Commission on Human Rights & Opportunities v. Cantillon ( 2023 )

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COMMISSION ON HUMAN RIGHTS & OPPORTUNITIES v.
CANTILLON—DISSENT
ECKER, J., dissenting. I agree with the majority that
our decision in Patino v. Birken Mfg. Co., 304 Conn. 679,
708, 41 A.3d 1013 (2012), did not establish a presumptive
benchmark range for damages awards in emotional dis-
tress cases before the Commission on Human Rights
and Opportunities (CHRO). ‘‘For more than fifty years,’’
the majority explains, ‘‘this court has rejected the idea
that any specific yardstick can be applied to cabin the
discretion of the trier of fact when calculating a fair
and appropriate award of noneconomic damages.’’ Part
I of the majority opinion. My problem with the majori-
ty’s holding is that, in the very next breath, it approves
and endorses the use by the CHRO’s human rights ref-
eree (referee) of a valuation method that employs just
such a yardstick to constrain the award of noneconomic
damages in the present case. Specifically, the referee
used a handful of old CHRO awards to arrive at a defini-
tive range of emotional distress damages with a ‘‘high
water mark’’ of $50,000, and a low end of $6000. In
arriving at this range, the referee refused to consider
in her comparative valuation a vast reservoir of awards
made by courts, juries, and other administrative agen-
cies charged with the responsibility of valuing the emo-
tional distress suffered by complainants, like the
complainant in this case, Kelly Howard, who have
endured illegal racial discrimination. The referee’s cho-
sen valuation methodology adopts a self-imposed, artifi-
cial, and arbitrary measure of damages for which I can
find no judicial, legislative, or regulatory authority. Rever-
sal is required so that a damages award can be calcu-
lated using a proper valuation methodology.
The referee’s use of an unjustifiably restrictive valua-
tion methodology is no accident. My research reveals
that some or all of the current CHRO referees evidently
have reached an informal consensus, with no official
guidance, authorization, or approval, that the emotional
distress damages awarded by courts, juries, and other
administrative agencies in comparable cases are too
high. Their chosen valuation methodology reflects an
unofficial but deliberate policy choice to keep CHRO
awards low. In implementing this policy, the referees
have created a self-contained and self-replicating uni-
verse of comparative values that categorically excludes
consideration of any awards other than those produced
in-house at the CHRO. This practice should end, and
this court should end it, because the referees have no
authority to adopt a presumptive valuation range that,
whether by design or in effect, produces emotional dis-
tress damages awards far lower than permitted by law.
I likewise find unjustifiable the referee’s failure to
account for inflation when relying on past CHRO awards,
some decades old, to determine the value of the complain-
ant’s emotional distress. The referee awarded $15,000
to the complainant in the present case based on the
referee’s conclusion that the closest comparable awards
were a CHRO award of $20,000 in 2000, an award of
$25,000 in 2006, and—curiously—an award of no dam-
ages in 2008 resulting from a finding that there was
no violation of Connecticut’s discriminatory housing
practice statute, General Statutes § 46a-64c.1 See foot-
note 11 of this opinion. The referee also took into con-
sideration awards to a husband and wife of $12,000 and
$10,000 in 2008, and an award of $6000 in 2000. See id.
The referee did not adjust any of these comparative
values for inflation, despite the obvious and inarguable
fact that the value of a dollar in 2000, 2006, and 2008
was significantly less than the value of a dollar in 2017,
which is when the damages originally were awarded to
the complainant in this case. For example, an award
of $20,000 in 2000, adjusted for inflation, was worth
approximately $29,000 in 2017.2 The failure to account
for inflation caused the referee to substantially under-
value the damages award in this case.
I
It is important to properly frame the precise nature
of the errors committed by the referee in order to ascer-
tain the correct standard of appellate review. To be
clear, I do not quarrel with the referee’s factual findings.
Although I probably would have arrived at materially
different findings than the referee did regarding the
character and degree of the emotional distress suffered
by the complainant, it is not the function of this court
‘‘to retry the case or to substitute its judgment for that of
the administrative agency.’’ (Internal quotation marks
omitted.) Connecticut Judicial Branch v. Gilbert, 343
Conn. 90, 135, 272 A.3d 603 (2022). Although the major-
ity and I seem to agree that the size of the damages
award reflects a distinctly parsimonious sensibility, we
are required to defer to the referee’s wide discretion
in that regard. See, e.g., Stratford Police Dept. v. Board
of Firearms Permit Examiners, 343 Conn. 62, 81, 272
A.3d 639 (2022) (‘‘[a]n agency’s factual and discretion-
ary determinations are to be accorded considerable
weight by the courts’’ (internal quotation marks omit-
ted)); cf. Margolin v. Kleban & Samor, P.C., 275 Conn.
765, 783, 882 A.2d 653 (2005) (‘‘[t]he amount of a dam-
age[s] award is a matter peculiarly within the province
of the trier of fact’’ (internal quotation marks omitted)).
The errors at issue, however, are not factual. Nor
do they involve the nature or extent of the emotional
distress suffered by the complainant as a result of the
discriminatory conduct of the named defendant, Rich-
ard Cantillon. The errors are methodological. After the
referee assessed the severity of the complainant’s emo-
tional distress using the framework set forth in Com-
mission on Human Rights & Opportunities ex rel.
Harrison v. Greco, Docket No. 7930433 (C.H.R.O. June
3, 1985) (Harrison),3 the referee then applied a particu-
lar methodology to value that emotional distress, i.e.,
to convert the harm into dollars. I will review that valua-
tion methodology in more detail in parts II and III of
this opinion, but the critical point for present purposes
is that the referee arrived at a valuation on the basis
of a range of awards for emotional distress damages
established by prior CHRO awards, to the exclusion of
other relevant comparative data, and without taking
into account the rate of inflation.4
The referee’s selection of a valuation methodology
presents a legal question on appeal because it raises
the issue of whether a proper measure of damages has
been employed to calculate the complainant’s damages.5
It is well established that, ‘‘[a]lthough the amount of
recoverable damages is a question of fact, the measure
of damages [on] which the factual computation is based
is a question of law.’’ (Internal quotation marks omit-
ted.) Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186,
196 (2d Cir. 2003); see Vermont Microsystems, Inc., v.
