Connecticut Judicial Branch v. Gilbert ( 2022 )

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CONNECTICUT JUDICIAL BRANCH v.
GERMAINE GILBERT ET AL.
(SC 20514)
McDonald, Mullins, Kahn, Ecker and Keller, Js.*
Syllabus
Pursuant to statute (§ 46a-58 (a)), ‘‘[i]t shall be a discriminatory practice
. . . for any person to subject, or cause to be subjected, any other
person to the deprivation of any rights, privileges or immunities, secured
or protected by the Constitution or laws of this state or of the United
States, on account of . . . sex . . . .’’
Pursuant further to statute ((Supp. 2012) § 46a-86 (b)), ‘‘upon a finding of
a discriminatory employment practice, the [human rights referee] may
order the hiring or reinstatement of employees, with or without back
pay . . . .’’
Pursuant further to statute ((Supp. 2012) § 46a-86 (c)), ‘‘upon a finding of
a discriminatory practice prohibited by section 46a-58 . . . the [referee]
shall determine the damage suffered by the complainant . . . as a result
of such discriminatory practice and shall allow reasonable attorney’s
fees and costs.’’
The named defendant, G, who is employed as a judicial marshal by the
plaintiff, the Connecticut Judicial Branch, filed a complaint with the
defendant Commission on Human Rights and Opportunities in connec-
tion with her allegations that another judicial marshal, M, had subjected
her to severe and pervasive sexual harassment while they were stationed
together at a particular courthouse. Specifically, G alleged that the
branch discriminated against her on the basis of her gender by subjecting
her to a hostile work environment, failing to investigate her allegations
and to take remedial steps to protect her, and retaliating against her
for making her complaint by reassigning her to courthouses farther from
her residence. G claimed that the branch’s misconduct violated the
employment discrimination statute (§ 46a-60), as well as the general
antidiscrimination statute, § 46a-58 (a), and 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.), as a predicate for G’s claim under § 46a-58 (a),
insofar as § 46a-58 (a) includes within its ambit ‘‘the deprivation of any
rights . . . secured or protected by the . . . laws . . . of the United
States . . . .’’ During the administrative proceedings before the commis-
sion, the branch issued a request for the production of all of G’s medical
records, but G produced nothing in response. The branch then objected
when G indicated that she intended to call her therapist and psychologist
as witnesses in support of her claim for emotional distress damages. In an
off-the-record ruling, the commission’s human rights referee apparently
ruled that, if G intended to pursue anything other than a garden-variety
emotional distress claim, she must provide copies of her medical records.
Because G had not produced all of her records at the time of the hearing
on her complaint, the referee ruled that she could introduce evidence
in support of her claim for garden-variety emotional distress but not
medical records or other treatment related evidence of emotional dis-
tress damages. After the hearing, the referee found that G’s claims were
substantiated. In connection with the violation of § 46a-60, the referee
awarded G back pay, as well as prejudgment and postjudgment interest
on the back pay, pursuant to § 46a-86 (b). In connection with the violation
of § 46a-58 (a), the referee awarded G attorney’s fees and $50,000 in
emotional distress damages pursuant to § 46a-86 (c). The referee also
ordered that the branch ‘‘give [G] the option of returning to the . . .
courthouse’’ to which she assigned before she reported the harassment.
On appeal to the trial court, that court rejected the branch’s claims
that the commission was not authorized to award attorney’s fees and
emotional distress damages to victims of employment discrimination
under either § 46a-58 (a) or § 46a-60 and that the award of prejudgment
and postjudgment interest against the state under § 46a-86 (b) is barred
by the state’s sovereign immunity. Nonetheless, the trial court agreed
with the branch’s claim that the referee improperly awarded G emotional
distress damages in light of her failure to produce her medical records,
allegedly in violation of the referee’s discovery orders, and, accordingly,
vacated the award of emotional distress damages. The trial court also
vacated the injunction requiring the branch to allow G the option of
returning to the courthouse to which she previously had been assigned,
concluding that the injunction was an abuse of discretion and not prop-
erly tailored. From the judgment rendered thereon, the branch appealed
and the commission cross appealed. Held:
1. The branch could not prevail on its claim that the trial court incorrectly
had concluded that the commission was authorized to award emotional
distress damages and attorney’s fees in an employment discrimination
action under the general antidiscrimination statute, § 46a-58 (a), and
that statute’s civil remedies provision, § 46a-86 (c):
a. The commission did not exceed its authority under federal law by
adjudicating a Title VII claim, that is, by holding a formal hearing to
determine whether the branch had engaged in discriminatory practices
in violation of Title VII: the United States Supreme Court previously had
rejected the branch’s argument that the federal statute (42 U.S.C. § 2000e-
5 (f)) that allows for the bringing of a judicial action to enforce Title
VII authorizes only courts, and not administrative agencies, to formally
resolve Title VII claims, and that argument was unavailing particularly
in light of the fact that the commission does not purport to formally
adjudicate Title VII claims but merely identifies discriminatory practices
under Title VII for purposes of applying state law; moreover, the fact
that the federal Equal Employment Opportunity Commission itself lacks
the authority to formally adjudicate Title VII claims does not indicate
an intention to bar state agencies from identifying Title VII violations
for purposes of determining whether state law has been violated, as
there was a strong congressional preference, acknowledged by the United
States Supreme Court, pervasive in the legislative history of Title VII,
and reflected in Title VII’s work sharing scheme, for resolving matters
at the state level that involve the concurrent violation of Title VII and
state employment discrimination laws; furthermore, this court rejected
the branch’s argument that allowing a state fair employment practices
agency, such as the commission, to find and penalize Title VII violations
under state law would upset a carefully calibrated federal scheme that
balances the availability of remedies with important procedural protec-
tions and, instead, found persuasive the rationales of those federal courts
that have considered the issue and concluded that, because § 46a-58 (a)
explicitly adopts federal antidiscrimination law as part of the substantive
conduct it regulates, when the commission finds a Title VII violation as
the factual predicate to a violation of § 46a-58 (a), it does so as a matter
of Connecticut law and, therefore, does not infringe on principles of
federal supremacy.
b. There was no merit to the branch’s claim that, even if federal law
does not bar the commission from awarding damages for Title VII viola-
tions under §§ 46a-58 (a) and 46a-86 (c), the commission is precluded
from doing so under state law, as construed by this court’s prior case
law: nothing in this court’s precedent holding that state employment
discrimination claims can be brought only under § 46a-60, the statute
specifically dedicated to such claims, and not under § 46a-58 (a), the
general antidiscrimination statute, indicated that the legislature intended
to preclude the commission from awarding a remedy authorized by § 46a-
86 (c) for a violation of § 46a-58 (a) predicated on a discriminatory
practice prohibited by federal law; moreover, in light of the sweeping
language of §§ 46a-58 (a) and 46a-86 (c), as well as a recent amendment
(P.A. 19-16, § 7) making economic damages and attorney’s fees available
to a party who prevails on a state law claim of employment discrimina-
tion, this court refrained from reconsidering or extending that precedent,
even though the legislative scheme may not create the most elegant
framework for assigning different remedies to different discriminatory
practices on the basis of the jurisdictional source of the injury.
2. The trial court incorrectly concluded that the state had waived its sover-
eign immunity with respect to the recovery of prejudgment and postjudg-
ment interest on awards under § 46a-86, and, accordingly, the referee’s
award of interest was vacated: this court followed the ‘‘no-interest rule,’’
as articulated by the federal courts and applied with equal force to the
state under Connecticut law, pursuant to which, in the absence of an
express waiver, the legislature is presumed not to have waived sovereign
immunity with respect to prejudgment and postjudgment interest, and
concluded that the state’s waiver of sovereign immunity as to liability
for civil rights violations under §§ 46a-58 (a) and 46a-60, and as to back
pay and damages under § 46a-86 (b) and (c), did not constitute a waiver
as to interest on such awards, as it was clear that the state has not
expressly waived its immunity with respect to interest on such back
pay and damages; moreover, the legislature did not waive sovereign
immunity by necessary implication because, insofar as interest is not
traditionally awarded as a part of damages, a statutory waiver of sover-
eign immunity only as to damages does not, by force of necessary
implication, waive the state’s immunity as to interest.
3. The trial court incorrectly concluded that the referee should have pre-
cluded G from recovering any emotional distress damages as a sanction
for her refusal to produce her full medical records, and, because the
referee improperly admitted certain testimony that went beyond mere
garden-variety emotional distress, this court reversed the trial court’s
judgment with respect to the issue of emotional distress damages, and
the case was ultimately remanded to the commission for a new hearing
in damages:
a. The trial court’s decision with respect to G’s claim for emotional
distress was apparently based on its view that the referee, by restricting
G to arguing for and recovering only garden-variety emotional distress
damages, did not impose sufficiently stringent sanctions for what the
trial court viewed as violations of a discovery order, and that conclusion
was not supported by either the facts or the law: although G did not
fully comply with the request for the production of her medical records,
nothing in the record suggested that the referee issued an unconditional
order requiring the production of the records, and G did not actually
violate any discovery order, insofar as the referee essentially allowed
her to opt either to produce her full medical records or to decline to do
so and to seek only garden-variety emotional distress damages; moreover,
the governing regulations afford the referee broad discretion over the
sanctions to be imposed for violations of discovery orders, and, viewing
the referee’s order as such a sanction, this court concluded that the trial
court failed to afford appropriate deference to the referee’s oversight of
the discovery process by effectively reversing the referee’s sanction on
that ground that it was too lenient; furthermore, it was clear that the
referee did not consider G’s conduct to be egregious or in bad faith,
especially in light of G’s efforts to find a compromise that would satisfy
the branch’s production requests while preserving her medical privacy.
b. The referee nonetheless abused her discretion by admitting certain
testimony that went beyond mere garden-variety emotional distress,
seemingly in violation of the referee’s own rulings, and this court could
not conclude that that error was harmless: on at least four occasions,
and over the branch’s objections, the referee allowed G or her husband
to testify as to G’s use of various over-the-counter and prescription
medications to treat her insomnia and anxiety arising from the harass-
ment, and such testimony was not merely evidence of garden-variety
emotional distress but, instead, placed G’s medical history at issue; more-
over, only one of those references was struck from the record, the referee
appeared to believe that the statements were potentially admissible and
relevant, and admitting the challenged testimony when the branch had
been denied access to G’s medical records was an abuse of discretion;
furthermore, insofar as the referee made several findings of fact regarding
G’s need for medication, this court could not conclude that the improperly
admitted evidence did not factor into the referee’s damages calculation.
4. The trial court improperly vacated the injunction requiring that the branch
give G the option of returning to the courthouse at which she was
originally stationed, as none of the concerns expressed by that court
was sufficient to warrant vacating the injunction as a matter of law,
and the appropriate remedy was to remand the matter to the commission
for additional briefing, to hold a new hearing, and to potentially craft
a more narrowly tailored injunction: § 46a-86 (a) clearly grants the com-
mission the authority to issue reasonable injunctive relief tailored to
eliminating discriminatory practices and their effects, and, although M’s
retirement in 2020 eliminated the possibility that G and M might be
assigned to the same courthouse, the primary purpose of reinstating an
employee who is transferred after complaining of sexual harassment,
such as G, is to vindicate the important public policy against punishing
victims who report abuse, and that purpose was served by the referee’s
order regardless of M’s retirement; moreover, even though the referee
did not expressly find that G’s transfers were retaliatory in nature, the
referee’s factual findings overwhelmingly pointed to a retaliatory animus
and an implicit determination that the transfers were pretextual, and
the trial court’s assumption that G was not transferred on the basis of
retaliatory intent was therefore contrary to the referee’s factual findings;
furthermore, if the branch did seek to retaliate or to resolve the pattern
of harassment by transferring G to a less convenient location while
allowing M to remain at the courthouse where the harassment occurred,
it was irrelevant that, under ordinary circumstances, the branch, as the
employer, has the discretion where to assign judicial marshals, and
allowing G to return to her original workplace was the preferred means
of vindicating the policy against punishing victims who report abuse,
and, to the extent that logistical considerations and the branch’s opera-
tional needs are relevant to fashioning proper relief, this court instructed
that, before ordering the branch to reinstate G, on remand, the referee
must consider factors such as whether the branch’s previous relocation
of G to other courthouses departed from the norms applied to other
marshals, whether the impact of keeping G at the original courthouse
on the operational needs of the branch outweighs the benefit to G of
being assigned to a courthouse closer to her home, and whether reinstat-
ing G will require the reassignment of other employees; in addition,
insofar as the trial court had been concerned about the apparently
unbounded nature of the injunction issued by the referee, this court
instructed that, on remand, the referee should clarify the scope and
duration of the injunction, whether the extent of the branch’s misconduct
and the balancing of the equities warrant a permanent injunction preclud-
ing the branch from reassigning G, if a permanent injunction is not
warrant, at what point or under what circumstances the injunction will
expire, and whether, during the course of the injunction, the branch
may continue to assign G to other courthouses on a short-term basis
consistent with its operational needs.
Argued January 15, 2021—officially released April 26, 2022
Procedural History
Appeal from the decision of the defendant Commis-
sion on Human Rights and Opportunities awarding the
named defendant back pay and certain damages,
brought to the Superior Court in the judicial district of
New Britain, where the case was tried to the court,
Cordani, J.; judgment sustaining in part and reversing
in part the appeal, from which the plaintiff appealed
and the defendant Commission on Human Rights and
Opportunities cross appealed. Reversed in part; vacated
in part; further proceedings.
Colleen B. Valentine, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, Clare E. Kindall, solicitor general, and Matthew
Larock, assistant attorney general, for the appellant-
cross appellee (plaintiff).
Michael E. Roberts, human rights attorney, for the
appellee-cross appellant (defendant Commission on
Human Rights and Opportunities).
Opinion
ECKER, J. This case arises from allegations of sexual
harassment brought by the named defendant, Germaine
Gilbert (complainant), a judicial marshal who is employed
by the plaintiff, the Connecticut Judicial Branch (branch).
