CHRO: Graves v. Sno-White Carwash - MEMORANDUM OF DECISION

Graves v. Sno-White Carwash - MEMORANDUM OF DECISION
Graves v. Sno-White Carwash - MEMORANDUM OF DECISION

CHRO CASE # 0330082

Commission on Human Rights and Opportunities ex rel.
David Graves, Complainant

v.

Sno-White Avenue Car Wash, Respondent

February 8, 2006

MEMORANDUM OF DECISION

Preliminary Statement

The Public Hearing (also "hearing") for the above-captioned matter was held on July 12 and 13, 2005, pursuant to the Conference Summary and Order of the undersigned Presiding Human Rights Referee issued April 28, 2004. David Graves ("Complainant") appeared pro se. Margaret Nurse-Goodison, Assistant Commission Counsel II, appeared on behalf of the Commission on Human Rights and Opportunities ("Commission" or "CHRO"). Attorney Albert Zakarian appeared on behalf of Sno-White Avenue Car Wash ("Respondent"). The issues addressed in this decision are: 1) whether the Complainant proved by a preponderance of the evidence that the Respondent discriminated against him on the basis of his Puerto Rican ancestry when it terminated his employment; and 2) if so, whether the Complainant is entitled to any damages or other relief.

For the reasons set forth below, it is hereby determined that the Complainant has not proven that the Respondent discriminated against him in violation of state law. Judgment is entered in favor of the Respondent and the case is hereby dismissed.

Parties

The Complainant's contact address is P.O. Box 1561, New Britain, CT 06050. The Commission is located at 21 Grand St., 4th Floor, Hartford, CT 06106. The Respondent is located at 12 Farmington Avenue, Bristol, CT 06010.

Procedural History

On August 20, 2002, the Complainant filed his complaint affidavit ("complaint") with the Commission alleging that the Respondent terminated him on June 5, 2002 because of his ancestry1 (Puerto Rican) in violation of General Statutes § 46a-60 (a) (1).

The Commission investigated the allegations of the complaint, 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 March 25, 2004, in accordance with General Statutes § 46a-84(a). On March 30, 2004, the Office of Public Hearings sent to all parties of record the Original Notice of Public Hearing along with a copy of the complaint.

The Respondent filed an answer to the complaint on April 30, 2004. The hearing was held on July 12 and 13, 2005. All statutory and procedural prerequisites to the public hearing were satisfied and this complaint is properly before the undersigned Presiding Referee for decision.

References made to the transcript pages are designated as "Tr." followed by the accompanying page numbers. References made to the exhibits are designated as either "R. Ex." for the Respondent or "CHRO Ex." for the Commission followed by the accompanying exhibit numbers. References made to the findings of fact are designated as "FF" followed by the accompanying numbers and references made to the briefs are designated as "R. Brief" for the Respondent or "CHRO Brief" for the Commission followed by the accompanying page numbers.

Findings of Fact

1. The Complainant began employment with the Respondent as a car wash attendant at the Respondent (also "car wash") on Farmington Avenue, Bristol, Connecticut in September 2000. Tr. 4, 7, 356.

2. The Complainant is of Puerto Rican ancestry. Tr. 13; complaint.

3. The Respondent is owned by Andrew Jackie (Jackie). Tr. 7, 272.

4. The Respondent employed one other employee of Puerto Rican ancestry who worked as a landscaper during the time the Complainant worked with the Respondent. Tr. 199, 420-22.

5. On May 5, 2002, the Complainant suffered an injury while working with the Respondent and was treated at a hospital. Tr. 21-24.

6. Jackie told the Complainant that he would pay the hospital bill for the Complainant's injury. Tr. 24, 272, 396, 408.

7. On June 5, 2002, the Complainant presented the hospital bill to Jackie for payment. Tr. 29, 395-96.

8. Jackie took the bill and placed it in his back pocket. Tr. 30, 396. The Complainant wanted the bill to be returned to him. Tr. 30, 396. An argument ensued over the hospital bill between Jackie and the Complainant. Tr. 29-31, 396-98.

9. Two employees, Melisssa Toscano and Jason Saucier, were present during the initial argument between the Complainant and Jackie over the hospital bill. Tr. 31-32, 418-19.

10. During the initial argument over the hospital bill, Jackie was yelling and cursing at the Complainant. However, the Complainant did not use profanity toward Jackie. Tr. 165-67; R. Ex. 4.

11. During the argument, Jackie told the Complainant that he did not want the Complainant working there any longer. Tr. 30-31.

12. Jackie became upset, began shaking and eventually left the car wash. Tr. 31, 34, 38, 168, 210, 398.

13. Jackie returned to the car wash later that day accompanied by an employee, George Miller. Tr. 46, 399, 401.

14. Upon Jackie's return to the car wash, a second argument occurred between the Complainant and Jackie. Both Toscano and Saucier were present as well during this second argument. Tr. 42, 46, 168, 401.

15. During the second argument, the Complainant had in his possession some of the Respondent's business records. Tr. 444, 451, 403, 454.

16. The Respondent terminated the Complainant's employment on June 5, 2002. Tr. 29, 411.

17. The Complainant threatened to report the Respondent regarding its taxes and the mishandling of its payroll and time records. Tr. 39-40, 156-57, 403.

18. The Complainant was terminated because of an argument he had with Jackie on June 5, 2002 that stemmed from an issue about the payment of the hospital bill and developed into an issue regarding the Respondent's business records. Tr. 31-32, 418-19, 444, 451, 403, 454.