Autodesk, Inc., 138 F.3d 449, 452 (2d Cir. 1998) (‘‘[a]lthough
[the] calculation of the amount of damages is a factual
determination, the formula used in making that calcula-
tion is a question of law’’); Carrillo v. Goldberg, 141 Conn.
App. 299, 307, 61 A.3d 1164 (2013) (‘‘[w]e accord plenary
review to the [trial] court’s legal basis for its damages
award’’ (internal quotation marks omitted)).6
The standard of review applied to legal determina-
tions made by an administrative agency depends on a
number of factors. ‘‘Conclusions of law reached by the
administrative agency must stand if the court deter-
mines that they resulted from a correct application of
the law to the facts found and could reasonably and
logically follow from such facts. . . . Cases that pres-
ent pure questions of law, however, invoke a broader
standard of review than is . . . involved in deciding
whether, in light of the evidence, the agency has acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion. . . . Furthermore, when a state agency’s
determination of a question of law has not previously
been subject to judicial scrutiny . . . the agency is not
entitled to special deference.’’ (Internal quotation marks
omitted.) Dept. of Public Safety v. Freedom of Informa-
tion Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010).
The appropriate valuation methodology for emo-
tional distress damages in discrimination cases has not
previously been subjected to judicial scrutiny, and,
therefore, I consider that narrow issue to present a pure
question of law subject to plenary review.7 See, e.g.,
Commissioner of Public Safety v. Freedom of Informa-
tion Commission, 312 Conn. 513, 526, 93 A.3d 1142(2014) (for pure questions of law, plenary review is
applicable unless agency’s interpretation has been sub-
jected to judicial scrutiny or is time-tested and reason-
able); Okeke v. Commissioner of Public Health, 304
Conn. 317, 324, 39 A.3d 1095 (2012) (Under the Uniform
Administrative Procedure Act, General Statutes § 4-166
et seq., ‘‘[a] reviewing court . . . is not required to
defer to an improper application of the law. . . . It is
the function of the courts to expound and apply govern-
ing principles of law.’’ (Internal quotation marks omit-
ted.)). Accordingly, we must resolve the legal question
of whether the referee adopted the proper valuation
methodology by limiting herself to a range of compara-
tive cases that included only prior CHRO awards (and
one jury award on remand) and excluded all other dam-
ages awarded for emotional distress caused by racial
discrimination by courts, juries, and other administra-
tive agencies, as well as the rate of inflation.
II
CHRO referees evidently have been employing a valu-
ation methodology for discrimination claims that arrives
at a dollar value for emotional distress solely on the
basis of a relatively small number of prior CHRO cases
in which such damages were awarded. Little to no con-
sideration is given to the robust comparative data avail-
able from numerous other sources of valuation in the
juridical realm that assigns dollar amounts to this spe-
cific form of harm, namely, damages awards made by
courts, juries, and other administrative agencies. In my
view, the referee erred by adopting a methodology that
disregards all valuation data except awards made by
the CHRO itself.
It is well established that a referee charged with reme-
dying a person’s deprivation of civil rights protected by
state and federal fair housing laws may award damages
for emotional distress under General Statutes § 46a-86.
See, e.g., Commission on Human Rights & Opportuni-
ties v. Board of Education, 270 Conn. 665, 705, 855
A.2d 212 (2004) (emotional distress damages can be
awarded under § 46a-86 (c)); Commission on Human
Rights & Opportunities ex rel. Cortes v. Valentin, 213
Conn. App. 635, 651–52, 278 A.3d 607 (upholding emo-
tional distress damages award under § 46a-64c), cert.
denied, 345 Conn. 962, 285 A.3d 389 (2022). It is equally
well established that the purpose of remedial awards
under our antidiscrimination statutes is to make victims
of discrimination ‘‘whole’’ and to deter ‘‘like discrimina-
tion in the future . . . .’’ (Internal quotation marks
omitted.) Connecticut Judicial Branch v. Gilbert,
supra, 343 Conn. 141; accord Commission on Human
Rights & Opportunities v. Board of Education, supra,
694; see General Statutes § 46a-86 (c) (‘‘upon a finding
of a discriminatory practice prohibited by [among other
provisions, General Statutes §§ 46a-58 and 46a-64c], the
presiding officer shall determine the damage suffered
by the complainant . . . as a result of such discrimina-
tory practice’’ (emphasis added)); State v. Commission
on Human Rights & Opportunities, 211 Conn. 464, 478,
559 A.2d 1120 (1989) (‘‘hearing officer[s] [have] not
merely the power but the duty to render a decree which
will, so far as possible, eliminate the discriminatory
effects of the past as well as bar like discrimination in
the future’’ (emphasis added; internal quotation
marks omitted)).
In recent years, it appears that CHRO referees have
been relying almost exclusively on awards from their
own agency when awarding damages for emotional dis-
tress, disregarding decisions that assess such damages
from courts, juries, and other administrative agencies,
such as the United States Department of Housing and
Urban Development (HUD). See, e.g., Commission on
Human Rights & Opportunities ex rel. Lauray v. City
Hall Café, Docket No. 1530333, 2016 WL 1719121, *8
(C.H.R.O. March 31, 2016) (awarding $8000 for racial
discrimination in violation of Connecticut Fair Employ-
ment Practices Act after reviewing only prior CHRO
cases); Commission on Human Rights & Opportuni-
ties ex rel. Jackson v. Pixbey, Docket Nos. 0950094 and
0950095, 2010 WL 5517184, *7 (C.H.R.O. May 25, 2010)
(awarding $40,000 in neighbor-on-neighbor, hostile
housing environment case after reviewing only two
CHRO cases); Commission on Human Rights &
Opportunities ex rel. Brown v. Jackson, Docket Nos.
