CHRO Nos. 9710685 and 9710637

(CHRO, v. City of Hartford, et al  : CV 00 0504603S)

Commission on Human Rights and Opportunities, ex rel. John Cooper and John C. Donahue, Complainants

v.

City of Hartford, Fire Department, Respondent

December 5, 2001

I. THE PARTIES:

COMPLAINANTS:

Mr. John C. Donahue of 391 South Elm Street, Windsor Locks, CT 06096.

Mr. John Cooper of 226 Martin Street, Hartford, CT 06120.

RESPONDENT:

The Hartford Fire Department, mailings address: 550 Main Street, Ground Floor, Hartford, CT 06103.

ITS ATTORNEY:

Karen K. Buffkin, Assistant Corporation Counsel, The City of Hartford, Office of the Corporation Counsel, 550 Main Street, Hartford, CT 06103.

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES:

Philip A. Murphy, Jr., Esq., Commission Counsel, CHRO, 21 Grand Street – 4^th Floor, Hartford, CT 06106

ITS ATTORNEYS:

Attorney C. Joan Parker and Attorney Robert Zamlowski, Assistant Commission Counsels II, CHRO, 21 Grand Street, 4^th Floor, Hartford, CT 06106.

II. PROCEDURAL HISTORY:

The Public Hearing was held on January 18, 19, 20, 21, 26, 27, and 28, 2000. A final decision was rendered on August 14, 2000. An appeal was taken to the Connecticut Superior Court by the Commission. The appeal is styled, "Connecticut Commission on Human Rights and Opportunities v. City of Hartford, et al., CV 00 0504603S . On October 2, 2001, the Honorable Henry S. Cohn, Superior Court Judge rendered his decision.

In its decision, the Court found that there was a basis in the record to find that the Complainants, Mr. John C. Donahue and Mr. John Cooper, established a prima facie case, notwithstanding my initial ruling to the contrary. The Court remanded this case to the Human Rights Referee with instructions to vacate the decision dismissing the complaints of Mr. John C. Donahue and Mr. John Cooper and render a new decision consistent with Judge Cohn’s decision, MOD pp. 10, 11, 12, 13, 14, 15.

The Commission withdrew Cooper and Donahue’s claims of retaliation and remanded their claims of failure to promote based on race and sex.

1. The Hartford Fire Department provides fire suppression and other fire related services to the City of Hartford.

2. The Hartford Fire Department is currently budgeted for 400 employees, but rarely is at full strength.

3. The Hartford City Manager appointed Mr. Robert Dobson Fire Chief of the Hartford Fire Department in April of 1995.

4. Ms. Patricia Washington has worked for the City of Hartford for many years. She is currently Director of Personnel for the City of Hartford and has held this position for approximately twelve years.

5. The City of Hartford’s Charter, Chapter XVI, Section 6, provides that the Personnel Rules and Regulations adopted in accordance with the provisions of this Chapter shall have the force and effect of law. Among other things, they shall provide for the method of holding competitive examinations; the method of certifying eligible candidates for appointment; the establishment, maintenance, consolidation and cancellation of eligible lists …

6. Promotions in a classified service, such as the Hartford Fire Department, are made according to merit and fitness, which is determined by conducting a competitive examination.

7. The City of Hartford’s Charter, Chapter XVI, Section 2(b), authorizes the Director of Personnel to maintain eligible lists based on competitive examinations for each position in a classified service. When ever a vacancy is to be filled, the names of the three (3) persons standing highest on the eligible list applicable to the position in question are certified to the appointing officer. Except that in cases where there are fewer than three (3) persons on an eligible list, the Direct or of Personnel may certify the names of all persons on the list. No appointment can be made to any position in the classified service except from these lists.

8. Chief Robert Dobson is the appointing officer for the Hartford Fire Department.

9. Under the City of Hartford’s Charter, an eligible register/"certification list" remains in effect for a maxi mum of two (2) years, from the date on which it is established. Once an eligible register/"certification list" expires, no more promotions can be made from that register/"list".

10. As promotional vacancies occur within the Fire Department, the Director of Personnel, Patricia Washington, certifies to the department head, names from the eligible register/"certification list." … [T]he Director of Personnel certifies to Chief Robert Dobson on two names more than the number of vacancies.

11. When an eligible register/"certification list" is set to expire, the staff of the Personnel Department notifies the appointing authority.

12. If a department head would like to extend the eligible register/"certification list" (s)he must provide the Direct or of Personnel with a reason for the requesting an additional six month extension.

13. The Director of Personnel, based on the input from the department head/ appointing authority then makes a written request to the Personnel Board recommending that the eligible register/"certification list" be extended for an additional period of time.

14. If the department head does not want the eligible register/"certification list" to be extended, then (s)he must notify the Direct or of Personnel. In that instance, the Direct or of Personnel does not make a request to extend the register/"list" to the Personnel Board , the eligible register/"certification list" will expire on its expiration date.

15. The Hartford Personnel Board decides whether the eligible register/"certification list" will be extended in accordance with the Personnel Rules and Regulations.