Following a contested public hearing before the defen-
dant Commission on Human Rights and Opportunities
(commission), the human rights referee (referee) found
that the allegations were substantiated and awarded the
complainant back pay with interest, emotional distress
damages, attorney’s fees, and injunctive relief. The
branch appealed, and the trial court sustained the
appeal in part. The court upheld the referee’s determina-
tions that (1) emotional distress damages and attorney’s
fees were available remedies under the state employ-
ment discrimination law then in effect if the complain-
ant was able to establish a violation of Title VII of the
federal Civil Rights Act of 1964, as amended by Title
VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e et
seq. (2018) (Title VII), and (2) the state has waived its
sovereign immunity with respect to prejudgment and
postjudgment interest awards for civil rights violations,
but also determined that (3) the award of emotional
distress damages must be vacated because of the com-
plainant’s failure to fully comply with the branch’s dis-
covery requests in the administrative proceeding, and
(4) the injunction reinstating the complainant to her
former workplace must be vacated as overbroad and
otherwise improper. The branch challenges the first two
determinations on appeal; the commission challenges
the latter two determinations on cross appeal. We affirm
the judgment of the trial court with respect to the Title
VII issue, reverse the judgment with respect to sover-
eign immunity, and remand the case for the referee to
conduct a new hearing in damages and, if appropriate,
to revisit the injunction reinstating the complainant to
her former workplace.
The following background facts and procedural his-
tory are relevant. In 2012, the complainant brought a
claim with the commission alleging that another judicial
marshal, Gordon Marco, subjected her to severe and
pervasive sexual harassment and unwanted sexual con-
tact, potentially rising to the level of sexual assault, at
various times between 2006 and 2012, while she was
stationed primarily at the Danielson courthouse. The
complainant alleged that the branch discriminated against
her on the basis of her gender by, among other things,
subjecting her to a hostile work environment, failing to
adequately investigate her allegations, and failing to
take adequate remedial steps to protect her. The com-
plainant also claimed that the branch had retaliated by
altering the conditions of her employment in response
to her complaint. Most prominently, she alleged that,
beginning in mid-2012, her supervisor, Russell Downer,
reassigned her from Danielson, where she had been
assigned since 2006, to the Willimantic and Putnam
courthouses, each of which was significantly farther from
her residence. The complainant sought to hold the branch
responsible for the alleged misconduct under three civil
rights statutes: (1) Connecticut’s employment discrimi-
nation statute, the Connecticut Fair Employment Prac-
tices Act, General Statutes § 46a-60; (2) Connecticut’s
general antidiscrimination statute, General Statutes § 46a-
58 (a), which prohibits any person from depriving any
other person of rights secured by law on account of
the victim’s membership in a protected class; and (3)
Title VII, as a predicate to a further violation of § 46a-
58 (a).
Following a public hearing before the commission,
the referee found that the complainant’s allegations
were substantiated, a finding that the branch does not
contest in the present appeal. The referee awarded the
complainant seven days of back pay for the work time
she lost while attending the public hearing, as well as
prejudgment and postjudgment interest on the back pay
award, all pursuant to General Statutes (2012 Supp.)
§ 46a-86 (b),1 which provides remedies specifically for
victims of discriminatory employment practices in vio-
lation of § 46a-60.2 The referee also awarded the com-
plainant $47,637 in attorney’s fees and $50,000 in emotional
distress damages pursuant to § 46a-86 (c), which provides
remedies for violations of, among other things, the gen-
eral antidiscrimination statute, § 46a-58. Finally, the ref-
eree granted injunctive relief, including an order that
‘‘[t]he [branch] shall give the complainant the option of
returning to the Danielson courthouse.’’
The branch brought an administrative appeal pursu-
ant to General Statutes § 4-183 (a), in which it contended
that (1) under this court’s holding in Commission on
Human Rights & Opportunities v. Truelove & Maclean,
Inc., 238 Conn. 337, 680 A.2d 1261 (1996) (Truelove),
prior to 2019,3 the commission was not authorized to
award attorney’s fees and emotional distress damages
to victims of employment discrimination under either
§ 46a-58 (a) or § 46a-60, (2) the award of prejudgment
and postjudgment interest against the state under § 46a-
86 (b) is barred by the state’s sovereign immunity, (3)
the referee’s award of emotional distress damages also
was improper because the complainant refused to pro-
vide the branch with her psychological and medical
records, allegedly in violation of the referee’s discovery
orders, and (4) the referee exceeded her legal authority
in ordering the branch to reinstate the complainant to
her position at the Danielson courthouse.4
The trial court agreed with the branch’s third and
fourth claims and, accordingly, vacated the award of
emotional distress damages and the injunction. With
respect to the first claim, the court agreed with the branch
that Truelove compels the twin conclusions that § 46a-
60 is the exclusive statutory basis for remedying state
law employment discrimination claims, and emotional
damages and attorney’s fees are unavailable for viola-
tions of § 46a-60 that occurred before 2019. But the
court also determined that those remedies nevertheless
remain available to a victim of employment discrimina-
tion seeking relief in proceedings before the commission
because violations of federal employment discrimina-
tion laws—Title VII, in particular—are cognizable under
§ 46a-58 (a), which, unlike § 46a-60, attaches to a reme-
dies provision that includes economic damages and
attorney’s fees.5 With respect to the second claim, the
trial court disagreed with the branch and concluded
that the state has waived its sovereign immunity as to
prejudgment and postjudgment interest for civil rights
violations.
The branch appealed6 and the commission cross
appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal and
cross appeal to this court pursuant to General Statutes
§ 51-199 (c) and Practice Book § 65-2.7 Additional facts
and procedural history will be set forth as necessary.
I
REMEDIES FOR EMPLOYMENT DISCRIMINATION
UNDER STATE LAW
The branch’s primary claim on appeal is that the trial
court incorrectly concluded that the commission may
award emotional distress damages and attorney’s fees
in an employment discrimination action under § 46a-58
(a) and that statute’s civil remedies provision, § 46a-86
(c). The branch agrees with the conclusion of the trial
court that, under this court’s decision in Truelove, the
commission may adjudicate state law employment dis-
crimination claims only under the auspices of § 46a-60
(which specifically prohibits employment discrimina-
tion) and not under § 46a-58 (a) (which prohibits dis-
crimination more broadly). See Commission on Human
Rights & Opportunities v. Truelove & Maclean, Inc.,
supra, 238 Conn. 346. The branch contends, however,
that the trial court incorrectly concluded that, to the
extent that violations of § 46a-60 also run afoul of Title
VII, the commission has the authority to address such
violations of federal law as a factual predicate of a
§ 46a-58 (a) claim. The branch’s position is that, under
federal law, a state administrative agency such as the
commission can assist the federal Equal Employment
Opportunity Commission (EEOC) in investigating a
Title VII employment discrimination claim, but only a
court ultimately can resolve the claim on the merits and
award damages and attorney’s fees. We are not per-
suaded.
A
Whether the commission has the authority to identify
violations of Title VII and to award damages for those
violations under state law presents a legal question that
we review de novo. See id., 345. To the extent that the
issue requires us to interpret the commission’s enabling
statutes and the state antidiscrimination laws that the
commission is responsible for enforcing, we accord
deference to the agency’s formally articulated interpre-
tation of those statutes when that interpretation is both
time-tested and reasonable. See, e.g., Longley v. State
Employees Retirement Commission, 284 Conn. 149,
166, 931 A.2d 890 (2007). To the extent that the question
requires us to interpret Title VII, some deference is
likewise owed to the EEOC’s reasonable interpretations
of the federal law. See, e.g., Equal Employment Oppor-
tunity Commission v. Commercial Office Products
Co., 486 U.S. 107, 115, 108 S. Ct. 1666, 100 L. Ed. 2d 96(1988) (‘‘[I]t is axiomatic that the EEOC’s interpretation
of Title VII, for which it has primary enforcement
responsibility, need not be the best one by grammatical
or any other standards. Rather, the EEOC’s interpreta-
tion of ambiguous language need only be reasonable
to be entitled to deference.’’).
Our analysis begins with the plain language of the
state statutes. See General Statutes § 1-2z. We agree
with the trial court that the statutory text unambigu-
ously permits the commission to identify violations of
Title VII and to award damages and attorney’s fees for
those violations. General Statutes (Supp. 2012) § 46a-
58 (a) provides: ‘‘It shall be a discriminatory practice
in violation of this section for any person to subject,
or cause to be subjected, any other person to the depri-
vation of any rights, privileges or immunities, secured
or protected by the Constitution or laws of this state
or of the United States, on account of religion, national
origin, alienage, color, race, sex, gender identity or expres-
sion, sexual orientation, blindness or physical disabil-
ity.’’ (Emphasis added.) As this court previously has
observed, the statute paints in broad, inclusive lan-
guage, without any apparent exceptions. See Commis-
sion on Human Rights & Opportunities v. Board of
Education, 270 Conn. 665, 711–12, 855 A.2d 212 (2004).
Both this court and the legislature consistently have
recognized that § 46a-58 (a), which first was enacted
in 1884 in the wake of the Reconstruction era federal
civil rights acts,8 albeit initially only as a penal statute,9
was the state’s original and fundamental civil rights law.
See id., 711–13. It is a remedial statute; id., 707; ‘‘with a
purpose to cast a broad net of protection for all persons
from discrimination’’; id., 711–12; and its scope of pro-
tection consistently has been expanded by the legisla-
ture for more than 100 years. See id., 694, 708. There
is no reason, then, to think that § 46a-58 (a) does not
sweep violations of Title VII within its broad ambit.
It is equally clear that the legislature has conferred
on the commission the authority to identify violations
of federal civil rights laws, such as Title VII, as a predi-
cate to finding a violation of § 46a-58 (a). In 1975, the
legislature made clear that the commission had author-
ity not only to investigate complaints of such violations
but also to resolve civil claims brought under the prede-
cessor to § 46a-58 (a). See Public Acts 1975, No. 75-
462. Under the scheme as presently codified, General
Statutes § 46a-51 (8) defines ‘‘discriminatory practices’’
under the jurisdiction of the commission to include,
among other things, violations of § 46a-58; General Stat-
utes § 46a-56 (a) (3) requires that the commission, among
its other duties, ‘‘[i]nvestigate and proceed in all cases
of discriminatory practices’’; and General Statutes
§ 46a-84 (b) authorizes the commission to hold public
contested hearings to resolve on the merits civil com-
plaints of discriminatory practices. Perhaps most signif-
icant, the commission’s presiding officer is charged
with making a finding that the discriminatory practice
alleged has occurred and with supporting that determi-
nation by written findings of fact. See General Statutes
§ 46a-86 (a).
Finally, with regard to remedies, General Statutes
(Supp. 2012) § 46a-86 (c) provides in relevant part that,
‘‘[i]n addition to any other action taken under this sec-
tion, upon a finding of a discriminatory practice prohib-
ited by section 46a-58 . . . the presiding officer shall
determine the damage suffered by the complainant . . .
as a result of such discriminatory practice and shall
allow reasonable attorney’s fees and costs. . . .’’ The
statutory scheme, then, plainly envisions that the com-
mission is competent to determine whether federal anti-
discrimination laws, such as Title VII, that come within
the scope of § 46a-58 (a) have been violated and is
authorized to award damages and attorney’s fees for
those violations under § 46a-86 (c).
Nor is there any question that a violation of Title VII
as a factual predicate of a § 46a-58 (a) violation was
established in the present case. In addition to violations
of Connecticut’s employment discrimination statute,
§ 46a-60, the complainant alleged in her complaint that
the branch discriminated against her on the basis of
sex and subjected her to an ongoing hostile work envi-
ronment, in violation of ‘‘Title VII of the Civil Rights
Act of 1964 . . . as amended and enforced under [§]
46a-58 (a) . . . .’’ Relying on Pik-Kwik Stores, Inc. v.
Commission on Human Rights & Opportunities, 170
Conn. 327, 331, 365 A.2d 1210 (1976), and its progeny,
the referee treated federal and state antidiscrimination
law as largely ‘‘coextensive,’’10 and she proceeded on
the premise that federal law informs our interpretation
of our own antidiscrimination statutes. The referee
found that, under a straightforward reading of both
state and federal substantive fair employment law, the
branch had discriminated against the complainant by
(1) permitting Marco to subject the complainant to
severe and pervasive sexual harassment, (2) ignoring
other employees’ previous complaints of similar behav-
ior by Marco, (3) failing to adequately investigate the
complainant’s allegations, and (4) altering the condi-
tions of her workplace by transferring her to a less
desirable location in response to her complaints. The
referee concluded that, from an objective standpoint,
the complainant’s working conditions were intolerable.
Importantly, the branch does not contest these findings
on appeal. Nor does the branch deny that its conduct
was in violation of Title VII or contend that the referee
misapplied the substantive components of the federal
law.11
B
What the branch does contend is, first, that the com-
mission exceeded its authority under federal law by
‘‘adjudicating’’ a Title VII claim, i.e., holding a formal
hearing to determine whether the branch engaged in
discriminatory practices, in violation of Title VII, and,
second, that the commission ran afoul of Truelove by
awarding damages and attorney’s fees for employment
discrimination under § 46a-58 (a) that were not avail-
able for violations of § 46a-60. We consider each argu-
ment in turn.
1
The branch makes three interrelated arguments as
to why, in its view, the commission has exceeded its
authority under federal law. First, the branch contends
that 42 U.S.C. § 2000e-5 (f), the federal statute that
allows for the bringing of a judicial action to enforce
Title VII, authorizes only courts to find a Title VII viola-
tion and to award damages for such violations. Second,
the branch notes that the EEOC itself lacks such author-
ity and contends that Congress would not have con-
ferred authority on state administrative agencies that
it opted not to confer on the federal agency charged
with enforcing Title VII. Third, the branch argues that
allowing the commission to award damages for Title
VII violations would upset a carefully calibrated federal
scheme and deny respondents such as the branch
important procedural protections, such as the rights to
a jury trial and to remove actions to federal court. We
consider each argument in turn.
The branch’s statutory argument relies on 42 U.S.C.
§ 2000e-5 (f),12 which provides in relevant part that the
EEOC ‘‘may bring a civil action’’ alleging a Title VII
violation and that ‘‘[e]ach United States district court
. . . shall have jurisdiction of actions brought under
this subchapter. . . .’’ The branch contends that the
statute confers jurisdiction exclusively on courts, and
thus not administrative agencies, to formally resolve
Title VII claims. The argument is without merit.
To begin with, the branch relies on a non sequitur
insofar as the commission has never purported to adju-
dicate Title VII claims under the authority of 42 U.S.C.
§ 2000e-5 (f). That statute, after all, does nothing more
than confer jurisdiction on the federal courts to hear
Title VII cases and to award the statutory remedies
authorized under 42 U.S.C. § 2000e-5 (g). Neither it nor
any other federal statute or regulation prevents a state
from enacting legislation, such as § 46a-58 (a), that
deems a violation of Title VII to be a violation of state
antidiscrimination law, or from attaching remedial con-
sequences to such a violation, or conferring authority
on a state agency to decide such claims in the first
instance and to issue corresponding remedies. In fact,
Title VII contains a savings clause providing that the
federal act does not preempt state antidiscrimination
law. See 42 U.S.C. § 2000e-7 (2018) (‘‘[n]othing in this
subchapter shall be deemed to exempt or relieve any
person from any liability, duty, penalty, or punishment
provided by any present or future law of any State or
political subdivision of a State, other than any such law
which purports to require or permit the doing of any
act which would be an unlawful employment practice
under this subchapter’’).