0750001 and 075002, 2008 WL 5122193, *24 (C.H.R.O.
November 17, 2008) (‘‘in recognition of the various
awards order[ed] by [the CHRO],’’ awarding $12,000 to
husband and $10,000 to wife as damages for hostile
housing environment); Commission on Human Rights &
Opportunities ex rel. Scott v. Jemison, Docket No.
9950020, 2000 WL 35575662, *1, *6, *9 (C.H.R.O. March
20, 2000) (awarding $6000 for emotional distress caused
by housing discrimination after reviewing range of awards
articulated in two prior CHRO decisions); Commission
on Human Rights & Opportunities ex rel. Little v.
Clark, Docket No. 9810387, 2000 WL 35575648, *13, *16
(C.H.R.O. August 2, 2000) (awarding $20,000 for emo-
tional distress and noting that ‘‘[the requested] award
of $75,000 [was] far out of line with the majority of awards
ordered by [the CHRO]’’).
The referee in the present case followed this model.
As the referee made clear in her memorandum of deci-
sion, she employed a valuation methodology limited
solely to other CHRO comparators (and, on remand, one
jury case), and deliberately excluded federal awards
of damages for emotional distress. This unauthorized,
arbitrary, and self-imposed limitation is not founded on
law, logic, or principle, but on an unofficial, subjective
assessment that the federal awards were too high.
Indeed, to ensure that the valuation remained entirely
uninfluenced by non-CHRO comparators, the referee
declined to consider a few early CHRO cases that valued
emotional harm on the basis of federal decisions, explain-
ing that these awards were unreliable outliers because
‘‘[f]ederal awards for emotional distress in cases of
housing discrimination have consistently been much
higher than awards from [the CHRO].’’ (Internal quota-
tion marks omitted.), quoting Commission on Human
Rights & Opportunities ex rel. Hartling v. Carfi,
Docket No. 0550116, 2006 WL 4753467, *8 n.6 (C.H.R.O.
October 26, 2006) (critiquing Commission on Human
Rights & Opportunities ex rel. Planas v. Bierko, Docket
No. 9420599 (C.H.R.O. February 8, 1995), and its reli-
ance on federal decisions, including awards from
courts, juries, and other administrative agencies, such
as HUD, in calculating award of $75,000). The referee,
quoting Commission on Human Rights & Opportuni-
ties ex rel. Lawton v. Jansen, Docket No. 0550135, 2007
WL 4623071, *8 n.10 (C.H.R.O. October 18, 2007), noted
that Planas is ‘‘ ‘at the far end of the extreme of awards’ ’’
due, in part, to its reliance on federal cases. The referee
therefore took the $75,000 award in Planas out of the
list of comparator cases and established, as a ‘‘high
water mark,’’ an award of $50,000 on the basis of Com-
mission on Human Rights & Opportunities ex rel.
Maybin v. Berthiaume, Docket No. 9950026 (C.H.R.O.
March 29, 1999) (Maybin).8
Federal awards for emotional distress caused by
housing discrimination were not the only comparators
excluded from the referee’s valuation methodology. The
referee also categorically disregarded jury awards for
emotional distress caused by racial discrimination. It
was not until the trial court ordered the referee on
remand to consider Patino v. Birken Mfg. Co., supra,
304 Conn. 679, that the referee reluctantly included
Patino (and only Patino) in her valuation as the single
non-CHRO damages award comparator.
The referee gave no legitimate reason to explain why
she did not consider jury verdicts as part of her valua-
tion of emotional distress damages. The referee stated
that a comparison of values using jury verdicts is not
possible because jury verdicts are unaccompanied by
any explanation from the jury as to why it arrived at
the amount of the award.9 This assertion misses the
point. The jury awards warranting consideration as
comparators are those awards—and there are many of
them—that are subject to judicial review, typically either
for inadequacy or excessiveness. As in Patino, that review
process results in a published judicial decision con-
taining sufficient factual and contextual information
to allow a judge—and a CHRO referee—to assess the
evidence bearing on the jury’s valuation and to use the
data as a point of comparison, precisely as the referee
in this case used the CHRO’s own awards (and the
Patino case) as comparators.10 The referee’s legal con-
clusion—that jury awards cannot be used as compara-
tors because the jury does not explain its verdict—
is erroneous.
The refusal to consider emotional distress damages
awarded by courts, juries, and other administrative
agencies as comparators led the referee in the present
case to award the complainant $15,000, an award the
referee fashioned on the basis of a data set consisting
of nothing more than a few relatively dated CHRO deci-
sions11 establishing a presumptive range with a low end
of $6000 and a high end of $50,000. The referee con-
cluded that $15,000 was an appropriate award because
it fell ‘‘well within the realm of compensatory awards
ordered in similar cases decided by [the CHRO].’’ By
plotting the complainant’s emotional harm within a
range of values established by a handful of prior CHRO
awards, the referee operated within an artificially and
arbitrarily limited framework that required her award
to fall within a presumptive range far narrower than
that permitted by law. This constraint on the amount
of damages awarded to the complainant is an error of
law that necessitates reversal.
A number of inexplicable incongruities arise as a
result of this court’s decision today. First, the majority
endorses the referee’s use of an unauthorized, self-
imposed constraint on the award of emotional distress
damages by employing a presumptive range of damages
with a low end of $6000 and a high end of $50,000,
while rejecting the higher presumptive range taken from
Patino because it constrains the referee’s discretion.12
Of even more concern, the range of damages used in
the present case is derived solely from prior CHRO
awards, whereas the range of damages described in
Patino is based on federal jury verdicts. See Patino v.
