CHRO: 0540252, Lopes - Decision

0540252, Lopes - Decision

CHRO No. 0540252

FED No. 16aa500561

Commission on Human Rights and Opportunities
ex rel. Elizabeth Lopes, Complainant

v.

Comfort Suites, Respondent

October 25, 2005

FINAL DECISION
RE: HEARING IN DAMAGES

On December 29, 2004, Elizabeth Lopes ("complainant") filed a complaint with the Commission on Human Rights and Opportunities ("commission"). The complainant alleged that Comfort Suites ("respondent") illegally discriminated against her in violation of General Statues §§ 46a-60(a)(1), 46a-60(a)(4) and Title VII of the Civil Rights Act, 42 U.S.C. 2000e, et seq. She further alleged that she was retaliated against and terminated from her employment by the respondent on the basis of her race (Hispanic), ancestry (Portuguese) sex (female) and for having previously opposed a discriminatory practice. For the reasons stated herein, the respondent is found to have discriminated against the complainant and relief is ordered as set forth herein.

I. PARTIES

The complainant is Elizabeth Lopes, of 195 Laurel Hill Ave. Apt. 2, Norwich, CT 06360. The Commission Human Rights and Opportunities is located at 21 Grand Street, Hartford, CT 06106. The respondent is Comfort Suites located at 275 Otrobando Ave., Norwich, CT 06360.

II. PROCEDURAL HISTORY

The complaint was filed on December 29, 2004. On April 22, 2005, the Chief of Field Operations duly authorized designee entered an "Entry of Default Order" pursuant to General Statutes § 46a-83. The undersigned was appointed as presiding Human Rights Referee to determine the relief necessary to eliminate the discriminatory practice complained of and make the complainant whole. Notice was given that a hearing was to be held on June 14, 2005 for that purpose. The complainant and the commission appeared before the undersigned to prosecute the action. The respondent failed to appear.

III. SUMMARY OF COMPLAINANT'S ALLEGATION AND RELIEF REQUESTED

The complainant, shortly after commencing her employment with the respondent as a front desk clerk, experienced on numerous occasions unwanted and offensive comments about her breasts and body by a co-worker. The complainant objected to these comments to the co-worker. On the second occasion of being subjected to these comments by the same co-worker the complainant complained to her supervisor and was told that it would be looked into. Despite her complaint the offending co-worker again made similar comments to the complainant and again she complained to her supervisor. Her supervisor's response to this second compliant was that she was not feeling well and she did not want to hear her complaint. The next day the complainant was terminated on the pretext that she had allowed a customer to stay the proceeding night for free. The complainant challenged the accusation and requested proof of the misconduct, which was never produced.

The complainant argued that she was discriminated against on the basis of her sex, race and ancestry and that she was retaliated against for opposing the sexual harassment from a co-worker.

The complainant has sought damages, specifically, back pay, front pay, reinstatement and emotional distress. Additionally, the commission has requested inter alia, an order from this tribunal for the respondent to: (1) cease and desist from the practice complained of by the complainant; (2) expunge from complainant's employment record any information detrimental to the complainant; (3) provide a neutral reference to any prospective employer who inquiries of the complainant; and (4) hire a sexual harassment consultant (approved by the commission) to provide a minimum of 3 hours of sexual harassment prevention training to all respondent's employees including management.

IV. FINDINGS OF FACT

In any hearing in damages upon default, the hearing is limited to the relief necessary to eliminate the discriminatory practice and make the complainant whole. After conducting the scheduled and noticed hearing and based upon the complaint, exhibits offered and introduced into the record, and testimony taken, the following facts relevant to this decision are found:

1. All procedural notices, and jurisdictional prerequisites have been satisfied and this matter is properly before this presiding officer to hear the matter and render a decision.

2. The complainant is a member of one or more protected classes, in that her race is Hispanic and she is of Portuguese origin and she has opposed a discriminatory practice committed by the respondent.

