Opinion
FSTCV146023695S
06-17-2019
Lana ROSSOVA v. CHARTER COMMUNICATIONS, LLC
UNPUBLISHED OPINION
POVODATOR, JTR.
Background
In 2013, the plaintiff obtained employment with the defendant. Shortly after commencing employment, she disclosed that she was pregnant. Within two months of her having commenced employment, she was terminated. The plaintiff claimed that her termination was due to discrimination based on her pregnancy, and commenced this action (after obtaining a suitable release from the CHRO). The liability phase was tried to a jury resulting in a verdict for the plaintiff; the parties agree that the damages phase would be tried to the court.
There were extensive delays in actually conducting the second phase of the trial. One significant consequence of that delay, however, was that by the time of the second-phase hearing, the plaintiff had obtained new employment, such that her claim for economic damages no longer contained a "future" component- there is a well-defined period of time in which she is claiming lost earnings, and the primary issue before the court is the amount of damages to which the plaintiff is entitled.
An evidentiary hearing was conducted on November 1, 2018. The parties submitted their briefs and reply briefs relating to damages, and the plaintiff submitted a supplemental filing relating to her claim for attorneys fees. The defendant requested an extension of time until February 20, 2019 in which to respond to the attorneys fee claim- which was granted- but did not take advantage of that opportunity. Effectively, the record was closed on February 20, 2019.
The plaintiff’s claim for economic damages comes down to a relatively simple methodology. In her position with the defendant, she had been earning $110,000.00 per year (which translates to $9,166.67 per month) and was out of work for four years and four months. Multiplying the time by the rate of pay yields presumptive damages in the amount of $476,666.69. This is generally set forth on Exhibit 1, although reached through a somewhat different methodology (based on 12-month periods commencing with her date of hire). In her brief, however, the plaintiff recalculated the lost earnings, claiming that the proper methodology should be that she worked for four bi-weekly pay periods, resulting in actual earnings of $16,923.08, a calculation based on four pay periods at $4,230.77 per pay period, rather than a figure in excess of $18,000. The problem with this recalculation is that four two-week periods do not fully span the period of employment- 8 calendar weeks from her initial date of employment of 3/4/13 only extends to the end of the week preceding 4/29/13. If 5/3/13 actually was her last day of employment, then the plaintiff presumably was paid through that date- an additional week. Therefore, notwithstanding pay periods as the actual frequency of payment, utilization of pay periods omits a fraction of a pay period that the plaintiff worked (the week of 4/29/13 to 5/3/13) and additionally would introduce greater round-off errors if used for the balance of that year. In other words, utilizing bi-weekly pay periods only adds complexity if not confusion.
The court’s calculation is slightly different from that set forth in plaintiff’s Exhibit 1, because the court sought to minimize round-off errors and used the date of termination as the starting point for its calculation. Rather than 16 months of round-off errors from a calculation based on 3 full years and 2 partial years totaling 16 months, the court’s calculation was based on 4 years and 4 months. (The court also rounded off $91,666.666 to $91,666.67.) The court notes that in effect, the plaintiff has rounded off her period of employment to a number of whole months, whereas there should be an additional week given her commencement of employment on September 11, 2017, compared with the termination on May 3, 2013. Utilizing the plaintiff’s stated biweekly pay of $4,230.77 as the benchmark, an additional $2,115.38 needs to be added to the calculation above.
From an alternate perspective, the plaintiff’s proposed calculation starts from her date of hire rather than date of termination, which necessarily requires a calculation of the amount she earned prior to termination and backing that figure out. It inherently is simpler to calculate damages beginning with the date of termination. The court concludes that the plaintiff’s attempt to correct her calculation is not helpful, and the court instead relies on its calculation based on the period of time that the plaintiff was out of work.
The court notes that in effect, the plaintiff also seems to have rounded off her period of employment to a number of whole months, whereas there should be an additional week, given her commencement of employment on September 11, 2017, compared with the termination on May 3, 2013. Utilizing the plaintiff’s stated biweekly pay of $4,230.77 as the benchmark, and additional $2,115.38 (expected compensation for one week) needs to be added to the calculation above. That increases the presumptive damages to $478,782.07.
The plaintiff acknowledges having received $10,503.00 in unemployment compensation, which in turn she acknowledges properly should be credited against her presumptive damages. Subtracting the unemployment compensation ($10,503.00) total from the presumptive damages ($478,782.07) yields a net claim of economic damages of $468,279.07. (This does not include attorneys fees, addressed separately, below.)