The United States Supreme Court has already
rejected the argument that the authority to resolve
alleged Title VII violations is limited by the conferral of
jurisdiction in 42 U.S.C. § 2000e-5 (f) to federal district
courts. Although the branch focuses on the fact that
the statute authorizes the filing of a civil action in a
court, the language in § 2000e-5 (f) expressly confers
authority over Title VII claims only on federal district
courts. If the statutory conferral of authority were
exclusive, as the branch contends, then only federal
courts would have jurisdiction over Title VII claims.
But that very argument was rejected in Yellow Freight
System, Inc. v. Donnelly, 494 U.S. 820, 110 S. Ct. 1566,
108 L. Ed. 2d 834 (1990), which held that state courts
have concurrent jurisdiction over Title VII claims, not-
withstanding the lack of any express statutory authori-
zation in § 2000e-5 (f). See id., 823; cf. Kremer v.
Chemical Construction Corp., 456 U.S. 461, 477, 102 S.
Ct. 1883, 72 L. Ed. 2d 262 (1982) (‘‘our statement . . .
that final responsibility for enforcement of Title VII is
vested with federal courts . . . should not be read to
imply, that by vesting final responsibility in one forum,
Congress intended to deny finality to decisions in
another’’ (citation omitted; footnote omitted; internal
quotation marks omitted). The branch’s statutory argu-
ment is, therefore, unavailing, particularly in light of the
fact that the commission does not purport to formally
adjudicate Title VII claims but merely to identify dis-
criminatory practices under Title VII for purposes of
applying state law.
The branch’s second argument focuses on the fact
that the EEOC itself lacks the authority to hold con-
tested hearings to adjudicate Title VII claims and to award
damages and attorney’s fees for violations thereof.
Although the federal agency can investigate such claims
and attempt to mediate settlements between the parties,
when such informal efforts fail, formal resolution can
be obtained only by adjudication in federal or state court.
See 42 U.S.C. § 2000e-5 (f) (2018); Fort Bend v. Davis,
U.S. , 139 S. Ct. 1843, 1846–47, 204 L. Ed. 2d 116(2019); Yellow Freight System, Inc. v. Donnelly, supra,494 U.S. 823. It would be anomalous, the branch posits,
for Congress to have denied the EEOC the authority to
formally resolve Title VII claims only to allow its state
counterparts to, in effect, carry out that same function.
Again, the branch misses the mark. The foregoing
discussion demonstrates that the absence of EEOC
authority to formally adjudicate Title VII claims does
not indicate an intention to bar state agencies from
identifying Title VII violations for purposes of determin-
ing whether state law has been violated. Indeed, Con-
gress has expressed a strong preference for resolving
matters that concurrently violate Title VII and state
employment discrimination laws at the state level, with
recourse to federal court provided as a supplemental
rather than a preferred venue. As the United States
Supreme Court explained in New York Gaslight Club,
Inc. v. Carey, 447 U.S. 54, 100 S. Ct. 2024, 64 L. Ed. 2d
723 (1980), ‘‘throughout Title VII the word ‘proceeding’
. . . is used to refer to all the different types of proceed-
ings in which the statute is enforced, state and federal,
administrative and judicial.’’ Id., 62–63. ‘‘Initial resort
to state and local remedies is mandated, and recourse
to the federal forums is appropriate only when the
[s]tate does not provide prompt or complete relief.’’
Id., 65. ‘‘Title VII explicitly leaves the [s]tates free, and
indeed encourages them, to exercise their regulatory
power over discriminatory employment practices. Title
VII merely provides a supplemental right to sue in fed-
eral court if satisfactory relief is not obtained in state
forums.’’ Id., 67.
This sentiment pervades the legislative history of
Title VII. During the legislative debates, both supporters
and opponents of Title VII repeatedly expressed the
view that the proposed legislation was predicated on
the assumption that the nearly thirty states with func-
tional fair employment practices laws and agencies (pri-
marily northern and western states) generally could be
relied on to enforce antidiscrimination law in those
locations, and that the new federal agency, the EEOC,
would focus its efforts and limited resources on enforc-
ing the law in the states of the old Confederacy, which
had not seen fit to create their own fair employment
practices agencies.13 The primary sponsors of the legis-
lation made numerous statements indicating their strong
preference for resolving discrimination claims at the
state level and emphasizing the central role that they
envisioned state fair employment practices agencies
would play in the enforcement of the federal law.14 The
branch is therefore incorrect when it posits that there
is no reason why Congress would permit state adminis-
trative agencies, but not the EEOC, to resolve claims
based on violations of Title VII. During the debates over
Title VII in 1964, and again with respect to the 1972
amendments, the primary argument levied against giv-
ing the EEOC the power to hold contested hearings
and to issue cease and desist orders was that the states
were competent to enforce antidiscrimination law and
did not want or need matters resolved by a federal
bureaucracy.
The congressional preference for resolving employ-
ment discrimination claims at the state level, using state
remedies and state administrative agencies, is reflected
in Title VII’s ‘‘work sharing’’ scheme.15 Under the work
sharing framework, the EEOC and state fair employ-
ment practices agencies such as the commission essen-
tially exercise joint jurisdiction over employment
discrimination claims filed in either venue, with the
EEOC deferring action on many Title VII claims to give
state agencies a first crack at resolving them. See United
States Equal Employment Opportunity Commission, FY
2012 EEOC/FEPA Model Worksharing Agreement, avail-
able at https://www.eeoc.gov/fy-2012-eeocfepa-model-
worksharing-agreement (last visited April 20, 2022). As
the United States Court of Appeals for the Fourth Cir-
cuit has explained, ‘‘[t]he jurisdiction of [state fair
employment practices] agencies overlaps that of the
EEOC.’’ Equal Employment Opportunity Commission
v. Navy Federal Credit Union, 424 F.3d 397, 410 n.15
(4th Cir. 2005), cert. denied, 547 U.S. 1041, 126 S. Ct.
1629, 164 L. Ed. 2d 335 (2006). ‘‘[Title VII is] best under-
stood as creating a system of ‘cooperative federalism,’
under which, in the interests of comity, the EEOC and
state and local authorities share primary responsibility
to enforce the civil rights laws.’’ Id., 410.
The branch might have a better argument if federal
courts had exclusive authority to adjudicate Title VII
claims. But, in light of (1) the cooperative work sharing
framework created under the federal mandate, (2) Con-
gress’ express preference for resolving concurrent state
and federal employment discrimination claims at the
state level, and (3) ‘‘the humanitarian remedial policies’’
that underlie Title VII; New York Gaslight Club, Inc. v.
Carey, supra, 447 U.S. 62; we are not persuaded by the
branch’s claim that the commission infringes on princi-
ples of federal supremacy by predicating a violation of
§ 46a-58 (a) on a violation of Title VII. See Equal Employ-
ment Opportunity Commission v. Federal Express
Corp., 268 F. Supp. 2d 192, 198 (E.D.N.Y. 2003) (observ-
ing that courts have liberally interpreted Title VII’s
standing provisions to effectuate remedial purpose of
law); Section-By-Section Analysis of H.R. 1746, The
Equal Employment Opportunity Act of 1972, 118 Cong.
Rec. 7166, 7168 (1972) (‘‘the individual’s rights to redress
are paramount under the provisions of Title VII’’).
The branch’s third argument is that litigation of a Title
VII claim in a court affords the defendant/respondent
various procedural protections—the rights to a jury
trial, to remove an action from state court to federal
court, to full civil discovery and formal rules of evi-
dence—that are not available in an administrative adju-
dication. The branch contends that allowing a state fair
employment practices agency such as the commission
to find and penalize Title VII violations under state law
would upset a carefully calibrated federal scheme that
balances the availability of remedies with important pro-
cedural protections.
The United States Court of Appeals for the Second
Circuit has rejected this very argument, finding no viola-
tion of federal law despite the contention that allowing
a complainant to bring a Title VII claim before the
commission, pursuant to § 46a-58 (a), would circumvent
federal procedural protections. See Shelton v. Hughes,
578 Fed. Appx. 53, 55 (2d Cir. 2014). The branch’s claim
also runs headlong into the United States Supreme
Court decisions holding that a state agency’s adjudica-
tion of an employment discrimination claim, which has
been reviewed and affirmed by the state’s appellate
courts, affords sufficient procedural protections to have
preclusive effect with respect to a subsequent action
in federal court addressing the same alleged conduct.
See, e.g., Kremer v. Chemical Construction Corp., supra,
456 U.S. 484 (concluding that ‘‘[the] panoply of proce-
dures [provided by the New York State Division of
Human Rights hearing], complemented by administra-
tive as well as judicial review,’’ was more than sufficient
to satisfy demands of due process); New York Gaslight
Club, Inc. v. Carey, supra, 447 U.S. 67–68 (applying rule
with respect to prevailing complainant who sought
attorney’s fees in supplemental federal action); cf. Nes-
tor v. Pratt & Whitney, 466 F.3d 65, 68, 73 (2d Cir.
2006) (holding that complainant, who prevailed before
commission and whose award of back pay was upheld
by Connecticut Appellate Court, could seek additional
damages and attorney’s fees in federal court action
when commission’s findings as to liability would have
preclusive effect, despite administrative forum’s use of
flexible evidentiary rules and lack of discovery).
Indeed, both of the federal courts that have consid-
ered the question before us have concluded that, when
the commission finds a Title VII violation as the factual
predicate to a violation of § 46a-58 (a), it does so as a
matter of Connecticut state law and does not thereby
infringe federal supremacy. See Shelton v. Hughes,
supra, 578 Fed. Appx. 54 (‘‘[b]ecause § 46a-58 (a) explic-
itly adopts federal antidiscrimination law as part of the
substantive conduct it regulates, claimants may allege
violations of federal law, such as Title VII . . . in
actions before the [commission]’’); Shelton v. Collins,
Docket No. 3:12cv1176 (JBA), 2014 WL 1032765, *5 (D.
Conn. March 14, 2014) (concluding that ‘‘no ongoing
violation of federal law is plausibly alleged’’ by statutory
scheme that allows award of damages for Title VII viola-
tions under §§ 46a-58 (a) and 46a-86 (c)), aff’d sub nom.
Shelton v. Hughes, 578 Fed. Appx. 53 (2d Cir. 2014);
see also Carey v. New York Gaslight Club, Inc., 598
F.2d 1253, 1257–58 (2d Cir. 1979) (holding that provision
of Title VII providing attorney’s fees for prevailing par-
ties extended to complainant whose EEOC complaint
was referred to and resolved in public hearing before
New York State Division of Human Rights, and opining
that ‘‘[the reasoning of other United States Courts of
Appeals] supports a similarly favorable result for com-
plainants who succeed in state administrative proceed-
ings pursuant to Title VII’’), aff’d, 447 U.S. 54, 100 S.
Ct. 2024, 64 L. Ed. 2d 723 (1980).16 We find the rationales
underlying these decisions to be persuasive.17
2
The branch also argues that, even if federal law does
not bar the commission from awarding damages for
Title VII violations under §§ 46a-58 (a) and 46a-86 (c),
the commission is precluded from doing so under state
law, as construed by Truelove. In Truelove, this court
held that state law employment discrimination claims
can be brought only under § 46a-60, the statute specifi-
cally dedicated to such claims, and not under § 46a-58
(a), the general antidiscrimination statute. See Com-
mission on Human Rights & Opportunities v. True-
love & Maclean, Inc., supra, 238 Conn. 346. The court
applied the canon of construction that ‘‘specific terms
covering the given subject matter will prevail over gen-
eral language of the same or another statute [that] might
otherwise prove controlling’’; (internal quotation marks
omitted) id.; and also posited that there would have
been no reason for the legislature to authorize different
remedies for violations of the two statutes if employ-
ment discrimination claims could be brought under
either. See id., 347. The branch contends that the same
reasoning applies to Title VII claims; it would have been
incongruous for the legislature to require that state law
employment discrimination claims be brought under
§ 46a-60 and limited to the equitable remedies that were
then available under § 46a-86 (b) but, at the same time,
to allow the commission to determine that the same
discriminatory practices offended Title VII and to award
damages and attorney’s fees on that basis, via §§ 46a-
58 (a) and 46a-86 (c).
We again are unpersuaded. Nothing in Truelove indi-
cates that the legislature intended to preclude the com-
mission from awarding a remedy authorized by § 46a-
86 (c) for a violation of § 46a-58 (a) predicated on a
discriminatory practiceprohibited by federallaw. Because
the plaintiff in Truelove asserted no Title VII claim under
§ 46a-58 (a), the court had no occasion to consider
the relief available in the present circumstances, which
involve a violation of § 46a-58 (a) predicated on federal
law. The decision in Truelove rested on our conclusion
that the legislature, by attaching different remedies to
our state’s various antidiscrimination statutes, had dem-
onstrated an intention to limit the remedies available
for a violation of § 46a-60. But violations of federal
antidiscrimination law were cognizable under § 46a-58
(a), which carried (and continues to carry) its own
unique remedies, long before the adoption of the Con-
necticut Fair Employment Practices Act. Our holding
in Truelove cannot be understood to authorize this court
to ignore the explicit terms of General Statutes (2012
Supp.) § 46a-58 (a), which provides in relevant part that
‘‘[i]t shall be a discriminatory practice in violation of
this section’’ to deprive any person of rights ‘‘protected
by the . . . laws of . . . the United States, on account
of . . . sex . . . .’’
Two events occurring since Truelove was decided
counsel against any expansion of the breadth of its
holding. First, although the court in Truelove stated
that the relevant legislative history shed no light on the
intended interrelationship between §§ 46a-58 and 46a-
60; Commission on Human Rights & Opportunities
v. Truelove & Maclean, Inc., supra, 238 Conn. 346 n.13;
doubt was later cast on that observation by our decision
in Commission on Human Rights & Opportunities v.
Board of Education, supra, 270 Conn. 690–705, which
chronicled the extensive legislative history and deemed
it to be incompatible with a ‘‘cramped interpretation’’
of the statutory scheme. Id., 703. Second, the legislature
in effect overruled Truelove in 2019 by making eco-
nomic damages and attorney’s fees available to a party
who prevails on a state law claim of employment dis-
crimination under § 46a-60. See Public Acts 2019, No.
