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American Legion Post 12 v. Susa11/30/2005
influenced by passion and prejudice in generating the damage amounts. Section 28-5-24(b) of FEPA provides for awards of compensatory damages when the Commission finds "intentional discrimination in violation of this chapter." The statute defines "intentional discrimination" as "any unlawful employment practice except one that is solely based on a demonstration of disparate impact." Id. The compensatory damages provision also states, " he complainant shall not be required to prove that he or she has suffered physical harm or physical manifestation of injury in order to be awarded compensatory damages." Id. The compensatory damages that the Commission can award for discrimination claims are not merely "incidental to other relief sought;" rather, they constitute a substantial portion of the basic relief that the commission may award. FUD'S, Inc. v. State of Rhode Island, 727 A.2d 692, 697 (R.I. 1999). In reviewing compensatory damage determinations, the Court will not override the Commission's award unless it is "unsupported by the evidence, grossly excessive, or shocking to the conscience." McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 506 (1st Cir. 1996).
Although pain and suffering is not required for the Commission to fashion compensatory damage awards, it based the awards in the case at hand on its findings that both Ms. Cote and Ms. Pacheco were emotionally distressed by the discrimination and harassment they were subject to at the Legion. The evidence in the record supports these findings as Ms. Cote and Ms. Pacheco were clearly distraught about the way they were treated and reduced to tears on multiple occasions. In addition, Ms. Pacheco described how she hyperventilated upon learning she was terminated. Considering the evidence before the Commission and other compensatory damage awards upheld by courts in the employment discrimination context, this Court does not find the Commission's compensatory damage awards of $25,000.00, $15,000.00 and $5,000.00, to be either excessive or an abuse of discretion.
E. Back Pay Award
The Legion also maintains that it was inappropriate to base the back pay awards on the testimony of the bartenders when they were unable to present any other evidence regarding the amount of money they earned and considering they admittedly failed to report their earnings to the Internal Revenue Service ("IRS"). Although the women's testimony is the only evidence in the record of their total earnings, such evidence is sufficient to use as a foundation for calculating an award of back pay.
The Third Circuit Court of Appeals, in Atlantic Limousine, Inc. v. National Labor Relations Board, 243 F.3d 711 (3rd Cir. 2001), found that the vicitms' claims for back pay were proven through their own testimony regarding the amount of tips received. Id. at 718, 721. Although the employer argued that the employees should not receive back pay for tips claimed that conflicted with the employees' tax returns, as they were unreported to the IRS, the Court found, "the fact that [the employees'] sworn testimony that they underreported their income exposed them to tax evasion and perjury charges actually bolsters their credibility." Id. at 719. Furthermore, the Court held that the employer failed to meet its burden "as the wrongdoer, to establish facts to dispute the claim of the aggrieved employee." Id. at 720 (citing NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963)). Ultimately, the employees' testimony was considered substantial evidence sufficient to support the finding that the unreported tips should be included in the back pay award. Id. at 721.
In the instant matter, the Legion did not present any evidence that conflicted with Ms. Co
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