3. The respondent employs at least fifteen (15) people. (complaint affidavit)

4. The complainant commenced working for the respondent on October 25, 2004, as a front desk clerk. (Tr. pg. 15)

5. The complainant's initial hourly rate was $8.50 and she worked a 40-hour plus hour workweek. (Tr. pg. 15 and CHRO Ex. 7)

6. The complainant regularly worked overtime of between 18-20 hours per a two week pay period at a rate of $12.95 per hour. (Tr. pgs. 16-17)

7. The complainant during her entire employment with respondent was considered a probationary employee and did not receive any employment benefits i.e. medical or dental insurance for herself or family. (Tr. pg. 22)

8. Once the complainant completed her 90-day probationary period, she would have been entitled to benefits. (Tr. pg. 23)

9. At no time during the complainant's employment with the respondent did she see any postings regarding sexual harassment being illegal. (Tr. pg. 24)

10. At no time during the complainant's employment with the respondent was she told of a sexual harassment prevention policy or how to report a complaint of sexual harassment or did she receive a sexual harassment prevention policy. (Tr. pg. 24)

11. On or around November 2004, Ed Pratt, an employee of the respondent subjected the complainant to comments regarding her breasts and body. More specifically, he stated that the complainant's breasts did not look like she had three children. (Tr. pgs. 46-47)

12. Prior to the aforementioned incident the complainant had informed Mr. Pratt that she was married and had three children. (Tr. pg. 48)

13. That on a different date, Ed Pratt again commented on the complainant's breasts. (Tr. pg. 48)

14. That on a different date than that referred to in paragraph 13 of this section, Ed Pratt commented on the complainant's "butt", referring to it as "looking healthy". (Tr. pgs. 49-50)

15. That on an unknown date but after the complainant was subjected to comments about her body she complained to Anne Hill, Front Desk Supervisor regarding Ed Pratt's comments and how uncomfortable Ed Pratt was making her feel.

16. Anne Hill's response to the complaint being made by the complainant was, "[I]t's just a little place (Comfort Suites) that we all have a little fun. It won't hurt just enjoy it and I don't want to hear it". (Tr. pg. 58)

17. At no time during this conversation between Anne Hill and the complainant regarding Ed Pratt did Anne Hill inform the complainant it was her right to make such a complaint. (Tr. pgs. 57-58)

18. The complainant complained a second time to Anne Hill that Ed Pratt continued to make unwelcomed comments. (Tr. pg. 59)

19. On December 12, 2004, Ed Pratt stated to the complainant that he wanted to throw a penny over her shirt to see if her bra could hold it. (Tr. pg. 61)

20. In response to Ed Pratt's comments of December 12, 2004, the complainant told him that she was tired of his comments and nobody is doing anything about them. At this time Mr. Pratt responded that the complainant knew he was just playing. (Tr. pg. 61)

21. At all relevant times complainant wore clothing prescribed by the respondent. (Tr. pgs. 51-53)

22. On December 13, 2004, the complainant was terminated from her employment for allegedly giving to a customer a room the prior night without charging the appropriate room rate. (Tr. pgs. 64-66)

23. At the time the complainant made her final complaint to Anne Hill, she voiced concern that by making these complaints concerning Ed Pratt that she was in jeopardy of getting fired. Anne Hill responded "Don't worry about it. You're doing a great job. I don't see what's the reason I should fire you." (Tr. pg. 63)

24. Upon being notified of her termination and the basis for her termination complainant requested that she be informed of the name of the person to whom she allegedly gave a free room. To date no name has been provided to the complainant or any documentation revealed or identified that would support the allegation of providing a room without charge. (Tr. pgs. 75-76)

25. At the time of her termination, the complainant was earning $8.50 per hour. (Tr. pgs. 76-77)

26. The complainant had 40 days left until her probationary period would have concluded resulting in a $.50 per increase. After completing six (6) months of service, her hourly rate would have risen to $10.00 per hour. (Tr. pg. 77)

27. The complainant attempted to mitigate her damages by applying for employment at Dunkin Donuts, Ramada Inn, Manpower, and Micro Hotel. (Tr. pgs. 25, 29)