19-16, § 7. Accordingly, although principles of stare
decisis counsel against reconsidering Truelove at this
time, we will not now extend the reasoning of that
decision beyond its narrow confines.18 The legislative
scheme may not create the most elegant framework for
assigning different remedies to different discriminatory
practices on the basis of the jurisdictional source of
the injury, but the result we reach is dictated by the
sweeping language of §§ 46a-58 (a) and 46a-86 (c).19
Accordingly, we affirm the judgment of the trial court
with respect to the Title VII issue.
II
PREJUDGMENT AND POSTJUDGMENT INTEREST—
SOVERIEGN IMMUNITY
We next consider whether the trial court properly
concluded that the state has waived its sovereign immu-
nity with respect to prejudgment and postjudgment
interest on awards under § 46a-86. The commission con-
tends that, by waiving immunity to suit and to liability
under § 46a-51 (10), which provides in relevant part
that the term ‘‘ ‘[e]mployer’ includes the state and all
political subdivisions thereof’’ for purposes of the Fair
Employment Practices Act, the legislature also neces-
sarily waived immunity as to interest. We conclude, to
the contrary, that the award of interest is subject to
special treatment for purposes of sovereign immunity,
and we agree with the branch that the state’s waiver
of sovereign immunity as to liability for civil rights
violations under §§ 46a-58 (a) and 46a-60 and as to back
pay and damages under § 46a-86 (b) and (c) does not
constitute a waiver of immunity as to interest on
such awards.
‘‘Sovereign immunity . . . presents a question of law
over which we exercise de novo review. . . . The prin-
ciple that the state cannot be sued without its consent,
or sovereign immunity, is well established under our
case law. . . . Exceptions to this doctrine are few and
narrowly construed under our jurisprudence.’’ (Internal
quotation marks omitted.) Columbia Air Services, Inc.
v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d
636 (2009).
The federal courts have long applied the so-called
‘‘no-interest rule,’’ pursuant to which, in the absence of
an express legislative waiver, Congress is presumed
not to have waived the federal government’s sovereign
immunity with respect to prejudgment and postjudg-
ment interest. Library of Congress v. Shaw, 478 U.S.
310, 311, 106 S. Ct. 2957, 92 L. Ed. 2d 250 (1986). The
United States Supreme Court traced the history of and
rationale for this rule in Shaw: ‘‘This requirement of a
separate waiver reflects the historical view that interest
is an element of damages separate from damages on the
substantive claim. . . . Because interest was generally
presumed not to be within the contemplation of the
parties, common-law courts in England allowed interest
by way of damages only when founded [on] agreement
of the parties. . . . In turn, the [agreement basis] of
interest was adopted by American courts. . . . Gradu-
ally, in suits between private parties, the necessity of
an agreement faded. . . .
‘‘The agreement requirement assumed special force
when applied to claims for interest against the United
States. As sovereign, the United States, in the absence
of its consent, is immune from suit. . . . This basic
rule of sovereign immunity, in conjunction with the
requirement of an agreement to pay interest, gave rise
to the rule that interest cannot be recovered unless
the award of interest was affirmatively and separately
contemplated by Congress. . . . The purpose of the
rule is to permit the [g]overnment to occupy an appar-
ently favored position . . . by protecting it from claims
for interest that would prevail against private parties.
. . .
‘‘For well over [one] century, this [c]ourt, executive
agencies, and Congress itself consistently have recog-
nized that federal statutes cannot be read to permit
interest to run on a recovery against the United States
unless Congress affirmatively mandates that result. The
no-interest rule is expressly described as early as
1819 . . . .
***
‘‘[Accordingly,] [i]n analyzing whether Congress has
waived the immunity of the United States, we must
construe waivers strictly in favor of the sovereign . . .
and not enlarge the waiver beyond what the language
requires . . . . The no-interest rule provides an added
gloss of strictness [on] these usual rules.
‘‘[T]here can be no consent by implication or by use
of ambiguous language. Nor can an intent on the part
of the framers of a statute or contract to permit the
recovery of interest suffice whe[n] the intent is not
translated into affirmative statutory or contractual
terms. The consent necessary to waive the traditional
immunity must be express, and it must be strictly con-
strued.’’ (Citations omitted; footnotes omitted; internal
quotation marks omitted.) Id., 314–18.
Applying these principles, the United States Supreme
Court in Shaw concluded that prejudgment interest
could not be awarded for employment discrimination
claims under Title VII because, although Congress waived
sovereign immunity with respect to liability and dam-
ages, it did not specifically and expressly authorize
interest payments in the statute.20 See id., 319, 323. The
court rejected the argument that prejudgment interest
can be characterized as ‘‘damages,’’ a ‘‘penalty,’’ or ‘‘just
compensation’’ so as to avoid the no-interest rule.
(Internal quotation marks omitted.) Id., 321; see Arne-
son v. Callahan, 128 F.3d 1243, 1247 (8th Cir. 1997) (no-
interest rule applies notwithstanding that prejudgment
interest awards are necessary to make whole victims
of discrimination), cert. denied sub nom. Arneson v.
Apfel, 524 U.S. 926, 118 S. Ct. 2319, 141 L. Ed. 2d 694(1998).
Although our state courts have not articulated the
no-interest rule with the same frequency or specificity
as have our federal counterparts, it is apparent that
the rule applies with equal force to the state under
Connecticut law. In Struckman v. Burns, 205 Conn. 542,
534 A.2d 888 (1987), this court held that prejudgment
interest was not available for a claim brought under
the defective highway statute, General Statutes § 13a-
144. See id., 543, 556. Although the statute reasonably
could have been read to imply that prejudgment interest
was available; see id., 557–58; the court applied the
principles that ‘‘[a]ny statutory waiver of immunity must
be narrowly construed’’ and that ‘‘[t]he state’s sovereign
right not to be sued may be waived by the legislature
[only if] clear intention to that effect is disclosed by
the use of express terms or by force of a necessary
implication.’’ (Internal quotation marks omitted.) Id.,
558. Consistent with those principles, the court adopted
the majority view that ‘‘a statute that generally allows
interest awards does not waive a state’s sovereign
immunity unless there is an express provision to that
effect in the statute.’’ Id., 559; see White Oak Corp. v.
Dept. of Transportation, 217 Conn. 281, 298, 585 A.2d
1199 (1991) (concluding that state is immune from
award of interest under general interest statute, General
Statutes § 37-3a, in absence of express statutory autho-
rization).21
We applied these principles again in Hicks v. State,
297 Conn. 798, 1 A.3d 39 (2010), in which we held that
postjudgment interest is not available against the state
for damages awards under General Statutes § 52-556,
which expressly waives the state’s sovereign immunity
with regard to damages for injuries caused by motor
vehicles operated by state employees and owned and
insured by the state. See id., 799–800 and n.2. Relying
on Struckman and its progeny, we explained that ‘‘stat-
utes in derogation of sovereign immunity should be
strictly construed. . . . [When] there is any doubt
about their meaning or intent they are given the effect
[that] makes the least rather than the most change in
sovereign immunity.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 802. We also rejected the
plaintiff’s argument in Hicks that postjudgment interest
was necessary as a matter of public policy to ensure
the orderly payment of judgments. We explained that
the doctrine of sovereign immunity embodies and prior-
itizes a different public policy, namely, the ‘‘ ‘ancient’ ’’;
id., 801; and compelling policy of ‘‘ ‘prevent[ing] the
imposition of enormous fiscal burdens on states.’ ’’
Id., 807.
Accordingly, under Struckman, if the legislature has
waived the state’s sovereign immunity as to interest,
it must have done so either expressly or by force of
necessary implication. It is clear that the state has not
expressly waived its immunity with respect to interest
on damages and back pay awarded pursuant to § 46a-
86 (b) and (c). Moreover, in Hicks, we concluded that,
because interest is not traditionally ‘‘awarded as a part
of damages,’’ a statutory waiver of sovereign immunity
only as to damages does not, by force of necessary
implication, waive the state’s immunity as to interest.
(Emphasis in original.) Id., 803.
The commission counters that liability for interest is
inherent in the award of back pay and, therefore, that,
by providing for the award of back pay against the state,
§ 46a-86 (b) necessarily waives sovereign immunity as
to interest, as well. The federal courts have rejected
this argument. In Loeffler v. Frank, 486 U.S. 549, 557–58,
108 S. Ct. 1965, 100 L. Ed. 2d 549 (1988), the United
States Supreme Court proceeded on the assumption
that, although interest is impliedly available on awards
of back pay against private employers under Title VII,
Congress had not waived the government’s sovereign
immunity thereunder. In Brown v. Secretary of Army,
918 F.2d 214, 218 (D.C. Cir. 1990), cert. denied sub nom.
Brown v. Stone, 502 U.S. 810, 112 S. Ct. 57, 116 L. Ed.
2d 33 (1991), the United States Court of Appeals for
the District of Columbia Circuit, applying Loeffler, con-
cluded that, in the absence of an express waiver, the
government’s sovereign immunity bars the award of
interest on Title VII back pay awards. Several other
federal courts of appeals have adopted the reasoning
of Shaw and Brown in the Title VII context; see, e.g.,
Arneson v. Callahan, supra, 128 F.3d 1245–46; Woolf v.
Bowles, 57 F.3d 407, 409–10 (4th Cir. 1995); Edwards
v. Lujan, 40 F.3d 1152, 1154 (10th Cir. 1994), cert. denied
sub nom. Edwards v. Dept. of Interior, 516 U.S. 963,
116 S. Ct. 417, 133 L. Ed. 2d 335 (1995); or with respect
to similar statutes. See, e.g., Adam v. Norton, 636 F.3d
1190, 1192–93 (9th Cir. 2011); Ward v. Brown, 22 F.3d
516, 520 (2d Cir. 1994).22 But see DeRoche v. Massachu-
setts Commission Against Discrimination, 447 Mass.
1, 12–14, 848 N.E.2d 1197 (2006) (holding that, by per-
mitting the award of back pay against public employer
under commonwealth’s antidiscrimination laws, state
legislature by necessary implication also waived sover-
eign immunity as to interest awards).
The commission directs our attention to Thames Tal-
ent, Ltd. v. Commission on Human Rights & Opportu-
nities, 265 Conn. 127, 827 A.2d 659 (2003), the case on
which the trial court relied in concluding that the state
has waived its sovereign immunity with respect to inter-
est payments under § 46a-86 (a). In Thames Talent,
Ltd., this court concluded that the failure to award
interest on awards of back pay under § 46a-86 (b)
against private employers ‘‘would be contrary to the
fundamental purpose of our laws against workplace
discrimination [as it would] deprive a person victimized
by such discrimination of the true value of the money
to which he or she lawfully is entitled . . . .’’ Id., 143.
In that case, however, the defendant was a private party,
and we emphasized that our conclusion was consistent
with the federal courts’ interpretation of Title VII. See
id., 143 n.23. The federal courts have indeed applied
this rationale to conclude that the award of interest is
necessary to make complainants whole with respect to
back pay awards against private employers, but they
nevertheless have concluded that sovereign immunity
bars the award of interest against public employers in
the absence of an express statutory authorization. This
reasoning reflects the fact that, although Title VII and
its state counterparts are remedial statutes, which gen-
erally must be construed liberally to fully compensate
complainants for their injuries and to discourage defen-
dants from delaying the payment of back wages; see,
e.g., id., 144–45; different rules of construction apply
when the defendant is sovereign, in recognition of the
fundamentally different policy concerns that are at
issue. See, e.g., Martinez v. Dept. of Public Safety, 263
Conn. 74, 79, 818 A.2d 758 (2003) (‘‘[t]he practical and
logical basis of the doctrine [of sovereign immunity] is
today recognized to rest on this principle [that there
can be no legal right as against the authority that makes
the law on which the right depends] and on the hazard
that the subjection of the state and federal governments
to private litigation might constitute a serious interfer-
ence with the performance of their functions and with
their control over their respective instrumentalities,
funds, and property’’ (internal quotation marks omit-
ted)); Ware v. State, 118 Conn. App. 65, 89, 983 A.2d
853 (2009) (holding that waiver of state’s sovereign
immunity under Fair Employment Practices Act does
not extend to punitive damages because different policy
considerations apply to state than to private actors);
see also State v. Lombardo Bros. Mason Contractors,
Inc., 307 Conn. 412, 431–32, 54 A.3d 1005 (2012) (dis-
cussing policy justifications for closely related nullum
tempus rule).23
Consistent with federal law, we conclude that the
state has not waived its sovereign immunity with
respect to prejudgment and postjudgment interest pay-
able under § 46a-86 (a), either expressly or by necessary
implication. Accordingly, we reverse the judgment of
the trial court in that regard and conclude that the
commission’s award of interest must be vacated.
III
EMOTIONAL DISTRESS DAMAGES
Having held in part I of this opinion that the commis-
sion is authorized to award emotional distress damages
in this case, we now must address the first issue in the
commission’s cross appeal, namely, whether the trial
court correctly concluded that the complainant should
have been precluded from recovering any emotional
distress damages as a sanction for her refusal to pro-
duce her full medical and psychotherapy records during
discovery.24 We disagree with the trial court that the
referee was required to disallow any evidence of ‘‘gar-
den-variety’’ emotional distress.25 We do agree with the
branch, however, that certain evidence of treatment
related emotional distress was improperly admitted.
Although it is a close call, we are unable to conclude
on this record that the evidentiary error was harmless.
We therefore remand the case to the trial court with
direction to remand to the commission for a new hear-
ing in damages.
A
The record reveals the following relevant procedural
facts. During the administrative proceedings, the branch
issued discovery requests to both the complainant and
the commission. The branch included the following
request: ‘‘Please produce all medical records, counsel-
ing records, office notes, or other documents, if any,
identifying any and all medical professionals who[m]
the complainant consulted with or was treated by for
emotional damages and/or physical damages that the
complainant contends are related to [her] claims of
discrimination.’’ No such records were produced in
response to this request. The complainant’s initial wit-
ness lists, however, included two proposed witnesses—
Dawn Gurn, a therapist, and Michael E. Coyle, a psy-
chologist—whom the complainant identified as individ-
uals who provided mental health treatment to her. She
indicated that she intended to call both of these wit-
nesses in support of her claim for emotional distress
damages. The branch objected to the proposed testi-
mony because the complainant had failed to supply
any medical or mental health records relating to either
witness, despite its request.
The referee ruled on the branch’s objections off the
record, during a prehearing conference on September
29, 2014. The precise ruling is unclear. The record con-
tains an e-mail to the parties on that date from Assistant
Attorney General Ann E. Lynch, who presumably was
serving as counsel to the branch. The e-mail states that
‘‘[t]his is to confirm that [the] [r]eferee . . . ordered
[the] complainant to provide [the branch’s] counsel
. . . with a complete copy of . . . Coyle’s file no later
than October 15, 2014. In the alternative, on or before
October 7, 2014, [the complainant] is to provide [the
branch’s] counsel with a release authorizing [the branch’s]
counsel to obtain a complete copy of . . . Coyle’s file.’’