19. A "Caucasian" man named Brian temporarily replaced the Complainant. Tr. 332-34.

20. The Complainant was a good worker when he worked with the Respondent. Tr. 175, 423, 469.

21. The Respondent paid the Complainant in cash and paid at least one other employee, Lyra, in cash as well. The Respondent had a time card for Lyra, but did not have payroll records for her on certain dates. Tr. 380-81, 472-73, 489-91; CHRO 28.

22. The Respondent understated the Complainant's hourly wage as $6.75 on its payroll records. CHRO Ex. 20. The Complainant's true hourly wage was $10.50. Tr. 58, 292-93.

23. The Respondent had no time cards for the Complainant and Toscano on May 5, 2002, the day the Complainant was injured at the car wash. Tr. 321-22, 324-25; CHRO Ex. 10, 28.

24. The Respondent falsely informed the Department of Labor that the Complainant worked with it for six months; the Complainant actually had worked with the Respondent for over one and one half years. Tr. 4, 356, 437; R. Ex. 7.

25. The Respondent's employees did not make any derogatory remarks regarding the ancestry of customers and applicants for employment during the time the Complainant was employed. Tr. 204.

26. Neither Jackie nor other employees called the Complainant any derogatory terms. Tr. 178; R. Ex. 4 and 5.

27. On June 6, 2002, the Complainant returned to the car wash with picket signs and picketed at the car wash. Tr. 40, 213, 406.

28. The picket signs read: "Fired by a liar"; "60 hours unappreciated"; and "Unfair Labor practice." They made no mention of the Complainant being treated differently because he was of Puerto Rican ancestry. Tr. 120, 156.

29. The Complainant continued to patronize the car wash even after he was terminated and had picketed at the car wash. Tr. 123-24.

30. After he was terminated, the Complainant reported to the Department of Labor that the Respondent had not paid him for overtime worked. Tr. 59-61, 325-26, 410-11; CHRO Ex. 7, 8, 9.

31. The Department of Labor conducted an investigation and concluded that the Respondent had violated section 7 of the Fair Labor Standards Act for having failed to pay statutory overtime to the Complainant and another employee for hours worked in excess of forty hours per week. The Department of Labor directed the Respondent to pay the Complainant the amount of $1,986.87, with which the Respondent complied. Tr. 60-61, 411; CHRO Ex. 7, 8, 9.

32. The Complainant had falsified responses on his applications for employment. Tr. 126-133; R. Ex. 14.

33. At the time of the hearing, Toscano was dating the Complainant's friend and she was also a friend of the Complainant. Tr. 249.

34. At the time of the hearing, Saucier no longer was employed with the Respondent. Tr. 160.

35. At the time of the hearing, Miller had been employed with the Respondent for ten years. Tr. 441, 445.

I

DISCUSSION

The Respondent has been charged with violating General Statutes § 46a-60 (a) (1) for terminating the Complainant. As set forth in § 46a-60 (a), "It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, . . . to discharge from employment any individual . . . because of the individual's race, color, religious creed, age, sex, marital status, national origin, ancestry, . . .."

It is well established that Connecticut's anti-discrimination statutes are coextensive with the federal law on this issue and therefore, this case will be analyzed using both the prevailing Connecticut and federal law. See Pik- Kwik Stores, Inc. v. Commission on Human Rights and Opportunities, 170 Conn. 327, 331 (1976). The state courts look to federal fair employment case law when interpreting Connecticut's anti-discrimination statutes, but federal law should be used as a guide and not the end all for interpreting state statutes. See Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53 (1982); See also State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 470 (1989).

This matter is a case of disparate treatment. "The principal inquiry of a disparate treatment case is whether the [complainant] was subjected to different treatment because of his or her protected class." Levy v. Commission on Human Rights and Opportunities 236 Conn. 96, 104 (1996). "Under the analysis of the disparate treatment theory of liability, there are two general methods to allocate the burdens of proof: (1) the mixed-motive/Price Waterhouse model and (2) the pretext/McDonnell Douglas-Burdine model." (Citations omitted.) Id., 104-05. The Commission argued that both legal methods, the mixed-motive test from Price Waterhouse v. Hopkins, 490 U.S. 228, 246 (1989), and the pretext case from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981), apply to support its claim that the Complainant was terminated since he was treated differently because of his ancestry. CHRO Brief, p.15.

A

Legal Standards for Disparate Treatment

1

Mixed-Motive/Price Waterhouse Method

"A 'mixed-motive' case exists when an employment decision is motivated by both legitimate and illegitimate reasons. In such instances, a [complainant] must demonstrate that the employer's decision was motivated by one or more prohibited statutory factors. Whether through direct evidence or circumstantial evidence, a [complainant] must submit enough evidence that if believed, could reasonably allow a fact finder to conclude the adverse employment consequences resulted because of an impermissible factor." (Internal quotation marks omitted; citations omitted.) Taylor v. Dept. of Transportation, 2001 Conn. Super. LEXIS 197, 18-19. "Under this model, [complainant's] prima facie case requires that the [complainant] prove by a preponderance of the evidence that [1)] he or she is within a protected class and [2)] that an impermissible factor played a 'motivating' or 'substantial' role in the employment decision. Once the [complainant] establishes a prima facie case, the burden of production and persuasion shifts to the [respondent]. The [respondent] may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the [impermissible factor] into account." (Internal quotation marks omitted; citations omitted.) Id., 19; See also Levy v. Commission on Human Rights and Opportunities, supra, 236 Conn. 106-07; Price Waterhouse v. Hopkins, supra, 490 U.S. 242, 246.

