Tomick v. United Parcel Serv., Inc.

TOMICK v. UNITED PARCEL SERVICE, INC.

SC19505

Supreme Court of Connecticut

January 10, 2017

DISSENT

PALMER, J., with whom McDONALD, J., joins, dissenting. I respectfully disagree with the majority's conclusion that General Statutes § 46a-104¹ does not authorize an award of statutory punitive damages as a remedy for discriminatory practices under the Connecticut Fair Employment Practices Act (act), General Statutes § 46a-51 et seq. Guided by the well established principles under which we construe the act, including affording it a liberal construction in favor of employees and reading it consistently with federal employment discrimination laws, in particular, Title VII of the Civil Rights Act of 1964, as amended by Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. (2012), I believe that reading § 46a-104 to authorize punitive damages in appropriate cases is the better construction because it would further the purposes of the act by deterring particularly severe cases of discriminatory conduct in the workplace. Moreover, those portions of this court's decision in Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 839 A.2d 1250 (2004), on which the majority relies in concluding that § 46a-104 does not authorize a punitive damages award, are dicta that I now believe were incorrect. I therefore would reverse the judgment of the Appellate Court upholding the trial court's decision to set aside the jury's award of statutory punitive damages in the amount of $500,000 to the plaintiff, Michael Tomick. See Tomick v. United Parcel Service, Inc., 157 Conn. App. 312, 341, 115 A.3d 1143 (2015). Accordingly, I respectfully dissent.²

I agree with the majority's statement of the background facts and procedural history of this case. I also agree with the majority that, in determining whether § 46a-104 authorizes an award of punitive damages, "[w]e apply plenary review to this question of law, and well established principles of statutory construction" under General Statutes § 1-2z. Commission on Human Rights & Opportunities v. Echo Hose Ambulance, 322 Conn. 154, 159, 140 A.3d 190 (2016). I turn first to the statutory text, as § 1-2z requires. Section 46a-104 provides: "The court may grant a complainant in an action brought in accordance with section 46a-100 such legal and equitable relief which it deems appropriate including, but not limited to, temporary or permanent injunctive relief, attorney's fees and court costs. The amount of attorney's fees allowed shall not be contingent upon the amount of damages requested by or awarded to the complainant." (Emphasis added.) The majority correctly concludes that § 46a-104 is ambiguous when read in context, thus permitting resort to extratextual evidence to determine whether it authorizes punitive damages. Unlike the majority, however, I conclude that the "legal . . . relief" authorized by § 46a-104 can include punitive damages.

As the majority acknowledges, at least as a starting point, the term "legal relief" means damages, and, in the absence of further qualification or evidence of a contrary legislative intent, has been "commonly understood to include compensatory and punitive damages." Travis v. Gary Community Mental Health Center, Inc., 921 F.2d 108, 111 (7th Cir. 1990), cert. denied, 502 U.S. 812, 112 S. Ct. 60, 116 L. Ed. 2d 36 (1991); see also id., 111-12 (considering intentional nature of retaliatory discharge and holding that punitive damages are available under Fair Labor Standards Act, 29 U.S.C. § 216 [b] [1988], which provides for "such legal or equitable relief as may be appropriate to effectuate the purposes of [the antiretaliation provision of 29 U.S.C. § 215 (a) (3) (1988)], including without limitation employment, reinstatement or promotion and the payment of wages lost and an additional equal amount as liquidated damages" [internal quotation marks omitted]); Greathouse v. JHS Security, Inc., United States District Court, Docket No. 11-CV-7845 (PAE) (GWG) (S.D.N.Y. November 13, 2015) (concluding that punitive damages are available under antiretaliatory provision of federal Fair Labor Standards Act); Jones v. Amerihealth Caritas, 95 F. Supp. 3d 807, 818 (E.D. Pa. 2015) (same); Haynes v. Rhone-Poulenc, Inc., 206 W. Va. 18, 31-35, 521 S.E.2d 331 (1999) (phrase "legal . . . relief" in West Virginia Human Rights Act authorizes punitive damages); cf. Harris v. Richards Mfg. Co., 675 F.2d 811, 814 (6th Cir. 1982) (civil rights statute authorizing "actual and punitive damages" gives rise to claim for "legal relief" creating right to jury trial under seventh amendment); but see Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 934-36 (11th Cir. 2000) (observing that " '[l]egal relief' is certainly a broad formulation" but disagreeing with Seventh Circuit's decision in Travis on basis of other language in Fair Labor Standards Act, which it viewed as representative of Congress' intent that damages be compensatory, including liquidated damages provision), cert. denied, 532 U.S. 975, 121 S. Ct. 1609, 149 L. Ed. 2d 474 (2001).