In its subsequent briefing to the commission, however,
the branch repeatedly characterized the referee’s Sep-
tember 29 oral ruling differently. In one motion, for
instance, the branch states: ‘‘On September 29, 2014,
during the prehearing conference, [the] [r]eferee . . .
ruled that, if the complainant intended on pursuing
anything other than garden-variety emotional dis-
tress, she needed to provide copies of her psychological
or mental health records.’’ (Emphasis added.) The
branch thus appears to acknowledge that the referee
did not unconditionally order the complainant to dis-
close her private medical records but, instead, ruled
that she would need to do so if she wished to recover
anything more than garden-variety emotional distress
damages.26
In any event, during the two years that passed between
the referee’s September, 2014 ruling and the November,
2016 hearing, the complainant made various attempts
to accommodate the branch’s discovery request while
preserving her medical privacy. After obtaining an
extension of time within which to produce the requested
records, the complainant filed what she styled as a motion
for a protective order. In that motion, she offered to
provide the branch (1) a summary of her unredacted
treatment history with Coyle, which would be filed
under seal and be reviewable only by the branch’s coun-
sel and expert witnesses, and (2) Coyle’s full treatment
notes, which would be reviewable only by counsel at
Coyle’s office. The complainant attached to the motion
a case summary drafted by Coyle, with certain personal
information regarding the complainant redacted.27 Also
attached was a treatment history listing the dates when
the complainant saw Coyle and the fees she paid for
those office visits.
The branch filed an objection to the motion, con-
tending that the only appropriate remedy for the com-
plainant’s alleged discovery noncompliance was to
preclude her from pursuing anything other than garden-
variety emotional distress damages. The referee sus-
tained the branch’s objection.28
On several occasions during the hearing, the referee
appeared to confirm that she had not unconditionally
ordered the complainant to produce the records at issue
but merely had ruled that the complainant would have
to do so in order to obtain anything more than garden-
variety emotional distress damages. In response to the
branch’s argument that the complainant was not permit-
ted to withhold relevant records, the referee stated:
‘‘No. That was not my ruling. I ruled earlier in this case.
I think a couple [of] years ago, I ruled. There will be
no evidence of medical bills from doctors without the
entire medical records being submitted.’’29 The referee
later reiterated: ‘‘I made a ruling . . . early on in this
case that, unless they were providing full medical
records, the only damages they would be entitled to
would be garden-variety emotional distress damages.’’
Consistent with these statements, and because the
complainant had not produced all of the requested
records by the time of the hearing,30 the referee ruled
that the complainant would be allowed to put on evi-
dence in support of her claim for garden-variety emo-
tional distress but could not introduce medical records
or other treatment related evidence of emotional dis-
tress damages. ‘‘[S]o we’re clear about the emotional
distress,’’ the referee ruled, ‘‘any evidence beyond the
garden-variety emotional distress claim is precluded
unless the full entire medical records are produced.’’
At the hearing, the branch repeatedly objected to
the admission of the complainant’s evidence on two
grounds. First, in a departure from the stance it took
during the prehearing briefing, the branch argued that
the complainant should be barred from introducing evi-
dence even of garden-variety emotional distress. It con-
tended that, without access to the complainant’s
medical records, it could not adequately cross-examine
her regarding those claimed damages. The referee over-
ruled those objections, stating that, in her view, the
branch had an adequate opportunity for cross-examina-
tion without the records. Accordingly, the complainant
was permitted to testify that she felt ‘‘dirty,’’ victimized,
embarrassed, ashamed, and fearful as a result of Mar-
co’s conduct and the branch’s inadequate response. She
testified that, following the incidents, she had ceased
to be a happy person; she suffered anxiety and ner-
vousness, and would wake in the night crying. The
complainant was visibly shaking and in tears during
this testimony. Her testimony as to the emotional dis-
tress that she suffered during and following the Marco
incidents was corroborated by the testimony of several
other nonmedical witnesses, including her husband,
John Gilbert, each of whom the referee found to be
credible.
Second, the branch contended that some of the testi-
mony by the complainant and her lay witnesses crossed
the threshold from garden-variety to treatment related
emotional distress damages because the testimony
occasionally alluded to or directly referenced the com-
plainant’s use of mental health counselling and pharma-
ceuticals to treat her emotional distress. The referee’s
response to this second category of objections was not
a model of clarity or consistency. When the branch
objected to the complainant’s testimony that her physi-
cian had prescribed daily Lexapro for depression and
anxiety, the referee allowed her to testify as to the
medication but not the amount. When the branch
objected to testimony that the complainant saw Gurn
for therapy, the referee allowed the complainant and
her husband to testify that she went to Gurn but not
about the ‘‘particulars’’ as to what occurred at the thera-
pist’s office. When the branch objected to testimony
that the complainant was taking Tylenol PM and pre-
scription sleep aids, the referee responded: ‘‘We really
can’t get into too much medical information, because
we’re not doing this based on her treatment. . . .
[L]et’s rephrase; just the over-the-counter [medications]
that you know of . . . which does not have anything
to do with records.’’ Finally, when the branch objected
to testimony regarding the complainant’s use of Xanax,
the referee ruled: ‘‘I think we’re not getting into physi-
cian visits. I outlined in the beginning what garden-
variety emotional distress is and how it’s analyzed. I
really don’t think [that] taking a medic[ation] necessi-
tates a review of medical records, but I don’t want to
get into more treatment or anything that happened with
a doctor.
***
‘‘I really don’t understand [the branch’s] objection
because . . . I’m not letting in any evidence that per-
tains to [the complainant’s] treatment. I know [that her
husband] mentioned a prescription. We can strike that
prescription . . . from the record . . . .’’31
In her memorandum of decision, the referee largely
avoids any mention of the complainant’s use of medica-
tions or counselling services, and, in her analysis
explaining her award of emotional distress damages,
she makes no mention of that testimony.32 Her factual
findings, however, do include three references to the
complainant’s use of ‘‘a prescription drug’’ or ‘‘medica-
tion’’ to treat insomnia, anxiety, and chest pains arising
from the alleged abuse.
Ultimately, the referee found that the complainant had
suffered emotional distress as a result of the branch’s
discriminatory treatment. After citing case law for the
proposition that garden-variety emotional distress claims
generally merit $30,000 to $125,000 awards, she awarded
the complainant $50,000 in emotional distress damages.
B
On appeal from the referee’s decision, the trial court
determined that (1) the complainant had failed to pro-
vide certain relevant, nonprivileged, discoverable infor-
mation, in violation of the referee’s orders, (2) there
was no doubt that the branch was prejudiced thereby,
and (3) limiting the complainant’s testimony and recov-
ery to garden-variety emotional distress damages did
not cure the prejudice arising from these discovery
violations. The court justified its decision to vacate the
award of emotional distress damages as follows: ‘‘[The
complainant] withheld clearly discoverable, nonprivi-
leged information without justification and despite the
referee’s order otherwise. . . . [T]he court cannot
allow such unilateral, unjustified and fundamentally
unfair action to go without consequence, particularly
when it prejudices the other side. . . . As a result, the
court must vacate the emotional distress damage[s]
award. The referee should have precluded all evidence
concerning emotional and physical distress unless the
proper discovery was provided. The referee’s decision
to allow garden-variety emotional distress evidence was
made pursuant to improper procedure, was a clear error
of law, and, as such, was an abuse of discretion.’’ (Foot-
note omitted.)
We agree with the commission that the trial court’s
judgment rests on a flawed analysis. The following well
established principles govern our review. ‘‘This court
reviews the trial court’s judgment pursuant to the Uni-
form Administrative Procedure Act (UAPA), General
Statutes § 4-166 et seq. Under the UAPA, it is [not] the
function . . . of th[e] court to retry the case or to sub-
stitute its judgment for that of the administrative
agency. . . . 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, arbi-
trarily, illegally, or in abuse of its discretion.’’ (Internal
quotation marks omitted.) Meriden v. Freedom of Infor-
mation Commission, 191 Conn. App. 648, 654, 216 A.3d
847 (2019), aff’d, 338 Conn. 310, 258 A.3d 1 (2021).
‘‘[T]he primary purpose of a sanction for [a] violation
of a discovery order is to ensure that the defendant’s
rights are protected, not to exact punishment on the
[complainant] for [her] allegedly improper conduct.
. . . The determinative question for [a reviewing] court
is not whether it would have imposed a similar sanction
but whether the [referee] could reasonably conclude
as [she] did given the facts presented. Never will the
case on appeal look as it does to a [referee] . . . faced
with the need to impose reasonable bounds and order
on discovery.’’ (Citation omitted; internal quotation
marks omitted.) Usowski v. Jacobson, 267 Conn. 73, 85,
836 A.2d 1167 (2003). ‘‘In order for [an] order of sanc-
tions for violation of a discovery order to withstand
scrutiny, three requirements must be met. First, the
order to be complied with must be reasonably clear.
. . . This requirement poses a legal question that we
will review de novo. Second, the record must establish
that the order was in fact violated. This requirement
poses a question of fact that we will review using a
clearly erroneous standard of review. Third, the sanc-
tion imposed must be proportional to the violation. This
requirement poses a question of the discretion of the
[presiding officer] that we will review for abuse of that
discretion.’’ (Internal quotation marks omitted.) Id.The trial court appeared to rest its resolution of this
issue on its view that the limitations imposed by the
referee—allowing the complainant to argue for, sub-
stantiate, and recover only garden-variety emotional
distress damages—were not sufficiently stringent as
sanctions for what the court saw as violations of a
discovery order. Neither the facts nor the law supports
that conclusion.
To begin with, although the complainant clearly did
not fully comply with the discovery request for the
production of her medical records, she also did not
actually violate any discovery order found in the record
before the commission. The branch issued a broadly
worded request for medical records. In response, none
was provided. When the complainant submitted a list
of witnesses containing the names of medical care pro-
viders, the branch objected to those witnesses. Although
the dispute was apparently addressed off the record, it
appears from the branch’s briefing before the commis-
sion and from the referee’s statements at the hearing
that the complainant would be allowed, in essence, to
opt either to produce her full medical records or to
decline to do so and to seek only garden-variety emo-
tional distress damages. She chose the latter course.33
The branch has not directed our attention to anything
in the record suggesting that the referee issued an
unconditional order requiring production of the records.
Nevertheless, the referee’s order limiting the com-
plainant to garden-variety emotional distress damages,
although not denominated a sanction by the referee,
could fairly be viewed as a sanction, in that the order
penalizes the complainant’s failure to comply with a
proper discovery demand by limiting her ability to
recover damages to a degree proportional to the discov-
ery noncompliance. Cf. Practice Book 13-14 (b) (4)
(authorizing trial court, in response to discovery non-
compliance, to enter ‘‘an order prohibiting the party
who has failed to comply from introducing designated
matters in evidence’’). Viewing the referee’s orders as
a sanction for a discovery violation, however, we are
of the opinion that the trial court failed to afford appro-
priate deference to the referee’s oversight of the discov-
ery process. The governing regulations afford the
referee broad discretion over the sanctions to be
imposed for violations of her discovery orders. See
Regs., Conn. State Agencies § 46a-54-89a (b) (2) (‘‘[i]f
a party fails to comply with an order of the presiding
officer regarding a request for disclosure or production,
the presiding officer may issue . . . [a]n order prohib-
iting the party who has failed to comply from introduc-
ing designated matters into evidence’’ (emphasis
added)). Neither the trial court nor the branch has iden-
tified a single case in which an agency or lower court
has been reversed because the sanction that it imposed
for a discovery violation was too lenient. The cases
almost universally go in the other direction—the sanc-
tions imposed are either upheld or rejected as too draco-
nian—and the rare exception serves only to prove
the rule.34
Moreover, it is clear from the record that the referee
did not consider the complainant’s conduct to be egre-
gious or in bad faith. The complainant made various
efforts to find a compromise that would satisfy the
branch’s requests while preserving her medical privacy.
See footnote 28 of this opinion. When those efforts
failed, she was given a choice by the referee that allowed
her to refuse production of the medical records without
violating the court order. For these reasons, we cannot
affirm the judgment of the trial court simply vacating
altogether the award of emotional distress damages, a
result that effectively substituted a severe sanction for
the more moderate ruling made by the referee with
oversight responsibility in the proceedings.
C
We do agree with the branch, however, that the ref-
eree improperly admitted testimony that went beyond
mere garden-variety emotional distress, in seeming vio-
lation of her own rulings. We cannot conclude on this
record that such error was harmless.
The precise contours of what counts as garden-vari-
ety emotional distress have not been litigated in the
present case. See footnote 25 of this opinion. Even if
we were to construe the concept expansively, however,
testimony regarding a complainant’s use of medications
or counseling and other medical treatment crosses the
line into treatment related emotional distress and, thus,
places her medical history at issue. See, e.g., Ruhlmann
v. Dept. of Social Services, 194 F.R.D. 445, 449–50
(N.D.N.Y. 2000). As we discussed, in at least four
instances, the referee allowed the complainant or her
husband to testify, over the objections of the branch, as
to her use of various over-the-counter and prescription
medications to treat her insomnia and anxiety. Although
the referee struck at least one such reference from the
record, the other references apparently were admitted.
The referee referenced these facts in her findings, and,
from her statements during the hearing, she appeared
to believe that they were potentially admissible and
relevant. Allowing the challenged testimony to come in
when the branch had been denied access to the
requested records was an abuse of discretion.
‘‘In order to reverse an agency decision on the basis
of an erroneous evidentiary ruling, it [also] is necessary
that the appellant demonstrate that substantial rights
. . . have been prejudiced . . . .’’ (Internal quotation
marks omitted.) Recycling, Inc. v. Commissioner of
Energy & Environmental Protection, 179 Conn. App.
127, 153, 178 A.3d 1043 (2018); see General Statutes § 4-
183 (j). It is tempting to say that the referee’s error in
admitting evidence of the complainant’s use of medica-
tions was harmless; see, e.g., Concerned Citizens of
Sterling, Inc. v. Connecticut Siting Council, 215 Conn.
474, 488–89, 576 A.2d 510 (1990); insofar as the referee
awarded $50,000 in damages, which falls at the lower
end of what she identified as the prevailing range of
awards for garden-variety emotional distress damages.
See, e.g., Lore v. Syracuse, 670 F.3d 127, 177 (2d Cir.