16. On August 3, 1994, an eligible register/"certification list" was established by the Personnel Department of the City of Hartford for the position of fire lieutenant

17. Also, on August 3, 1994, the names of the 32 individuals standing highest on the eligible register/"certification list" were certified to Fire Chief Robert Dobson.

18. On August 7, 1994, 31, candidates were promoted to the position of fire lieutenant by Fire Chief Robert Dobson.

19. On May 7, 1996, Ms. Patricia Washington, Direct or of the Personnel Department, sent a memorandum to the Personnel Board indicating that she concurred with Chief Robert Dobson’s request to extend the 1994 fire lieutenants eligible register/"certification list".

20. The three (3) candidates who were next in line on the 1994 fire lieutenants eligible register/"certification list"…all requested that the eligible register be extended for a period of one (1) year.

21. The request by Ms. Patricia Washington for the 1994 fire lieutenant eligible register/"certification list" to be extended was considered by the Hartford Personnel Board at its meeting of June 18, 1996.

22. At this meeting, Hartford Personnel Board Chairman, Francisco DeJesus requested a break down of the number of Hartford residents and minorities on the 1994- fire lieutenant’s eligible register/"certification list".

23. Personnel Board member Ms. Annika Warren made a motion to extend the 1994 fire lieutenant’s eligible register/"certification list" for six-(6) month s. … [T ]he Personnel Board voted to extend the 1994 fire lieutenant’s eligible register/"certification list" for six-(6) month s. The six (6) month extension meant the register/"list" now expired on February 3, 1997 ….(Donahue’s name was on this list. ROR, Volume 13, Item 179, p.231 4.)

24. In December of 1996, a number of individuals who remained on the 1994 fire lieutenant’s eligible register/"certification list" wrote a letter to Fire Chief Robert Dobson requesting that the register/"list" be extended for a second six months or until August 3, 1997.

25. On January 27, 1997, the Personnel Board of the City of Hartford held a special meeting to consider whether to extend the 1994- fire lieutenant’s eligible register/"certification list." … The Hartford Personnel Board took no action because there was no request for an extension from either the Personnel Director, Ms. Patricia Washington, or Fire Chief Robert Dobson.

26. At the January 27, 1997 meeting, Ms. Washington was asked by Hartford Personnel Board Chairman Mr. Larry Reynolds to explain why Fire Chief Robert Dobson had not requested that the 1994 fire lieutenant’s eligible register/"certification list" be extended for a second six-months. Ms. Patricia Washington responded that the fire chief indicated to her that he did not favor an extension because he did not intend to make any appointments to the position of fire lieutenant in the near future.

27. On September 5, 1996, four individuals from the 1994 fire lieutenant’s eligible register/"certification list" were certified to the Hartford Fire Department for consideration for two promotional vacancies… Frank Carter , Jr. and Miguel Sanchez, were appointed on September 22, 1996. (The parties agree, and the record supports, that these men were both members of minority group s. ROR, Volume 10, Item 102, p.24.)

28. On September 30, 1998, an eligible register/"certification list", for the position of fire lieutenant, was established by the Personnel Department.

29. Mr. John C. Donahue, who is white, was promoted to the position of fire lieutenant effective April 23, 2000.

30. Fire Chief Robert Dobson never discussed the racial and ethnic make up of the remaining candidates on the 1994 fire lieutenants eligible register/"certification list" with any member of the Hartford Personnel Board.

31. During his tenure with the Hartford Fire Department, Fire Chief Robert Dobson’s policy was to extend all eligible register/"certification lists" for six-months rather than a year.

32. Mr. John C. Donahue testified that when the Hartford Personnel Board voted on whether to extend the 1994 fire lieutenant eligible register/"certification list" for the second six-month period, there were no vacancies in the position of fire lieutenant in the Hartford Fire Department.

33. Mr. John C. Donahue testified… that he had no information or proof that Fire Chief Robert Dobson had any knowledge of the race, sex, or ethnicity of candidates on the 1994 fire lieutenant’s eligible register/"certification list".

1. A. Applicable Statutes:

   A1. Title VII:

   42U.S.C. § 2000e – 2(a)(1)

   It is an unlawful employment practice … "to fail or refuse to hire or to discharge any individual … because of such individual’s race, color, religion, sex or national origin."

   A2. CFEPA:

   Sec. 46a-60.

   "Discriminatory employment practices prohibited. (a) It shall be a discriminatory practice in violation of this section:

   (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges or employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to blindness;"

   B. ANALYSIS:

   B1. The Prima Facie Case of Donahue and Cooper:

   The Complainants, Mr. John C. Donahue and Mr. John Cooper, allege that they were not promoted to the position of fire lieutenant in the Hartford Fire

   Department due to their race and sex in violation of Title VII and CFEPA.

   As Judge Cohn points out, since there was no direct proof of discriminatory animus, the "disparate treatment " model of McDonnell-Douglas v. Green, 411 U.S.792, 802-804, 93 S.Ct, 1817 36 L.Ed2d 668 (1973) governs. See also the Connecticut Supreme Court’s decision in Ann Howard’s Apricot’s Restaurants v. CHRO, 237 Conn, 225-226 (1996). The Complainants had the burden of establishing a prima facie case by showing that: (1) They belonged to the protected class; (2) They were qualified for and applied for a job, which their employer was seeking candidates; (3) Their employer denied them the position despite their qualifications; and, (4) After denying them the position, their employer continued to solicit applicants, who had comparable qualifications to their own, for the position. MOD p8.

