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

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COMMISSION ON HUMAN RIGHTS AND
OPPORTUNITIES v. RICHARD
CANTILLON ET AL.
(SC 20655)
Robinson, C. J., and McDonald, D’Auria,
Mullins and Ecker, Js.
Syllabus
The complainant, H, filed a complaint with the plaintiff, the Commission
on Human Rights and Opportunities, alleging housing discrimination on
the basis of race against the defendant C, her neighbor in a condominium
complex, who tormented H by repeatedly making obscene gestures,
directing vile, racial epithets toward her, and threatening her. C was
defaulted in the underlying administrative proceeding, and, following a
hearing in damages, the human rights referee found that H had suffered
emotional distress and awarded her $15,000 in damages. The commis-
sion, viewing the award as insufficient, appealed to the Superior Court,
claiming that, under Patino v. Birken Mfg. Co. (304 Conn. 679), an award
for garden-variety emotional distress damages presumptively must be
at least $30,000, and that the referee made various errors of law in
assessing the heinousness of C’s conduct pursuant to the test that the
commission adopted in its prior decision in Commission on Human
Rights & Opportunities ex rel. Harrison v. Greco (Harrison). The trial
court, recognizing that it was bound by the highly deferential standard
of review that governs administrative decisions, concluded that there
was no legal basis for it to second-guess the award, and it rendered
judgment dismissing the appeal. The Appellate Court affirmed the trial
court’s judgment, concluding that Patino did not adopt any presumptive
floor for emotional distress damages and that the referee’s heavily fact-
specific assessment of H’s emotional distress damages was not an abuse
of discretion. On the granting of certification, the commission appealed
to this court. Held:
1. There was no merit to the commission’s claim that the referee’s award
of $15,000 in damages violated Patino, an employment discrimination
case in which this court upheld a jury award of more than $90,000 in
noneconomic damages for garden-variety emotional distress:
In Patino, the court cited to a series of cases in which awards of $100,000
or more had been made in civil rights cases and quoted a federal district
court case in support of the proposition that garden-variety emotional
distress claims ‘‘generally merit $30,000 to $125,000 awards,’’ and the
commission claimed, for purposes of the present case, that Patino there-
fore established that range for garden-variety emotional distress claims.
This court clarified that its intent in Patino was to note that an award
of damages that was squarely within the range of those awards that
often are made in nearby jurisdictions will not shock the judicial con-
science, and the court in Patino did not intend to use the range of
damages referenced therein to establish the inverse rule, namely, that
an award lower than the generally prevailing range of damages in federal
jury trials is presumptively an abuse of discretion in Connecticut.
This court further clarified that the quote from the federal district court
case on which Patino relied was misleading insofar as that federal case
and its progeny acknowledged that the range of awards in the Second
Circuit is much wider than $30,000 to $125,000, in both directions.
Moreover, confining emotional distress damages to some permissible
range would run afoul of decades of Connecticut jurisprudence, insofar
as 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.
Furthermore, the commission did not identify any other area of the
law in which Connecticut courts have taken the extraordinary step of
establishing any limit on the amount of damages that presumptively can
be awarded by a Connecticut jury, court, or administrative agency, and
it would be inappropriate for courts to do so insofar as the determination
of whether to establish some minimum or maximum permissible award
for any particular cause of action, in light of evolving public sentiments
and the conflicting societal interests involved, is a quintessentially legisla-
tive, rather than judicial, function, especially when that determination
involves an administrative agency.
Notwithstanding the commission’s claim to the contrary, the lack of a
floor on emotional distress damages awards that is consistent with the
lower end of the prevailing range of awards in the Second Circuit would
not create a forum shopping issue, as there was no evidence that com-
plainants have been engaging in such forum shopping, and, even if federal
jury awards were in the range that Patino quoted, there are many other
differences between pursuing an administrative complaint before the
commission and litigating a civil action in federal court that might make
one venue or the other more advantageous for a particular complainant.