2012) (‘‘[t]his [c]ourt has . . . affirmed awards of
$125,000 each to plaintiffs for emotional distress result-
ing from age discrimination whe[n] the evidence of
emotional distress consisted only of [nonmedical] testi-
mony establishing shock, nightmares, sleeplessness,
humiliation, and other subjective distress’’ (internal
quotation marks omitted)); Meacham v. Knolls Atomic
Power Laboratory, 381 F.3d 56, 78 (2d Cir. 2004) (noting
that awards of more than $100,000 often are upheld,
even ‘‘without discussion of protracted suffering, truly
egregious conduct, or medical treatment’’), vacated on
other grounds sub nom. KAPL, Inc. v. Meacham, 544
U.S. 957, 125 S. Ct. 1731, 161 L. Ed. 2d 596 (2005); Patino
v. Birken Mfg. Co., 304 Conn. 679, 708, 41 A.3d 1013(2012) (‘‘[garden-variety] emotional distress claims gen-
erally merit $30,000 to $125,000 awards’’ (internal quota-
tion marks omitted)).35
However, because the referee made several findings
of fact regarding the complainant’s need for medication,
we are unable to conclude that the improperly admitted
evidence did not factor into her damages calculation.
On remand for a new hearing in damages, the complain-
ant will present evidence of garden-variety emotional
distress only, and the referee will assess damages in
an amount deemed reasonable and appropriate in light
of that evidence.36
IV
INJUNCTIVE RELIEF
Finally, we turn to the issue of whether the trial
court properly vacated the injunction requiring that the
branch ‘‘give the complainant the option of returning
to the Danielson courthouse,’’ from where she had been
transferred after reporting the abuse to her superiors.37
The commission contends that the injunction was
authorized, if not required, by the commission’s broad
mandate to eliminate the effects of past discriminatory
employment practices, to make victims whole, to bar
like discrimination in the future, and to ensure that
victims are not made to suffer further for the conduct
of the sexual harasser. See, e.g., General Statutes § 46a-
86 (b) (‘‘the presiding officer shall . . . issue an order
to eliminate the discriminatory employment practice
complained of and to make the complainant whole’’);
Thames Talent, Ltd. v. Commission on Human Rights
& Opportunities, supra, 265 Conn. 140 (describing ‘‘the
central statutory purposes of eradicating discrimination
. . . and making persons whole for injuries suffered
through past discrimination’’ (internal quotation marks
omitted)); Brittell v. Dept. of Correction, 247 Conn.
148, 177, 717 A.2d 1254 (1998) (‘‘the victim of sexual
harassment should not be punished for the conduct of
the harasser . . . by hav[ing] to work in a less desirable
location as a result of the employer’s remedial plan’’
(citation omitted; internal quotation marks omitted)).
The commission further contends that, if the trial court
determined that the injunction was overly broad or
founded on an insufficiently developed record, the
appropriate remedy was to remand the matter to the
commission to order additional briefing, to hold a new
hearing, and/or to craft a more narrowly tailored injunc-
tion, rather than simply to vacate the injunction. We
agree.
The following procedural history is relevant to this
issue. The complainant alleged in her complaint that
the branch was retaliating against her for reporting
Marco’s harassment and sexual assaults. The referee
found that, in December, 2011, after the complainant
reported Marco’s conduct to her supervising judicial
marshal, Philip Gaudette, Gaudette ‘‘yelled at her that
. . . if she kept up the emotional behavior, he would
move her.’’ The following summer, Downer reassigned
the complainant from Danielson, where she had been
assigned since 2006, to the Willimantic and Putnam
courthouses, each of which was significantly farther
from her residence. Although Downer testified that he
transferred her because he needed a female marshal at
those locations, the complainant testified that Downer
‘‘told her that he moved her to Putnam because she
was too emotional about the Marco incidents.’’ The
referee further found that, although judicial marshals
can at times be transferred between courthouses, the
norm is for the branch to assign them to the courthouse
closest to their homes to minimize the impacts of
inclement weather. Moreover, the referee found that
‘‘[t]here are also examples of other women marshals
never being transferred.’’ Notably, although the com-
plainant had requested that Marco, rather than she, be
transferred, the branch allowed Marco to remain in
Danielson after the complainant was transferred, and
he was promoted to acting lead marshal there in 2014.
The referee determined that, ‘‘[w]hen the complain-
ant continued to be upset about working with Marco,
who was continuing his behavior, the [branch] ulti-
mately transferred her to a more inconvenient location,
thereby inflicting hardship on the [complainant]. . . .
[Transfer] to a less desirable location . . . [is an alter-
ation] of the conditions of her workplace.’’ The referee
ultimately concluded: ‘‘The complainant was trans-
ferred to a courthouse that was at least [one-half] hour
farther away from where she was originally assigned.
The [branch] argued that [it] transferred the complain-
ant because [it] needed a female [marshal] at another
courthouse. Given the timing and frustration with the
complainant’s upset regarding working with Marco,
it is unlikely that is the only or main reason for her
transfer.’’ (Emphasis added.)
The trial court vacated the injunction. The court con-
cluded that the order ‘‘is clearly an abuse of discretion,’’
‘‘an error of law,’’ and ‘‘not properly tailored,’’ because
it (1) is unnecessary to achieve the purposes of the
state’s antidiscrimination statutes and to prevent fur-
ther discriminatory conduct, insofar as Marco is no
longer stationed at Danielson,38 (2) infringes on the dis-
cretion of the branch to assign the complainant and
other judicial marshals to the courthouse of its choosing
on the basis of its operational needs, and (3) places no
time limitation on how long the branch must continue
to assign the complainant to Danielson.
Our review is governed by the following well estab-
lished principles. As the trial court recognized, § 46a-
86 (a) clearly grants the commission the authority to
issue reasonable injunctive relief tailored to eliminating
the discriminatory practice and its effects.39 An order
of the commission may be reversed on appeal only
when that order is ‘‘(1) [i]n violation of constitutional
or statutory provisions; (2) in excess of the statutory
authority of the agency; (3) made upon unlawful proce-
dure; (4) affected by other error of law; (5) clearly
erroneous in view of the reliable, probative, and sub-
stantial evidence on the whole record; or (6) arbitrary
or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.’’ General
Statutes § 4-183 (j); see Hiraldo-Cancel v. Aponte, 925
F.2d 10, 13 (1st Cir.) (‘‘[R]einstatement is an equitable
remedy [that] is reviewed for abuse of discretion. . . .
Considerable deference is accorded a reinstatement
order, as the [referee] has had [firsthand] exposure to
the litigants and the evidence . . . [and] is in a consid-
erably better position to bring the scales into balance
than an appellate tribunal.’’ (Citation omitted; internal
quotation marks omitted.)), cert. denied, 502 U.S. 1004,
112 S. Ct. 637, 116 L. Ed. 2d 655 (1991).
In view of these principles, although we share the
concerns expressed by the trial court, we find none
sufficient to warrant the court’s decision to simply
vacate the injunction as a matter of law. With respect
to the first point raised by the court, it is true that
Marco’s retirement eliminated any possibility that the
complainant might be assigned to a courthouse where
she would have to serve alongside him. The primary
purpose for reinstating an employee who is transferred
after complaining of sexual harassment, however, is to
vindicate the important public policy against punishing
or retaliating against victims who report abuse. See,
e.g., Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991)
(‘‘[w]e strongly believe that the victim of sexual harass-
ment should not be punished for the conduct of the
harasser . . . [by having] to work in a less desirable
location’’); Jean-Baptiste v. District of Columbia, 958
F. Supp. 2d 37, 51 (D.D.C. 2013) (issuing permanent
injunction even though defendant no longer employed
alleged abuser), appeal dismissed, Docket No. 13-7124,
2014 WL 812812 (D.C. Cir. January 21, 2014). That pur-
pose was served by the referee’s order regardless of
Marco’s particular circumstances at the time relief
was granted.
The trial court made clear that its ruling vacating the
injunction was predicated on the assumption that the
complainant’s superiors did not transfer her out of any
retaliatory intent.40 This conclusion is contrary to the
referee’s factual findings. Although the referee did not
use language containing an explicit finding that the
complainant was transferred in retaliation for her com-
plaint, the referee strongly implied that such was the
case when she marshaled the relevant evidence of retali-
ation and concluded that ‘‘it is unlikely that [the branch’s
stated rationale] is the only or main reason for her
transfer.’’ The referee’s factual findings leading to this
statement and expressing disbelief in the branch’s prof-
fered explanation—including Gaudette’s threats of
reassignment expressly linked to the complainant’s
‘‘emotional behavior’’ and Downer’s explanation to the
complainant that the reassignment was due to her ‘‘emo-
tional’’ reaction to the Marco incidents—overwhelm-
ingly point to a retaliatory animus. For all intents and
purposes, these factual findings, read fairly, amount to
a determination by the referee that the transfer was
pretextual and retaliatory. See, e.g., Richardson v. Dept.
of Correctional Service, 180 F.3d 426, 444 (2d Cir. 1999)
(transfer and reassignment to less favorable work loca-
tion following complaint of employment discrimination
constitute prima facie evidence of retaliation). If we are
correctly construing the referee’s findings in this respect,
then the primary assumption underlying the trial court’s
decision to vacate the injunction was incorrect. On
remand, the referee will have the opportunity to clarify,
in express terms, whether she finds that the transfer
was most likely retaliatory and not merely an ordinary
operational decision made on the basis of legitimate,
nonretaliatory considerations.
If, in fact, the branch sought to retaliate against the
complainant or to resolve the pattern of harassment and
abuse by transferring her to a less convenient location
while allowing her abuser to remain in Danielson, then
the trial court’s second rationale for vacating the injunc-
tion also falls by the wayside. If retaliatory animus moti-
vated the decision, it is irrelevant that, under ordinary
circumstances, the branch, as the employer, has the
discretion to assign judicial marshals to the workplace
of its choosing, and that the employee cannot refuse
such a transfer or insist on being reassigned to a former
workplace.41 Connecticut, like other jurisdictions, has
articulated a clear public policy against punishing vic-
tims of sexual harassment and assault by involuntarily
transferring the victim, rather than the perpetrator,
either to resolve the situation or as retaliation for
reporting.42 When such an improper transfer has occurred,
affording the victim the opportunity to return to his
or her former workplace, or ‘‘rightful place,’’ is the
preferred means of vindicating that policy. (Internal
quotation marks omitted.) Parson v. Kaiser Alumi-
num & Chemical Corp., 575 F.2d 1374, 1391 (5th Cir.
1978), cert. denied sub nom. Local 13000, United Steel-
workers of America, AFL-CIO-CLC v. Parson, 441 U.S.
968, 99 S. Ct. 2417, 60 L. Ed. 2d 1073 (1979); see, e.g.,
Reeves v. Board of Education, 828 F.2d 1096, 1101–1102
(5th Cir. 1987); McGill v. Board of Education, 602 F.2d
774, 776 (7th Cir. 1979); see also Nord v. United States
Steel Corp., 758 F.2d 1462, 1473 (11th Cir. 1985) (‘‘Title
VII claimants are . . . presumptively entitled to rein-
statement under the ‘make whole’ policy’’); Stewart v.
General Motors Corp., 756 F.2d 1285, 1291 (7th Cir.
1985) (remedial injunction simply protects complain-
ant’s preexisting right to be treated equally with other
employees).
This is not to say that logistical considerations are
wholly irrelevant in fashioning proper relief. Before
ordering the branch to reinstate the complainant, the
referee must consider factors such as (1) whether, and
to what extent, the branch’s relocation of the complain-
ant to other courthouses since 2012 departs from the
norms that have applied to other marshals; see, e.g.,
Stolzenburg v. Ford Motor Co., 143 F.3d 402, 407 (8th
Cir. 1998); see also Chace v. Champion Spark Plug Co.,
732 F. Supp. 605, 610 (D. Md. 1990) (ordering reinstate-
ment with same salary and benefits as are accorded to
other employees); (2) what impact keeping the com-
plainant at Danielson will have on the operational needs
of the branch and whether any imposition in that regard
will outweigh the benefit to her of being assigned to a
courthouse closer to her home; see, e.g., Equal Employ-
ment Opportunity Commission v. Yenkin-Majestic
Paint Corp., 112 F.3d 831, 836 (6th Cir. 1997) (remanding
for balancing of equities prior to reinstatement); Hira-
ldo-Cancel v. Aponte, supra, 925 F.2d 14 (deferring to
District Court’s balancing of equities); Patrolmen’s
Benevolent Assn. of City of New York, Inc. v. New York,
Docket Nos. 97 CIV. 7895 (SAS) and 98 CIV. 8202 (SAS),
2000 WL 1538608, *3 (S.D.N.Y. October 18, 2000) (con-
cluding that judicial interference via injunction would
interfere with internal operations and could diminish
efficacy of response of New York City Police Depart-
ment), aff’d, 310 F.3d 43 (2d Cir. 2002), cert. denied,
538 U.S. 1032, 123 S. Ct. 2076, 155 L. Ed. 2d 1061 (2003);
(3) whether reinstating her at Danielson did or will
require the reassignment of any innocent employees;
see, e.g., Hicks v. Board of Education, 814 F. Supp.
1044, 1050 (M.D. Ala. 1993) (setting forth factors to be
considered in deciding whether to issue injunction that
would require ‘‘bumping’’ innocent employee in order
to reinstate prevailing complainant); and (4) to what
extent the facts on the ground now differ from what
they were at the time of the hearing. See, e.g., Parson
v. Kaiser Aluminum & Chemical Corp., supra, 575 F.2d
1390 (‘‘practices may have altered since this case was
first tried’’); Chace v. Champion Spark Plug Co., supra,
609 (‘‘intervening historical circumstances can make
[reinstatement] impossible or inappropriate’’); Thames
Talent, Ltd. v. Commission on Human Rights & Oppor-
tunities, supra, 265 Conn. 137 (‘‘reinstatement may be
impractical, imprudent or even impossible’’).
Likewise, with respect to the trial court’s third con-
cern, the apparently unbounded nature of the injunc-
tion, the commission on remand should clarify the
scope and duration of the injunction, bearing in mind
the following principles: ‘‘A party moving for [a perma-
nent] injunction [under Title VII] must show (1) she
has suffered irreparable injury, (2) remedies available
at law, such as monetary damages, are inadequate to
compensate for that injury, (3) considering the balance
of hardships between the plaintiff and [the] defendant,
a remedy in equity is warranted and (4) the public
interest would not be disserved by a permanent injunc-
tion. . . . The . . . necessary determination is that
there exists some cognizable danger of recurrent viola-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) Pierce v. Philadelphia, 391 F. Supp. 3d 419, 445
(E.D. Pa. 2019), aff’d, 811 Fed. Appx. 142 (3d Cir. 2020);
see Howe v. Akron, 801 F.3d 718, 754 (6th Cir. 2015)
(‘‘permanent injunctions should be tailored to redress
the harm without hamstringing local government’’);
Equal Employment Opportunity Commission v. Cre-
ative Networks, LLC, 912 F. Supp. 2d 828, 846 (D. Ariz.
