Nelson Communications Services, Inc.
DECISION OF THE COMMISSION
I. Factual Background
Christine Anthony (now Kimball) was hired as a secretary/receptionist for Nelson Communications Services, Inc. (NCS) in August of 1992. NCS is primarily a construction company, engaged in the business of erecting communications towers. The business is owned by John (Jay) Nelson. From 1992 through 1995, NCS also ran a small cellular phone sales operation.
Originally, Ms. Anthony's duties included typing proposals, paying bills, communicating with customers, handling accounts receivable, managing job leaders' expense logs and preparing payroll information. Bookkeeping functions were performed by Karyn Milot Bush who worked in the office for approximately five hours per week and did the rest of the work at home. She was paid $300 per week. NCS also utilized the services of an outside accountant to prepare the filings.
At the time of Ms. Anthony's hire, sales of cellular phones were booming, with Ms. Bush as the salesperson. Mr. Nelson decided to open a sales office in Concord with two employees. After initial success, the cell phone business began to sour because exclusive sales agreements were not honored. The office in Concord closed in less than one year and Ms. Bush lost interest due to the intense competition. Accordingly in 1994, responsibility for phone sales was added to Ms. Anthony's other duties. By mid 1995, she was the only employee involved in the cell phone business, devoting approximately 20-25% of her time to the effort. The cell phone business was no longer profitable.
Ms. Anthony became pregnant during the beginning of 1995. She notified Mr. Nelson in the early stages of her pregnancy. He agreed to allow Ms. Anthony to utilize vacation time for a maternity leave and to hire a temporary replacement. However, he made repeated comments regarding the limited availability of daycare and suggested that being a single parent would be very difficult for her.
On September 9, 1995, Karyn Bush received a message from a friend on her answering machine. The friend informed her that she had an interview scheduled at NCS. Ms. Bush located the classified advertisement for the job and realized that the position being filled sounded like her job. Ms. Bush called Mr. Nelson and confronted him. He told her that he was consolidating her job with Ms. Anthony's job. He then offered Ms. Bush the full-time job at $10.00 per hour. Ms. Bush declined.
On September 13, 1995, Ms. Bush proposed to Mr. Nelson that she take a $200.00 per week cut in pay and that she train Ms. Anthony in the bookkeeping functions. Mr. Nelson would achieve a cost savings while not having to train a new employee in all of the aspects of the job. Mr. Nelson again discussed the issue of daycare, saying that Ms. Anthony still had no childcare arrangements. Ms. Bush stated her belief that Ms. Anthony would find appropriate daycare and that she was capable of performing the job. Mr. Nelson indicated that he had two job applicants: one was older and the other had children but her husband stayed at home.
On September 29, 1995, Mr. Nelson and Ms. Anthony had a further discussion regarding childcare. Ms. Anthony stated that as a last resort, her mother would be willing to provide care. Mr. Nelson then terminated her employment. She was due to give birth on October 4th.
II. Legal Standards
Under RSA 354-A:7, it is an unlawful discriminatory practice for an employer to refuse to hire or employ, or to bar or to discharge from employment, any individual because of the individual's sex. RSA 354-A:7 VI states: "For the purposes of this chapter, the word "sex" includes pregnancy and medical conditions which result from pregnancy".
The complainant may prevail in her discrimination claim by proving a violation of law through either direct or circumstantial evidence. If the complainant produces direct evidence, the employer must demonstrate by a preponderance of the evidence that the adverse employment decision would have been the same even if discrimination had played no role. "Direct evidence is evidence which, in and of itself shows a discriminatory animus". Smith v. F.W. Morse & Co., Inc., 76 F. 3d 413 (1st cir. 1996), 69 FEP cases 1687, citing Jackson v. Harvard University, 900 F.2d 464, 467 (1st cir. 1990).
Presentation of circumstantial evidence requires the application of the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The complainant must show:
1) that she is a member of a protected class;
2) her job performance has been satisfactory, but
3) her employer nonetheless dismissed her from her position while
4) continuing to have her duties performed by a comparable qualified person.
