen contacted him about Mr. Harrington (which Nissen said he did), said he would have told Nissen that he had poor interpersonal skills and a reputation of being difficult to deal with. (Tr. 1480-81.) Interestingly, Warren claimed Jeffers and Messier as the source of this impression, which is directly opposed to their testimony.

I find Respondents assertions that Complainant had poor communication skills to be false and a conscious pre-text for failing to hire him.

Likewise, evident contradictions abound in the versions told by Complainant, and by Nissen and Richwine, of their interviews in March 1997. The Complainant testified that these sessions were short and perfunctory in nature, and that neither allowed him any opportunity to relate his experiences to positions in the Internal Audit Department, or showed any interest in his qualifications as contained in his resume and job performance evaluation (Finding No. 57). In short, these interviews had all the earmarks of the classic "courtesy interviews" referred to in Taggert, supra. In effect, Nissen admitted as much when he testified that in the absence of a phone call from his boss "he would not have interviewed Harrington on the basis of his resume" (Tr. 1039), and that "I did not go through and grill him on experience or do the traditional interview … we [presumably referring to Ms. Richwine] viewed this more as equivalent to the phone screen" (Tr. 1042).

Clearly, Nissen was going through the motions during this meeting, in which among other things he misrepresented the availability of a Grade 51 Manager position (Finding No. 68) which he filled in July with Thaddeus Turney (Finding No. 68). It is apparent to me that he was not interested in anything Complainant had to say about his own qualifications. Yet, Nissen repeatedly referred to Harrington’s inability, when offered the chance, to "sell himself" (Tr. 1043) as to his qualifications. The reality is that he was never given a chance to, and Nissen’s claims to the contrary were false.

Similarly, I find Ms. Richwine’s contention (Tr. at 781) that she tried during the interview to examine and explore the kind of work Harrington had been doing to be false. As such, her testimony that "Harrington had a difficult time articulating any relevance of past jobs with the skills we were looking for" (Tr. 785) cannot be believed. If this was indeed a courtesy interview, as I have found it was, it would not have happened that way. Her later testimony, on cross-examination, that she only saw Mr. Harrington because Nissen asked her to (Tr. 813), and that she wouldn’t have interviewed him at all based on his resume (Tr. 821) more appropriately indicates her level of interest in this meeting.

Another fundamentally false and inconsistent line of testimony from the Respondent’s witnesses sprang from the contention that the "audit function" had radically changed and that "recent, relevant experience of auditing" was critically necessary. A consistent, recurring theme from the Respondents was that "good, strong, current, relevant audit experience" (e.g. Pierpont, Tr. 506) was needed, since the "auditing industry had changed substantially in the last ten (10) years (Richwine, Tr. 805). This was repeated so many times by Respondents’ witnesses (e.g. Nissen, Richwine, Lawlor, Pierpont, Moss) that it reached the level of being corporate cant. Yet the same witnesses, as for example Pierpont (at Tr. 580), and others, when pressed admitted that, "a fundamental audit background is still critical. The fundamentals of audit have not changed." Both James Jeffers and Robert Messier, former auditor-employees of the Respondent, testified that changes in the audit environment have not been such so as "to require a lot of current experience in the profession" (Tr. 1390) to do the basic audit job, or such as to make it difficult to perform "the new parts of the job" (Tr. 1414).The real motivation for preferring "recent" auditing experience was that it structurally precludes hiring older individuals, such as the Complainant (Finding No. 45). As noted above, (Finding No. 44), the audit field was not highly regarded and a review of all the resumes in the record confirms that an audit job was frequently the first thing a graduate did right out of school. It was viewed as a short term position before moving on and upward. Logically, therefore, by requiring "recent" experience in what amounts to a "beginner" job, Respondents established a system consciously designed to weed out prospective older employees, such as the Complainant. This was effectively done in the face of the fact that none of the job postings and descriptions specified "recent" audit experience as a requirement.