2012) (‘‘[p]ermanent injunctive relief is warranted
[when the] . . . defendant’s past and present miscon-
duct indicates a strong likelihood of future violations’’
(internal quotation marks omitted)). If the commission
determines that the scope of the branch’s misconduct
and the balance of the equities do not warrant an order
that permanently precludes the branch from reassigning
the complainant, then the commission should specify
at what point or under what circumstances the injunc-
tion will expire. See, e.g., Howe v. Akron, supra, 754–55
(modifying permanent injunction to extend for one pro-
motional cycle); Equal Employment Opportunity Com-
mission v. Service Temps, Inc., 679 F.3d 323, 338–39
(5th Cir. 2012) (limiting remedial injunction to two
years); Locke v. Kansas City Power & Light Co., 660
F.2d 359, 368 and n.11 (8th Cir. 1981) (recommending
that District Court retain jurisdiction over matter for six
months following reinstatement of complainant, during
which employer would ‘‘carry the burden of persuasion
that any dismissal of [the complainant] is based entirely
on legitimate, nondiscriminatory factors’’). And, lastly,
any order should specify whether, during the course of
the injunction, the branch may continue to assign the
complainant to other courthouses on a short-term basis
consistent with its operational needs and norms. See,
e.g., Vega v. Chicago Park District, 351 F. Supp. 3d
1078, 1087 (N.D. Ill. 2018) (defendant was required to
apply same policies to complainant as are applied to
other employees), aff’d, 954 F.3d 996 (7th Cir. 2020).
On remand, the referee will have the opportunity to
make the necessary findings and, if appropriate, to issue
a new injunction consistent with those findings and
with established law. See, e.g., Brown v. Dept. of Trans-
portation, 597 F.3d 1160, 1186 (11th Cir. 2010) (holding
that District Court had authority to order complainant
transferred to comparable position nearest her resi-
dence but remanding case for court to state with greater
clarity and specificity how injunction was to be car-
ried out).
The judgment is reversed with respect to the award of
prejudgment and postjudgment interest, and emotional
distress damages, and with respect to the order of
injunctive relief, the award of prejudgment and post
judgment interest is vacated, and the case is remanded
for further proceedings consistent with this opinion;
the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
* This appeal originally was argued before a panel of this court consisting
of Chief Justice Robinson and Justices McDonald, Mullins, Kahn, Ecker,
and Keller. Thereafter, Chief Justice Robinson was removed from the panel
after argument and did not participate in the consideration or decision of
the case.
1
Hereinafter, unless otherwise indicated, all references to § 46a-58 (a)
are to the version in the 2012 supplement to the General Statutes. See
footnote 3 of this opinion.
2
It is not clear from the record whether the referee ordered interest at
a rate of 5 percent or 10 percent.
3
In 2019, the legislature amended the Connecticut Fair Employment Prac-
tices Act to authorize the commission to award damages and attorney’s
fees, as well as equitable remedies for violations of state employment dis-
crimination law. See Public Acts 2019, No. 19-16, § 7. Accordingly, complain-
ants no longer need to establish violations of federal antidiscrimination law
to obtain such relief.
4
The branch raised additional claims of error before the trial court that
are not before us on appeal.
5
Section 46a-86 (c) provides the remedies for violations of, among other
laws, § 46a-58, the general antidiscrimination statute. At all relevant times,
§ 46a-86 (c) allowed for the recovery of economic damages and attorney’s
fees. By contrast, prior to its 2019 amendment, § 46a-86 (b), which contains
the remedies for violations of the employment discrimination statute, § 46a-
60, did not allow for the recovery of economic damages or attorney’s fees.
See Public Acts 2019, No. 19-16, § 7.
6
The complainant has not participated in the present appeal.
7
When an appeal is transferred from the Appellate Court to this court, it
often will be advisable for the parties to seek permission to revise their
briefs accordingly. This approach may be beneficial, for example, when the
ongoing vitality of one of our decisions is in question, insofar as the Appellate
Court lacks the authority to overrule or modify this court’s precedents. See,
e.g., Conway v. Wilton, 238 Conn. 653, 657, 680 A.2d 242 (1996).
In the present case, for example, the commission questioned the ongoing
vitality of Truelove in its briefing to the Appellate Court but did not directly
argue that Truelove should be overruled, presumably because that court
lacks the authority to do so. Following transfer of the appeals and oral
argument, we ordered the parties to submit supplemental briefs to address
directly the question of whether Truelove was correctly decided. See, e.g.,
Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 161–62, 84 A.3d 840 (2014). As we explain subsequently
in this opinion, we have determined that the holding in Truelove does not
control the outcome in the present case, and we therefore have no need to
consider whether it should be overruled. See part I B 2 of this opinion.
8
See Public Acts 1884, c. 86; see also F. Johnson, The Development of
State Legislation Concerning the Free Negro (1919) pp. 27–28, 31 (indicating
that chapter 86 of 1884 Public Acts was ‘‘a measure of general application’’
modeled on fourteenth amendment and federal Civil Rights Act of 1866,
which ‘‘covered the whole field [of civil law] by broad enactment’’).
9
Section 46a-58 (a), in its original form, did not precisely mirror the text
of any of the federal statutes, criminal or civil, but was similarly aimed at
the deprivation of legally protected rights on the basis of race or color.
In 1949, our legislature supplemented the penal statute with a separate
mechanism for civil enforcement, authorizing a person aggrieved by a viola-
tion thereof to file a complaint with the commission’s predecessor, the civil
rights commission. See General Statutes (1955 Supp.) § 3268d.
10
Although the referee observed in passing that § 46a-60 is ‘‘undoubtedly
more expansive than Title VII’’; (internal quotation marks omitted); her
citation to Patino v. Birken Mfg. Co., 304 Conn. 679, 693, 41 A.3d 1013(2012), for that proposition indicates that she understood the state law to
afford broader protection only with respect to which classes are protected.
For example, § 46a-60 also protects individuals from discrimination on
account of age, marital status, ancestry, or disability. See id.
11
We will address the branch’s argument that the referee exceeded her
authority under the procedural provisions of Title VII in part I B of this
opinion.
12
Section 2000e-5 (f), title 42, of the 2018 edition of the United States
Code provides in relevant part: ‘‘(1) If within thirty days after a charge
is filed with the [Equal Employment Opportunity] Commission . . . the
Commission has been unable to secure from the respondent a conciliation
agreement acceptable to the Commission, the Commission may bring a civil
action against any respondent not a government, governmental agency, or
political subdivision named in the charge. In the case of a respondent which
is a government, governmental agency, or political subdivision, if the Com-
mission has been unable to secure from the respondent a conciliation agree-
ment acceptable to the Commission, the Commission shall take no further
action and shall refer the case to the Attorney General who may bring a
civil action against such respondent in the appropriate United States district
court. . . . Upon request, the court may, in its discretion, stay further pro-
ceedings for not more than sixty days pending the termination of State or
local proceedings . . . .
***
‘‘(3) Each United States district court and each United States court of a
place subject to the jurisdiction of the United States shall have jurisdiction
of actions brought under this subchapter. . . .’’
13
See, e.g., 110 Cong. Rec. 7205 (1964), remarks of Senator Joseph S.
Clark; J. Clark & C. Case, Interpretative Memorandum of Title VII of H.R.
7152, 110 Cong. Rec. 7214 (1964); J. Clark, Response to Dirksen Memoran-
dum, 110 Cong. Rec. 7216 (1964); 110 Cong. Rec. 11,942 (1964), remarks of
Senator Richard B. Russell.
14
See, e.g., 110 Cong. Rec. 7205 (1964), remarks of Senator Joseph S.
Clark (‘‘the [EEOC] can make arrangements to use and pay for the services
of [s]tate and local agencies in carrying out its duties under the [f]ederal
law’’); id., 11,936, remarks of Senator Hubert H. Humphrey (‘‘one of the
improvements I see in the amendment . . . is the inclusion . . . of provi-
sion for the responsibility of local and [s]tate authorities to seek compliance
with the law . . . through local enforcement’’); id., 12,580, remarks of Sena-
tor Humphrey (‘‘we have taken [T]itle VII and rewritten it, believing that
the prime responsibility for action and enforcement is at the [s]tate and
local level’’); id., 12,721, remarks of Senator Humphrey (‘‘[i]n effect, these
[work sharing] agreements would give jurisdiction over complaints to [state
fair employment practices] agencies [when]ever the practice complained of
also violates [s]tate or local law’’).
15
The relationship between the EEOC and the state agencies with which
it partners and to which it often defers is embodied in numerous provisions
of Title VII. See, e.g., 42 U.S.C. § 2000e-4 (g) (1) (2018) (‘‘[t]he Commission
shall have power . . . to cooperate with and, with their consent, utilize
regional, State, local, and other agencies, both public and private, and individ-
uals’’); 42 U.S.C. § 2000e-5 (b) (2018) (‘‘[i]n determining whether reasonable
cause exists, the Commission shall accord substantial weight to final findings
and orders made by State or local authorities in proceedings commenced
under State or local law pursuant to the requirements of subsections (c)
and (d)’’); 42 U.S.C. § 2000e-5 (c) (2018) (‘‘[i]n the case of an alleged unlawful
employment practice occurring in a State, or political subdivision of a State,
which has a State or local law prohibiting the unlawful employment practice
alleged and establishing or authorizing a State or local authority to grant
or seek relief from such practice or to institute criminal proceedings with
respect thereto upon receiving notice thereof, no charge may be filed under
subsection (a) by the person aggrieved before the expiration of sixty days
after proceedings have been commenced under the State or local law, unless
such proceedings have been earlier terminated, provided that such sixty-
day period shall be extended to one hundred and twenty days during the
first year after the effective date of such State or local law’’); 42 U.S.C.
§ 2000e-5 (d) (2018) (‘‘[i]n the case of any charge filed by a member of the
Commission alleging an unlawful employment practice occurring in a State
or political subdivision of a State which has a State or local law prohibiting
the practice alleged and establishing or authorizing a State or local authority
to grant or seek relief from such practice or to institute criminal proceedings
with respect thereto upon receiving notice thereof, the Commission shall,
before taking any action with respect to such charge, notify the appropriate
State or local officials and, upon request, afford them a reasonable time,
but not less than sixty days (provided that such sixty-day period shall be
extended to one hundred and twenty days during the first year after the
effective day of such State or local law), unless a shorter period is requested,
to act under such State or local law to remedy the practice alleged’’); 42
U.S.C. § 2000e-8 (b) (2018) (‘‘The Commission may cooperate with State
and local agencies charged with the administration of State fair employment
practices laws and, with the consent of such agencies, may, for the purpose
of carrying out its functions and duties under this subchapter and within
the limitation of funds appropriated specifically for such purpose, engage
in and contribute to the cost of research and other projects of mutual interest
undertaken by such agencies, and utilize the services of such agencies and
their employees, and, notwithstanding any other provision of law, pay by
advance or reimbursement such agencies and their employees for services
rendered to assist the Commission in carrying out this subchapter. In further-
ance of such cooperative efforts, the Commission may enter into written
agreements with such State or local agencies and such agreements may
include provisions under which the Commission shall refrain from pro-
cessing a charge in any cases or class of cases specified in such agreements
or under which the Commission shall relieve any person or class of persons
in such State or locality from requirements imposed under this section.’’);
42 U.S.C. § 2000e-8 (d) (2018) (‘‘[i]n prescribing requirements pursuant to
subsection (c) of this section, the Commission shall consult with other
interested State and Federal agencies and shall endeavor to coordinate its
requirements with those adopted by such agencies’’); see also 29 C.F.R.
§ 1601.13 (2020).
16
We note that there is limited, but conflicting, authority on the question
of whether state agencies may adjudicate a Title VII claim purely as a matter
of federal law. Compare Patzer v. Board of Regents, 763 F.2d 851, 857
and n.7 (7th Cir. 1985) (holding that state agency lacks authority), with
Employment Security Commission v. Peace, 128 N.C. App. 1, 7–9, 493 S.E.2d
466 (1997) (holding that North Carolina State Personnel Commission had
authority to adjudicate merits of Title VII claim), aff’d in part and dismissed
in part, 349 N.C. 315, 507 S.E.2d 272 (1998). As we emphasized, that question
differs from the one we answer in the present case.
17
We also note that, since 2006, the commission has adjudicated numerous
claims of employment discrimination, jointly docketed with the EEOC, in
which the commission has purported to find violations of Title VII and to
award emotional distress damages for those violations under the auspices
of §§ 46a-58 (a) and 46a-86 (c). See, e.g., Commission on Human Rights &
Opportunities ex rel. Taranto v. Big Enough, Inc., Docket No. 0420316,
2006 WL 4753475, *11 (C.H.R.O. June 30, 2006). Various oversight procedures
governing the relationship between the EEOC and the commission, particu-
larly with respect to jointly docketed cases such as these, would have
provided opportunities for the EEOC to become aware of the commission’s
long-standing practice of making determinations whether a violation of Title
VII occurred and, in some cases, awarding damages for such violations
under state law. The EEOC has certified the commission as a designated
fair employment practices agency; 29 C.F.R. § 1601.80 (2020); which permits
the EEOC to accept the commission’s findings and resolutions of many
jointly filed cases without conducting an individual, case-by-case, substantial
weight review. 29 C.F.R. § 1601.75 (a) (2020). But see 29 C.F.R. §§1601.76and 1601.77 (2020) (providing exceptions when review is undertaken). After
certification, the EEOC continues to monitor and evaluate the work of
designated fair employment practices agencies. 29 C.F.R. § 1601.78 (2020). In
addition, federal regulations require that, for cases processed under contract
with the EEOC, the EEOC ‘‘shall review charges closed by the certified [fair
employment practices] agency for lack of jurisdiction . . . .’’ 29 C.F.R.
§ 1601.77 (2020). The EEOC may revoke the certification of an agency that,
following such an evaluation, is deemed to no longer serve the interest of
effective enforcement of Title VII. 29 C.F.R. § 1601.79 (2020). In addition,
the work sharing agreement provides for the regular exchange of case
information between the two agencies. See United States Equal Employment
Opportunity Commission, FY 2012 EEOC/FEPA Model Worksharing Agree-
ment: Worksharing Agreement Between State of Connecticut Commission
on Human Rights and Opportunities and the U.S. Equal Employment Oppor-
tunity Commission New York District Office for Fiscal Year 2012, available
at https://www.eeoc.gov/fy-2012-eeocfepa-model-worksharing-agreement-
worksharing-agreement-between-state-connecticut (last visited April 20,
2022). Accordingly, although we cannot say with certainty that the EEOC
has in fact reviewed either the commission’s decision in the present case
or any other particular cases in which the commission has awarded damages
under §§ 46a-58 (a) and 46a-86 (c) after finding a Title VII violation, we take
the EEOC’s ongoing oversight role as an indication that the commission’s
practices in this regard are considered proper.