28. As a result of the complainant applying for employment at Micro Hotel, she was interviewed and told that Comfort Suites needed to be contacted for a recommendation. After several days the complainant contacted Micro Hotel and was told the position was filled and Comfort Suites did not provide a good recommendation. (Tr. pg. 28)

29. The complainant did apply for unemployment compensation and was told she qualified for $24.00 per week of benefits, which she refused to accept. (Tr. pg. 25)

30. There is no evidence to suggest that the animus, if any, existed between the parties that would warrant reinstatement not being considered.

DISCUSSION

The Executive Director or his designee's order of default pursuant to C.G.S. 46a-83(i) authorizes the presiding officer to issue an order eliminating the discriminatory practice complained of and making the complainant whole. The allegations brought by the complainant that have failed to be responded to, are deemed admitted without the need for further proof. Regulations of Connecticut State Agencies § 46a-54-86a(b). Liability has been determined pursuant to the order of default and damages shall be awarded.

From the evidence presented and allegations having been deemed admitted the it is hereby found that the complainant has sustained her burden of proof in establishing that she was sexually harassed by a co-worker on several occasions and that she complained to her immediate supervisor, who took no remedial steps to curb the conduct of the offending employee.

The supervisor's failure to take the necessary steps to stop the offending employees' conduct created a hostile work environment. Britell v. State of CT, Department of Corrections, 1997 WL 583840 *13. The complainant was subsequently terminated the day after she complained to her immediate supervisor for a second time regarding the sexual comments made to her by the same co-worker that she complained of previously.

The basis for the termination given to the complainant is found to be pretextual and that the termination was in reality an act of retaliation for the complainant's opposition to the claimed sexual harassment in violation of General Statutes § 46a-60(a)(4). The respondent having been previously defaulted and having conducted a hearing pursuant to said default, there remains only to issue an order eliminating the discrimination practice complained of and making the complainant whole.

DAMAGES

The presiding officer is authorized to award back pay and front pay. Silhousette Optical Limited v. Commission on Human Rights and Opportunities, 10 Conn. L. Rptr. No. 19, 599 (Feb. 28, 1994). Fashioning a remedy in a specific case a Presiding Referee (Hearing Officer) is guided by the premise that "the victim of a discriminatory practice in the employment scheme, that is he has a right to be restored to the position he would have attained absent the unlawful discrimination." State v. Commission on Human Rights and Opportunities, 211, 464, 478 (1989) quoting Spagnulo v. Whirlpool Corporation, 717 F.2d 114, 121 (4th cir. 1983).

In this case the complainant has initially sought back pay from the date of the wrongful discharge, December 14, 2004 to the present date. Based on the evidence presented the following are the lost wage damages sustained by the complainant:

December 14 through January 23, 2005 (completion of probationary period)
3 pay periods @ 80 hours per period at $8.50 per hour equals: $2040.00

December 14 through January 23, 2005
19 hours overtime per pay period times 3 pay periods at $12.75 per hour equals:
$726.75

January 24 through April 25, 2005
80 hours times 6.5 pay periods at $9.00 per hour equals:
$4,680.00

January 24 through April 25, 2005
19 hours of overtime times 6.5 pay periods at $13.50 per hour equals:
$1,755.00

April 26 though October 27, 2005
13 pay periods, 80 hours per period at $9.50 per hour equals:
$9,880.00

April 26 through October 27, 2005
13 pay periods, 19 per period at $14.25 per hour equals:
$3,519.75

Mitigation refused

Unemployment compensation that the complainant qualified for but
refused

26 weeks at $24.00 per week equals:
-$624.00

Total Back Pay:
$23,225.50

The complainant has further sought an order reinstating her to the position she held (front desk clerk) at the time of her illegal termination. General Statutes § 46a-86(a) authorizes the reinstatement of a complainant as part of an order of restoring a victim to [her] rightful place…absent the unlawful discrimination. State of Connecticut v. Commission on Human Rights and Opportunities, supra 478. There are however limitations to ordering reinstatement and such reinstatement is not mandatory upon a finding that an employee has been discriminatorily discharged. EEOC v. Kallor, Phillips and Ross Inc., 420 F.Supp. 919, 926 (2nd Cir. 1976). Furthermore, reinstatement is not an appropriate remedy where there exists animosity between the parties Bank v. The Travelers Companies, U.S. Dist. LEXIS 22551 (Dist. of CT 1998), or if it would result in an unjustified windfall after having been made whole by the awarding of back pay.