If the complainant can establish the elements of the prima facie case, a rebuttable presumption that discrimination caused the adverse employment action is raised and shifts the burden to the employer to articulate a legitimate, non-discriminatory defense to the action. If the employer does so, the employee must then prove that the stated reason is a pretext for discrimination. The employee retains the ultimate burden of persuasion on the issue of discriminatory motive.
Complainant attempts to establish direct evidence through respondent's questions regarding childcare and comments regarding women in general. There was no direct evidence offered in the nature of a "smoking gun", such as "Pregnant women should not be working" or "Mothers of young children should stay at home". The testimony describing comments about women in general shows respondent's disrespect for women and their ability to be competent members of the workplace.
Complainant has no difficulty establishing the first three elements of a circumstantial evidence case:
1) she was a pregnant female;
2) her work was satisfactory (the respondent gave her excellent job reviews, Exhibit 7), and
3) she was dismissed.
Respondent bases much of its defense on the claim that Ms. Anthony was not qualified for the consolidated position because she did not have bookkeeping experience and would require training by the current bookkeeper. In asserting this position, respondent ignores three salient facts:
1) the complainant's resume indicates education in bookkeeping;
2) even though her replacement had a more extensive background in bookkeeping, she, too, required significant training from Karyn Milot Bush, and
3) complainant received excellent ratings for her demonstrated performance in all other aspects of the employer's business.
On cross examination, respondent admitted that he did not even consider Ms. Anthony for the new position. He seemed unaware of her background.
Three witnesses who performed the bookkeeping function testified at the hearing. Ms. Bush testified that bookkeeping took 5-10 hours per week. Valerie Shae spent 5-12 hours per week on the task and Lynne Curotto spent 6-7 hours. Because it was a 40 hour per week job, the employee spent less than a quarter of her time, at most, on bookkeeping. The commission concludes that Ms. Anthony was qualified for the position based on her excellent work record with NCS, her education in bookkeeping and the offer of training by Ms. Bush.
The respondent's legitimate non-discriminatory defense is that the jobs of secretary and bookkeeper were consolidated to save money. Ms. Anthony was paid $8.25 per hour for a weekly income of $330.00. Both the employer and Ms. Bush agree that Ms. Bush was overpaid at $300.00 per week. However, she offered to reduce her pay to $100.00 per week while training and supervising Ms. Anthony. The employer's cost would go from $630.00 per week to $430.00 per week. The newly hired employee, Valerie Shae, believed she was to be paid $12.00 per hour, but was actually paid $10.00 per hour at the beginning. Her pay was subsequently raised to $11.50 per hour. Thus, her initial pay was $400.00 per week and ultimately became $460.00 per week. Any cost savings through consolidation were minimal.
Respondent's original defense to the complaint was that Ms. Anthony was terminated because the company went out of the cellular phone business. The response, Exhibit 8, describes Ms. Anthony's basic job as cellular phone sales. Testimony at the hearing clearly established this defense as false and, thus, a pretext for discrimination.
The respondent has articulated a legitimate, non-discriminatory reason for consolidating the two positions but has not articulated a legitimate, non-discriminatory reason for terminating Christine Anthony and not considering her for the new position. The commission concludes from the evidence that the respondent was motivated to terminate the complainant because she would be out on maternity leave and may incur future absences related to childcare. Attendance is a legitimate business concern but concluding that a woman's attendance will be unsatisfactory following childbirth is impermissible discrimination.
Accordingly, the commission finds that NCS, Inc. discriminated against Christine Anthony based on her sex and pregnancy.
V. Award of Damages
Having determined that the respondent has engaged in an unlawful practice, the commission is authorized to order the respondent to pay damages to the complainant. These damages include back pay, front pay, compensatory damages and attorney's fees. RSA 354-A:21, II(d); E.D. Swett, Inc. v. New Hampshire Commission for Human Rights and Leonard Briscoe, 124 N.H. 404 (1983). The commission is also authorized to order the respondent to pay an administrative fine in order to vindicate the public interest. RSA 354-A:21, II(d).
A. Back Pay
In determing the back pay award, the commission calculates the amount the complainant would have earned but for the unlawful discriminatory practice. The commission subtracts from that amount any unemployment compensation or interim earnings received by the complainant during the time period covered by the award. RSA 354-A:21, II(e).