There appears to be a round-off discrepancy here as well. Twenty-six weeks of benefits at $403.96 per week yields $10,502.96. It is not clear whether $403.96 itself is a rounded-off number such that on some occasions, the actual weekly payment may have been a penny more, or whether the plaintiff did the rounding off. The court will use the plaintiff’s number.
Applicable Law
The parties are generally in agreement as to the applicable law relating to damages in a case such as this. The primary focus is on the court’s ability to provide remedial damages- back pay- under General Statutes § 46a-86. The plaintiff correctly states that
[t]he broad authority placed in the trier of fact to fashion remedies for employees who are the victims of illegal discrimination is designed to accomplish the remedial purpose of the statute, which is to "restore those wronged to their rightful economic status absent the effects of the unlawful discrimination," quoting from Bridgeport Hospital v. Commission on Human Rights and Opportunities, 232 Conn. 91, 111 (1995) (Internal quotation marks omitted.)
Connecticut courts generally will look to cases decided under the corresponding provisions of federal law for guidance; Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 278, 777 A.2d 645 (2001); Thames Talent, Ltd. v. Commission on Human Rights and Opportunities, 265 Conn. 127, 139 (2003). The over-arching principle was enunciated in Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975):
[T]he scope of relief under that section of the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.
The real "battleground" in this phase of the dispute relates to mitigation of damages. The parties agree that the plaintiff has an obligation to mitigate damages, and that the burden is on the defendant to prove a failure to mitigate. It is a factual issue for the court as to whether the plaintiff made reasonable efforts to mitigate under the circumstances presented. Ann Howard’s Apricots Restaurant, Inc. v. Connecticut Commission on Human Rights & Opportunities, 237 Conn. 209, 229 (1996). The defendant further acknowledges that it has the burden of demonstrating that suitable work existed, Broadnax v. City of New Haven, 415 F.3d 265, 268 (2d Cir. 2005).
The defendant, however, takes the issue one step further. "The employer need not establish the availability of comparable employment, however, in cases where the employer can prove that the employee made no reasonable efforts to seek such employment." (Internal quotation marks and citation, omitted.) Hopkins v. New England Health Care Employees Welfare Fund, 985 F.Supp.2d 240, 261 (D.Conn. 2013). Again citing Broadnax, the defendant contends that the failure of a plaintiff to seek employment relieves the defendant of the burden of establishing the existence of suitable employment.
Discussion
The court will start with the last legal principle identified above. It is not clear why the defendant inserted this aspect of law into its brief. As discussed below, the defendant’s contention does not appear to be that the plaintiff made no effort but rather that she made a minimal and inadequate effort (and that for limited periods, she made no efforts). The defendant provides no analysis as to how or why a claimed inadequate effort is anything but a garden-variety failure to mitigate rather than subject to characterization as a total failure to seek suitable employment. While it is conceivable that efforts may be so minimal or perfunctory as to warrant treatment as indistinguishable from no effort, the defendant is arguing, without any identification of criteria, that on the continuum/spectrum of no effort to reasonable effort (and beyond), the claimed-to-be-inadequate (or intermittent) efforts of the plaintiff should be treated as if there had been no effort.
Turning to the substance of the mitigation issue in this case, it actually has two major components, reflected by the motions in limine filed by the defendant (#175.00 and #176.00). One motion raises the merits of the claim of failure to mitigate, identifying the claimed inadequacy of the efforts of the plaintiff to mitigate damages, and indeed at times characterizing the plaintiff as having withdrawn- voluntarily- from the workplace for substantial periods of time. The other motion addresses claimed deficiencies in the records maintained by the plaintiff concerning her mitigation effort, claimed to rise to the level of spoliation. In this latter regard, the defendant asks for an adverse inference to be drawn, based on the claimed objective and at least partially admitted deficiencies in the plaintiff’s records as produced in discovery.
It would be difficult if not impossible to separate the merits of the plaintiff’s claim from the contentions of the defendant, notwithstanding mitigation (technically, failure to mitigate) to be a burden placed on the defendant. In effect, the defendant challenges the credibility of the plaintiff, both in terms of her testimony and evidence, in turn both in terms of what was produced and what was not produced.