   The burden of establishing a prima facie case of unlawful discrimination has been universally described as "light" Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981): see also Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 86 (2d Cir. 1996).

   However, before I can address the prima facie analysis of Donahue and Cooper, I must first address the status of Mr. John Cooper.

   B2. Status of Mr. John Cooper:

   Mr. John C. Donahue is a white male who is claiming that he was unlawfully discriminated against because of his race and sex. Mr. John Cooper is a black African American male, who in the last amendment to his complaint stated that he suffered the same injury as the white firefighter s on the 1994-fire lieutenant ’s register/certification list. The exact wording follows:

   "My being denied the opportunity for promotion was the direct result of Respondent’s discriminatory employment practice and resulted in my suffering the same injury as the white candidates."

   As Judge Cohn points out in his decision, Mr. John C. Donahue was successful in establishing a prima facie case in that the refusal to extend the list was discriminatory. Cooper has the standing to benefit as a listed name on the 1994 fire lieutenant’s register/"certification list as a listed name. MOD p. 15. In support of this proposition, the judge cites three cases, which I shall subsequently discuss and analyze as applied to the case of Mr. John Cooper.

   Allen v. American Home Foods, Inc., 644 F.Supp.15 53, 1556 (N.D. Ind. 1986) where men were sandwiched among women on a priority list had standing in the women’s sex discrimination suit. The court based its decision on two factors:

   1.) The EEOC interprets Title VII to afford standing to anyone protesting any form of alleged employer discrimination on the theory that all employees have a right to work in an atmosphere free from unlawful employment practices.

   2.) Stewart v. Hannon, 675F.2d 846 (7th Cir. 1982) citing Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed. 415 (1972) where the United States Supreme Court held the "person aggrieved" language in Title VII should be broadly construed. The Stewart Court held that "…Title VII provided standing to all who suffered an injury due to an unlawful business practice, and that loss of important benefits from interracial associations was a cognizale injury." Allen, supra, 1556.

   "[2] Nonetheless, Stewart v. Hannon, supra, compels the denial of American Home’s motion to dismiss. According to Stewart, the scope of the language "person aggrieved " confers standing to all persons injured by an "unlawful employment practice." These male plaintiffs allege such an injury, as did the females that lost their jobs; the injuries of the males and females were occasioned by the "same corporate decision," and if, as the plaintiffs allege, considerations of sex motivated the corporate decision to close the LaPorte plant, the corporate decision that injured the male plaintiffs constitute d an "unlawful employment practice" under Title VII.

   In Angelino v. New York Times, 200 F.3d 73, 90 (3d Cir.1999) also a case where men were sandwiched among women, the court makes the following statement about the breath of the "person aggrieved language in Title VII as follows:

   "*91 Subsequently, in Novotny v. Great Am. Fed. Savings & Loan Assn., 584 F.2d 1235 (3d Cir.1978), rev’d on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), we affirmed our view that the statutory language, "person claiming to be aggrieved, " implied a Congressional intent to be liberal in allowing suits that effectuate the purposes of anti-discrimination statutes. In Novotny, we allowed a male plaintiff, who claimed to have been discharge d for failing to adhere to a company policy of sex discrimination against women, to sue under 42 U.S.C. § 1985. Id. at 1240-45. Our holding in Novotny was predicated upon the similarity in purpose and semantic structure between Title VII’s enforcement provision and section 1985. [FN24] Many courts have expressly followed our reasoning and/or precedent concerning the significance of the language "person aggrieved " in construing Title VII’s standing requirements in the race discrimination context. [FN25]"

   In Brennan v. N.Y.C. Board of Education , 260 F.3d 123, 131 where a white male employee whose employment status on an eligibility list would be negatively affected by the terms of a settlement agreement had standing under the federal rules.

   Applying this precedent to the facts of this case: I find, as Judge Cohn did, that Mr. John Cooper (as a black, African American firefighter) has the right to protect his status on the 1994 fire lieutenant’s eligible register/certification list. He was certified by having taken the examination and by the reviewing boards for eligibility to the 1994 register/list. Therefore, he is entitled to standing because his name is on the same register/list as Mr. John C. Donahue for promotion to fire lieutenant.

   B3. The Prima Facie Case of Donahue and Cooper (Resumed):

   (a.) Resuming my analysis of the prima facie case of Donahue and Cooper, they are both members of the protected class. Mr. John C. Donahue because he is a white male; and, John Cooper because he is a black African-American male. Therefore, they have met the first element of their prima facie case.

a.    Both Mr. Donahue and Mr. Cooper met the second element of McDonnell Douglas. They both applied for the job of fire lieutenant. They both took the test and received a passing grade, they passed the oral boards, and they were placed on the 1994-fire lieutenant’s register/list. The Hartford Fire Department was seeking to fill candidates for the position of fire lieutenant at the time the 1994 register/list was compiled.

b.    Both Mr. Donahue and Mr. Cooper met the third element of McDonnell Douglas because they were denied promotion to the rank of fire lieutenant despite being qualified for the position. Their qualification is evidenced by passing the written test, passing the oral board and being placed on the 1994 fire lieutenant register/list.

c.    Both Mr. Cooper and Mr. Donahue met the fourth element of the McDonnell Douglas burden shifting analysis: because, Fire Chief Robert Dobson continued to promote candidates to fire lieutenant even after denying Cooper and Donahue promotion to the position of fire lieutenant.