Birken Mfg. Co., supra, 304 Conn. 708. Jury verdicts
are a more reliable indicator of the value to ascribe to
emotional distress damages because each verdict is
arrived at independently and, thus, provides a separate
and distinct data point for comparison. By contrast, the
range of awards for comparative purposes under the
referee’s methodology is strictly limited to a small num-
ber of awards previously made by the CHRO, and no
one else. Moreover, a range established by prior CHRO
decisions exists as a closed system—there is no fresh
data to update or modify the referee’s pool of compara-
tive data because any ‘‘new’’ agency awards are them-
selves derived from prior valuations, and the system is
therefore self-replicating. The valuation range derived
from jury awards, by contrast, is subject to constant
revision as the data set of comparators expands because
these awards are made without consideration of other
jury awards.13
Second, this is not a context in which the administra-
tive agency can claim that deference is due because
the agency possesses particular, technical expertise in
the subject matter; there is no reason to think that
CHRO referees are any better than juries or federal
agencies at valuing emotional distress caused by racial
discrimination. Given the inherent difficulty of assessing
emotional distress damages, it seems obvious to me
that the more valuation data utilized, the more accurate,
just, and fair the assessment of damages will be. As the
majority acknowledges, damages for intangible harms,
such as pain, suffering, and emotional distress, ‘‘lie in
an extremely uncertain area . . . in which it is quite
impossible to assign values with any precision . . . .
[N]o formulaic process of review [for excessiveness or
inadequacy] applies . . . .’’ (Internal quotation marks
omitted.) Part I of the majority opinion; see Commis-
sion on Human Rights & Opportunities ex rel. Arnold
v. Forvil, 302 Conn. 263, 287, 25 A.3d 632 (2011) (recog-
nizing that ‘‘[the] limits of fair and reasonable compen-
sation in [a] particular case’’ are ‘‘necessarily uncertain’’
(internal quotation marks omitted)); see also Stampf
v. Long Island Railroad Co., 761 F.3d 192, 205 (2d Cir.
2014) (‘‘Awards for mental and emotional distress are
inherently speculative. There is no objective way to
assign any particular dollar value to distress.’’). The
availability of data about what other decision makers
have done under comparable circumstances provides
a very useful reference point for those charged with
the responsibility of navigating this uncertain land-
scape. One would think that CHRO referees assigned
with the responsibility of awarding money damages for
emotional distress would see a great benefit in con-
sulting all relevant data—including damages awarded
by courts, juries, and other administrative agencies in
comparable cases—before undertaking the humbling
task of telling the victim of discrimination the value of
his or her suffering in the eyes of the law.
Such guidance is particularly important when a deci-
sion maker is trying to fix a monetary value to the unique
kind of emotional harm caused by racial discrimination.
Many other forms of emotional distress are assessed
on a strictly individual basis because the effects tend
to be idiosyncratic to the individual victim. Group based
racial discrimination is different. The wrongful act of
discrimination itself, as well as the harm caused to the
victim, inherently contains a shared, collective dimen-
sion, as one would expect of illegal conduct that achieves
its goal through the weaponization of the deeply embed-
ded history of racism in our country. The harm that
each individual suffers will be different, of course, and
must be assessed on an individual basis, but we cannot
ignore the reality that racial discrimination has very
powerful social and cultural dimensions that necessar-
ily impact the nature and extent of the resulting psychic
harm. There is substantial evidence, for example, that
racial discrimination in America has such a deep, perva-
sive, and persistent place in our history that the harm
it causes is especially profound.14
Given the unique nature of the harm caused by racial
discrimination, and in light of the fact that the valuation
of emotional distress is not a matter of science, there
is particular benefit in consulting jury awards for com-
parative purposes. The jury system has its flaws, but
there are certain contexts in which jurors have an espe-
cially important role in our system of justice as repre-
sentatives of the conscience of the community. See
Carter v. Jury Commission of Greene County, 396 U.S.
320, 330, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970) (‘‘the very
idea of a jury . . . [is of] a body truly representative
of the community’’ (internal quotation marks omitted));
United States v. Gilliam, 994 F.2d 97, 101 (2d Cir.)
(jurors are ‘‘representatives of the people’’), cert. denied,
510 U.S. 927, 114 S. Ct. 335, 126 L. Ed. 2d 280 (1993);
United States ex rel. McCann v. Adams, 126 F.2d 774,
776 (2d Cir. 1942) (jury ‘‘introduces a slack into the
enforcement of law, tempering its rigor by the molli-
fying influence of current ethical conventions’’), rev’d
on other grounds, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed.
268 (1942); McKirdy v. Cascio, 142 Conn. 80, 84, 111
A.2d 555 (1955) (amount of award in wrongful death actions
was within province of jury given inherently speculative
nature of harm). Our juries’ assessment of the harm
caused by racial discrimination strikes me as one such
situation, and such awards should not be excluded from
a CHRO referee’s valuation unless the law requires other-
wise.