Ms. Richwine herself is an example of the speciousness of this requirement. In the same breadth she testified how "current" audit experience was important, but in her own experience seven (7) years had passed since she had any before she was hired in 1995 at UTC; she said she had "no difficulty at all in catching up" (Tr. 806). She also noted that if Harrington had only submitted the "second page of his resume it would have sufficed for a Grade 48 Audit position" (Tr. 832); in other words, showing the period when he was recently out of school.

That there was a predisposition against Mr. Harrington was clear throughout the hearing, even though none of the "hiring authorities" had ever met him, or had any direct experience in working with him. Complainant in his Brief p. 19-20 illustrates this point concisely in referring to Nissen’s testimony (Tr. 1047; Tr. 1172) to the effect that he didn’t want to hire Complainant into a lower position (Grade 48) than the one he had previously held (Grade 51). The basis for this was his belief that Harrington "expected to prove himself and move (back) up to a Management position which in my opinion was not going to happen" (Tr. 1047). A conclusion such as this after the briefest, perfunctory "courtesy interview" speaks loudly and clearly as to the predisposition and intent of the Respondents.

As the Second Circuit held in Taggert, supra and Montana v. First Federal Savings & Loan Association of Rochester, 869 F.2d 100 (2nd Cir 1989), an inference of discrimination can be shown by "circumstantial evidence of a preference for younger employees" (Taggert at p. 46), an abundance of which exists in this case. Although it is not statistically determinative by itself, the fact that 84 out of 87 employees hired (Findings 39-40) were substantially younger than Mr. Harrington is "not proof of nothing", to paraphrase the Respondents. It was also part of the weight of evidence, circumstantial as it may be, for me to observe the fact that the "hiring managers" themselves, or those who testified in this case, were also substantially younger in large measure than Mr. Harrington (e.g., Nissan, Litty, Warren, Havanic, Pierpont, Moss, Lawler, Dunn, Guest). A trier of fact has many tools at his disposal, including of course the words of the witnesses and other objective evidence, such as documents and written exhibits. However, tone, attitude, and demeanor also matter, and listening to the Respondents (younger) witnesses convinced me that older employees seeking positions with them were not unlike Don Quixote tilting at windmills.

a.3.) Respondents Arguments Against Inference of Discrimination Are Invalid.

In its Brief, Respondents argue that Harrington’s "statistical" evidence is deficient because there was an absence of data on the ages of all applicants and that it therefore cannot support an inference of discrimination (Respondent Brief Section III (D) (1). However, as noted above, statistical evidence is but one of the means by which a case of discrimination can be established. The Complainant has not sought to prove its case on this basis alone, or even primarily, nor have I based my decision in that manner as well.

It is also the fact that the Respondents establish a "strawman" with this argument, because the Respondents themselves made clear throughout the hearing that they did not require or keep data as to the age of job applicants, even assuming the pool of prospective employees consisted of "applicants" in the traditional sense (See Tr. p. 313 – many employees hired prior to filling out application). In any event such data, were it to exist, would be within the control and possession of the Respondents. It is a reasonable assumption that if Respondents had statistical data on this "applicant pool" supportive of its position it would have been offered into evidence, and it wasn’t. Consideration of evidence showing the ages of hires, in the absence of data on the total applicant pool has been held to be proper in similar circumstances. Stratton v. the Department of Aging for the City of New York 132 F.3d 869 (2nd Cir 1997).

Respondents also contend that they are entitled to set their own standards of hire (Respondents Brief Section III (D) (5)), and that the Human Rights Referee may not review the wisdom of Respondents business judgments (i.e. hires) (Respondents Brief Section II 6). The undersigned agrees with the Respondents view that (a) "Human Rights Referee does not sit as a super-personnel department that reexamines an entity’s business decisions" (Respondents Brief p. 15; see also Scaria v. Rubin, 117 F.3d 652, 655 (2nd Cir 1997). It is also true that my focus must be on whether the Complainant has proven that age discrimination lay behind Respondent’s failure to hire him, Kelly v. Airborne Freight Corp., 140 F.3d 335, 351 (1st Cir. 1998), and not whether I agree with Respondents hiring decisions. However, as I have concluded that Respondents did in fact discriminate on the basis of Complainant’s age, this cart is not in front of this horse, which is the essence of Respondents claim.