To determine the back pay amount, the Commission establishes Ms. Anthony's weekly pay at $330.00. Although the complainant urges the utilization of a higher figure, that higher figure included commissions from cell phone sales. That income would clearly not have been available to the complainant in the future.
1. The first period of lost wages begins on 12/3/95 (when complainant planned to return to work from maternity leave) and runs until 10/27/97 (when she was hired at Mountain Valley Business Machines), a period of 99 weeks. Subtracted from this figure are unemployment benefits of $6,999.00 and self-employment income of $6,150.00 for a total of $13,149.00 in deductions.
$330 x 99 weeks = $32,670.00
3. From June 27, 1998 until August 8, 1998, a period of 6 weeks, Ms. Anthony was unemployed while changing jobs. To determine her loss during this period, the commission uses the difference between her NCS income and the Mountain Valley Business Machines income.
NCS = $1,980.00
MVBM = $797.94
4. Since August 8, 1998, the complainant has been paid a $200.00 per week salary from a company owned by her husband, Dwight and Sons Roofing. Through November 1, 1998, complainant received 12 weeks pay for a total of $2,400.00.
Dwight and Sons = $2,400.00
5. Therefore the total back pay award is $29,158.31.
B. Front Pay
Front pay is the equitable equivalent of reinstatement. It is awarded in the discretion of the commission where reinstatement would be "impracticable or impossible". Scarfo v. Cabletron Systems 54 F. 3d 931, 67 FEP 1474 (1st Cir. 1995). Given the hostility generated by this litigation and the closeness with which the parties would have to work, reinstatement would be inappropriate. EEOC v. Kallir, Philips. Ross, Inc., 420 F. Supp 919, 13 FEP 1508 (S.D.N.Y. 1976), aff'd, 559 F.2d 1203, 15 FEP 1369 (2nd Cir. 1977). The complainant demonstrated significant efforts at seeking comparable employment. The respondent has failed to carry the burden of proof that complainant did not exercise reasonable diligence to mitigate her damages. Weaver v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir. 1991). Given the complainant's skills and her efforts, the commission is of the view that complainant should be able to secure employment at a salary comparable to the income she earned at NCS within twelve months. Accordingly, the commission orders the respondent to pay to the complainant one year of front pay calculated on the difference between her income at NCS and her income at Dwight and Sons Roofing.
330 x 52 = $17,160
200 x 52 = $10,400
C. Compensatory Damages
The commission finds that Christine Anthony suffered emotional harm, embarrassment and humiliation as the result of unlawful discrimination by NCS. She testified that she had a long history of working and was humiliated and embarrassed when she encountered friends at places like the grocery store and had to explain that she had no job. As the result of the termination, she was required to receive food stamps and Medicaid. Because she could not afford rent, she had to move into a house owned by her mother. Her mother testified that Ms. Anthony was "devastated" and that her blood pressure rose significantly following the termination. The unlawful discharge, occurring in the eighth month of Ms. Anthony's pregnancy and leaving her facing single parenthood without an income, caused significant emotional distress. Accordingly, the commission orders the respondent to pay the sum of $25,000 to compensate the complainant for emotional harm.
D. Administrative Fine
In determining whether to levy an administrative fine and what the amount should be, the commission has considered the following factors: the nature and circumstances of the violation, degree of culpability, any history of prior violations, and the goal of deterrence. The commission finds that the respondent was not truthful in his answer to the complaint. In order to vindicate the public interest and to deter others, the commission orders the respondent to pay an administrative fine to the State of New Hampshire in the amount of $750.00.
E. Attorneys' Fees and Costs
The commission orders the respondent to pay complainant's reasonable and necessary attorneys' fees and costs. Complainant's counsel is ordered to submit a detailed, itemized statement of fees and costs within 20 days of this order. Respondent is granted 10 days from the filing of the statement to object. The commission will then enter a final order.
F. Total Damages
Respondent is ordered to pay complainant the sum of $60,918.31 plus attorneys' fees, to compensate her for her lost wages, front pay and emotional harm.
Respondent is also ordered to pay $750.00 to the State of New Hampshire.
Commissioner Maureen Raiche
Chair for the Hearing Commissioners
Commissioner Richard Hesse,
Commissioner Elizabeth Lown
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