{Executive Director Tanya Hughes} Executive Director |
Remand Case 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 AMENDED FINAL DECISION 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 – 4th Floor, Hartford, CT 06106 ITS ATTORNEYS: Attorney C. Joan Parker and Attorney Robert Zamlowski,
Assistant Commission Counsels II, CHRO, 21 Grand Street, 4th
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. III. FINDING OF FACTS: 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". IV. ANALYSIS: 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 (9th 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 (3rd 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 (8th 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. Analysis of John C. Donahue’s Case: 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: 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). Analysis of John Cooper’s Case: 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. 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 (5th 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,
(2nd 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. VII. Calculation of John C. Donahue’s Damages: 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. IT IS SO ORDERED this 5th day of December,
2001 at Hartford, Connecticut. Hon. Leonard E. Trojanowski Presiding Human Rights Referee c: John Cooper Content Last Modified on 6/7/2006 11:13:14 AM |
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