Since both Complainants have successfully proved a prima facie case under McDonnell Douglas a presumption of unlawful discrimination arises. See Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; see also, St. Mary’s Honor Center v. Hicks, 509, U.S. 502, 508, 520, 113 S.Ct, 2742, 2747-54, 125, L.Ed.2d 407(1993). See also, Chertkova v. Connecticut General Life Insurance Co., 92F.3d 81, 86(2d Cir.1996).

B4. The Expiration of the 1994 Fire Lieutenant’s Register/List Without Action by the Fire Chief:

In my original decision, I found that the expiration of the 1994-fire lieutenant register/list insulated the Hartford Fire Department from failure to promote the Complainants. Judge Cohn in his decision citing Lowe v. City of Monrovia, 775 F.2d 998 (9^th Cir.1985) to support the proposition that the expiration of an eligibility list for an entry level police officer’s job, may in fact be used to establish the Complainants prima facie case under the McDonnell Douglas disparate treatment case analysis.

The fact pattern in Lowe is identical to the fact pattern in the present case. The Lowe court makes the following statement about the plaintiff’s prima facie case:

Lowe also satisfied the fourth McDonnell Douglas requirement. After February 1, 1983, the City no longer considered Lowe an active, eligible applicant. Yet, the City does not contend that it ceased hiring entry-level police officers at that time, or that it suddenly changed the qualifications required of eligible candidates. Rather, it explains that eligibility lists automatically expire after six months. As with its practice of delaying the effective dates of its eligibility lists, the City may have a legitimate reason for maintaining the lists for only six months. However, any such justification, like any justification the City asserts for delaying the effective dates of the lists, may be considered only when we evaluate the articulated nondiscriminatory reason for not hiring the plaintiff. Whatever its reason, the City rejected Lowe on February 1, 1983 and continued to accept applications from similarly qualified candidates. Lowe has thus satisfied the final part of the McDonnell Douglas four-part test and established a prima facie case of discrimination. [FN5]

For the purposes of the Complainants prima facie cases the City of Hartford cannot argue that there were not promotions to fire lieutenant from the 1994 register until its expiration on February 2, 1997 as well as the fact that there were promotions to fire lieutenant from subsequent lists which also included the promotion of Mr. John C. Donahue to fire lieutenant.

Another case cited in Judge Cohn’s decision is E.E.O.C. v. Metal Service Co., 892 F,2d 341, 349n.9 (3^rd Cir.1990), which provides as follows:

"It was undisputed that the city, which had an all-white, all-male police force, hired white male police officers after plaintiff, a black female, had filed her initial application, after she had taken the city’s examination but before the eligibility list had expired. Id at 1002, 1006. But because there were admittedly no openings during the time the eligibility list containing the plaintiff’s name was officially effective, the city argued that the plaintiff had not applied for a vacant job and thus had not established her prima facie case. The city contended that it could not discriminate against someone it had not even considered for the job. Id at 1005. The district court agreed and granted the city’s motion for summary judgment. The Ninth Circuit reversed. In rejecting the city’s argument, the appellate court held that the plaintiff had satisfied her prima facie case because she had applied, for purposes of Title VII, when she filed her initial application and such application extended beyond the city’s self-imposed six month effectiveness date. Id. The court explained that any legitimate reason the city had for delaying the effective date of the eligibility list or for why the list automatically expired after six months might undermine the presumption of discrimination raised by the prima facie case, but was not relevant to the prima facie stage of proof. Id. Likewise, we find that under the circumstances of this case Steven and Willie Brown applied, for purposes of the EEOC’s prima facie case, at the time they satisfied Metal Services’ application process and filed their applications with Job Service. Any reason Metal Service has for why the referral system it established with Job Service did not function as planned and/or why the company was hiring white applicants outside this referral system instead of seeking applicants from Job Service as required by its contract may help to rebut the presumption of discrimination arising from the EEOC’s prima facie case but does not rebut the EEOC’s establishment of the prima facie case itself.

The facts in E.E.O.C. are identical to the facts in the present case. The Complainants, Cooper and Donahue, were seeking another six-month extension of the 1994 fire lieutenants eligible register/list and also because the list expired and the Complainants were not promoted.

As Judge Cohn points out, in his decision, "Lowe extends to Donahue’s case by analogy. The evidence presented by Donahue of the failure to extend the list once and refusing to extend the list, the second time could lead the human rights referee to conclude that Donahue was rejected and the position remained open. In other words, there is a basis here to find a prima facie case." MOD p.12.