The plaintiff’s testimony was that despite being pregnant with a doctor’s order of bedrest, essentially immediately after having been terminated by the defendant she had begun her efforts to obtain new employment, which continued until she finally obtained employment in September 2017. The plaintiff’s evidence in this regard had two general components. First, she produced a number of emails and similar documentation of her efforts to find a substitute position, and the relatively limited number of such indicia of efforts is a principal focus of the defendant’s arguments. Second, she testified as to the nature of her efforts to seek employment, both in a generalized sense as well as with some level of specificity. She testified as to the use of online resources such as Linked In and in addition to touching on her use of emails and other documented communications, she explained at length her more direct if undocumented contacts- telephone and in-person- with a wide range of individuals. She contacted placement professionals (recruiters/headhunters); she contacted former co-workers and others she knew who were in the same line of work; and she networked with people who might have contacts in the industry, including parents of other children at the private school attended by her child. She produced lists of people she claims to have contacted over the years and applications submitted (Exhibits Q and R), but they were lists generated long after litigation had commenced and in at least one instance seemingly not until after the jury had found for the plaintiff on the issue of liability. Given the timing and manner of creation of the lists (primarily the plaintiff’s memory, sometimes years after the fact), the defendant treats the lists as unworthy of any weight in terms of plaintiff’s acknowledged burden of mitigation.
The court now will address some of the issues and sub issues identified and pressed by the defendant. Although the plaintiff contends that her efforts to find new employment were consistent and persistent, essentially an everyday type of activity, the defendant emphasizes the absence of any documented efforts in the nature of email or other communications, for extended periods of time. Aside from pressing the sometimes-minimal level of activity in months in which there was some documented activity, the defendant notes large periods of time with no documented efforts at all.
In particular, from the time of her termination in May 2013 into early January 2014, there were no documented efforts to find employment. That coincides with the last few months of her pregnancy during which her doctor had ordered bedrest, through delivery, and approximately 3-4 months beyond delivery of her baby. The court notes that, by contrast, the plaintiff did find the time to file her complaint with CHRO in this timeframe.
The filing of the CHRO complaint triggers another aspect of the defendant’s arguments. The filing of the CHRO complaint represented the onset of a litigation-type relationship with the defendant. It is not clear from the record during the trial as to when counsel first became involved in representing the plaintiff, but the affidavit submitted in support of the claim for attorneys fees includes a bill for preparation of the submission to the CHRO (August 2, 2013 statement) such that counsel was involved with all phases of the legal dispute with the defendant. No later than June 14, 2013, then, plaintiff was represented by counsel, and if the plaintiff was not aware of her obligation to preserve evidence for the then-expected litigation at the outset of the CHRO proceedings, certainly no later than receipt of the August 5, 2014 release of jurisdiction from the CHRO, authorizing this suit to be commenced, she should have known of that obligation. Still further, discovery requests had been served on the plaintiff as early as December 2014 (see, #102.00, seeking additional time to respond), seeking information that over the next few years was not recorded contemporaneously but only retrospectively.
At the top of page 14 of the plaintiff’s reply brief, she quotes from a transcript of proceedings, in which the court is reported to have said in the course of a discussion of record-keeping that "you’re going to the sage euro and all of these things ..." The court was not provided with a transcript and instead has listened to the audio. The transcription should read "and you’re going to the CHRO and all of these things ..."
Given the evidence that the plaintiff had, on occasion, cleaned out repositories of messages or email, such as on LinkedIn, such conduct justifies the defendant’s concerns about potential spoliation. Related, and perhaps not directly characterizable as spoliation, the plaintiff failed to keep ongoing records of her activities, instead at a significantly later date trying to re-create her efforts to find new employment (other than the limited materials she was able to produce).
One of the issues that the defendant presses is the lack of preservation of various iterations of her resume. The court believes that the defendant may be pressing this point beyond its limited value. In an era where resumes typically are kept on a computer, and can be modified as needed for any given position- and the court believes the term used by the plaintiff was "tweaked"- while it may have been prudent to keep copies of any printed resumes that may have been mailed out, seemingly many if not most were sent out as attachments to electronic communications, and it would not be terribly surprising for an individual not to keep a separate electronic copy of every tweaked version of a basic form-resume being used (although the copy attached to the email should be retrievable if the email is retrievable). However, the foregoing does not justify or excuse the fact that on occasion, there appears to have been less than diligent searches by the plaintiff, such that subsequent searches for compliance turned up additional records.
In sum, then, there were significantly inadequate efforts made to document the plaintiff’s activities with respect to job searches, no conscious effort to preserve documents, admitted deletion of at least some potential records, and at least some question as to the diligent nature of efforts to provide compliance with production requests relating to such materials.
Although these factors are troubling, the court does not believe them to rise to the level of spoliation or an affirmative adverse inference. The court does believe these factors go to the weight of the evidence presented and at least in some measure to the credibility of the plaintiff.
