Comm'n on Human Rights & Opportunities v. Cantillon

207 Conn.App. 668

263 A.3d 887

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

v.Richard CANTILLON et al.

AC 43534

Appellate Court of Connecticut.

Argued March 2, 2021

Officially released September 21, 2021

Michael E. Roberts, human rights attorney, for the plaintiff (appellant).

Charles Krich, principal attorney, for the appellee (defendant Commission on Human Rights and Opportunities).

William Tong, attorney general, Clare E. Kindall, solicitor general, and Colleen B. Valentine and Matthew F. Larock, assistant attorneys general, filed a brief for the state of Connecticut as amicus curiae.

Alvord, Alexander and Vertefeuille, Js.

ALEXANDER, J.

The plaintiff, the Commission on Human Rights and Opportunities (plaintiff commission), appeals from the judgment of the Superior Court dismissing its administrative appeal from the final decision of the defendant Commission on Human Rights and Opportunities (defendant commission).¹ On appeal, the plaintiff commission argues that the Superior Court erred in dismissing its administrative appeal because the human rights referee (referee) and the Superior Court (1) misinterpreted and misapplied Patino v. Birken Mfg. Co. , 304 Conn. 679, 41 A.3d 1013 (2012), in the calculation of emotional distress damages, and (2) misapplied the factors set forth in Commission on Human Rights & Opportunities ex rel. Harrison v. Greco , CHRO No. 7930433 (June 3, 1985) pp. 7–8, in the determination of emotional distress damages. We are unpersuaded and, accordingly, affirm the judgment of the Superior Court.

The following facts, as found by the Superior Court, and procedural history are relevant to our resolution of this appeal. "On June 8, 2015, Kelly Howard ... filed a complaint with the [Commission on Human Rights and Opportunities (CHRO)] against Richard Cantillon ... her neighbor, alleging discrimination in housing because of race in violation of General Statutes §§ 46a-58 (a) and 46a-64c. [Specifically, Howard alleged that she was subjected to verbal and physical harassment in the form of racial slurs, including use of the N-word, obscene gestures and threats of physical harm, by Cantillon at the condominium complex where they both resided.] The CHRO took up the matter. [Cantillon] was defaulted in the underlying administrative proceeding, and a hearing in damages was held. At the hearing in damages, the CHRO requested $75,000 in compensatory damages. The [referee] awarded $15,000 in compensatory damages for emotional distress and $157.15 in compensatory damages for out-of-pocket travel expenses. The [referee] also awarded postjudgment interest at 10 percent per year, and entered cease and desist, as well as nonretaliation orders. The CHRO filed a request for the [referee] to reconsider her decision, but the [referee] took no action, and the request was deemed denied. The CHRO timely appealed the decision of its own [referee], complaining primarily that the damages awarded were insufficient. On February 7, 2018, [the Superior Court] remanded the matter for further consideration of damages in light of the Supreme Court's decision in Patino v. Birken Mfg. Co. , [supra, 304 Conn. 679, 41 A.3d 1013 ]. Upon remand, the [referee] issued a final decision, but did not change the damages award." (Footnote omitted.) The administrative appeal subsequently was briefed and argued before the Superior Court. On October 2, 2019, the Superior Court rendered a judgment and accompanying memorandum of law dismissing the appeal and affirming the referee's decision. This appeal followed. Additional facts will be set forth as necessary.

We begin our analysis by setting forth our standard of review. The plaintiff commission appeals from the judgment of the Superior Court dismissing its administrative appeal and affirming the decision of the referee. "It is well established that [j]udicial review of [an administrative agency's] action is governed by the Uniform Administrative Procedure Act [(UAPA) General Statutes § 4-166 et seq. ] ... and the scope of that review is very restricted. ... With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency." (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission , 298 Conn. 703, 716, 6 A.3d 763 (2010). "Even for conclusions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. ... [Thus] [c]onclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Internal quotation marks omitted.) Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission , 310 Conn. 276, 281, 77 A.3d 121 (2013).