Respondents also see significance in the fact that multiple decision makers (i.e., hiring managers) were involved and that "each decision-maker had individualized reasons for not hiring Harrington" (Respondents Brief p. 3). It is true that there is no "smoking gun", no document, no testimony linking all these actions and actors to each other. This is not unusual, for as the Court noted in Kline v. Tennessee Valley Authority 128 F.3 337, 348 (6th Cir. 1997), "rarely can discriminatory intent be ascertained through direct evidence because rarely is such evidence available … there will seldom be ‘eyewitness’ testimony as to the employers mental processes … and the basic reasoning behind the McDonnell Douglas burden shifting approach is to allow a victim of discrimination to establish their case through inferential and circumstantial proof." See also Price Waterhouse v. Hopkins 490 U.S. 228, 109 S.Ct. 1775 (1989); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613 (1985).

Here the evidence was compelling that the "individual decision makers", with respect to the eleven (11) positions at issue, did indeed act in very much the same way, and exhibited very much the same pattern of preferences, and offered false, misleading, contradictory, and inconsistent reasons in justification for their individualized decisions.

Also, Respondents made no attempt to dispute that any of their witnesses/hiring managers were acting in any other capacity than as duly constituted agents and employees acting fully within the scope of their normal duties. All that is necessary to find these corporate Respondents liable is to find that these individuals were agents of the corporation at the relevant time. "A principal need not specifically authorize an agent to discriminate in order to be held liable for the actions of its agents." Carbera v. Jakaborutz, 24 F.3 372 (2nd Cir. 1994).

As Complainant has not filed his claim against any of these individual decision makers the fact that some of them were unaware of Complainant’s applications for the positions in question does not relieve the Respondents from liability. Rather, the failure to give any consideration to Mr. Harrington by allowing him to participate in the interview process – apart from Mr. Nissen and Ms. Richwine – is itself an indication of age discrimination in the hiring process.

Therefore, for all of the foregoing reasons I have concluded that the Respondent’s proffered, allegedly non-discriminatory reasons for its actions in not hiring Mr. Harrington are false and pre-textual.

a.4.) Complainants Prima Facie Case And The Pre-Textual Nature of Respondents Reasons Lead To The Inference Of Discrimination.

The Second Circuit has recently restated the elements required to establish age discrimination in employment where there is no direct evidence presented. In McCarthy v. N. Y. Technical College of the City University of New York, 202 F.3d 161 (2000), decided this past January 13, the Court stated that "the mere fact of a pretext will not support a verdict of discrimination unless the circumstances make the finding reasonable … (plaintiff) may prevail only if the totality of the evidence, reviewed in the light most favorable to the plaintiff, supports a reasonable inference that the employer’s true reason was the alleged discrimination … depending on the circumstances, an employers resort to pretext may give the plaintiff strong support. … An employer’s assertion of false reasons does not eliminate the requirement that the evidence, considered in its entirety, including any inference reasonably drawn from the falsity of the proffered reasons, must be capable of supporting a reasonable finding that the true reason was the prohibited discrimination alleged" McCarthy at p. 166.