Finally, Judge Cohn makes the following statement in his decision about the proof necessary to establish a prima facie case:

"The latest cases show the point to be more generally whether the plaintiff ‘present[ed] proof that [the] discharge occurred in circumstances giving rise to an inference of discrimination on the basis of [his] membership in that class…’ (Citations omitted.) Chertkova v. Connecticut General Life Ins. Co., 92F3d 81, 91(2d Cir.1996): Stratton v. Department for the Aging, 132 F.3d 869, 879 (2d Cur,1997). This element may be satisfied by showing ‘preferential treatment given to employees outside the protected class …’ (Citations omitted.) Chertkova v. Connecticut General Life Ins. Co., supra, 91."

"In this regard, the case of Shannon v. Ford Motor Company, 72 F.3d 678, 682 n.5 (8^th Cir. 1996) describes Lowe as follows: ‘In that case, the plaintiff had evidence that the employer only hired from ‘the list’ when whites were next in line, not when blacks were at the top.’ Donahue similarly presented evidence that the list was extended when minorities were at the top, but was not extended when whites were next in line. (ROR, Volume 10, Item 102, p. 1903.) …" MOD 12, 13.

In addition to Donahue’s testimony regarding the selective extensions of the fire lieutenant’s register/list when blacks were at the top, there was the memorandum of personnel analyst Sullivan to Personnel Director Washington. This memorandum was generated after a meeting had taken place that day where the topic of the minority representation in the fire department had been discussed and Sullivan was asked to obtain figures on the ethnic composition of the list. Sullivan made the suggestion that the chief only ask for a second six-month extension of the 1994 list and wait for a new list for further recruitment. In her later testimony, Sullivan could not recall the nature of the discussions with the fire chief, either before or after the memorandum was written.

Finally, Judge Cohn noted in his decision that my findings of fact 28 and 29, which stated that Fire Chief Dobson promoted 24 white fire fighters from the 1994 list, were incorrect. As it turns out, the promotions of whites were made before Dobson became fire chief MOD p.13.

C. Case In Chief:

The Human Rights Referee may consider the same evidence that the plaintiff has introduced to establish a prima facie case in determining whether the defendant’s explanation is pretextual. Lowe v. City of Monrovia, supra, 775 F.2d 1008. See West Hartford v. Commission on Human Rights and Opportunities, 176 Conn. 291, 299(1978). MOD p.14.

It was the practice of Hartford Fire Chiefs to extend eligible registers/promotional lists for 2-years. Chief Robert Dobson, during his tenure at the Hartford Fire Department, extended almost all promotional list for the entire two-year period with some notable exceptions. The 1994 fire lieutenant’s register was one of two such exceptions.

Both Complainants were eligible for promotion to fire lieutenant by virtue of applying for the position, taking and passing a written test, as well as passing an oral board given by Fire Chief Dobson.

Donahue testified and presented evidence that the fire department promotional register was extended when minorities were at the top, but was not extended when whites were at the top of the list. (Tr. 1903.) On May 14, 1996, an impromptu meeting was held between Personnel Analyst Sullivan (the analyst for the Hartford fire department) and members of the Hartford Fire Department who were on the 1994 registration/certification list, who had not yet been promoted to fire lieutenant. At this meeting discussion included the subject of minority representation in the fire department. Ms. Sullivan was asked to obtain figures on the ethnic composition of the current list. In a memorandum from Ms. Sullivan, dated the same date as the meeting, she recommended to Chief Dobson that he ask for another six-month extension of the list and wait for a new list for further recruitment. (Tr. 1326, 2054.)

The process of extending or not extending the list was not as "mechanical," pursuant to the Court in Lowe and Judge Cohn’s MOD, as the Respondent would have us think because the extension or non-extension was controlled by Fire Chief Dobson rather than Patricia Washington or the Personnel Board. Chief Dobson’s legitimate business reason for not extending the 1994 list was the morale of the fire department. He stated that he wanted to give an opportunity to other firefighters who had not taken the 1994 exam to apply for the position of fire lieutenant. (Respondent Brief p.20.) The Fire Chief also claimed that there were no vacancies when the list expired. There were no vacancies at that time for fire lieutenant. (Respondent Reply Brief p.16.)

Evidence for the fact that both Complainants, Donahue and Cooper, were eligible for promotion to fire lieutenant was demonstrated by the fact they were both on the 1994 fire lieutenant list. To be placed on the list required filing applications for the position, taking and passing a written examination, and undergoing an oral screening board conducted by Fire Chief Dobson.

The 1994 fire lieutenant register/"certification list", the list at issue in this case, was first established on August 3, 1994. In June of 1996, the Hartford Personnel Board voted to extend the 1994 fire lieutenant list for six months. This gave the 1994 list a new expiration date of February 3, 1997. This list, the list at issue here, was not extended because Hartford Personnel Director, Patricia Washington did not request the Hartford Personnel Board to extend the list. The Respondent argues that the automatic expiration of the 1994 fire lieutenant list/register did not constitute a rejection of the Complainants.