Jury awards are not the only relevant data that was
categorically excluded from consideration by the CHRO
referee. Other administrative agencies, such as HUD,
are also charged with the responsibility of awarding dam-
ages for emotional distress caused by unlawful racial
discrimination. See, e.g., 42 U.S.C. § 3612 (g) (3) (2018)
(‘‘[i]f the administrative law judge finds that a respon-
dent has engaged or is about to engage in a discrimina-
tory housing practice, such administrative law judge
shall promptly issue an order for such relief as may be
appropriate, which may include actual damages suf-
fered by the aggrieved person and injunctive or other
equitable relief’’); 24 C.F.R. § 180.670 (b) (3) (i) (2022)
(‘‘If the [administrative law judge] finds that a respon-
dent has engaged, or is about to engage, in a discrimina-
tory housing practice, the [administrative law judge]
shall issue an initial decision against the respondent
and order such relief as may be appropriate. Relief
may include, but is not limited to . . . [o]rdering the
respondent to pay damages to the aggrieved person
(including damages caused by humiliation and
embarrassment).’’ (Emphasis added.)). These awards
likewise provide valuable data points for CHRO referees
to consider. Looking at this data would be especially
useful in cases like the present one, in which a victim
of discrimination has alleged harm under the federal
Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., and
our state equivalent, § 46a-64c. In fact, we consistently
have recognized that the § 46a-64c is intended to be
applied in a manner consistent with its federal equiva-
lent, with any deviation typically providing only greater
protections to citizens of this state than under the fed-
eral counterpart. See, e.g., Commission on Human
Rights & Opportunities v. Savin Rock Condominium
Assn., Inc., 273 Conn. 373, 385, 870 A.2d 457 (2005)
(§ 46a-64c was adopted with ‘‘the intent of creating a
state antidiscrimination housing statute [that is] consis-
tent with its federal counterpart’’); id., 386 n.11 (‘‘[our
courts] have interpreted our statutes even more broadly
than their federal counterparts, to provide greater pro-
tections to our citizens, especially in the area of civil
rights’’ (emphasis in original)); see also Commission on
Human Rights & Opportunities v. Housing Authority,
117 Conn. App. 30, 46, 978 A.2d 136 (2009) (‘‘[o]ne of
the purposes of [Connecticut’s fair housing] scheme
is to render it substantially equivalent to the federal
scheme, in terms of protecting the policy against hous-
ing discrimination and the rights of persons subject to
such discrimination’’), appeal dismissed, 302 Conn. 158,
24 A.3d 596 (2011). Given the intent and purpose animat-
ing § 46a-64c, I see no reason for the CHRO to ignore
these federal administrative agency awards.
Lest I be misunderstood, I do not intend to suggest
that the ultimate focus of the valuation analysis should
shift away from the particular facts of each individual
case. CHRO referees ‘‘must rely primarily on [case spe-
cific] facts relating to the severity of the discriminatory
behavior and [the] duration of the resulting emotional
damage.’’ Broome v. Biondi, 17 F. Supp. 2d 211, 225
(S.D.N.Y. 1997). A victim’s individual experience is para-
mount, and awards made in other cases are merely
instructive, not dispositive or presumptive. But CHRO
referees who utilize a comparative valuation methodol-
ogy are not properly discharging their statutory respon-
sibilities by adopting a comparative methodology that,
by design, excludes a large universe of damages awarded
by courts, juries, and other administrative agencies in
racial discrimination cases.15 Expanding the universe
of comparators that referees utilize can help to ensure
that the damages award in each individual case is fair.
The more data, the better. See Zakre v. Norddeutsche
Landesbank Girozentrale, 541 F. Supp. 2d 555, 568
(S.D.N.Y. 2008) (‘‘[r]eference to other awards in similar
cases is appropriate . . . but courts must take care not
to limit their review too narrowly’’ (citation omitted;
internal quotation marks omitted)), aff’d, 344 Fed. Appx.
628 (2d Cir. 2009); cf. Broome v. Biondi, supra, 225 (com-
paring emotional distress damages between employment
and housing discrimination claims is not improper). Of
course, if a referee finds that a case is a bad data point
because of factual differences, the referee has the dis-
cretion to reject the purported comparator.
A more robust comparative award approach than the
one employed by the referee in this case reveals that
there is a general trend within the United States Court
of Appeals for the Second Circuit to award damages
greater than the ‘‘high water mark’’ of $50,000, with
awards often sitting closer to or well into the six figures
for ‘‘garden variety’’16 emotional distress in civil rights
cases. See, e.g., Lewis v. American Sugar Refining,
Inc., 325 F. Supp. 3d 321, 364 (S.D.N.Y. 2018) (‘‘[a]wards
[for] garden-variety emotional distress or mental anguish
in the Second Circuit range from $30,000 to $125,000’’);
Olsen v. Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009)
(same); Watson v. E.S. Sutton, Inc., Docket No. 02 Civ.
2739 (KMW), 2005 WL 2170659, *16 (S.D.N.Y. September
6, 2005) (same), aff’d, 225 Fed. Appx. 3 (2006); see also
Lore v. Syracuse, 670 F.3d 127, 176–80 (2d Cir. 2012)
($150,000 award for emotional distress); Parris v. Pap-
pas, 844 F. Supp. 2d 271, 277–79 (D. Conn. 2012)
($100,000 award in compensatory damages for FHA vio-
lation).17
The majority cites to Manson v. Friedberg, Docket
No. 08 Civ. 3890 (RO), 2013 WL 2896971, *7 (S.D.N.Y.
June 13, 2013), which posits that there is a much lower
range of damages, between $5000 and $35,000, for gar-
den-variety emotional distress damages. See part I of
the majority opinion. The majority cites Manson for
the proposition that the higher range in Olsen ‘‘is hardly
a rule.’’ Id. I agree that none of these ranges should
serve as a rule, but it is important to note that the range
cited in Manson is generally viewed as outdated and
that cases that award damages within that lower range
are typically seen as outliers. See, e.g., Equal Employ-
ment Opportunity Commission v. United Health Pro-
grams of America, Inc., Docket No. 14-CV-3673 (KAM)
(JO), 2020 WL 1083771, *13 (E.D.N.Y. March 6, 2020)
(‘‘[t]he court will not cap [garden-variety] emotional
distress damages at $35,000 on the basis of Moore [v.
Houlihan’s Restaurant, Inc., Docket No. 07-CV-3129
(ENV) (RER), 2011 WL 2470023, *6 (E.D.N.Y. May 10,
2011)], an outlier among recent cases in this circuit,
and which cites to Rainone [v. Potter, 388 F. Supp. 2d
120, 122 (E.D.N.Y. 2005)] for its damages range [of $5000
to $35,000], a case that courts have acknowledged is
quite outdated and is now considered a [lower than
normal] damages range’’); Olsen v. Nassau, supra, 615
F. Supp. 2d 46 n.4 (rejecting defendants’ reliance on
Rainone for damages range of $5000 to $35,000 and
noting that ‘‘[m]ore recent cases find this range to be
significantly higher’’); see also, e.g., Watson v. E.S. Sut-
ton, Inc., supra, 2005 WL 2170659, *15 (range of $5000
to $30,000 was ‘‘at the low end of the range of damages
generally awarded under New York law’’); A. Merjian,
‘‘Nothing ‘Garden Variety’ About It: Manifest Error and
Gross Devaluation in the Assessment of Emotional Dis-
tress Damages,’’ 70 Syracuse L. Rev. 689, 699 (2020)
($5000 to $35,000 range was derived from outdated 1999
law review article, which omitted many Second Circuit
cases in which awards were well above $35,000).