With this as a guide I conclude that the Complainant has established his claim by a clear preponderance of the evidence when the record as a whole is viewed in light of establishment of his prima facie case and my finding of pretext. Virtually all of the positions contested at the hearing were filled by persons younger than Complainant, as were all of the eleven (11) positions for which I found him qualified in this Decision. All of the relevant hiring managers were themselves younger. Despite his years of broad experience punctuated with promotions and increased responsibilities, Mr. Harrington was deemed unqualified for even a lower level auditor position; in effect an entry-level position. The repetitive "requirement" for recent relevant experience in post graduation entry-level positions positively mandated younger hires in practical terms. This was matched by a tone and demeanor which clearly implied preferences for younger employees, a preference, which occasionally slipped out in more explicit terms, no doubt, by accident. Mr. Lawlor’s stated preference for "someone with a high energy level and a self-starter" (Tr. 722), and Ms. Richwine’s reference to Paul Bailey as a very impressive young man … with initiative … a very confident young man" (Tr. 799) stand out only by their overtness.

On the opposite side of the same coin it is difficult to come up with alternative rationales for the misrepresentations which abound from the Respondents, and which existed in Fisher v. Vassar, supra. There is no possible basis for inferring nepotism, professional jealousy, or even personal dislike because none of the hiring managers knew Mr. Harrington, or had worked with him. Did his political preferences come into play, or his rooting interest in his favorite sports team? To ask the questions in the context of this case is to provide the answer. Viewed against the totality of the circumstances presented here by the testimony and the record, it is clearly substantially more likely that Mr. Harrington’s age was the reason for the pretexts used than any other plausible hypothesis.

In consequence the ultimate conclusion in this case must be, and is, that age discrimination can be properly inferred from the Respondents pretextual reasons in combination with the prima facie case established.

IV. DAMAGES AND RELIEF

1.  Back Pay and Interest

The presiding Referee under C.G.S. 46a-86(b) has the authority inter alia "to order the hiring or reinstatement of employees, with or without back pay." Our 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 discrimination … such an order for relief may include retroactive and prospective monetary relief … where 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" 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). This is fully consistent with the remedies available under Federal Law for employment discrimination, "where the Courts’ goal should be to make the plaintiff whole and place him in the position he would have been in absent the discriminatory conduct." See Landgraf v. USI Film Prods., 511 U.S. 244, 254 (1994).

In the foregoing analysis I concluded that the Respondents discriminated on the basis of the Complainants age in failing to hire him to any of eleven (11) positions comprising Manager, Internal Audit, Senior Auditor (Financial & Operations Audit), Senior Auditor (Government Compliance and Operations Audit) at UTC and Financial Manager Level 4 and Business Unit Controller at Hamilton Standard. Chronologically the dates on which hires took place ranged from May 23, 1997, (Timothy Keenen) to October 15, 1998 (Edward Kelly). (Findings 82 and 85.) The evidence indicates that there was a very broad salary range for these positions, running from $70,000 to $120,000 per year for a Labor Grade 51 Manager, Internal Audit, and for Financial Manager Level 4 as of 1997. (Findings 79 and 84.)

In assessing economic damages flowing from the Respondent’s discriminatory acts it is obviously necessary to indicate a start date and a salary figure. Complainant, in his Brief, invites the use of the highest possible salary figure (p. 27) and also suggests the use of a figure predicated on a presumed mid-point. As I previously noted I have declined to do so.

Although, of the eleven (11) positions indicated, Timothy Keenan’s was the first filled (May 23, 1997), I have decided to use the start date for Thaddeus Turney, who was hired by Mr. Nissen on July 14, 1997, as the logical place to commence back pay calculations. The logic behind this is my acceptance of Mr. Harrington’s testimony that his primary goal was to restore or reinstate his benefit package and coverage (Finding 51; Tr. 75-76). He was even willing, if necessary, to take a pay cut and labor grade reduction (to Grade 48) in order to do so. Therefore it follows that he would have taken the first available position. At the time of the interviews with Nissen and Richwine there was in fact a Grade 51 position becoming available, (Finding No. 52), notwithstanding Nissen’s statements to the contrary, which was in fact filled by Turney on July 14, 1997. Had not the prescribed discrimination taken place, it is logical to assume that Harrington would have been made aware of and taken this position.