Direct evidence of discrimination "may include evidence of actions or remarks of the employer that reflect a discriminatory attitude . . . or [c]omments [that] demonstrate a discriminatory animus in the decisional process." (Citations omitted.) Levy v. Commission on Human Rights and Opportunities, supra, 236 Conn. 110. Statements or comments that are undisputed constitute direct evidence. See Price v. Waterhouse, supra, 490 U.S. 256 (where the statement was admitted); Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 206 (1991) (where the statement was uncontroverted); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2nd Cir. 1992) (there was an unequivocal statement of intent constituting direct evidence of discriminatory motive ("I fired him because he was too old").) In Levy v. Commission on Human Rights and Opportunities, supra, 236 Conn. 101, the employer's statement that the complainant was transferred "because of his hearing disability" was considered to be direct evidence. Other examples of direct evidence include a company president's planning documents stating that the company's strengths included "young managers"; and a decision-maker's comment that he would not hire blacks if it were his company. Reiff v. Interim Personnel, Inc., 906 F.Supp.1280, 1287-88 (D. Minn. 1995).

Circumstantial evidence requires the fact finder to take certain inferential steps before the fact in question is proved. Tyler v. Bethlehem Steel Corp., supra, 958 F.2d 1183. For example, evidence consisting of a statement by a decision-maker "to the effect that older employees have problems adapting to new employment policies" would constitute circumstantial evidence "(in that it requires an inference from the statement proved to the conclusion intended) that a discriminatory motive played a motivating factor in the challenged employment decision." (Internal quotation marks omitted; citations omitted.) Stacks v. Southwestern Bell Yellow Pages, 996 F.2d 200, 202, n.1 (1993). Regardless of "direct" or "circumstantial" evidence, "the plaintiff must present evidence showing a specific link between discriminatory animus and the challenged decision." Id. Therefore, a complainant may establish a prima facie case under the mixed-motive analysis by presenting evidence that is either "direct" or "circumstantial."

"If the [complainant] is unable to produce evidence that directly reflects the use of an illegitimate criterion in the challenged decision, the employee may proceed under the now-familiar three-step analytical framework described in [McDonnell Douglas Corp. v. Green, supra, 411 U.S. 792.]" Stacks v. Southwestern Bell Yellow Pages, supra, 996 F.2d 202.

2

Pretext/McDonnell Douglas-Burdine Method

The pretext/McDonnell Douglas-Burdine model is used "when a [complainant] cannot prove directly the reasons that motivated an employment decision but nevertheless may establish a prima facie case of discrimination through inference by presenting facts sufficient to remove the most likely bona fide reasons for an employment action." Taylor v. Dept. of Transportation, 2001 Conn. Super. LEXIS 197, 19-20; See also McDonnell Douglas Corp. v. Green, supra, 411 U.S. 802-04; Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 252-56. The burden shifting scheme of McDonnell Douglas-Burdine applies to the Connecticut Fair Employment Practices Act ("CFEPA") §46a-51 et seq. See Ann Howard's Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities, 237 Conn. 209, 225 (1996). "From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons." Taylor v. Dept. of Transportation, 2001 Conn. Super. LEXIS 197, 20. Under the pretext method the Complainant needs to prove four elements to establish a prima facie case: 1) that he belongs to a protected class; 2) that he was qualified for the position; 3) that despite his qualifications, he suffered an adverse employment action; and 4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Board of Education v. Commission on Human Rights and Opportunities, 266 Conn. 492, 505 (2003). This standard is not rigid and has been modified to the present fact scenario. See Levy v. Commission on Human Rights and Opportunities, supra, 236 Conn. 108 n.20. Once the Complainant has established a prima facie case of discrimination, a presumption of discrimination is created.

Although under the McDonnell Douglas-Burdine model, the burden of persuasion remains with the complainant, once the complainant has established a prima facie case, the burden of production shifts to the respondent to rebut the presumption of discrimination by articulating (not proving) a legitimate, non-discriminatory reason for the adverse employment action. See Levy v. Commission on Human Rights and Opportunities, supra, 236 Conn. 108; See also Taylor v. Dept. of Transportation, 2001 Conn. Super. LEXIS 197, 20-21. Once the respondent articulates a legitimate, non-discriminatory reason, the complainant has an opportunity to prove by a preponderance of the evidence that the proffered reason is pretextual. Taylor v. Dept. of Transportation, 2001 Conn. Super. LEXIS 197, 21.
"The McDonnell Douglas-Burdine analysis keeps the doors of the courts open for persons who are unable initially to establish a discriminatory motive. If a [complainant], however, establishes a Price Waterhouse prima facie case, thereby proving that an impermissible reason motivated a [respondent's] employment decision, then the McDonnell Douglas-Burdine model does not apply, and the [complainant] should receive the benefit of the [respondent] bearing the burden of persuasion [as under the mixed-motive/Price Waterhouse method]." (Citations omitted.) Taylor v. Dept. of Transportation, 2001 Conn. Super. LEXIS 197, 21-22.

B

Mixed-Motive Analysis

In applying these legal standards to the facts of the present case, it is appropriate to look first to the mixed-motive/Price Waterhouse method of analysis. First, the Complainant established the first element of his prima facie case that he is a member of a protected class. He alleged in his complaint that he is of Puerto Rican ancestry and testified to the same. FF 2. Although the Respondent contended in its brief that "the only evidence relating to the [complainant's] national origin is his claim that [Jackie], . . . called [him] a 'stupid Puerto Rican'"; it did not present evidence at the hearing to rebut that the Complainant's ancestry is Puerto Rican. Therefore, the Complainant established that he is of Puerto Rican ancestry and thus belongs in a protected class.