Although the plaintiff insists that she was consistently seeking a new job, there was no satisfactory explanation for certain sizable gaps in the records she was able to produce, and the consistency of such gaps with explanations suggested by the defendant. The court finds reasonable the contention of the defendant, emphasized/reinforced by the absence of any objective or tangible evidence of efforts in the timeframe, that from the time of her termination in May 2013, into January 2014, the plaintiff had made no serious effort to find employment. The plaintiff also could not explain, satisfactorily, why in subsequent years, there were blocks of months in late spring through the summer in which there were no documentation relating to efforts to find a new job. Graphically convincing in this regard is table 1 in the motion in limine relating to mitigation, a version of which was also admitted into evidence as a full exhibit during the second phase of court proceedings (Exhibit S). In addition to the absence of any documentation from the time of termination through January 4, 2014, there was no documentation for May 2014 through August 2014, May 2015 through August 2015, and June 2016 through September 2016.
Even so, the defendant overstates the significance of these gaps. It characterizes these gaps- as well as other months without any documented emails- as periods of time "when she either was medically and physically unable to work or when she made the personal decision to stay home and care for her two young children instead of working." In effect, the defendant wishes to have it both ways- assuming that the records produced by the plaintiff are complete for purposes of this discussion, but at the same time assuming that they are materially incomplete for purposes of asking the court to draw an adverse inference.
Similarly, the court can give only limited weight to the manner in which the plaintiff handled her "gap" in employment on her resume and in dealing with prospective employers. After a period of time subsequent to her termination, the plaintiff modified her resume to reflect that she had taken a maternity leave and had engaged in free-lance consulting work. Plausibly, she claims that this was to avoid the appearance of an extended period of time without employment, which might be perceived by a prospective employer as a negative factor. The court is aware of the somewhat ironic nature of her providing what she claims to have been a fabricated excuse in the context of a claim by the defendant that it was not fabricated but rather an involuntarily-revealed truth.
Another sub-issue that has been raised concerns the geographical restrictions that the plaintiff placed upon her job search. She indicated that she would consider working in New York City only if she were allowed to work remotely at least one or two days per week. The plaintiff contends that any geographical restrictions placed on her job search should not impact the court’s determination as to whether she had attempted to mitigate damages. More generally, she wanted to work no more than 45-60 minutes away from her home, a constraint driven by the need for parental availability. Notwithstanding the plaintiff’s seeming rejection any consideration of geographical limitations, the court believes that there is a reasonableness factor that must be considered. To take a somewhat extreme example, if the plaintiff had insisted that she would not take any position more than 10 or 15 minutes from her home, the court might well consider that to be an unreasonable restriction since depending upon traffic patterns, that might amount to a 5-mile radius or less. Eliminating New York City from consideration in the absence of an ability to work remotely at least part of the time is a not-insignificant limitation on the job market available to the plaintiff (particularly given the modest distance of Greenwich from New York City as well as the availability of Metro North trains to eliminate the uncertainties of drive time). While many employers accept if not encourage employees to work remotely, others resist if not reject such arrangements for a variety of substantial reasons. Within reason, then, quality of life factors such as distance from home are acknowledged to be reasonable factors for limiting a job search. Given the facts in this case, while excluding New York positions requiring daily presence is a close call, the court cannot conclude that it was unreasonable.
The court recognizes that the plaintiff was under no obligation to accept a position significantly inferior to the position from which she had been wrongfully discharged. Mitigation of damages it is based on efforts to obtain a suitable and comparable position. Nonetheless, there is a credibility factor in play- if the plaintiff was so concerned about having a large gap in her employment history, such that she largely fabricated a period of doing consulting work (with the exception of an actual project for a charitable organization on a volunteer basis), the obvious question is: why did she not take or at least seek consulting ("gig") jobs, so that she more honestly could say that she was engaged in consulting work while actually generating income as an additional benefit? This concept was not addressed, and except to the extent it implicates a credibility factor, the court cannot consider it in connection with the merits of mitigation.
The court has little difficulty in concluding that the initial several months after termination- the period of time in which her doctor had ordered bed rest and continuing through the beginning of January 2014- the plaintiff was not really in the job market. Any efforts she made to find employment were not documented, and seemingly limited in scope. Any such efforts likely were intended for when she was ready to return to the job market, which would appear to be no earlier than "after the holidays" of 2013.
The court also is concerned about the seemingly consistent diminished efforts if not major gaps in the summers of 2014, 2015 and 2016. The summer of 2017, at least as far as documented efforts are concerned, began as if it would fit the same pattern, except that in the middle of the summer, she began interviewing with her eventual new employer- which in turn undercuts to some degree the significance of the limited documentation concerning job efforts. (It also demonstrates that an initial contact, through an interview process, and an eventual decision, can span an extended period of time (months).