2. The commission could not prevail on its claim that the referee incorrectly
applied and expanded the three factor test that the commission adopted
in Harrison for calculating emotional distress damages, and the Appel-
late Court correctly determined that the referee invoked the applicable
legal standard, that her application of that standard did not represent
an abuse of discretion, and that her factual findings were not clearly
erroneous:
Harrison recognized that the first and most important factor in calculat-
ing emotional distress damages is the subjective internal emotional reac-
tion of the complainant to the discriminatory experience that he or she
had undergone, and whether the reaction was intense, prolonged, and
understandable, the second factor is whether the discrimination occurred
in public, and the third factor is the degree of the offensiveness of the
discrimination and the impact on the complainant.
The referee in the present case found that the first factor warranted some
award of emotional distress damages, but she also found the existence
of mitigating factors, such as the fact that H relied on her own testimony
to support her emotional distress claim, which was largely but not com-
pletely uncorroborated, and such as the facts that H did not seek medical
or psychological help, miss work, move from the condominium, or suffer
an inability to eat or sleep.
The commission did not contest any of the referee’s factual findings with
respect to the first Harrison factor, which were entitled to substantial
deference, but, instead, claimed that the referee did not adequately or
appropriately weigh various objective factors, the commission could not
prevail on that claim because the referee correctly recognized that the
subjective factors were paramount and properly considered determi-
nants that were directly relevant to assessing subjective emotional dis-
tress, and, on the basis of those considerations and the referee’s own
observations, the referee found that H’s subjective emotional distress,
although serious, was not so severe or disabling as to warrant an award
in the range sought by the commission.
Moreover, to the extent that the commission’s arguments constituted a
critique of the Harrison three factor test, this court declined to reexamine
it in light of the unique procedural posture of the case, in which opposing
viewpoints had not been represented, and insofar as the parties did not
ask this court to reject the Harrison test.
(One justice dissenting)
Argued December 21, 2022—officially released June 27, 2023
Procedural History
Appeal from the decision of a human rights referee
for the defendant Commission on Human Rights and
Opportunities, inter alia, declining to increase the amount
of damages awarded to the defendant Kelly Howard in
an action alleging housing discrimination against the
named defendant, brought to the Superior Court in the
judicial district of New Britain, where the court, Cor-
dani, J., rendered judgment dismissing the appeal, from
which the plaintiff appealed to the Appellate Court,
Alvord, Alexander and Vertefeuille, Js., which affirmed
the trial court’s judgment, and the plaintiff, on the granting
of certification, appealed to this court. Affirmed.
Michael E. Roberts, human rights attorney, for the
appellant (plaintiff).
Anna-Marie Puryear, human rights attorney, for the
appellee (defendant Commission on Human Rights and
Opportunities).
William Tong, attorney general, Michael Skold, dep-
uty solicitor general, and Colleen B. Valentine and Mat-
thew F. Larock, assistant attorneys general, filed a brief
for the state of Connecticut as amicus curiae.
Opinion
MULLINS, J. The facts of this case are deeply dis-
turbing. For years, the named defendant, Richard Can-
tillon, tormented his neighbor, the complainant, Kelly
Howard, repeatedly making obscene gestures and call-
ing her the most vile racial epithets, including use of
the N-word, when she attempted to access public areas
of the condominium complex where they both resided.1
Cantillon also physically menaced the complainant. He
threatened to shoot her and punch her in the face, and
he brandished a snow shovel on one occasion. These
various incidents resulted in as many as thirty calls to
the police. In response to this treatment, the complain-
ant filed a neighbor versus neighbor claim with the
Commission on Human Rights and Opportunities, alleg-
ing housing discrimination, in that Cantillon had vio-
lated her civil rights on the basis of her race.2
Cantillon failed to appear for the administrative hear-
ing on the complainant’s claims. Consequently, he was
defaulted. Then, after a hearing in damages, the presid-
ing human rights referee found that the complainant had
suffered emotional distress and awarded her $15,000
in damages, in addition to costs and postjudgment
interest.
The commission itself, viewing the award as too low
in light of the pervasive scope and nature of Cantillon’s
discriminatory conduct, appealed to the Superior Court,
challenging the amount of the award. Specifically, the
commission argued that (1) under Patino v. Birken
Mfg. Co., 304 Conn. 679, 708, 41 A.3d 1013 (2012), an
award for garden-variety emotional distress damages3
presumptively must be at least $30,000, and (2) the
referee made various errors of law in assessing the
heinousness of Cantillon’s conduct pursuant to the test
espoused in Commission on Human Rights & Oppor-
tunities ex rel. Harrison v. Greco, Docket No. 7930433
(C.H.R.O. June 3, 1985) (Harrison). Neither the com-
plainant nor Cantillon participated in the appeal, how-
ever, and, for arcane reasons that are set forth in the
decision of the Appellate Court; see Commission on
Human Rights & Opportunities v. Cantillon, 207 Conn.