Next, the Complainant must establish that an impermissible factor played a 'motivating' or 'substantial' role in the Respondent's decision to terminate him. Price Waterhouse, supra, 490 U.S. 246. The Complainant testified that on June 5, 2002, the Respondent terminated him because he is of Puerto Rican ancestry. Tr. 29, 39. The Complainant testified that on June 5, 2002, he and Jackie, the Respondent's owner, were involved in a dispute over a hospital bill, which was to be paid by Jackie. Tr. 29-31; FF 3. He testified that during the argument, Jackie left the car wash and returned. Tr. 31, 34, 38. He testified that when Jackie returned to the car wash, Jackie told the Complainant that he was fired. Tr. 38-39. He testified that when he asked Jackie for the reason he was firing him, Jackie stated, that the Complainant was a "stupid Puerto Rican." Tr. 39, 45. Jackie denied making this statement. Tr. 402-03. There were three witnesses present during the Complainant's termination, Miller, Toscano and Saucier.2 FF 9, 13, 14. The only witness to corroborate the Complainant's testimony regarding Jackie calling him a "stupid Puerto Rican" is Toscano. Tr. 212. However, it is questionable whether Toscano's testimony is credible because she had a personal bias; she was a long-time friend of the Complainant and she was dating his friend at the time of the hearing. FF 33.

The Complainant's other witness, Jason Saucier, testified that he did not hear any slurs or derogatory comments about ancestry or race when Jackie fired the Complainant. Tr. 178. In addition, Saucier signed two statements that reflect this same position. FF 26. One statement was drafted by the Complainant (R. Ex. 4) and one by the Respondent (R. Ex. 5). Neither of Saucier's statements reflected that Jackie called the Complainant a "stupid Puerto Rican." In fact, in one of the statements, Saucier stated under oath that, "At no time did Andrew Jackie make any slur involving David Graves' ethnic or national background. There is no truth at all to the claim that Jackie called Graves a 'dirty Puerto Rican' or similar words!" R. Ex. 5, par. 4. In one of Saucier's written statements he stated that Jackie told the Complainant that Jackie was firing the Complainant because he did not like the Complainant. R. Ex. 4. At the time of the hearing, Saucier no longer was employed with the Respondent. FF 34. I find that Saucier was a neutral witness and was credible based on his testimony and his two prior consistent written statements.

One of the Respondent's witnesses, Miller, who was currently employed with the Respondent and had been for ten years, testified that during the second argument he did not hear any discussion about termination or any derogatory comments about the Complainant. FF 35; Tr. 441, 445. I do not find that Jackie called the Complainant a "stupid Puerto Rican." The only corroborating witness the Complainant had to the alleged statement was Toscano who was a long-time friend of the Complainant and dating his friend. FF 33. The Complainant's other witness, Saucier, did not corroborate the statement. The Complainant did not establish direct evidence of discrimination.

Also, the Complainant testified that after his wedding on November 10, 2001, Jackie, his son, Phil Jackie and Jason Boucher (a manager), treated him poorly and called him names, such as, "Rican," "Pablo" and others. Tr. 11-13, 15, 465. He also testified that Jackie would use the term "spics." Tr. 16. He testified that derogatory remarks were made about the customers as well. Tr. 17. The Complainant did not testify as to who made those derogatory comments about the customers. Tr. 17. Also, the Complainant provided no evidence to corroborate that the Respondent used derogatory terms toward the customers or toward him. Toscano testified that Jackie and Boucher made comments when a particular "Muslim kid" came to the car wash to apply for a position. Tr. 201. She testified that Jackie and Boucher had commented that they did not want that "type" working here. Tr. 203. She testified that she did not remember hearing any other derogatory comments. Id. She also testified that she did not recall hearing comments about customers. Tr. 204. She did not corroborate the Complainant's testimony that Respondent used the terms "spic, Pablo or Rican" or that derogatory remarks were made toward customers. Saucier did not testify as to having heard any derogatory comments throughout his employment with the Respondent.

When the Complainant was terminated, he had signs printed that he used to picket the car wash. FF 27, 28. The signs made no mention of discrimination but instead stated, " Fired by a liar"; "60 hours unappreciated"; and "Unfair Labor practice." FF 28. In addition, although the Complainant believed that the Respondent discriminated against him and he picketed the car wash, he still patronized the car wash to have his car cleaned. FF 29. When asked about his patronage of the car wash, the Complainant testified, "I think that's the best car wash that I have ever been to. The car wash is great. It's the superiors [themselves]." Tr. 123-24. I do not find that the Respondent made derogatory comments toward or about the Complainant because of his Puerto Rican ancestry. FF 26. Also, I do not find that the Respondent made derogatory comments about applicants for employment at the car wash or about customers. FF 25. Therefore, the Complainant has not provided direct evidence or enough circumstantial evidence to support that the Respondent was motivated by an impermissible reason when it terminated him. Therefore, the Complainant has failed to establish a prima facie case of discrimination under the mixed-motive/Price Waterhouse test.

C

Pretext Analysis

Next, I look to the pretext/McDonnell Douglas-Burdine method. As stated above, the Complainant has established that he belongs to a protected class because of his ancestry, Puerto Rican. FF 2. It is undisputed that he was employed with the Respondent and was qualified to work there. Saucier and the Respondent's witnesses, Phil Jackie and Jackie, all testified that the Complainant was a good worker. FF 20. Thus, the Complainant established the second element of his prima facie case. The Complainant also has established the third element of his prima facie case by presenting evidence that he suffered an adverse employment action when the Respondent terminated him on June 5, 2002. FF 16. Although it is disputed as to what time on June 5, 2002 the Complainant was terminated,3 it is not disputed that he was in fact terminated. Next, he must prove the fourth element that the termination occurred under circumstances giving rise to an inference of discrimination.