The plaintiff has challenged the defendant upon its position both factually and legally. The plaintiff attempts to distinguish Greenway v. Buffalo Hilton Hotel, 140 F.3d 47 (1988), a case upon which the defendant attempts to rely. The plaintiff, in turn, largely relies upon Broadnax v. City of New Haven, 415 F.3d 265 (2005), in which decision the Second Circuit is claimed to have "clarified the exception articulated in Greenway ." The plaintiff quotes the court as stating that "the Greenway exception is an exception to the necessity of evidence of alternative employment, not an exception to the general burden borne by the employer." She goes on to quote the case as stating that the exception applies "when the employee, who is capable of finding replacement work, failed to pursue employment at all (emphasis added by the plaintiff). The plaintiff argues that the defendant’s authorities only are applicable in instances where there was no effort to find new employment, a situation claimed not to be present here.
The plaintiff also challenges the value of the testimony provided by the defendant’s expert, Ms. Wexler, emphasizing the generalized nature of her testimony and the lack of any report setting forth her analysis and conclusions. The absence of a report is of limited concern to the court- there are many reasons why an expert may not prepare a report, and depending upon circumstances, expert reports often are not entered into evidence such that the court typically relies upon the testimony and associated exhibits offered during the course of trial.
The generality of much of the expert testimony is of more concern. Depending upon how specifically or broadly a position is characterized, the likely universe of potential positions and the associated steps to seek to apply for them would be highly variable. While it is appropriate for an expert to rely upon information not directly admissible in court, including hearsay-type information from third parties with whom she consulted (assuming that it is the type of information such experts regularly rely upon), the lack of specificity as to the number and types of positions comparable to the one the plaintiff had had with the defendant that were or were presumed to be available diminishes the persuasive effect of the testimony of the expert. The court also concludes that the estimate of 6-8 months to find a job was likely optimistic, and the court does not recall if that took into account the plaintiff’s refusal to entertain work in NYC that did not involve at least some level of remote working, presumably narrowing the field of eligible positions substantially.
The reasonableness of that limitation is discussed elsewhere.
In its reply brief, the defendant initially asks the court to draw inferences from the fact that the plaintiff had moved from a then-new job (after 1-2 months) to her position with the defendant, because the location was closer to home. On that basis, the defendant asked the court to infer that taking care of her children- family life- was the primary motivating force for all job-related decisions. The court declines the invitation to engage in the unwinnable debate as to whether it is possible "to have it all"- whether the plaintiff unreasonably narrowed her geographic range of employment is a valid point of contention, but the fact that the plaintiff chose to work for the defendant with a more convenient location as a factor would seem to be nothing other than a part of a personal decision-making process having essentially no weight, given the current record. If all other things were comparable if not equal (and there is nothing in the record to suggest any material detriment associated with the change to employment by the defendant), it would be something of a no-brainer to accept a new position that was substantially more conveniently located, particularly when the prior position itself had been of very short duration.
The defendant contends that the plaintiff is not entitled to interest because there is no claim for interest in the complaint and no citation of authority for the award of interest. The defendant cites a trial court decision for that proposition, Pettibone Tavern, LLC v. OneBeacon Midwest Ins. Co., No. CV 106006711S, 2010 WL 4723384, at *7 (Conn.Super.Ct. Oct. 28, 2010). The court disagrees. Practice Book § 10-28 specifically provides that interest need not be asserted in the claims for relief. In numerous trial court decisions, trial courts have allowed pre-judgment and/or postjudgment interest without specific recitation in a complaint. For example, in Consoli v. Basaran, No. FSTCV 135014155S, 2016 WL 573156, at *8 (Conn.Super.Ct. Jan. 20, 2016), the court allowed pre-judgment interest based on a catch-all claim for relief analogous to the plaintiff’s fourth claim for relief ("Such other relief, legal or equitable, that is deemed appropriate"). In Gillon v. Silver, No. FSTCV 065001203S, 2014 WL 5571231, at *3 (Conn.Super.Ct. Oct. 2, 2014), the trial court allowed pre-judgment interest without any formalized request in the complaint.
The Appellate Court recently approved of such an approach, relating to postjudgment interest but analytically applicable to pre-judgment interest:
A decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court. Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion ... [Thus, our] review of such rulings is limited to the questions of whether the trial court properly applied the law and reasonably could have reached the conclusion that it did.