The majority also acknowledges that the legislature's use of the phrase "including, but not limited to," which precedes the list of remedies in § 46a-104, reflects an intent to be expansive with respect to the judicial relief available for employment discrimination. This is because the "word 'includes' is a term of expansion," and the "phrase 'but shall not be limited to,' when 'coupled with the enumeration of specific or illustrative acts of . . . conduct,' " evinces the legislature's intent that the statute include "a wide range" of remedial options, with those listed in the statute being illustrative rather than exclusive. Scholastic Book Clubs, Inc. v. Commissioner of Revenue Services, 304 Conn. 204, 215, 38 A.3d 1183, cert. denied, U.S. , 133 S. Ct. 425, 184 L. Ed. 2d 255 (2012); see also, e.g., State v. Jones, 51 Conn. App. 126, 137-38, 721 A.2d 903 (1998) (definition of drug paraphernalia in General Statutes [Rev. to 1995] § 21a-240 [20] [A], which used phrases " 'such as' and 'including, but not limited to,' " indicated legislature's "clear intention that the items listed in the definition do not constitute an exhaustive or exclusive list," meaning that listing of "pipe with a screen" did not evince legislative intent "that a possessor of a marijuana pipe be able to escape liability by merely removing a screen, which does not apparently effect its use in any way"), cert. denied, 247 Conn. 958, 723 A.2d 814 (1999).

Particularly illustrative of the breadth we attribute to this language is Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 855 A.2d 212 (2004), in which this court considered whether General Statutes (Rev. to 1997) § 46a-86 (c) authorized the Commission on Human Rights and Opportunities (commission) to award "personal compensatory damages," such as for emotional distress, caused by a public school district's act of discriminating against a student on the basis of his race in violation of General Statutes (Rev. to 1997) § 46a-58 (a). Id., 685-86. General Statutes (Rev. to 1997) § 46a-86 (c) provides: "In addition to any other action taken hereunder, upon a finding of a discriminatory practice prohibited by section 46a-58, 46a-59, 46a-64, 46a-64c, 46a-81b, 46a-81d or 46a-81e, the presiding officer shall determine the damage suffered by the complainant, which damage shall include, but not be limited to, the expense incurred by the complainant for obtaining alternate housing or space, storage of goods and effects, moving costs and other costs actually incurred by him as a result of such discriminatory practice and shall allow reasonable attorney's fees and costs." (Emphasis added.) In rejecting the defendants' claim that the commission's authority was limited to the " 'specifically enumerated' " damages in General Statutes (Rev. to 1997) § 46a-86 (c); Commission on Human Rights & Opportunities v. Board of Education, supra, 701; the court emphasized the importance of the phrase "include, but not be limited to"; (emphasis omitted; internal quotation marks omitted) id., 702; as indicative of the legislature's intent to provide for an expansive array of remedies under General Statutes (Rev. to 1997) § 46a-86 (c), particularly in light of "the broad remedial purpose of the statute." Id., 703; see also id., 689 (observing that "broad range of constitutional rights" encompassed by General Statutes [Rev. to 1997] § 46a-58 [a] "suggests that an award of compensatory damages for a violation thereof need not necessarily be confined to easily quantifiable monetary losses"). Recognizing the potential deterrent effect of damages awards, the court also considered the "general" purpose of the human rights statutes, namely, "to construct a remedy for discrimination that will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future." (Internal quotation marks omitted.) Id., 694.

Insofar as I agree with the majority that there are two plausible readings of § 46a-104, thereby rendering it ambiguous with respect to the authorization of punitive damages, I look to extratextual sources as an aid to understanding the meaning of the statute. As the majority observes, the available legislative history is silent on the question before us, but, in contrast to the majority, I do not deem that silence dispositive evidence that "the legislature deemed the remedies expressly authorized in the act, including back pay, compensatory damages, attorney's fees, and costs, to be sufficient to carry out its remedial purpose." Text accompanying footnote 15 of the majority opinion. I do agree with the majority that a comparison of § 46a-104 to related statutes is instructive in divining the legislature's intent, although I am persuaded by the arguments of the commission, as amicus curiae, to focus specifically on a comparison with General Statutes (Supp. 2016) § 46a-86...