I am very concerned not only that the referee in the
present case applied a presumptive range for awarding
emotional distress damages in CHRO proceedings, but
deliberately selected a range drawn exclusively from a
small group of prior CHRO awards for the purpose of
keeping CHRO awards low. This unofficial and unautho-
rized methodology now serves as a self-replicating and
self-contained precedential source for future adminis-
trative adjudications in Connecticut. Its purpose and
effect are to constrain the referees to award damages
lower than those authorized by law. Under current law,
if CHRO referees apply a comparative value methodol-
ogy, they must look beyond the narrow confines of
prior CHRO awards to consider comparable awards
made in like cases by other decision makers, including
courts, juries, and other relevant administrative agen-
cies. A larger and more representative pool of compara-
tors will ensure that awards for emotional distress are
fair, just, and reasonable.
III
The referee’s valuation methodology also was flawed
because she failed to account for inflation when she
used prior awards to arrive at a damages award in the
present case. As I discussed previously, the referee
established a range of $6000 to $50,000 for emotional
distress damages on the basis of CHRO awards made
between 1998 and 2010. Of those awards, the referee
found three decisions particularly instructive in valuing
the complainant’s harm: Commission on Human
Rights & Opportunities ex rel. Hartling v. Carfi, supra,
2006 WL 4753467, *10 (awarding $25,000 for emotional
distress), Commission on Human Rights & Opportu-
nities ex rel. Little v. Clark, supra, 2000 WL 35575648,
*16 (awarding $20,000 for emotional distress), and Com-
mission on Human Rights & Opportunities ex rel.
McIntosh-Waller v. Vahistrom, Docket No. 0750080,
2008 WL 2683291, *8–9 (C.H.R.O. June 6, 2008) (no dam-
ages were awarded because no liability was found).18
The referee’s valuation methodology was erroneous as a
matter of law because she used these historical awards
without adjusting for inflation.
It is crystal clear that an adjustment for inflation
is necessary under these circumstances.19 The Second
Circuit has emphasized the importance of considering
the passage of time and inflation when utilizing a com-
parative award approach to review jury damages awards
for excessiveness. See, e.g., Meacham v. Knolls Atomic
Power Laboratory, 381 F.3d 56, 78 (2d Cir. 2004) (‘‘the
passage of time since [those] cases were decided could
reasonably support higher verdicts’’), vacated on other
grounds sub nom. KAPL, Inc. v. Meacham, 544 U.S.
957, 125 S. Ct. 1731, 161 L. Ed. 2d 596 (2005); DiSorbo
v. Hoy, 343 F.3d 172, 185 (2d Cir. 2003) (‘‘when consider-
ing the sizes of the awards in earlier cases, we must
take into account inflation, as the reasonable range for
[the plaintiff’s] injuries today is higher than what it
would have been ten years ago’’); Luciano v. Olsten
Corp., 912 F. Supp. 663, 673 (E.D.N.Y. 1996) (‘‘an amount
that may have been excessive five to ten years ago . . .
may be reasonable today simply by virtue of inflation’’),
aff’d, 110 F.3d 210 (1997). A dollar in 1998 was worth
considerably less than a dollar in 2017. To achieve equiv-
alency, the referee in 2017 would need to award approx-
imately $1.50 for every dollar awarded nineteen years
earlier. See Bureau of Labor Statistics, United States
Department of Labor, CPI Inflation Calculator, available
at https://www.bls.gov/data/inflation_calculator.htm (last
visited June 23, 2023). The referee failed to account for
inflation when she relied on past awards to calculate the
amount of the complainant’s emotional distress damages,
and, therefore, her valuation methodology was funda-
mentally flawed.
IV
Our legislature has placed the responsibility of com-
pensating victims of racial discrimination on the CHRO.
The CHRO has a duty to ensure that victims of racial
discrimination are properly compensated in accordance
with the law. See, e.g., State v. Commission on Human
Rights & Opportunities, supra, 211 Conn. 478. In order
to fulfill this duty using a comparative valuation meth-
odology, CHRO referees may not limit their analysis of
comparative data to prior CHRO cases only. Nor may
they fail to adjust past awards to account for the rate
of inflation. Because the referee in the present case
used a flawed valuation methodology to calculate the
complainant’s award of damages, the Appellate Court’s
judgment must be reversed. Accordingly, I respect-
fully dissent.
1
It was manifestly erroneous for the referee to value the complainant’s
emotional distress using a comparator case in which no liability for unlawful
discrimination was found, and thus no compensable damages were awarded
as a matter of law. See Commission on Human Rights & Opportunities
ex rel. McIntosh-Waller v. Vahistrom, Docket No. 0750080, 2008 WL 2683291,
*8–9 (C.H.R.O. June 6, 2008).
2
Likewise, an award of $6000 in 2000 is the equivalent of approximately
$8600 in 2017 dollars. See Bureau of Labor Statistics, United States Depart-
ment of Labor, CPI Inflation Calculator, available at https://www.bls.gov/
data/inflation_calculator.htm (last visited June 23, 2023).
3
Harrison instructs CHRO referees to consider the following factors
when awarding emotional distress damages caused by discrimination: (1)
the subjective internal emotional reaction of the complainant; (2) whether
the discrimination occurred in front of other people; and (3) the degree of
offensiveness of the discrimination and its impact on the complainant. See
Commission on Human Rights & Opportunities ex rel. Harrison v. Greco,
supra, Docket No. 7930433. Like the majority, I am not entirely convinced that
the Harrison factors represent a proper framework for assessing emotional
distress damages, especially in cases like the one before us. See part II of
the majority opinion. The parties, however, have not challenged the legal
validity of the Harrison factors, and, therefore, I do not address the issue.