18
We find no merit in the branch’s argument that, if we determine that
§ 46a-58 (a) is ambiguous, then, rather than consult extrinsic sources of
information, we must simply interpret it in the manner that exposes the
branch to the least potential liability because waivers of the state’s sovereign
immunity must be narrowly construed. As we explain more fully in part II
of this opinion, we agree that statutes by which the state purportedly waives
its sovereign immunity must be narrowly construed. But § 46a-58 (a) is not
a waiver of sovereign immunity; it is a general prohibition against discrimina-
tion by public and private parties alike. The branch has not offered and we
are not aware of any authority for the proposition that, when a statute of
general applicability is found to be ambiguous, it must be construed narrowly
so that, when the state happens to be the defendant, the state’s liability
will be limited. Indeed, the United States Supreme Court repeatedly has
instructed otherwise. See, e.g., Gomez-Perez v. Potter, 553 U.S. 474, 491,
128 S. Ct. 1931, 170 L. Ed. 2d 887 (2008) (‘‘[when] one statutory provision
unequivocally provides for a waiver of sovereign immunity to enforce a
separate statutory provision, that latter provision need not . . . be con-
strued in the manner appropriate to waivers of sovereign immunity’’ (internal
quotation marks omitted)); see also Richlin Security Service Co. v. Chertoff,
553 U.S. 571, 589, 128 S. Ct. 2007, 170 L. Ed. 2d 960 (2008) (‘‘The sovereign
immunity canon is just that—a canon of construction. It is a tool for interpre-
ting the law, and we have never held that it displaces the other traditional
tools of statutory construction.’’).
19
With respect to the question of whether the various statutes under the
commission’s jurisdiction collectively operate so as to preclude the award
of damages for violations of federal employment discrimination law, we
further note that the commission has been deciding Title VII claims in
partnership with the EEOC under § 46a-58 (a), and awarding damages for
violations under § 46a-86 (c), for many years. See, e.g., Shelton v. Collins,
supra, 2014 WL 1032765, *3 n.5, *4 n.8 (citing Connecticut cases). The
appendix to the commission’s trial brief contains more than 70 decisions,
dating back to 1999, in which the commission resolved Title VII claims
under the auspices of § 46a-58 (a). The commission is not alone in this
regard. See Employment Security Commission v. Peace, 128 N.C. App. 1,
7–9, 493 S.E.2d 466 (1997) (North Carolina State Personnel Commission
adjudicated Title VII claim), aff’d in part and dismissed in part, 349 N.C.
315, 507 S.E.2d 272 (1998); see also Carey v. New York Gaslight Club, Inc.,
supra, 598 F.2d 1257–58 (New York State Division of Human Rights resolved
‘‘Title VII claim’’ in contested hearing ‘‘pursuant to Title VII’’). The commis-
sion also is not the only state agency to be authorized under Connecticut
law to identify violations of federal statutes and to impose remedies for those
violations under state law. See, e.g., General Statutes § 36a-606a (money
laundering); General Statutes § 36a-719f (mortgage loan servicing); General
Statutes § 36a-812 (debt collection); General Statutes § 36a-853 (student
loan servicing).
As early as 2006, following the decision of this court in Commission on
Human Rights & Opportunities v. Board of Education, supra, 270 Conn. 665,
the commission formally took the position that a ‘‘complainant’s inclusion
of . . . § 46a-58 (a) in her complaint affidavit allows [the commission] to
convert her federal claims into claims under Connecticut’s antidiscrimina-
tion laws, and to award damages for emotional distress pursuant to . . .
§ 46a-86 (c).’’ Commission on Human Rights & Opportunities ex rel. DiMi-
cco v. Neil Roberts, Inc., No. 0420438, 2006 WL 4753465, *4 (C.H.R.O. Septem-
ber 12, 2006). As we discussed, reasonable, long-standing, formally
articulated interpretations of a statute by an administrative agency are enti-
tled to deference. Although the branch contends that the commission’s
interpretation is not time-tested and, thus, not entitled to deference, the
branch fails to explain why a string of decisions going back more than
fifteen years does not satisfy that standard.
20
We note that Congress subsequently amended Title VII to provide
expressly for prejudgment interest awards against the United States. See
Civil Rights Act of 1991, Pub. L. No. 102-166, § 114, 105 Stat. 1071. Of course,
that option is always available to our state legislature with respect to interest
awards against the state.
21
An example of a statute that contains an express waiver of sovereign
immunity with respect to interest is General Statutes § 4-61 (a) which, in
the context of discussing interest awards in breach of contract actions
against the state in connection with highway and public works contracts,
provides in relevant part that ‘‘[a]ll legal defenses except governmental
immunity shall be reserved to the state. . . .’’
22
The federal courts are in disagreement as to whether the express con-
gressional waiver of sovereign immunity under a different statute, the Back
Pay Act; 5 U.S.C. § 5596 (2018); applies to claims brought under Title VII.
Compare, e.g., Woolf v. Bowles, supra, 57 F.3d 410 (Back Pay Act waives
government’s sovereign immunity from interest awards in Title VII cases),
with Arneson v. Callahan, supra, 128 F.3d 1246 (Back Pay Act does not
govern Title VII).
23
The cases from other jurisdictions that the commission cites are likewise
unavailing, insofar as prejudgment and postjudgment interest awards and,
thus, the no-interest rule, were not at issue; see, e.g., Gares v. Willingboro,
90 F.3d 720 (3d Cir. 1996); Paterson v. State, 128 Idaho 494, 915 P.2d 724(1996); Bain v. Springfield, 424 Mass. 758, 678 N.E.2d 155 (1997); or insofar
as the issue of sovereign immunity was not before the court. See, e.g., Clarke
v. Frank, 960 F.2d 1146 (2d Cir. 1992).
24
In addition to the substantive challenges discussed hereinafter, the com-
mission raises other challenges to the trial court’s decision to vacate the
emotional distress damages award, such as that the branch’s claim was
inadequately briefed before the trial court and should have been deemed
abandoned and that the information sought by the branch was privileged.
We have reviewed those claims and find them unavailing.
25
We note that the referee relied on a recognized distinction in carving
out a discrete subset of garden-variety emotional distress that can be proven
solely on the basis of the complainant’s own and other lay testimony, without
the need for expert medical evidence. In Patino v. Birken Mfg. Co., 304 Conn.
679, 41 A.3d 1013 (2012), we recognized that such claims are cognizable
under Connecticut law. See id., 707–708. Although no one involved in this
litigation has offered a precise definition of the phrase ‘‘garden-variety emo-
tional distress,’’ the term appears to have a commonly understood meaning,
and, on appeal, the parties have not challenged the referee’s use of the term.
For purposes of this case, we will use the phrase as the referee appeared
to use it, to describe emotional distress that (1) is testified to only by the
complainant and other lay witnesses, (2) involves the sorts of everyday
emotional and physical reactions to trauma that a jury reasonably could be
expected to assess without the assistance of expert testimony, and (3) does
not involve a claim by the complainant that the emotional distress required
professional medical/psychological diagnosis, treatment, or medication.
26
In some instances, but not others, the branch characterized the referee’s
order as precluding not only medical testimony but also any testimony by
the complainant’s husband as to her emotional state. Our review of the
record did not disclose any independent verification of this contention, and
the referee did, in fact, allow the complainant’s husband to testify at trial
regarding her emotional distress.
27
The redacted information does not appear to be relevant to the complain-
ant’s claims, and we perceive nothing in the case summary that would serve
to undermine the complainant’s claim that she suffered emotional distress
as a result of Marco’s conduct and the branch’s failure to adequately respond
to the harassment.
28
In late 2014, the complainant belatedly provided the branch a release
to obtain Coyle’s full treatment notes, and, in early 2015, she gave the branch
what appeared to be Coyle’s original notes. She represented that Coyle had
refused her request to supply the notes for ‘‘ethical’’ reasons and, therefore,
that she had been forced to obtain them via subpoena. The parties filed
additional motions seeking the preclusion or inclusion of the records.
29
Further clouding the issue is the fact that the commission took an
arguably different view of the referee’s order and her subsequent actions.
Specifically, in its prehearing briefing, the commission seemed to acknowl-
edge that the complainant had violated a direct discovery order and, as a
result, had been prohibited from presenting medical evidence.
30
The complainant’s counsel acknowledged that the complainant had not
produced her complete medical records. For example, she never produced
Gurn’s treatment records.
31
The complainant also testified in several instances regarding her need
for psychotherapy as a result of the alleged abuse: ‘‘I had already called the
[employee assistance program]. . . . And that’s when I . . . got my own
therapist. . . . I went to a counselor. . . . Gurn. I went to see her and was
going to her.’’ She continued: ‘‘At that time, I was still very hurt and very
confused and even blocked. That’s why I went to therapy, to try to unblock
my memory to find out who was there.’’ She further testified that she ‘‘was
still prior to this in a state of shock, which [she] had to go to counseling
for, two different counselors . . . .’’
32
The referee’s discussion of the serious emotional distress suffered by
the complainant focused instead on the intolerable behavior involved, the
subjective offensiveness of the abuse, the fact that the harassment took
place in public, and the fact that the complainant’s supervisors failed to
take seriously her repeated complaints.
33
By later presenting hearing testimony relating to her medical treatment,
the complainant did not comply with the evidentiary limitations that accom-
panied her choice to seek only garden-variety emotional distress damages.
See part III C of this opinion.
34
International Union, United Automobile, Aerospace & Agricultural
Implement Workers of America (UAW) v. National Labor Relations Board,
459 F.2d 1329 (D.C. Cir. 1972), is one of those rare cases and provides an
illustrative example. The two judge majority in that case held that the
National Labor Relations Board erred in not applying an adverse inference
when the defendant employer repeatedly and wilfully suppressed relevant
hiring records. See id., 1342–43. The majority emphasized that special statu-
tory requirements unique to the board warranted a departure from the
ordinary deference due to the fact finder in such cases, and also that it was
arbitrary and capricious for the board not to apply an adverse inference
when it had done so in numerous previous and virtually indistinguishable
matters. See id., 1340–41. Even then, the majority afforded the defendant
one last chance to produce the requested documents. Id., 1348. In his concur-
rence and dissent, Judge Tamm noted that the majority had failed to identify
a single decision that supported reversing an administrative agency on such
grounds. See id., 1350 (Tamm, J., concurring in part and dissenting in part).
We are not aware of any appellate court to have followed UAW or adopted
its reasoning.
35
We express no opinion as to the issues presented by the pending appeal
in Commission on Human Rights & Opportunities v. Cantillon, 340 Conn.
909, 909–10, 264 A.3d 94 (2021), such as whether a damages award of less than
$30,000 for garden-variety emotional distress is presumptively insufficient.
36
The branch should understand that the hearing in damages is de novo
and, therefore, that the size of the award on remand may be less than, the
same as, or greater than the amount of the vacated award.
37
We note that there is some question as to whether this issue is moot.
At the time of the hearing in February, 2017, the complainant testified that
she had been reassigned to Danielson. Although there was some possibility
that she would again be transferred from that courthouse, her supervisor
had represented to her that he was going to try to keep her there. Also, in
the nearly five years that have since passed, Marco has retired, and the
complainant has opted not to participate in the present appeal. It is unclear,
then, whether the injunctive relief at issue remains part of a live controversy.
Because the parties have not represented otherwise, however, we proceed
on the assumption that the issue is not moot, and we leave it to the commis-
sion to make a final determination on remand. See, e.g., Jean-Baptiste v.
District of Columbia, 958 F. Supp. 2d 37, 49 (D.D.C. 2013) (‘‘[a] request for
an injunction will be moot only whe[n] there is no reasonable expectation
that the conduct will recur, or whe[n] interim events have completely and
irrevocably eradicated the effects of the alleged violation’’ (internal quotation
marks omitted)), appeal dismissed, Docket No. 13-7124, 2014 WL 812812(D.C. Cir. January 21, 2014).
38
Marco retired as a judicial marshal in 2020.
39
General Statutes § 46a-86 (a) provides in relevant part that ‘‘[i]f, upon
all the evidence presented at the hearing . . . the presiding officer finds
that a respondent has engaged in any discriminatory practice, the presiding
officer shall make written findings of fact and file with the commission and
serve on the complainant and respondent an order requiring the respondent
to cease and desist from the discriminatory practice and to take such affirma-
tive action as is necessary to achieve the purpose of this chapter.’’
40
Specifically, the trial court stated in its memorandum of decision that
the injunction ‘‘unnecessarily and unreasonably impinges on the right of the
[branch] to assign [the complainant] to a location where she is needed,
absent, of course, any retaliatory intent.’’ (Emphasis added.) The court
offered no support for its assumption that the transfer was not retaliatory
and did not address the referee’s relevant findings to the contrary.
41
The branch misses the point when it observes that judicial marshals
are not afforded ‘‘the privilege of selecting [their] preferred work location.’’
The injunction does not give the complainant the option to select any court-
house or her preferred courthouse. The injunction requires merely that the
branch permit her to return to the specific courthouse to which the branch
itself had assigned her (evidently consistent with branch policy) for many
years prior to the act of retaliation. See Dean v. Civiletti, 670 F.2d 99,
101 and n.2 (8th Cir. 1982) (victim of discrimination would be entitled to
assignment to geographic station from which she had been wrongly excluded
but not to station of her choosing).
42
For example, § 46a-60 (8) provides in relevant part: ‘‘If an employer
takes immediate corrective action in response to an employee’s claim of
sexual harassment, such corrective action shall not modify the conditions
of employment of the employee making the claim of sexual harassment
unless such employee agrees, in writing, to any modification in the conditions
of employment. ‘Corrective action’ taken by an employer, includes, but is
not limited to, employee relocation . . . .’’ Subdivision 4 of § 46a-60 further
provides in relevant part that it shall be a discriminatory practice ‘‘[f]or any
. . . employer . . . to discharge, expel or otherwise discriminate against
any person because such person has opposed any discriminatory employ-
ment practice or because such person has filed a complaint or testified or
assisted in any proceeding [regarding an alleged discriminatory employment
practice] . . . .’’ See generally Burlington Northern & Santa Fe Railway
Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006) (construing
broadly antiretaliation provision of Title VII).