The Complainant's burden of proving his prima facie case is not an onerous one, and it has been described as "de minimis." Weinstock v. Columbia University, 224 F.3d 33, 42 (2nd Cir. 2000); Ann Howard's Apricots Restaurant v. Commission on Human Rights and Opportunities, supra, 237 Conn. 225. As stated above, the Complainant and Toscano testified that Jackie called the Complainant a "stupid Puerto Rican" when he terminated the Complainant. Tr. 39, 45, 212. Also, the Complainant testified that after his wedding on November 10, 2001, Jackie, Phil Jackie and Boucher treated him poorly and called him names, such as, "Rican", "Pablo" and others. Tr. 11-13. The Complainant testified that things began to go downhill after the wedding when everyone was made aware that he was Puerto Rican. Tr. 14-15.

Also, he testified that Jackie would use the term "spics." Tr. 16. Because the Complainant's burden of proving a prima facie case is de minimis, this evidence should be enough to satisfy the fourth element of the prima facie case. However, the Complainant's witness, Saucier, was present during the termination. He signed two sworn statements that Jackie did not make the derogatory comment and also testified to the same. FF 26. Therefore, I do not find that Jackie made the derogatory comment toward the Complainant. Also, no other employees who would have heard the various alleged derogatory comments made about or to the Complainant after his wedding or about the customers testified that any such derogatory remarks were made. Although the Complainant's burden is de minimis, it is not possible to find that the derogatory remarks were made.

Alternatively, the Complainant established that after he was terminated his position was filled temporarily by a man named Brian of "Caucasian" race. FF 19. Jackie testified that Brian replaced the Complainant on an emergency basis and Brian's race was "Caucasian." Tr. 332-34, 337. Jackie was uncertain of Brian's surname. Tr. 335-37. The term Caucasian is an imprecise term often misused to mean people of white race.4 A common definition for Caucasian is " of, pertaining to, or characteristic of one of the traditional racial divisions of humankind, . . .." Webster's Unabridged Dictionary (Deluxe Ed. 2001). The Commission elicited evidence from Jackie of Brian's race, which was possibly "white" (Caucasian), but it did not elicit evidence of Brian's ancestry, origin or ethnicity. The Commission did not prove that Brian was not of the same Puerto Rican ancestry (protected class) as the Complainant.

Hispanic origin includes people from Puerto Rico; also, Hispanic is not a race but a category for ethnicity or origin and Hispanics can be of any race.5 Therefore, one can be both of white race and of Puerto Rican ancestry (properly referred to as the "detailed origin" of the Hispanic origin)6 . The Complainant alleged that the Respondent discriminated against him because of his ancestry (Puerto Rican) not because of his race. See Complaint, allegation no. 11; See also CHRO Brief, p.2. The Commission did not provide clear evidence to prove that a non-Puerto Rican or non-Hispanic person replaced the Complainant. There is no evidence in the record revealing Brian's ancestry or ethnicity. Therefore, the Commission has not proven that someone not within the Complainant's protected class received his position after he was terminated and, hence, it has not established the fourth element of the Complainant's prima facie case. Essentially, the Commission has not proven a prima facie case of discrimination because it has not established that the termination occurred under circumstances giving rise to an inference of discrimination. Nevertheless, it did establish the Complainant's replacement was Brian as opposed to Respondent's contention that it was Ronald Rivera, a Puerto Rican man.

The Respondent argued in its brief that Ronald Rivera replaced the Complainant, but there is no support for that contention in the record. See R. Brief, pp. 2 and 15. Jackie testified that he employed Rivera, who he assumed was Hispanic or Puerto Rican. Tr. 420-23. He testified that Rivera was initially hired as a landscaper and then became a car wash attendant and next a manager of the Farmington avenue car wash. Tr. 420-23. However, Jackie did not testify as to when Rivera became a car wash attendant and then a manager. More importantly, he also did not testify that Rivera replaced the Complainant. I do not find that Rivera was the Complainant's replacement. I do find that Brian, a "Caucasian" man, temporarily replaced the Complainant.

Assuming that Brian was not of Puerto Rican ancestry or ethnicity and not in Complainant's protected class, the Complainant would have satisfied the fourth element of his prima facie case (that the termination occurred under circumstances giving rise to an inference of discrimination) and, thus, would have proven a prima facie case of discrimination. Therefore, the burden would shift to the Respondent to articulate a legitimate business reason for the adverse action.

The Respondent proffered a legitimate business reason for terminating the Complainant. Jackie testified that the Complainant was terminated for insubordination when the Complainant used profanity toward him during an argument regarding payment of the Complainant's hospital bill. Tr. 406, 424. The Complainant was injured at the car wash on May 5, 2002. FF 5. Jackie agreed to pay the Complainant's hospital bill due to the injury. FF 6. Jackie had initially cooperated with the Complainant. On June 5, 2002, the Complainant presented the hospital bill to Jackie for payment. FF 7. Jackie took the hospital bill from the Complainant and placed it in his back pocket. FF 8. Jackie testified that at that time, the Complainant began yelling at him to give the Complainant back the hospital bill. Tr. 396. Jackie testified that the Complainant wanted him to pay the Complainant the amount of the hospital bill, not to pay the hospital directly. Tr. 396. An argument ensued and Jackie testified that the Complainant left the room and began yelling, "F--k you! F--k you! F--k the whole world!" Tr. 398. Jackie testified that he became very upset with the Complainant. Tr. 430. He testified that he responded, "You're finished. That's it. You're all done." Tr. 398. Jackie testified that it was at that time when he fired the Complainant for swearing at him, which constituted insubordination. Tr. 402, 406-07. The Respondent satisfied its burden by producing a legitimate business reason. Next, the burden shifts to the Complainant to prove by a preponderance of the evidence that the Respondent's proffered reason is false and therefore a pretext for discrimination. Board of Education v. Commission on Human Rights and Opportunities, supra, 266 Conn. 506-07.

