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American Legion Post 12 v. Susa11/30/2005
ial evidence that the purported reason for termination was a pretext. Both women testified that they repeatedly complained about being harassed. The record reveals that some patrons became more hostile-they refused to be served and some declined to enter the bar when Ms. Cote and/or Ms. Pacheco were working-after they became aware that the women had complained to their supervisors about being called "Guineas." Also, as was noted in the Commission's decision, their terminations were close in time to a complaint made by Ms. Cote about a member refusing service from her because she was Italian. Given the deference afforded to the Commission in these matters, this Court finds that the Commission's decision, finding that Ms. Cote and Ms. Pacheco were terminated in retaliation for opposing unlawful employment practices, was not clearly erroneous.
With respect to Ms. Potter's termination, this Court finds that there is reliable, probative and substantial evidence in the record so that a reasonable mind might conclude that she was terminated in retaliation for opposing unlawful employment practices. Ms. Potter was clearly engaged in protected conduct when she decided to cooperate with Ms. Cote and Ms. Pacheco's counsel and the Commission, regarding their allegations of harassment against the Legion. See ยง 28-5-7(5) (it is unlawful for any employer to discriminate in any manner against any individual who assists in an investigation proceeding under the Fair Employment Practices Act). Furthermore, the record demonstrates evidence of a causal connection between Ms. Potter's assistance in the investigation of the harassment allegations and her termination. The Commission reasoned that "the shortness of time between the protected activity and the adverse action" was sufficient to establish the required causality. See Smith v. Maschner, 899 F.2d 940, 949 (10th Cir. 1990) (timing can be circumstantial evidence of an improper motive); see also Adams v. Green Mt. R.R. Co., 862 A.2d 233 (V.T. 2004).
Additionally, there was substantial evidence on the record that the Legion's legitimate nondiscriminatory reason for Ms. Potter's termination-that she was fired for not coming to work-was pretextual. Prior to being discharged, Ms. Potter had been absent from work numerous times due to illnesses and physical limitations and was always welcome back to work.
When she initially informed Mr. Kettelle that she had to take time off because of her bursitis, he stated no objection and did not tell her that she had to be back by any specific date. It was not until after the Legion learned of Ms. Potter's cooperation in the harassment investigation that it voiced concern about her missing time at work. Moreover, although the record indicates that Mr. Kettelle told Ms. Potter she was fired because she failed to show up to work on a particular Saturday, he testified that he had never actually informed her that she was expected to work on that date. Finally, there was evidence that Mr. Kettelle encouraged Ms. Potter to remain in her position as bar manager at the Legion, on multiple occasions, when she expressed her intentions to quit-the last occasion only being a few months prior to her discharge.
Ultimately, the Commission had reliable, probative, and substantial evidence before it that Ms. Potter was terminated in retaliation for cooperating with the investigation of Ms. Cote and Ms. Pacheco's harassment allegations. Accordingly, the decision was not arbitrary or clearly erroneous.
D. Compensatory Damages
The Legion argues that the Commission's compensatory damage awards were inappropriate because the Commission failed to assign the appropriate weight to the evidence and was
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