In the present case, both parties ask us to reverse the referee's award of damages and the Superior Court's affirmance thereof. Specifically, both parties claim that the referee misapplied Patino and the Harrison factors in its determination of damages. We note that both the plaintiff commission and the defendant commission argue that they have raised pure questions of law such that we must exercise our plenary review over their claims. We disagree with this assertion. The present case does not present a pure question of law because it requires the review of the referee's award of damages, which constitutes a question of fact. See Westport Taxi Service, Inc. v. Westport Transit District , 235 Conn. 1, 28, 664 A.2d 719 (1995). Accordingly, "the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts [and] ... it is for the courts, and not for administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Board of Education v. Freedom of Information Commission , 217 Conn. 153, 159, 585 A.2d 82 (1991) ; see also General Statutes § 4-183 (j). We iterate that we cannot substitute our judgment for that of the referee and our ultimate duty is to decide only if the referee "acted unreasonably, arbitrarily, illegally, or in abuse of [her] discretion" and that any conclusion of law must stand if we determine that it "resulted from a correct application of the law to the facts found ...." (Internal quotation marks omitted.) Meriden v. Freedom of Information Commission , 338 Conn. 310, 319, 258 A.3d 1 (2021).

I

The plaintiff commission first argues that the referee and the Superior Court misinterpreted and misapplied Patino v. Birken Mfg. Co. , supra, 304 Conn. 679, 41 A.3d 1013, in the calculation of emotional distress damages. The plaintiff commission contends that Patino stands for the proposition that in "garden variety" emotional distress claims, there is a presumptive monetary range of damages between $30,000 and $125,000. See id., at 708, 41 A.3d 1013. The plaintiff commission argues that, because the referee did not "consider analogous decisions from neighboring tribunals" and the damage award in the present case fell below this range, the referee committed an "error of law." The defendant commission argues similarly. We disagree with the parties’ interpretation of Patino .

An analysis of Patino v. Birken Mfg. Co. , supra, 304 Conn. 679, 41 A.3d 1013, will facilitate our review of the parties’ arguments. In Patino , the central issue on appeal was "whether General Statutes § 46a-81c (1) imposes liability on employers for failing to take reasonable steps to prevent their employees from being subjected to hostile work environments based on their sexual orientation." (Footnote omitted.) Id., at 682, 41 A.3d 1013. Our Supreme Court determined that it did and concluded that the phrase " ‘terms, conditions or privileges of employment’ constitutes a term of art with a fixed legal meaning" and the use of that phrase in § 46a-81c (1) evidenced the legislature's intent to permit hostile work environment claims under the statute. Id., at 697, 41 A.3d 1013.

A tertiary claim on appeal was whether "the trial court, in denying the motion to set aside the verdict and the motion for remittitur, abused its discretion by concluding that the $94,500 noneconomic damages award was supported by the evidence and was not excessive." Id., at 705, 41 A.3d 1013. In its analysis of this claim, our Supreme Court concluded that, "given the sustained nature of the discrimination described by the plaintiff, the severity of the hostility he experienced, and the continued failure of the defendant to remedy the situation, the trial court did not abuse its discretion when it concluded that the award was not excessive or shocking when compared to verdicts awarded under similar circumstances. See, e.g., Gonzalez v. Bratton , 147 F. Supp. 2d 180, 208–209 (S.D.N.Y. 2001) ($250,000 compensatory damages award for emotional distress claim under both federal and state law) [aff'd, 48 Fed. Appx. 363 (2d Cir. 2002) ]; Oliver v. Cole Gift Centers, Inc. , 85 F. Supp. 2d 109, 114–15 (D. Conn. 2000) ($100,000 compensatory damages award in Title VII and Connecticut Fair Employment Practices Act case); Ikram v. Waterbury Board of Education , United States District Court, Docket No. 3:95CV2478 (AHN), 1997 U.S. LEXIS 14619 (D. Conn. September 9, 1997) ($100,000 compensatory damages award in Title VII case); Annis v. Westchester , 939 F. Supp. 1115, 1121–22 (S.D.N.Y. 1996) ($100,000 compensatory damages award based on 42 U.S.C. § 1983 civil rights violation causing plaintiff's emotional suffering) [aff'd in part, vacated and remanded in part, 136 F.3d 239 (2d Cir. 1998) ]; Rush v. Scott Specialty Gases, Inc. , 930 F. Supp. 194, 199 (E.D. Pa. 1996) ($100,000 compensatory damages award based on Title VII claim for plaintiff's emotional distress and depression) [rev'd, ...