App. 668, 670 n.1, 263 A.3d 887 (2021); the commission
operated as both the appellant and the appellee in its
appeal before the Superior Court. In doing so, the com-
mission, as plaintiff, and the commission, as defendant,
both challenged the referee’s award as insufficient.4
Even though no party to the appeal defended the
decision of the referee or argued in support of Cantil-
lon’s likely position that the award was not impermissi-
bly low, the trial court, recognizing that it was bound
by the highly deferential standard of review that governs
administrative decisions; see General Statutes § 4-183
(j); concluded that there was no legal basis for it to
second-guess the award and rendered judgment dis-
missing the appeal. For similar reasons, and with the
parties similarly situated, the Appellate Court affirmed
the judgment of the Superior Court. See Commission
on Human Rights & Opportunities v. Cantillon, supra,
207 Conn. App. 670–71, 686. This certified appeal
followed.5
Like the courts below, we are compelled to affirm.
If some minimum award for garden-variety emotional
distress damages is to be established for such heinous
conduct, then that minimum amount must be estab-
lished by the legislature, either independently, via legis-
lation, or in conjunction with the commission, through
the Uniform Administrative Procedure Act’s rule-mak-
ing process; see General Statutes § 4-168 et seq.; and
not on an ad hoc basis by this court.
We presume the reader’s familiarity with the well
reasoned opinion of the Appellate Court. That court
did an admirable job of setting forth the relevant facts
and procedural history, describing the controlling stan-
dard of review, summarizing the commission’s argu-
ments as to the alleged flaws in the decision of the
referee, and explaining why those arguments ultimately
were not persuasive. Specifically, the Appellate Court
did not read Patino to adopt any presumptive floor
for emotional distress damages; see Commission on
Human Rights & Opportunities v. Cantillon, supra,
207 Conn. App. 673–79; and it concluded that the refer-
ee’s heavily fact specific assessment of the complain-
ant’s emotional distress damages was not an abuse of
discretion. See id., 679–86. We agree with that court’s
resolution of the commission’s claims, and no useful
purpose would be served by retracing those steps here.
We take this opportunity, however, to clarify and elabo-
rate on a few points raised by the commission.
I
The commission’s primary argument is that the award
violated the law of Connecticut, as purportedly set forth
in Patino v. Birken Mfg. Co., supra, 304 Conn. 679.
Specifically, the commission claims that our decision in
Patino set a range for garden-variety emotional distress
claims of between $30,000 and $125,000. See id., 708.
We disagree.
Patino involved an employment discrimination action
in which the jury awarded the plaintiff $94,500 in non-
economic damages for garden-variety emotional dis-
tress. See id., 682, 686. The defendant employer appealed
from the trial court’s denial of its posttrial motion for
remittitur, contending that the $94,500 damages award
was tantamount to punitive damages, as it was so exces-
sive as to shock the conscience. Id., 705. In rejecting
that claim, we emphasized that, ‘‘[b]ecause an award
of damages is a matter peculiarly within the province
of the trier of facts,’’ a reviewing court should exercise
its authority to order remittitur only when ‘‘the size of
the verdict so shocks the sense of justice as to compel
the conclusion that the [trier was] influenced by partial-
ity, prejudice, mistake or corruption.’’ (Internal quota-
tion marks omitted.) Id., 705–706. That exacting
standard was not satisfied in Patino, we concluded,
because there was evidence that the plaintiff had suf-
fered severe, prolonged discrimination and that the
defendant had continually failed to remedy the situa-
tion. Id., 707–708. In response to the defendant’s argu-
ment that a trial judge in a similar case had ordered a
remittitur; see id., 708 n.26; we cited to a series of cases
in which verdicts of $100,000 or more had been awarded
in civil rights cases. Id., 708. Following that string cita-
tion, we wrote: ‘‘see also Olsen v. Nassau, [615 F. Supp.