The Complainant proved the Respondent's proffered reason was false. The Complainant testified that when he showed Jackie the bill, Jackie took the bill, began shaking, turned red and placed the bill in his back pocket. Tr. 29-30. The Complainant testified that he asked Jackie if he could make a copy of the bill for Jackie because he had other personal things on the bill. Tr. 30. The Complainant testified that Jackie then became upset, was yelling, screaming and swearing asking the Complainant to resign and told the Complainant that he did not want the Complainant working there any more. Tr. 30-31. The Complainant testified that he did not yell or swear at Jackie. Tr. 34. Jackie got in his car and left the car wash. FF 12. Both Saucier and Toscano were present and within earshot during this argument with the Complainant and Jackie. FF 9. Saucier testified that the Complainant did not swear at Jackie; however Jackie had gone into an "uproar," yelling and possibly swearing at the Complainant. Tr. 165-67. Toscano testified that Jackie became angry with the Complainant and yelled and cursed at him. Tr. 209-10. There were no corroborating witnesses to Jackie's version of the Complainant swearing at Jackie or more specifically yelling "F--k you." Both Saucier and Toscano testified that the Complainant did not swear at Jackie, but it was Jackie who yelled and may have cursed at the Complainant. Saucier also signed a sworn statement that the Complainant had not used profanity toward Jackie. R. Ex. 4. I find Saucier credible. I do not find that the Complainant swore at or used profanity toward Jackie. FF 10

Therefore I do not find the Respondent's reason for the termination to be true. Had the Respondent stated that it terminated the Complainant because of insubordination stemming from a disagreement over a hospital bill, its reason may have been credible, albeit weak. However, it specifically stated that the termination was because the Complainant swore at Jackie, which constituted insubordination. Tr. 406-07. The Complainant met his burden of proof by rebutting the Respondent's proffered business reason and proving that the reason was false. However, the Complainant did not prove that the incredulous reason was a pretext for discrimination.

There are "instances where, although the [complainant] has established a prima facie case and set forth sufficient evidence to reject the [respondent's] explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." (Citations omitted.) Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 148 (2000). "[I]f the circumstances show that the [respondent] gave the false explanation to conceal something other than discrimination, the inference of discrimination will be weak or nonexistent. And if, on examination of the circumstances, there are many possible reasons for the false explanation, stated or unstated, and illegal discrimination is no more likely a reason than others, then the pretext gives minimal support to [complainant's] claim of discrimination." Fisher v. Vassar College 114 F. 3d 1332, 1338 (1997), cert. denied, 522 U.S. 1075 (1998).

"A showing that the [respondent's] proffered reason for the adverse employment action is not the real reason may serve as evidence that the [respondent] intentionally discriminated. We attach the label "pretext" to a proffered reason that is not credited by the finder of fact. But the label "pretext" does not answer the question: pretext for what? In some cases, an employer's proffered reason is a mask for unlawful discrimination. But discrimination does not lurk behind every inaccurate statement. Individual decision-makers may intentionally dissemble in order to hide a reason that is non-discriminatory but unbecoming or small-minded, such as back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, spite, or personal hostility." Fisher v. Vassar College, supra, 114 F. 3d 1337. "In short, the fact that the proffered reason was false does not necessarily mean the true motive was the illegal one argued by the [complainant]." Id., 1338.

Consider a case in which, "the plaintiff calls employer's explanation into question, but does so in a way that conclusively demonstrates that the real explanation for the employer's behavior is not discrimination, but some other motivation. For instance, in Rothmeier v. Investment Advisers, Inc., 85 F. 3d 1328 (8th Cir. 1996), the plaintiff claimed that he had been fired because of his age. When his former employer came forward with a number of nondiscriminatory explanations, including insubordination, the plaintiff responded with evidence that in fact the real reason he had been discharged was that he had discovered that his firm was not in compliance with Securities and Exchange Commission rules and his employer wished to cover the problem up-a contention that the panel rightly concluded undercut the plaintiff's own claim of age discrimination." Aka v. Washington Hospital Center, 156 F.3d 1284, 1291 (1998).

Here, the record reveals two non-discriminatory reasons for the termination. One such reason was the heated dispute over the Complainant's hospital bill. Another plausible reason was that the Complainant threatened to expose the Respondent's noncompliance with tax laws and/or proper payroll procedures. It could have been for either of these non-discriminatory reasons that the Respondent terminated the Complainant and used a false reason to conceal the real reason. The evidence in the record conclusively supports both non-discriminatory reasons: 1) that Jackie had a personal hostility toward the Complainant because of the hospital bill dilemma; and 2) that Jackie had concerns about whether the Complainant would report the Respondent to the authorities for having falsified payroll and time records.

1

First Non-discriminatory Reason

The Respondent and the Commission presented evidence that revealed that Jackie and the Complainant had an argument about the payment of the hospital bill regarding the Complainant's injury on May 5, 2002. FF 8. The Complainant admitted the termination was due to the argument about the hospital bill. Tr. 29. When the Complainant was asked on direct examination, "And what occurred that resulted in your termination?" he testified, "I showed Andy Jackie the bill. . . he took the bill and he started shaking . . ., and he was getting really red, and he started to put it in his back pocket, and I said, Andy, I said, there's other personal things on there that I need. Can I make you a copy. He goes, 'Oh, what do you mean? What do you want it for?' And then he just started - he started shaking. And then he's like, 'Give me a day you're going to retire . . . .' He just kept saying it, and he would yell and scream about it." Tr. 29-30. Once the Complainant asked Jackie to return the hospital bill to the Complainant, an argument ensued over the hospital bill. FF 8. The Complainant testified that during the argument Jackie also stated to the Complainant "I don't want you working here any more. Give me the day. Give me the day you're going to resign." Tr. 31.

