Board of Ed. of City of Hartford v. Commission on Human Rights and Opportunities

• Decision Date: 30 January 1979
• Citation: 176 Conn. 533,409 A.2d 1013
• Parties: , 19 Empl. Prac. Dec. P 9065, 22 Empl. Prac. Dec. P 30,734 BOARD OF EDUCATION OF the CITY OF HARTFORD v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.
• Court: Connecticut Supreme Court

Page 1013

409 A.2d 1013

176 Conn. 533, 19 Empl. Prac. Dec. P 9065,

22 Empl. Prac. Dec. P 30,734

BOARD OF EDUCATION OF the CITY OF HARTFORD v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.

Supreme Court of Connecticut.

Argued Nov. 14, 1978.

Decided Jan. 30, 1979.

Christina G. Dunnell, Asst. Atty. Gen., with whom, on brief, were Carl R. Ajello, Atty. Gen. and Bernard F. McGovern, Jr., Asst. Atty. Gen., for appellant (defendant).

H. Maria Cone, Asst. Corp. Counsel, City of Hartford, with whom were Richard M. Cosgrove, Deputy Corp. Counsel, and on brief, Hubert J. Santos, Corp. Counsel, for appellee (plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

PETERS, Associate Justice.

This is an appeal by the commission on human rights and opportunities from a judgment of the Court of Common Pleas which set aside a hearing examiner's decision that the plaintiff had unlawfully discriminated against the complainant, a black person, by refusing to award him back pay and benefits upon reinstating him after an involuntary termination. The commission claims that the court erred in misconceiving the issue before the hearing examiner and in substituting its judgment for that of the hearing examiner.

The following facts were found by the hearing examiner and accepted by the trial court: The plaintiff Hartford board of education terminated the employment of the complainant, a black custodian at one of the city's high schools, in October of 1974, on the grounds of his verbal abuse of his coworkers and his unsatisfactory performance of his assigned tasks. The custodian successfully appealed his termination to the board, and returned to work in May of 1975, seven months after his dismissal. He was however, granted neither back pay nor benefits for the time that he was not permitted to work. At approximately the same time, a white school teacher at another of the city's high schools was terminated by the plaintiff for using physical force on a student. He too successfully appealed his termination and was reinstated to his job; but in his case restoration to work was accompanied by the plaintiff's payment of all except one week's back pay and benefits. Restoration of his benefits was deemed appropriate because of his otherwise exemplary record. The plaintiff has no written policy regarding suspension without pay of its noninstructional employees, except as provided in the collective bargaining agreement with the appropriate union. That agreement provides for suspension without pay and for discharge without prior warnings only in the event of serious misconduct, which the agreement itself does not define. The practice of the plaintiff had been not to suspend any employee without pay for periods longer than one or two weeks except in the rarest instances, and never for periods of six or seven months.

On the basis of these facts, the hearing examiner concluded that the complainant had established a prima facie case of race discrimination in violation of the Connecticut Fair Employment Practices Act, General Statutes § 31-126(a), ¹ because of the difference in treatment afforded to the black custodian and the white teacher with regard to restoration of back pay upon reinstatement. He also concluded that the plaintiff had failed to meet its burden of demonstrating that the grossly disparate treatment was motivated not by race but by a legitimate nondiscriminatory consideration, although he conceded that there was no evidence to support either a deliberately discriminatory purpose or a lack of good faith on the part of the plaintiff. He therefore ordered the plaintiff to pay the complainant back pay and benefits for the time that he was not on the plaintiff's payroll, reduced by an amount equal to two weeks' compensation. The plaintiff appealed this administrative decision to the trial court, claiming that the decision of the hearing examiner was arbitrary and erroneous because without basis in fact.

It is important to be precise about what issue was presented by the complaint before the hearing examiner. The issue was not whether the complainant should have been terminated but rather whether, having been reinstated, he should have lost all back pay and benefits. The trial court, nonetheless, concluded that there was no basis for the commission's conclusion of discrimination because the original decision to terminate the complainant was justified, and would have been implemented but for a provision of the collective bargaining agreement requiring a progressive order of disciplinary action prior to termination. That earlier decision had not been reexamined before the hearing examiner and therefore was inappropriately considered on appeal.

The gravamen of the complaint before the hearing examiner was disparity of treatment on account of membership in a class protected by the Fair Employment Practices Act. The hearing examiner recognized that unequal treatment of persons similarly situated warrants legal intervention only when prohibited by statute. He observed also, as this court has observed, that overt evidence of discrimination is likely to be elusive. "Racial discrimination is an intangible and for the most part can be established only through inference. . . . In this type of proceeding, therefore, greater latitude is accorded the tribunal to draw inferences from words and deeds than in cases where overt acts need be established." Reliance Ins. Co. v. Commission on Human Rights & Opportunities, 172 Conn. 485, 488-89, 374 A.2d 1104, 1106 (1977).

The complainant established a prima facie case of race discrimination, as the hearing examiner found, by the evidence that was adduced to show the substantially disparate treatment of the complainant, as compared with the white teacher, with regard to back pay after reinstatement. Thereafter, the burden shifted to the plaintiff employer to show a legitimate nondiscriminatory reason for the employer's conduct. Furnco Construction Corporation v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Peters v. Jefferson Chemical Co., 516 F.2d 447, 450 (5th Cir. 1975). ² The hearing examiner concluded that the plaintiff board had not met its burden of justification.

In reaching the contrary conclusion that underlying differences in the grounds of termination justified the plaintiff's disparate treatment of the black complainant and the white teacher, the trial court misconstrued the scope of its authority in reviewing an order of a hearing examiner. On appeal to the Court of Common Pleas, "(t)he findings of the hearing tribunal . . . if supported by substantial and competent evidence, shall be conclusive." General Statutes § 31-128(b). ...