2d 35, 46 (E.D.N.Y. 2009)] (‘[garden-variety] emotional
distress claims generally merit $30,000 to $125,000
awards’ . . .).’’ Patino v. Birken Mfg. Co., supra, 304
Conn. 708.
The commission finds much meaning in this brief
parenthetical. Specifically, the commission reads our
citation to Olsen to mean that (1) when awarding dam-
ages, a referee must benchmark a case not only to other
decisions of the commission, or even to jury verdicts
in Connecticut state courts, but also to jury verdicts
awarded in the federal courts of neighboring states, (2)
a failure to do so would create inequities and inconsis-
tencies and encourage forum shopping, and (3) our
referencing of the $30,000 to $125,000 range was meant
not just to be descriptive of typical jury verdicts but to
establish a soft floor, that is, a norm or rule as to the
minimum award that will be deemed presumptively valid.
After a thorough review of our decision in Patino,
the Appellate Court concluded that ‘‘the holding per-
taining to the damage[s] award was limited and based
on the particular factual circumstances of that case’’;
Commission on Human Rights & Opportunities v.
Cantillon, supra, 207 Conn. App. 676; and that, ‘‘[a]lthough
perhaps instructive, these cursory references to a range
of damages in other cases do not . . . [stand] for any
binding principle pertaining to damage[s] awards in
emotional distress actions.’’ (Emphasis omitted.) Id.,
677. We agree.
Our point in Patino was simply that an award of
damages that was squarely within the range of those
that often are awarded in this part of the country will
not shock the judicial conscience. We were not called
on, nor did we intend, to use a range of damages refer-
enced in a string citation parenthetical to establish the
inverse rule, namely, that an award lower than the gen-
erally prevailing range of damages awarded in federal
jury trials is presumptively an abuse of discretion in
Connecticut. And surely we did not intend to constrain
an executive agency that was created and directed by
the legislature to provide a prompt remedy.
Beyond the analysis offered by the Appellate Court,
we would emphasize four additional points so as to
resolve any confusion that Patino may have engen-
dered. First, the quote from Olsen, that ‘‘[garden-vari-
ety] emotional distress claims generally merit $30,000
to $125,000 awards,’’ is misleading if not understood in
context. (Internal quotation marks omitted.) Olsen v.
Nassau, supra, 615 F. Supp. 2d 46. Although the ‘‘$30,000
to $125,000’’ quote has received much attention, both
Olsen and its progeny acknowledged that the range of
awards in the Second Circuit is actually much wider.
In fact, in Olsen itself, the court acknowledged that, in
Quinby v. WestLB AG, Docket No. 04 Civ. 7406 (WHP),
2008 WL 3826695 (S.D.N.Y. August 15, 2008), the case
from which Olsen borrowed the ‘‘$30,000 to $125,000’’
language; id., *3; the court authorized a $300,000 award
for garden-variety emotional distress damages that, it
concluded, was ‘‘at or above the upper range of reason-
ableness . . . .’’ (Citations omitted; internal quotation
marks omitted.) Olsen v. Nassau, supra, 46, quoting
Quinby v. WestLB AG, supra, *4.
Other cases decided in the Second Circuit over the
past decade or so have remitted such damages to, or
approved awards of, well below $30,000.6 Indeed, just
last year, in Fontana v. Bowls & Salads Mexican Grill,
Inc., Docket No. 19-CV-01587 (JMA) (ARL), 2022 WL
2389298 (E.D.N.Y. July 1, 2022), the court approved an
award of $15,000 in damages for garden-variety emo-
tional distress in an employment discrimination case.
Id., *1–2.
More recent assessments, therefore, have placed a
much lower floor on the prevailing range of awards
than did Olsen. See, e.g., Fontana v. Bowls & Salads
Mexican Grill, Inc., Docket No. 19-CV-01587 (JMA)
(ARL), 2022 WL 3362181, *6 (E.D.N.Y. February 3, 2022)
(‘‘[f]or garden-variety emotional distress claims, courts
in the Second Circuit have awarded damages ranging
from $5,000 to $125,000’’) (report and recommendation
adopted, Docket No. 19-CV-01587 (JMA) (ARL), 2022
WL 2389298 (E.D.N.Y. July 1, 2022)); Manson v.