4
On remand, the referee also applied Patino as a comparator, but only
because she was ordered to do so by the trial court.
5
This presents an issue of law because the valuation methodology itself
was formulated on the basis of generally applicable principles regarding
the range of damages recoverable for emotional distress caused by racial
discrimination, without regard to the underlying facts of this particular case.
See Lysenko v. Sawaya, 7 P.3d 783, 787 (Utah 2000) (‘‘Questions of fact are
generally regarded as entailing the empirical, such as things, events, actions,
or conditions happening, existing, or taking place, as well as the subjective,
such as state of mind. . . . Legal questions, in contrast, are defined as those
[that] are not of fact but are essentially of rules or principles uniformly
applied to persons of similar qualities and status in similar circumstances.
. . . Thus, to determine whether the measure of damages . . . presented
the trial court with a legal question . . . [the court] must determine whether
there is a [rule] or [principle] governing the measure of damages that can
be uniformly applied to persons of similar qualities and status in similar
circumstances.’’ (Citations omitted; internal quotation marks omitted.)). The
application of that damages model to the particular facts of the case—e.g.,
whether the complainant’s emotional distress fits within the selected range
of damages—is a mixed question of law and fact that is entitled to deference.
See General Statutes § 4-183 (j). This latter issue is not contested in the
present case.
6
Damages assessed after the entry of default are no different. After default
is entered, establishing the appropriate amount of damages involves two
steps: (1) ‘‘determining the proper rule for calculating damages on . . . a
claim,’’ and (2) ‘‘assessing [the] plaintiff’s evidence supporting [the] damages
to be determined under this rule.’’ (Internal quotation marks omitted.) Pel-
grift v. 335 W. 41st Tavern, Inc., Docket No. 14-CV-8934 (AJN), 2018 WL
4735705, *3 (S.D.N.Y. September 30, 2018), appeal dismissed, United States
Court of Appeals, Docket No. 18-3283 (2d Cir. February 12, 2019); see Steiger
v. J. S. Builders, Inc., 39 Conn. App. 32, 33, 35, 663 A.2d 432 (1995) (‘‘the
trial court applied the wrong standard in calculating the award of attorney’s
fees’’ after default judgment was entered against defendants).
7
Even if the referee’s valuation methodology were entitled to deference,
I would conclude, for the reasons explained in parts II and III of this opinion,
that the referee’s exclusion of emotional distress damages awarded by
courts, juries, and other administrative agencies to ascertain the value of
the complainant’s harm, as well as her failure to account for the passage
of time and rate of inflation, was arbitrary, capricious, and an abuse of dis-
cretion.
8
Although the referee set the top of the range for emotional distress
damages at $50,000 on the basis of the CHRO’s prior damages award in
Maybin, she also treated Maybin as an outlier, in part because ‘‘[t]he basis
for the $50,000 emotional distress award rest[ed] primarily on the aggressive
monetary award in Planas, on a trend in certain appellate decisions [that]
have encouraged hearing officers to be aggressive in the award of [compensa-
tory] damages . . . and on awards in other jurisdictions.’’ (Citation omitted;
internal quotation marks omitted.)
9
The referee also explained that ‘‘Connecticut courts have yet to issue an
award of compensatory damages in a case involving a housing discrimination
claim based on hostile environment harassment . . . .’’ (Footnote omitted.)
This does not, however, explain the referee’s failure to consider state jury
awards for emotional distress in other contexts, such as employment dis-
crimination.
10
Indeed, when the trial court remanded the present case to the referee
with instruction to reconsider the award of emotional distress damages in
light of Patino, the referee had no difficulty comparing the underlying facts
with those presented in Patino and concluding, as was her prerogative, that
the harm was worse in Patino than it was in this case.
11
The referee relied on the following comparators, from high to low, in
creating this presumptive range: (1) Commission on Human Rights &
Opportunities ex rel. Maybin v. Berthiaume, supra, Docket No. 9950026
($50,000 emotional distress damages award in hostile housing environment
case), (2) Commission on Human Rights & Opportunities ex rel. Jackson
v. Pixbey, supra, 2010 WL 5517184, *8–9 ($40,000 emotional distress damages
award in hostile housing environment case), (3) Commission on Human
Rights & Opportunities ex rel. Jackson v. Lutkowski, Docket Nos. 0950094
and 0950095 (C.H.R.O. May 25, 2010) ($40,000 emotional distress damages
award in hostile housing environment case), (4) Commission on Human
Rights & Opportunities ex rel. Lawton v. Jansen, supra, 2007 WL 4623071,
*1, *9 ($40,000 emotional distress damages award in hostile housing environ-
ment case), (5) Commission on Human Rights & Opportunities ex rel.
Hartling v. Carfi, supra, 2006 WL 4753467, *10 ($25,000 emotional distress
damages award in hostile housing environment case), (6) Commission on
Human Rights & Opportunities ex rel. Thomas v. Mills, Docket No. 9510408
(C.H.R.O. August 5, 1998) ($25,000 emotional distress damages award in
public accommodations case), (7) Commission on Human Rights & Oppor-
tunities ex rel. Brown v. Jackson, supra, 2008 WL 5122193, *24 ($22,000
emotional distress damages award in hostile housing environment case),
(8) Commission on Human Rights & Opportunities ex rel. Little v. Clark,
supra, 2000 WL 35575648, *1, *16 ($20,000 emotional distress damages award
in hostile environment discrimination case), (9) Commission on Human
Rights & Opportunities ex rel. Scott v. Jemison, supra, 2000 WL 35575662,
*1 ($6000 emotional distress damages award in hostile housing environment
case); (10) Commission on Human Rights & Opportunities ex rel. McIn-
tosh-Waller v. Vahistrom, Docket No. 0750080, 2008 WL 2683291, *8–9
(C.H.R.O. June 6, 2008) (no damages were awarded because no liability was
found in hostile housing environment case).