In this case, the plaintiff orally requested postjudgment interest at the hearing in damages. The plaintiff asserted that the "wherefore clause in the complaint [that requests] such other relief as the court may deem equitable and necessary" allowed the court to award postjudgment interest. The defendants opposed this request by stating that the plaintiff did not properly raise the request in their complaint or by motion. The plaintiff, however, was not required to claim postjudgment interest in its second revised complaint. Practice Book § 10-28 provides: "Interest and costs need not be specifically claimed in the demand for relief, in order to recover them." The court awarded the plaintiff postjudgment interest in the requested amount of 6 percent per annum. See General Statutes § 37-3a. The court noted that the "claim of money damages in the complaint, and such other further relief that the court may deem equitable and necessary, are sufficient to award postjudgment interest." We agree. Accordingly, the court did not abuse its discretion in awarding the plaintiff postjudgment interest." (Internal quotation marks and citations, omitted.) Customers Bank v. Tomonto Industries, LLC, 156 Conn.App. 441, 452-53, 112 A.3d 853, 861-62 (2015).
The defendant’s citation to Styslinger v. Brewster Park, LLC, 321 Conn. 312, 315 (2016) is inapposite- as quoted by the defendant, that decision stands for the proposition that a general claim for relief is insufficient to encompass a claim for monetary damages, but here the issue is a claim for interest.
Styslinger involved a claim for statutory dissolution of an LLC, and focused on the lack of standing of the plaintiff to pursue statutory remedies. The language quoted by the defendant was in a footnote hypothetically assuming that the plaintiff might have standing to seek other relief.
The defendant is more on point in challenging the claim for interest at 10% per annum. As DiLieto v. County Obstetrics & Gynecology Group, P.C., 310 Conn. 38 (2013) and other related DiLieto cases make clear, going back at least to Sears, Roebuck & Co. v. West Hartford, 241 Conn. 749, 763-66 (1997), interest under § 37-3a (and by extension, § 37-3b) is at a rate to be determined by the court, exercising its discretion, with 10% as a maximum. While a trial court is permitted, as appropriate, to apply a 10% rate, this court more typically starts with the analysis set forth in a decision of Judge Adams in Alarmax Distributors, Inc. v. New Canaan Alarm Company, Inc., J.D. Stamford, FST CV-09-5012255S, 2013 WL 3613890 (June 19, 2013) (after remand, 141 Conn.App. 319 (2013)) . Using the financial analysis in that decision as a starting point, and recognizing that interest rates have not changed substantially in the last 5-6 years, this court regularly has determined that an interest rate in the 4-6% range it is appropriate (when interest is to be awarded). DiLieto (316 Conn. 790) recognizes that a trial court may hear a variety of evidence, relating to a determination of the proper interest rate, but in this case, no evidence was offered with respect to establishing an appropriate rate other than in the 4-6% range.
Indeed, more recently, in Riley v. Travelers Home & Marine Insurance Co., 173 Conn.App. 422, 458-62 (2017), the court discussed the issue of an appropriate rate of interest under § 37-3a, again rejecting the claim that 10% is the presumptive rate (at page 461). The court referred to the trial court’s observation that the prevailing rate of interest as awarded by trial courts (in the 2014 timeframe) was in the range of 3-6%- consistent with Alarmax and this court’s recent approach to interest awards. As noted in Riley, the court may take these ranges into consideration, but must fashion an appropriate rate based on the record before it, and the court will do so.
The court recognizes that the damages being awarded are under a statute that is remedial in nature. The plaintiff is to be compensated for the income she would have received from the defendant, had her employment not been wrongfully terminated. Offsetting that to a limited/equitable extent is that there were avoided costs that are not considered for purposes of reducing an award. The inconsistent efforts of the plaintiff to find new employment, and particularly the limited-to nonexistent efforts immediately after termination and during subsequent summers, already has been factored in to the damages award, such that they have minimal to no additional weight in terms of an equitable determination of an appropriate rate of interest. By comparison, in Consoli, supra, the court consider the extreme nature of the defendant’s conduct in its decision to award interest at 10 percent, reflecting the range of factors that the court may consider in establishing the appropriate rate of interest.
A final issue is the date on which interest should commence to run. Arguably, interest could begin to run on each day or week or month of lost earnings, starting with that particular day, week or month. That would result in a tremendously complicated calculation, and would make it even more difficult to adjust for claimed inadequacies in efforts to mitigate damages. A more practical and feasible approach is to commence the running of interest once damages ceased to accrue, i.e., on the date that the plaintiff began her employment with her current employer, September 11, 2017. That, in turn, would be after determination of the presumptive damages and adjustments required due to inadequacies in efforts to mitigate. That is the approach that the court has chosen to apply. Therefore, the plaintiff is entitled to prejudgment interest starting September 11, 2017, with post-prejudgment interest commencing with the issuance of this decision.