Complainant, as noted above, suggests that based on general hiring practices (Finding No. 80 and No. 83) that a salary should be assumed that would be midway in the relevant labor grade (Complainant Proposal Finding 86). However, it must be remembered that at his interviews, and subsequently during the hearing, Harrington stated that he was willing to take a salary of $65,000 in order to retain his benefit status with the Respondent. That being the case, there is no obvious reason to assume that he would have been offered more than the starting salary for the Grade, which was $70,000, since he had indicated a willingness to accept a figure $5,000.00 lower than that. Thus, for purposes of calculating his damages/back pay, I am using a start date of July 14, 1997 and a salary of $70,000/per year. Using the above and running it out until the decision herein, as per Silhouette Optical Supra, yields the following:

July 1997 - April 2000 = 33 months
($70,000 divided by 12 months) = $5,833.33/month
33 months @ $5,833.33/month = $192,500.00 in back pay.

There was no reliable evidence submitted upon which I could reasonably ascertain prospective raises. Therefore I will not speculate on the subject. However, as Judge Maloney noted in Silhouette Optical, supra,
the award of interest and the method of its calculation are within the discretion of the fact finder. This is particularly true in cases of employment discrimination. "Prejudgment interest is an element of complete compensation" Silhouette at p. 21-22. Similarly, the Second Circuit said "prejudgment interest on a back pay award … is to prevent an employer from attempting to enjoy an interest-free loan for as long as it can delay paying out back wages. Therefore, this court has held that it is ordinarily an abuse of discretion not to include pre-judgment interest in a back pay award" Saulpaugh v. Monroe Community Hospital, 4 F.3rd 134 (2nd Cir. 1993) at 143. Given that the objective is to make the plaintiff whole, the Court went on to affirm the desirability of the interest being compounded.

Thus, I find that the Complainant is entitled to compound interest on the award of back pay from the date of the effect of the discriminatory act, which was July 14, 1997. I find a compound interest rate of ten (10%) percent to be fair and reasonable.

2.  Mitigation Amount

Under controlling judicial precedents, as well as innumerable prior CHRO decisions, the Complainant has a general duty to mitigate damages. NLRB v. Mastro Plastics Corp., 354 F.2d 170 (2nd Cir. 1965); Vera Lozano v. International Broadcasting 50 F.3rd 67 (1st Cir. 1995). The burden of establishing that there was a failure to mitigate damage is the employers. Ann Howard’s Apricot Restaurant v. CHRO 237 Conn. 209 (1996). As to what constitutes a reasonable effort to mitigate damages, this is a question for the trier of fact. Ann Howard’s, supra.

In Exhibit C-44 Complainant offered evidence substantiating that he earned other income totaling $63,296, which he concedes should be reduced from the pack pay award (Brief p. 29). Included in that sum is $5,554 earned at the Mashantucket Pequot Gaming Resort, which apparently represents approximately one month’s work there. Mr. Harrington conceded that he only worked for about a month, at an annual salary of $65,000 before quitting his job (Tr. 149-150). It would appear that his last week there was at the beginning of June 1999.

I do not find, or accept, that Complainants mitigation figure is only 63,296. I do not find a sufficiently plausible reason in the record for his quitting that allows him to claim that he made the requisite effort. Therefore, in addition to the $63,296 above-referenced, I am reducing the back pay award by an amount equivalent to the following:

June 1999 - April 2000 = 10 months
($65,000 divided by 12 months) = $5,416.66/month
10 months @ $5,416.66/month = $54,167.00.

This represents the figure that he would have earned had he maintained his employment at the stated rate of $65,000/year. I have not assumed any raises for the same reason as noted above in the back pay calculation, namely my refusal to speculate in the face of a lack of evidence on the record.

Therefore ($63,296 plus $54,167), the total mitigation figure is $117,463.