Jackie testified that the Complainant wanted the return of the hospital bill and had yelled, "You're not paying the hospital! You're paying me!" Tr. 396, 429. During the argument, Jackie became upset and was shaking then got in his vehicle and left the car wash. FF 12. Jackie testified that he needed an "invoice" in order to pay the hospital bill and that he could not give the Complainant cash or a check. Tr. 407-08. Jackie testified that he believed there was a chance that had he given the Complainant cash or a check, the Complainant might not have paid the hospital and the hospital still would have contacted Jackie for payment. Tr. 407-08. Jackie represented in a statement to the Department of Labor that he believed that the Complainant was planning to have his wife's health policy pay the hospital bill and that the Complainant wished for Jackie to give the Complainant cash for the hospital bill so that he could use the money for other personal reasons. Tr. 396; R. Ex. 7.

The record reveals that Jackie and the Complainant had an argument regarding the payment of the Complainant's hospital bill and could not agree on how to handle the matter. The Complainant admitted that Jackie said during the argument that he did not want the Complainant working for the Respondent any longer. FF 11. It is obvious from the record that Jackie stated that he did not want the Complainant working there anymore because he was upset over the disagreement with the hospital bill. Also, the Commission represented in its brief that "Jackie was upset because of the hospital bill not because of the Complainant's alleged behavior." CHRO Brief, p. 7 n.10.

There is enough evidence in the record to find that the Complainant was terminated because of the argument between him and Jackie over the hospital bill. "An employer may give a false explanation for terminating an employee in order to mask the true reason, which, though petty, spiteful or otherwise ignoble, is not unlawful." Hollander v. American Cynamid Company, 172 F. 3d 192, 201 (2nd Cir. 1999). Based on the evidence in the record, the Respondent provided a false reason (insubordination/use of profanity) because it did not want to reveal that Jackie simply had personal hostility toward the Complainant because they did not agree on how the hospital bill should be handled and paid.

2

Second Non-discriminatory reason

The Commission and the Respondent presented evidence that revealed that the Respondent was improperly conducting business by practicing fraudulent payroll procedures. FF 21-23. Jackie and Phil Jackie testified that at times the employees were paid in cash, which was not reflected on the payroll summaries. Tr. 289-90, 486-87. Jackie and Phil Jackie paid the Complainant "off the books" in cash. FF 21. At least one other employee, Lyra, was also paid in cash. Id. In addition, the Respondent understated the Complainant's hourly rate as $6.75 on the payroll summary. FF 22. The Respondent actually paid the Complainant $10.50 per hour. Id. Jackie admitted that the payroll and time records that existed prior to October 2002 were not accurate. Tr. 291-92. He testified that the Respondent was audited by the Department of Labor in October 2002 and after the audit the Respondent's payroll records accurately reflected the payroll of employees and the time worked. Tr. 290-91.

Another inaccuracy in the Respondent's payroll and time reporting records is that there were no time cards for Toscano or the Complainant on May 5, 2002, the day of the Complainant's injury, yet they both worked that day. FF 23. The Complainant testified that on the day of the injury Jackie told him to falsely tell the hospital that the injury occurred somewhere else. Tr. 24. The Respondent did not rebut this. This may account for the fact that there are no time records for the Complainant on the day of his injury.

When Jackie returned to the car wash he was accompanied by an employee, Miller. FF 13. Miller testified that Jackie had told Miller that the Complainant was stealing Jackie's records and that Jackie then went to the car wash to get his records. Tr. 443, 451, 454. Toscano and Saucier were also present at that time. FF 14. Jackie testified that when he approached the Complainant, Toscano asked him why he was firing the Complainant. He testified that he told her, "You know, this is my sandbox. I bought and paid for it. David, you and I don't get along. One of us has to go. It has to be you." Tr. 402. Jackie testified that the Complainant was waving computer printouts from Jackie's computer in front of his face and saying, "I hope you paid your taxes. I'm going to the IRS." Tr. 403. Neither the Commission nor the Complainant rebutted that the Complainant possessed the Respondent's records (computer printouts or otherwise) or made those statements.

Miller corroborated Jackie's testimony that the Complainant had in his possession some of Jackie's documents/records when Miller arrived at the car wash with Jackie. FF 15. The Commission elicited the same testimony on the cross examination of Miller and, therefore, further confirmed that the Complainant possessed some of Jackie's records and that Jackie wanted them returned. Tr. 454.

The Complainant testified that when Jackie returned to the car wash and fired him he told Jackie, "Well, if you're going to do that to me I'm going to screw you. I'm going to go report you. I don't care if I get myself in trouble." Tr. 39-40. Also, on the day after the Complainant was terminated, the Complainant and Toscano went to the car wash and picketed with signs in front of the car wash. FF 27. The picket signs read, "Fired by a liar" ; "60 hours unappreciated"; "Unfair Labor practice." FF 28. The Complainant testified that "liar" meant that Jackie was not paying his taxes. Tr. 156-57. Although Toscano testified that they picketed to show customers that the Respondent was prejudiced and unfair, nothing on the picket signs indicated prejudice. Tr. 215. The signs made no mention whatsoever about discrimination. FF 28. It is obvious that the Complainant believed that the Respondent was not maintaining accurate business records and he wanted to report the Respondent to the proper authorities.