However, the facts belie the Respondents’ claim. Hartford Personnel Director Patricia Washington testified that she only requested an extension of the lists if the appointing authority requested. Since Fire Chief Dobson did not request a second six-month extension for the 1994 fire lieutenant’s list, she did not request the extension either. Fire Chief Dobson extended all lists during his tenure for two years, with one or possibly two exceptions. In addition, he ignored the recommendation of Hartford Fire Department analyst Sullivan to extend the list for the second six-months. Donahue testified that it appeared to him that the list was extended when minorities were at the top; but, were not extended when whites were at the top of the list. While the Respondent argues that the expiration of the 1994 list was automatic, the foregoing evidence leads me to the conclusion that expiration of the 19954 list was not as mechanical or automatic as the Respondent suggests. Indeed, to quote from Lowe:

"The point is, however, that the rules that permit the manipulation of hiring dates and job openings, they are not as mechanical as the dissent suggests." Lowe, supra, 1009.

 

Because Fire Chief Dobson failed to request an extension of the 1994 list from Patricia Washington, the list was not extended and therefore the Complainants were denied an opportunity for promotion.

The United States Supreme Court has recently held in Reeves v. Sanderson Plumbing Products, Inc. 120 St. Ct. 2097 (2000) that a prima facie case and sufficient evidence of pretext may permit the trier of fact (Human Rights Referee)to find unlawful discrimination, without additional, independent evidence of discrimination though such showing will not always be adequate to sustain a finding of liability. Unlike my analysis during the prima facie part of the case, I will analyze Donahue and Cooper separately starting with Donahue.

Donahue at this stage of the McDonnell Douglas burden shifting framework has the:

"…opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a ‘pretext for discrimination’…" (Citations omitted.)

"…the trier of fact may still consider the evidence establishing the plaintiff’s prima facie case and inferences properly drawn therefrom… on the issue of whether the ‘defendant’s explanation is pretextual’." (Citations omitted.) Reeves, supra, P 2106.

In this case, the Respondent’s reason for not promoting Donahue was the "automatic" expiration of the 1994 register/"certification list" on February 3, 1997. Because the list was not extended by the Respondent for a second six-month period and, as a matter of fact, did not constitute a rejection (his is the same argument the defendant City made in Lowe), and there were not vacancies for fire lieutenant when the list expired.

However, I reject the Respondents argument.

As a matter of fact, while the operative action regarding the 1994 list was taken by The Hartford Personnel Board and the Director of Personnel Ms. Patricia Washington she stated in her testimony that she always deferred to the department head (Fire Chief Dobson) when extending of or not extending the lists. On instruction of Fire Chief Dobson the list as not extended for February 3, 1997. Therefore, the Fire Chief was in complete control of the register/"certification list" even though the Respondent would have us think it was out of his control.

Another argument advanced by the Respondent is that Fire Chief Dobson wanted the 1994 list to expire to allow new candidates to apply as a morale boost for the Hartford Fire Department. The Respondents’ arguments were undermined by the following five points that support Donahue’s case:

1. Donahue’s testimony that lists were extended when minorities were at the top, but were not extended when whites were next in line.
2. During his tenure as Hartford Fire Chief, Dobson extended all lists for 2-years with the exception of the 1994 fire lieutenant’s register/"certification list" and perhaps one other list.
3. Fire Department Personnel Analyst Sullivan recommended to Personnel Director Patricia Washington, that she extend the 1994 list for a second 6-months.
4. Donahue’s job performance was very good. He never received a bad performance rating and he received some commendations during his tenure with the Hartford Fire Department.
5. Chief Dobson apparently agreed with the foregoing evaluation because although he did not promote Donahue from the 1994 list, he promoted him to fire lieutenant from a subsequent register or list, effective April 23, 2000.

Weighing the credibility of the witnesses, which I am allowed to do at this stage of the proceedings, Donahue appeared more credible in his testimony than the Respondent’s witnesses did: Fire Chief Dobson; Personnel Director Patricia Washington; and, Personnel Analyst Sullivan.

Considering all of the evidence, including the evidence establishing Donahue’s prima facie case and the inferences properly drawn therefrom, the Respondent’s explanation is pretextual and not worthy of credence and that Donahue was a victim of intentional discrimination by the Respondent based on his race (white) and sex (male).

I will also consider the same evidence which established Cooper’s prima facie case and the inferences properly drawn therefrom in this part of the analysis. Most of the same evidence, which applied to Donahue’s case also, applies to Cooper’s case. However, there is one significant factor that applies to Cooper that did not apply to Donahue and that is the question of Cooper’s job performance.

While Donahue’s job performance during his tenure with the Hartford Fire Department had been exemplary, the same could not be said of Cooper. As Cooper’s supervisor and the promotional authority in this case, Dobson thought Cooper had a "short fuse" and a problem controlling his temper. Dobson based his opinion on his contacts with Cooper during Dobson’s tenure as fire chief as well as a series of incidents that came to his attention as fire chief. These incidents included Cooper pulling a knife on his supervisor, Fire Lieutenant Carmine Zitani. He served a three-month suspension without pay for this incident. Cooper caused an uproar while off duty at the Phoenix Club. This incident was reported to the chief by another firefighter, Mr. Steve Harris, who complained about Cooper’s behavior. Cooper had also caused problems during an inspection and had retained fire department property rather than turning it in. As a result of these incidents, Chief Dobson thought that Cooper might repeat the knife pulling incident or other behavior in the future. Weighing the credibility of the witness, I find the testimony of Chief Dobson to be more credible than Cooper’s, on this issue. The Chief stated that he did not promote Cooper because of his problematic behavior.