To this point, the court has been discussing the claims and analyses of the parties, without stating any specific conclusions. The court will now attempt to synthesize the foregoing into more concrete determinations.
The court concludes that from termination of employment in early May 2013 through the beginning of January 2014 is a period of time that the plaintiff did not effectively make herself available to be employed. She had been ordered on bed rest for the latter portion of her pregnancy, and after delivery, there is no objective "documentary" evidence of any efforts to seek employment. Similarly, the approximate three-month period of time each summer for which there are no records of efforts to seek employment is perceived to be too consistent for it to be mere coincidence. The requested delay in the actual commencement date for her new position, which the defendant contends was keyed to the commencement of the school year which would minimize childcare concerns, is a borderline contention which the court rejects. While it may well be that the delay was intended to take advantage of the remainder of the summer, the court notes that under any circumstances, if they were childcare issues to be arranged in connection with new employment, some minimal delay would be required no matter how diligent the plaintiff had been. In other words, a delay of two weeks or so in commencing employment, while consistent with the defendant’s perception of events, is equally consistent with a plausible need for time to make adjustments in schedules; with the burden of proof on the defendant to establish failure to mitigate, this is a contention that the defendant has failed to establish.
That last comment is an appropriate segue to the court noting that it rejects the implied effort of the defendant to make this an all-or-nothing proposition with respect to mitigation. A failure to mitigate justifies a reduction in damages, limited to the extent to which the failure to mitigate has resulted in an increased level of damages beyond that which should have been incurred. Thus, while the court does not fault the plaintiff for not seeking employment prior to January 2014, under the circumstances as presented by the evidence submitted, the court cannot conclude that the plaintiff was actively seeking employment for that period of time, even if she might have been making some efforts (undocumented) for subsequent employment. Similarly, the consistent absence of documented efforts during the subsequent summers does not mean that there were absently no efforts being made in those time frames, but the consistency of those gaps is indicative of a pattern of reduced or minimal-at-best efforts, even if there were undocumented efforts during those summers. Thus, the court finds there to have been a total of 17 months out of the total 52 months and one week between termination and re-employment during which the plaintiff was not acting reasonably to mitigate damages and therefore the court believes a proportional reduction in damages is appropriate. The court is not including the summer of 2017 in this adjustment, because any perception of diminished efforts in that summer had no impact on the plaintiff’s employment, since the job eventually obtained was the result of efforts prior to that summer, such that there is no direct causative link between any lack of effort in the summer of 2017 and the extent of the plaintiff’s damages.
"Doing the math," adjusting the time frame to reflect the time that the plaintiff was not actively seeking employment, results in an adjusted damages award of $315,187.83.
Rounding off to whole months for purposes of this calculation, 35/52 x $468,279.07 = $315,187.83. The court believes this to be preferable to a calculation based on $9,166.67 per month, because of the need to adjust for unemployment benefits received- in the preferred calculation, that adjustment is spread over the entire time of 4 years and 4 months, whereas in a pure monthly calculation, the same adjustment would be spread over 2 years 11 months. Conceptually, the preferred method is more consistent with mitigation of damages, adjusting the initially determined damages to reflect the increase due to the inadequate efforts of the plaintiff, and the proportional after-the-fact adjustment does precisely that.
Under the circumstances presented in this case and the prevailing relatively low rates of interest, the court awards interest, pre- and post-judgment interest at the rate of 5% per annum. Interest from September 11, 2017 through June 18, 2019 totals $27,881.19, with a per diem of $43.18.
The plaintiff has submitted an affidavit in support of her claim for attorneys fees. As noted at the outset, the defendant sought additional time in which to file an objection to the claim for attorneys fees, but never actually submitted anything challenging the plaintiff’s entitlement to such an award nor did it submit anything challenging the amount being claimed.
The court notes that the affidavit submitted in support of the claim for attorneys fees reflects work spanning approximately 5 1/2 years, including a jury trial and a separate if less time-consuming court-side trial on damages (but with associated extensive briefing).
The affidavit submitted by the plaintiff presents the court with certain not-unsurmountable problems (aside from mis-identifying the plaintiff in ¶12 as Lana Silva (as opposed to Lana Rossova a/k/a Lana Ross)). Neither in the manuscripted affidavit nor in the bills attached to the affidavit is there a statement of the aggregate charges for legal expenses- the affidavit itself makes no mention of any dollar amount, and the bills reflect some payments that had been made over the life of the case such that the amount due on the final bill is not an accurate total. Further, the bills include taxable costs which should be claimed as such. Accordingly, the court has been required to go through each of the bills and do its own calculation of the total fees being claimed.