Subtracting $117,463 from the back pay award of $192,500 yields a net figure of $75,037. This figure represents my net award for economic losses to the date of this decision.

3.  Front Pay / Prospective Relief

In his requested relief (Brief p. 29), Complainant seeks an order requiring Respondents to hire him to the next available, suitable position, which in this case is the next available opening in any of the classes representative of the eleven (11) positions herein above referenced. Should a position not be available, he also seeks an order of front pay "at the appropriate rate", together with all benefits to which he was previously entitled. As the Complainant points out, the employer bears the burden of proving that reinstatement should not be granted. Cancellier v. Federated Department Stores 672 F.2d 1312 (9th Cir. 1982). As no evidence was presented in this to that effect by the employer, this request is deemed reasonable. Insofar as the restoration of benefits is concerned, this operates to help make the Complainant whole and is fully supported statutorily and by judicial precedent as noted above.

The level of front pay is problematical, however, in view of the Complainants failure to adequately mitigate his damages. Although Soulpaugh and Silhouette Optical, supra, support the award of front pay in the appropriate circumstances, it is clearly "discretionary" Saulpaugh, supra, p. 33-34.

Should a position not be available, or become available, putting the Complainant in the position he would have been in economically but for the prohibited discrimination also entails looking at where he would be with sufficient mitigation efforts. In this case it would be at a job paying $5,000/year above what he otherwise would be earning by working at the Mashantucket position; therefore it is appropriate to have Respondents pay $5,000/year until he is hired by them, or reaches the age of 66, whichever occurs the earliest.

V. CONCLUSION:

The Respondents violated C.G.S. § 46a-60(a)(1) and 29 U.S.C. § 621 et seq. by virtue of their failure to hire Complainant, on account of his age, to any of eleven positions enumerated in Findings No. 82 and No. 85. Complainant is entitled to an award of back pay, with compound interest, reinstatement to the first such position that becomes available, restoration of his back benefits, and front pay as described above and as ordered hereinafter.

VI. ORDERS OF RELIEF:

  1. Respondents are ordered to pay to the Complainant the sum of $75,037.00 as monetary compensation for his economic loss, with interest compounded at the rate of ten (10%) percent effective as from July 14, 1997.
  2. Respondents are ordered to hire Complainant to the next available position open among the eleven enumerated positions, or to analogous positions created in the future.
  3. Respondents are ordered to provide Complainant access to their company-wide intranet for purposes of verifying when, or if, such positions become available.
  4. Respondents are ordered to reinstate to Complainant all of the pension benefits enjoyed by him as a UTC employee retroactive to July 14, 1997 and provide the range of benefits available to him as an employee until he is rehired, pursuant to No. 2 above, or until he reaches the age of 66, whichever occurs the earliest.
  5. Respondents are to pay to Complainant the sum of $5,000.00 per year as front pay until such time as Complainant is hired to one of the positions provided for in (2) above, or until he reaches the age of 66, whichever occurs the earliest.
  6. The Respondents 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.
  7. Pursuant to C.G.S. § 46a – 86(b) the Respondent shall pay to the CHRO additionally the sum of $5,675 which sum shall be transferred by the CHRO to the Department of Labor, as reimbursement for unemployment compensation paid to Complainant, which is attributable to Respondent’s discrimination.

Dated this 25th day of April, 2000 at the Office of Public Hearings, 21 Grand Street, Hartford, Connecticut.

The Honorable Gordon T. Allen
Presiding Human Rights Referee

cc: Wayne Harrington
Attorney Kathleen Eldergill
Edward Dempsey, UTC
Jeffrey Odell, Hamilton Standard Division
Attorney Albert Zakarian
Attorney Victoria Woodin Chavey
Attorney John McLafferty
Attorney Regina M. Hopkins, Assistant Commission Counsel
Attorney Raymond Peck, Deputy Commission Counsel
Ann Galer-Pasternak, Public Hearing Administrator





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