In the same vein, I found Chief Dobson’s account of what happened at the July 9, 1996, meeting between him and Cooper as the Chief’s attempt to warn Cooper to temper his behavior if he wished to do well in the Hartford Fire Department to be more credible. I found Cooper’s explanation that the Chief promised to promote him and told him "to keep the white boys in line", not to be credible.

I find that the Respondent’s reason for not promoting Cooper to be more credible than the testimony of Cooper and others on this issue.

1. John Donahue and John Cooper established a prima facie case that they were denied promotion to fire lieutenant because of their race and sex, in violation of General Statutes §§ 46a-58(a), 46a-60(a)(l) and 46a-60(a)(4) CFEPA and Title VII of The Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended.
2. John Donahue also sustained his burden of proof adequate to sustain a finding of intentional discrimination under CFEPA and Title VII with evidence sufficient, from both the prima facie case combined with other evidence, to allow me to eject the Respondent’s claim that the expiration of the 1994 lieutenant list was "automatic" and not controlled by Fire Chief Dobson and, also done for purposes of morale of the department; and, thus reject the Respondents nondiscriminatory explanation as a pretext for discrimination for failure to promote Donahue to fire lieutenant..
3. Although John Cooper presented enough evidence to establish a prima facie case of failure to be promoted to fire lieutenant because of his race (African American) and sex (male) he was unable to prove by a preponderance of the evidence that the reasons offered by the Respondent (his short fuse and the Chief’s worry that he would to something violent in the future) was a pretext for discrimination and unworthy of credence by the trier of fact.
4. John Cooper’s claim is hereby DISMISSED.

The Connecticut Supreme Court has stated that,

"… the victim of a discriminatory practice is to be accorded his rightful place in the employment scheme, that 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’." [Citations omitted}

State v. Commission on Human Rights and Opportunities, 211 Conn. 464, 477 (1989).

One element of allowable compensation, pursuant to § 46a-86(a) and (b) General Statutes and Title VII, for a party aggrieved under Title VII and CFEPA is the awarding of back pay.

The United States Supreme Court in Albermarle Paper Co. v. Moody, 422 U.S. 405, 419, 955, S.Ct. 2362 (1975) makes the following statements about back pay in the context of employment discrimination cases:

"It is also the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination. This is shown by the very fact that Congress took care to arm the courts with full equitable powers. For it is the historic purpose of equity to secur[e] complete justice." (Citation omitted) Id at 9.

"Title VII deals with legal injuries of an economic character occasioned by racial or other antiminority discrimination. The terms ‘complete justice’ and ‘necessary relief’ have acquired a clear meaning in such circumstances. Where racial discrimination is concerned, the (district) court 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." (emphasis added) Id at 10.

 

Back pay is awarded for a period beginning on the date the discriminatory act occurred and ending on the date of the hearing officer’s decision. Silhouette Optical Limited v. CHRO, 10.Conn.L. Rjstr No 19, 599 (February 28, 1994)

The Second Circuit Court of Appeals has discussed the purpose of back pay as follows:

"The purpose of back pay is to completely redress the economic injury the plaintiff has suffered as a result of discrimination." (Citations omitted) "… see also Sellers v. Delgado Community College, 839 F.2d 1132, 1126 (5^th Cir. 1988 (holding that a back pay award should make injured parties whole by placing them in the position that they would have been ‘but for’ the discrimination).

This award should therefore consist of lost salary, including anticipated raises, and fringe benefits." (Emphasis supplied.)

Saulpaugh v. Monroe Community Hospital, 4F.3d 134, 144, (2^nd Cir. 1993)

Two cases, which I have already cited on the issue of back pay, are also applicable to the issue of front pay. In cases where reinstatement is not possible or practicable. Front pay is an award of future lost earnings to make a victim of discrimination whole. Silhouette Optical Limited, supra p. 15-16.

Under Federal case law,

"The award of front pay is discretionary and where as here the district court makes a specific finding that an award of back pay was sufficient to make a plaintiff whole, no abuse of discretion can be found. Cf. Barbano v. Madison County, 922 F.2d 139, 147 (2d Cir.1990) (holding that failure to award front pay, because the district court impliedly found that other relief was sufficient, did not constitute an abuse of discretion)."

Saulpaugh, supra, P. 144, 145.

Both Silhouette and Saulpaugh concur also on the subject of prejudgment interest. Interest rate calculations are not specified by federal employment law (Title VII, but are within the purview of the courts and the Human Rights Referee which have the discretion to chose a prejudgment interest calculation best suited to make a victim whole. Silhouette, supra, P. 21.