After backing out the entry fee and the marshal’s fee for service (which should be claimed on a bill of costs), the court has calculated the total fees and expenses incurred over the life of this proceeding, starting with the initial CHRO proceedings, to total $79,762.59.
The court used a calculator program/application that generates a "tape" of the entries. The entries for fees and expenses from the bills attached to the affidavit, with the identified taxable costs then backed out, are as follows: 825 + 150 + 287.69 +1550 + 487.69 + 675+50 + 886.20 +1825 + 800 + 1175+ 125 + 300 + 3, 175 + 100 + 445.78 + 508.62 + 125 + 672.66 + 11, 625 + 1, 000 + 17, 558.13 + 1, 883.50 + 2, 610 + 600 + 180 + 120 + 1, 260 + 270 + 150 + 3, 810 + 1, 042.41 + 840 + 60.83 + 22, 430.28 + 570 - 350 - 61.20 = 79, 762.59.
The court concludes that the hourly rates charged, ranging from $250 per hour to $300 per hour, were reasonable. Substantial time was expended for a jury trial and a court-side trial with briefing; pre-trial proceedings included a summary judgment motion that needed to be defended.
The court is aware of the various factors that are to be considered in determining a reasonable attorneys fee. See, e.g., Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38, 663 A.2d 432 (1995). See, also, the factors set forth in Rule 1.5 of the Rules of Professional Conduct. In the absence of any challenge to the reasonableness of the fees being claimed, the court sees no need to go through each of these factors individually, but rather instead notes that it has considered these factors and finds the amount being claimed to be consistent with/justified by all applicable factors. Attorneys fees and expenses in the amount of $79,762.59 are allowed.
"(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; [51 (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases."
"(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent."
Conclusion
The court’s starting point is that the jury found for the plaintiff with respect to liability. The plaintiff’s claim for economic losses is straightforward- the amount of time she was out of work multiplied by the periodic compensation she would have received if she had continued working for the defendant, with an acknowledged offset for unemployment benefits received.
The defendant relies upon the limited documentation relating to efforts by the plaintiff to mitigate damages, claiming that it is indicative of the limited efforts made by the plaintiff to find new, comparable employment, accentuated by periods of time when it appears as if she were not making any efforts, at least insofar as documentation of efforts is concerned. Again, the defendant seems to want to have both ways, asking the court to rely upon the limited records available, while claiming that there should have been more records but for the plaintiff’s failure to preserve existing documentation as well as her failure to document her efforts on a contemporaneous basis.
The court is not suggesting that it has conclusively determined that the plaintiff made absolutely no efforts to find new employment prior to early January 2014 or during the summers of 2014, 2015 and 2016. Rather, the absence of any records for those periods of time is indicative of a minimal if not negligible (and possibly nonexistent) level of activity. Conversely, the existence of a number of months in which there is only one email or other form of documentation of efforts to find new employment is of some concern, giving the defendant’s expert’s opinion as to efforts that should have been made even minimal weight. Instead of some essentially-arbitrary discount level across the 4+ years of unemployment, notwithstanding the varying levels of activity as documented, the court thought it more appropriate to focus on multi-month periods of time of no documented activity which, in turn, are indicators/markers of periods of time of minimal or attenuated levels of activity. Any attempt at a finer-grained analysis would have to contend with the limited documentation available. For example, there was some limited evidence relating to vacation-type activities, and there was at least one reference in an email exchange to the plaintiff’s unavailability for a follow-up, because she was going away for a week, inferentially a vacation- but that was mentioned in passing, and there is inadequate evidence to allow a more detailed level of analysis.
With respect to attorneys fees, the defendant did not take advantage of its opportunity to raise questions about that claim, either as to the reasonableness/necessity of the work performed or as to the hourly rate or as to anything else relating to that claim. For the reasons discussed above, the court finds that the plaintiff is entitled to the full attorneys fees claimed, subject to the entry fee and the marshal’s fee for service being "moved" to the category of taxable costs rather than an award of legal expenses.
Accordingly, judgment enters in favor of the plaintiff in the amount of $315,187.83, plus interest at 5% per annum from September 11, 2017 through June 18, 2019 (which totals $27,881.19, with a per diem of $43.18) and post-judgment interest to continue to accrue at 5% per annum. Attorneys fees in the amount of $79,762.59 are awarded.
Costs are to be taxed by the clerk.