After the Complainant was terminated, he filed a complaint against the Respondent with the Department of Labor. FF 30. As a result, the Department of Labor found the Respondent had violated labor laws and it directed the Respondent to pay the Complainant monies owed to him for overtime pay. FF 30-31. In addition, Jackie submitted a statement dated June 17, 2002 to the Department of Labor in which he falsely represented that the Complainant had worked for the Respondent for six months. FF 24. The Complainant actually had worked for the Respondent since September 2000, over one and one half years. Id. Not only did the Respondent violate labor laws, it provided false information to the Department of Labor.

The record reveals that the Respondent was concealing improper payroll procedures at the very least, and more than likely was concerned that the Complainant would disclose this information causing the Respondent hardship. Similar to Rothmeier v. Investment Advisers, Inc., supra, 85 F. 3d 1328 (where the evidence revealed that the true reason for the plaintiff's termination was that he had discovered that his firm was not in compliance with Securities and Exchange Commission rules and his employer wished to cover up the problem), here, based on the evidence in the record, the Respondent provided a false business reason for the termination because it was concealing the true reason that was fear that the Complainant would report it for evading financial responsibilities.

II

SUMMARY

After fully considering the evidence in the record, I find that the Complainant did not establish by a preponderance of the evidence that his termination was based on discrimination. "This is not a case in which a finder of fact could reasonably conclude that [the Complainant's] termination was, more probably than not, due to [ancestry] discrimination because no other, non-discriminatory explanation was possible." Hollander v. American Cynamid Company, supra, 172 F. 3d 202. In fact, there were two non-discriminatory reasons more probable for the Complainant's termination than the alleged ancestry discrimination.

It is undisputed that the Respondent initially agreed to pay the Complainant's hospital bill and became upset when the Complainant wanted the hospital bill returned. It does not seem logical that the Respondent would discriminate against the Complainant after initially having cooperated with him when he was first injured. Also, it is undisputed that a Puerto Rican employee, Rivera, was employed with the Respondent initially as a landscaper. FF 4. Most importantly, there is enough conclusive evidence in the record to find that the Respondent's proffered business reason was a pretext for concealing either of the above-discussed non-discriminatory reasons and not for discrimination. The inference of discrimination created by the Complainant's prima facie case and by the falseness of the Respondent's proffered reason is eliminated by the evidence that the Respondent was concealing other non-discriminatory reasons.

III

CONCLUSION

The Complainant has failed under both the mixed-motive/Price Waterhouse and pretext/McDonnell Douglas-Burdine methods to establish discrimination based on disparate treatment due to his ancestry. Pursuant to General Statutes § 46a-86, the case is hereby DISMISSED.

It is so ORDERED.

Dated at Hartford, this _____ day of February 2006.

_________________________
Donna Maria Wilkerson
Presiding Human Rights Referee

David R. Graves, Jr.
Attorney Albert Zakarian
Margaret Nurse-Goodison, Assistant Commission Counsel II
Sno-White Avenue Car Wash, Andrew Jackie, Owner

1  The Commission recognizes the protected class of ancestry as being similar to the protected class of national origin under which Puerto Rican would be properly categorized. Throughout the decision ancestry will be used to also mean origin.

2  The Respondent argued that the Complainant is not a credible witness because he had falsified responses on his job applications. FF 32. However, the Respondent wants me to believe that Jackie along with its other witnesses are credible and worthy of belief, although there is evidence in the record that Jackie and his son, Phil Jackie, who works with the Respondent, improperly paid its employees, falsely recorded payroll and time records; and falsified information on a statement to the Department of Labor. FF 21-24. Surely, the Respondent cannot expect its witnesses to be found credible when they are committing their own fraudulent conduct. Both the Respondent's and the Complainant's credibility is doubtful and, therefore, I must look to any corroborating witnesses and evidence to possibly substantiate the Respondent's and Complainant's testimonies.

3  The parties are in dispute as to the time of day the termination actually occurred. The Respondent argued that it fired the Complainant during the argument about the hospital bill and the Complainant argued that the Respondent fired him when Jackie returned to the car wash. The time of day of the termination is not material because the termination can be attributed to either of the two below discussed non-discriminatory reasons (see parts I C 1 and 2) alone or in concert. There is conclusive evidence in the record to support that the Respondent terminated the Complainant because of a dispute that began with an argument about the hospital bill and then developed into an argument regarding the Respondent's business records. FF 18. It is undisputed that Jackie and the Complainant had an argument about the payment of a hospital bill. It is also undisputed that the Complainant was concerned with whether Jackie had paid his taxes and he had threatened to report him. FF 17. All that transpired on June 5, 2002 between Jackie and the Complainant began with the dispute about the hospital bill and continued when Jackie returned to the car wash developing into a dispute regarding Jackie's business records. The termination could have occurred at either time of the day, which would not affect the outcome of this case.

4  See The American Heritage® Book of English Usage (visited Jan. 20, 2006)<http://www.bartleby.com/64/C006/015.html>.

5  See Census 2000 Sources for Data on Ethnicity (last modified Mar. 14, 2005)<http://www.columbia.edu/acis/eds/census2k/ethnic-cen2k.html#basic>; U.S. Census Bureau (last revised April 12, 2000)<http://www.census.gov/population/www/socdemo/race/racefactcb.html>; U.S. Census 2000 Summary File 4 (last corrected Aug. 9, 2002)<http://www.census.gov/population/www/cen2000/SF4-race.html#3>; See also Regulations of Connecticut State Agencies § 46a-68-2(h)(2)(b).

6  See Census 2000 Sources for Data on Ethnicity (last modified Mar. 14, 2005)<http://www.columbia.edu/acis/eds/census2k/ethnic-cen2k.html#basic>.





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