Saulpaugh uses stronger language on the subject of prejudgment interest, which follows:

"[17][18][19][20] Title VII authorizes a district court to grant pre-judgment interest on a back pay award. See, e.g., Clark v. Frank, 960 F.2d 1146, 1153-54 (2d Cir.1992). Its purpose is to prevent an employer from attempting ‘to enjoy an interest-free loan for as long as it can delay paying out back wages.’ Id. at 1154 (citation omitted). Therefore, this Court has held that ‘it is ordinarily an abuse of discretion not to include pre-judgment interest in a back-pay award.’ Id. (emphasis in original). Given that the purpose of back pay is to make the plaintiff whole, it can only be achieved if interest is compounded. (Emphasis supplied.)

Saulpaugh, supra 144.

Finally, General Statutes § 37-3a mandates the Respondent pay interest calculated at 10% per annum from the date of this decision until payment is made by the Respondent.

The Commission in its brief on requests that I enter "An order requiring the Respondent to adjust its personnel records so that Donahue’s promotion is retroactive to May 24, 1997, especially in relation to seniority, pension, time-in-grade, and other benefits attendant thereto;"

Commission Brief P. 53.

On Page 55 of the Commission Brief the breakdown of Donahue ‘s salary and the salary of a fire lieutenant follows:

Donahue’s annual salary -- $50,495.64

Lieutenant’s salary – 1997 -- $53,369.68

Lieutenant’s salary – 1998 -- $55,644.68

A footnote on the same page notes that the foregoing amount includes an additional 2-1/2% of the base salary as college incentive pay to which both Donahue and Cooper were entitled.

Since I have found that, because of the failure of Fire Chief Dobson to promote him, Donahue was unlawfully discriminated against. Therefore, I will order the Respondent to promote John Donahue to the rank of fire lieutenant retroactive to May 4, 1997, as requested by the Commission. Donahue was promoted by the Respondent on April 23, 2000; therefore, his current wages must be adjusted with the amount of back pay the Respondent owes.

Therefore, I order the Respondent to pay the Complainant Donahue the following:

$ 53,369.68 Retroactive to May 4, 1997, for the year of 1997. (This figure includes 2-1/2 % college incentive pay).

$ 55,644.68 for the year of 1998. (This figure includes 2-1/2 % college incentive pay).

 

If there have been other increases to the rate of pay of the fire lieutenant between 1998 and the date of this decision, I order the Respondent to make those payments to Complainant Donahue for the years subsequent to 1998 until the present.

However, Donahue is entitled to more. Both the Commission’s brief, P. 53, and the Saulpaugh, P. 33, decision is in agreement with the proposition that salary is not the only component of an award of back pay. "Anticipated raises and fringe benefits" in Saulpaugh and "seniority, pension, time-in-grade and other benefits attendant thereto." Not only do I order that Respondent make Donahue’s promotion to fire lieutenant retroactive to May 4, 1997. I also order that his pension be adjusted for the new fire lieutenant’s salary as of this date. Donahue’s time-in-grade should also be adjusted as of this date. In addition, if there are any other benefits that came with the position of fire lieutenant I hereby order the Respondent to pay or adjust those benefits and bring them progressively forward from May 4, 1997, until the present.

    B.    Interest:

I award 10% prejudgment interest, which shall be compounded ala Silhouette and Salpaugh from the date of the discriminatory act, May 4, 1997, until the date of this decision.

I also award 10% statutory post judgment interest, pursuant to General Statutes § 37-3a from the date of this decision until payment is made in full by the Respondent.

1. The claims of John Cooper are hereby DISMISSED.
2. The Respondent shall promote the Complainant, John C. Donahue, retroactive to May 4, 1997, to the position of fire lieutenant.
3. The Respondent shall pay back-pay benefits to the Complainant, John C. Donahue, from May 4, 1997 forward and also adjust his current lieutenant’s pay to reflect the earlier promotional date of May 4, 1997.
4. The Respondent shall pay all the benefits, other than stated above, to Complainant, Donahue, including but not limited to the following examples:

• Pension
• Time-In-Grade
• Seniority
• Any other benefits which pertain to the fire lieutenant position.

5. The Respondent shall pay 10% compound pre-judgment interest on the award of back-pay benefits to John C. Donahue from the date of the discriminatory act May 4, 1997 until the date of this decision.
6. The Respondent shall pay to John C. Donahue 10% statutory post-judgment interest, pursuant to General Statutes § 37-3a from the date of this decision until payment is made in full by the Respondent.
7. The Respondent shall cease and desist from the practices complained of, failure to promote, based on race and sex and also with regard to all employees who may or will in the future become similarly situated to the Complainant.
8. Pursuant to General Statutes § 46a-54(13), the Respondent shall post in prominent and accessible locations, visible to all employees, as well as applicants for employment such notices regarding statutory antidiscrimination provisions as the Commission shall provide. The notices shall be posted within three working days of their receipt by the Respondent.
9. The Respondent shall cease and desist from all acts of discrimination prohibited under federal and state law. The Respondent shall also provide a non-discriminatory work environment pursuant to federal (Title VII) and state law (CFEPA).

IT IS SO ORDERED this 5^th day of December, 2001 at Hartford, Connecticut.

Hon. Leonard E. Trojanowski

Presiding Human Rights Referee