12
In my view, neither the jury awards nor the CHRO awards should create
a presumptive range; the referee should consider as comparators administra-
tive and judicial awards (including jury awards) for emotional distress
caused by similar acts of illegal racial discrimination, and either accept or
reject the comparison based on the similarity or dissimilarity or the underly-
ing facts, not the identity of the decision maker.
13
The majority relies on our case law regarding additur and remittitur to
conclude that ‘‘benchmarking a challenged award against awards in other
cases is not required or even, necessarily, appropriate’’ because ‘‘compari-
sons with amounts in other verdicts serve little purpose.’’ (Internal quotation
marks omitted.) Part I of the majority opinion. I agree with the majority
that a comparison to other jury awards normally is unhelpful to determine
whether a jury award in any particular case is inadequate or excessive,
because ‘‘[j]uries may differ widely in the conclusions [that] they reach in
what may be apparently similar cases, and, in fact, in any given case one
jury may arrive at a result substantially different from that of another jury.’’
(Internal quotation marks omitted.) Munn v. Hotchkiss School, 326 Conn.
540, 579, 165 A.3d 1167 (2017). As we previously have observed, ‘‘[t]his
flexibility, though it may lead to uncertainty, is a necessary concomitant of
the jury system as it operates in cases of this nature.’’ Birgel v. Heintz, 163
Conn. 23, 34, 301 A.2d 249 (1972). Indeed, jurors are not allowed to learn
about awards in other cases. But CHRO referees are not jurors; they are
administrative decision makers who arrive at a fair and just valuation of
emotional distress damages by reference to damages awards for emotional
distress in other cases involving comparable facts. For comparative pur-
poses, it is irrelevant whether the other awards are made by courts, juries,
or other administrative agency adjudicators, so long as they represent a
fair and fitting valuation of emotional distress damages under factually
comparable circumstances.
14
The United States Supreme Court, lower federal courts, this court, and
legal scholars all have remarked on the severe, pervasive, and often irrevers-
ible harm caused by racial discrimination. See, e.g., Brown v. Board of
Education, 347 U.S. 483, 494, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (‘‘[t]o separate
[children] from others of similar age and qualifications solely because of
their race generates a feeling of inferiority as to their status in the community
that may affect their hearts and minds in a way unlikely ever to be undone’’);
Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072, 1074 (3d Cir. 1995) (‘‘[a]
victim of discrimination suffers a dehumanizing injury as real as, and often
of far more severe and lasting harm than, a blow to the jaw’’ (internal
quotation marks omitted)); State v. Liebenguth, 336 Conn. 685, 703–704, 250
A.3d 1 (2020) (‘‘[I]t is beyond question that the use of the [N] word . . . is
highly offensive and demeaning, evoking a history of racial violence, brutal-
ity, and subordination. . . . [I]t is probably the single most offensive word
in the English language.’’ (Citations omitted; internal quotation marks omit-
ted.)); see also V. Goode & C. Johnson, ‘‘Emotional Harm in Housing Discrim-
ination Cases: A New Look at a Lingering Problem,’’ 30 Fordham Urban L.J.
1143, 1148 (2003) (‘‘Emotional harm claims in housing discrimination cases
tend to subtly reflect the shadow of racism in this country. It is the persis-
tence of segregated housing patterns that contributes to a lack of understand-
ing of the impact of racism and a diminished sense of empathy that is so
essential in compensating the full nature of the dignitary harm that flows
from housing discrimination.’’ (Footnote omitted.)).
15
For purposes of this appeal, I need not venture an opinion on the
particular number of cases, or the ratio of CHRO cases to non-CHRO cases,
that should be considered by the referee to provide a sufficiently representa-
tive pool of data. I would be loathe to encourage judicial micromanagement
at that level of detail. It is enough in the present case to say that the
categorical exclusion of all comparators except CHRO awards (and one
jury award on remand) was improper.
16
As the majority recognizes, the ‘‘term ‘garden-variety’ ’’ refers to emo-
tional distress that is established primarily through a plaintiff’s own testi-
mony, rather than through medical or psychological evidence. Footnote 3
of the majority opinion. I agree with the majority that the term ‘‘is a bit of
a misnomer’’ in that it appears to trivialize an individual’s experience with
emotional distress. Id.; see A. Merjian, ‘‘Nothing ‘Garden Variety’ About It:
Manifest Error and Gross Devaluation in the Assessment of Emotional Dis-
tress Damages,’’ 70 Syracuse L. Rev. 689, 693 (2020) (‘‘There is nothing
‘[garden-variety]’ about the experience of discrimination. Discrimination is
never ‘commonplace’ or ‘forgettable,’ common synonyms for this phrase.’’).
17
The $30,000 to $125,000 range derives primarily from cases decided in
the mid-2000s. This range would be much higher today after adjusting to
account for inflation. As I explain in part III of this opinion, when conducting
a comparative methodological approach to assess emotional distress dam-
ages, it is vital to account for the passage of time.
18
See footnote 1 of this opinion.
19
In Moore v. Moore, 173 Conn. 120, 376 A.2d 1085 (1977), this court held
that our courts may take judicial notice of the ‘‘fact of inflation . . . without
affording [the parties] an opportunity to be heard . . . .’’ Id., 123. To the
extent that the rate of inflation may be subject to reasonable factual dispute;
see id.; the parties are free to proffer evidence regarding the rate of inflation.
In the absence of evidence, the rate of inflation, as reflected by governmental
statistics, such as those provided by the United States Department of Labor,
should be presumed. See Bureau of Labor Statistics, United States Depart-
ment of Labor, CPI Inflation Calculator, available at https://www.bls.gov/
data/inflation_calculator.htm (last visited June 23, 2023).