I find that any evidence of animosity between the complainant and respondent would not rise to a level to exclude the complainant from being reinstated. Additionally, while a back pay award is part of this order that award certainly does not make the complainant whole, and an order of reinstatement provides no windfall to the complainant. I am therefore, ordering that the respondent reinstate the complainant to the position she held at the time of her termination at the rate of pay she would have enjoyed absent her termination.

Anticipating the possibility that the respondent in some fashion delays the reinstatement of the complainant pursuant to this order I am ordering then in that event that the respondent to pay the complainant on a bi-weekly basis the rate of pay she would be earning had she been reinstated as front pay until the respondent gives the complainant the opportunity to fill the next vacant front desk clerk position. In the event, the complainant rejects to fill the next vacant front desk clerk position, the front pay award shall terminate.

In addition to seeking damages for lost wages, reinstatement and front pay, the complainant has sought damages for the emotional distress she claimed to have suffered citing CHRO v. Board of Education of the Town of Cheshire, 270 Conn. 665 (2004). I make no finding as to the applicability of the Cheshire decision in light of the fact that the complainant has failed to offer sufficient evidence that would cause me to find that she has suffered even a "garden variety" emotional distress claim. Howell v. New Haven Board of Education, 2005 U.S. Dist. LEXIS 198, 97 (Dist. of CT). Using the factors outlined in Commission on Human Rights and Opportunities ex rel. Donna Harrison v. Greco, No. 7930433 (June 3, 1985) i.e. subjective internal emotional reaction of the discriminatory experience, did it occur in public view or earshot, and the offensiveness of the comments; I find applying these factors to the scant testimony elicited at the hearing does not allow me to make an award for emotional distress.

ORDER OF RELIEF

1. The respondent shall pay the complainant the sum of $23,225.50 as back pay.

2. The respondent shall pay post-judgment simple interest on the award of back pay. Said interest shall accrue daily on the unpaid balance, from the date of this decision at a rate of 10% per annum.

3. The respondent is ordered to pay the complainant as front pay the hourly rate based on an 80-hour bi-weekly pay period that she would have been paid but for the illegal termination. Additionally, this front pay shall include 19 hours of overtime for each bi-weekly pay period. Said front pay shall continue until such time that the complainant fills or rejects the next front desk position. Upon acceptance or rejection of a front desk clerk position front pay shall cease.

4. The respondent shall cease and desist from all acts of discrimination prohibited under Federal and State Law and shall provide a non-discriminatory working environment for its' employees pursuant to law.

5. The respondent shall provide a standard letter of employment stating duties of employment, position(s) held and rate(s) of pay regarding complainant's employment with the respondent.

6. The respondent shall hire a sexual harassment consultant approved by the commission to provide a minimum of three (3) hours of sexual harassment prevention training to all employee's including management.

7. The respondent shall post in prominent and accessible locations usable to all employees and applicants for employment such notices regarding statutory and discrimination provisions as the commission shall provide. The notices shall be posted within three (3) business days of their receipt.

8. The respondent shall expunge from complainant's employment record any information detrimental to the complainant regarding her termination.

It is so ordered this 25th day of October 2005


____________________________
Thomas C. Austin, Jr.
Presiding HRR
cc.
Elizabeth Lopes-certified mail no. 7002 2410 0001 6406 7134
Mr. Sam Morton, General Mgr., Comfort Suites-certified mail no.-7002 2410 0001 6406 7141





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