Friedberg, Docket No. 08 Civ. 3890 (RO), 2013 WL
2896971, *7 (S.D.N.Y. June 13, 2013) (‘‘[f]or typical or
[garden-variety] emotional distress claims, district courts
have awarded damages ranging from $5,000 to $35,000’’
(internal quotation marks omitted)). Olsen’s range,
then, is hardly a rule.7
Second, for this court to confine emotional distress
damages to some permissible range by judicial fiat
would run afoul of decades of Connecticut jurispru-
dence. Noneconomic damages, such as emotional dis-
tress, pain and suffering, are, ‘‘at best, rather indefinite
and speculative in nature.’’ McKirdy v. Cascio, 142
Conn. 80, 84, 111 A.2d 555 (1955). For more than fifty
years, 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.
As we explained in Margolin v. Kleban & Samor,
P.C., 275 Conn. 765, 882 A.2d 653 (2005), in the closely
related context of a motion for remittitur, ‘‘[t]he law
. . . is well settled. The amount of a damage[s] award
is a matter peculiarly within the province of the trier
of fact . . . . The size of the verdict alone does not
determine whether it is excessive. The only practical
test to apply to [a] verdict is whether the award falls
somewhere within the necessarily uncertain limits of
just damages or whether the size of the verdict so
shocks the sense of justice as to compel the conclusion
that the [trier of fact] was influenced by partiality, preju-
dice, mistake or corruption.’’ (Emphasis added; internal
quotation marks omitted.) Id., 783; see also, e.g., Munn
v. Hotchkiss School, 326 Conn. 540, 577, 165 A.3d 1167(2017) (‘‘[Emotional distress damages and related] dam-
ages lie in an extremely uncertain area . . . in which
it is quite impossible to assign values with any precision
. . . . [N]o formulaic process of review applies . . . .’’
(Citation omitted; internal quotation marks omitted.));
Wichers v. Hatch, 252 Conn. 174, 181, 745 A.2d 789(2000) (attempt by this court ‘‘to establish an arbitrary
demarcation’’ for calculating noneconomic damages
award would be ‘‘both unnecessary and unwise’’); Bir-
gel v. Heintz, 163 Conn. 23, 34, 301 A.2d 249 (1972)
(‘‘[p]roper compensation for personal injuries cannot
be computed by mathematical formula, and the law
furnishes no precise rule for [such an] assessment’’
(internal quotation marks omitted)).
Consistent with our repeated rejection of any ‘‘practi-
cal test’’ or ‘‘mathematical formula’’ for both additur
and remittitur, this court long has been of the view that
benchmarking a challenged award against awards in
other cases is not required or even, necessarily, appro-
priate, holding that ‘‘comparisons with amounts in other
verdicts serve little purpose.’’ Gorham v. Farmington
Motor Inn, Inc., 159 Conn. 576, 585, 271 A.2d 94 (1970),
citing Fairbanks v. State, 143 Conn. 653, 661, 124 A.2d
893 (1956).
Most recently, in Munn v. Hotchkiss School, supra,326 Conn. 540, in the context of a motion to remit a
substantial award of more than $30 million in noneco-
nomic damages; see id., 543, 569; we declined the defen-
dant’s invitation ‘‘to examine the verdicts returned by
other juries in other cases and to engage in an exercise
of comparing which plaintiff’s injuries are worse.’’ Id.,
578. We reiterated that ‘‘[n]o one life is like any other,
and the damages for the destruction of one furnish no fixed
standard for others. . . . Consequently, [i]t serves no
useful purpose to compare a verdict in one personal
injury case with the verdicts in other personal injury
cases.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Id.; see also, e.g., Welsh v.
Martinez, 157 Conn. App. 223, 242, 114 A.3d 1231 (‘‘[a]s
our Supreme Court has explained, [c]omparison of ver-
dicts is of little value’’ (internal quotation marks omit-
ted)), cert. denied, 317 Conn. 922, 118 A.3d 63 (2015).8
The rationales that underlie these rules counsel per-
haps most strongly against establishing a legal floor for
garden-variety emotional distress damages. It is well
established that everyday hurt feelings and affronts can,
as a matter of fact or law, be insufficient as to be legally
actionable; see, e.g., Appleton v. Board of Education,
254 Conn. 205, 211, 757 A.2d 1059 (2000); and that, even
when a compensable injury has been proven, an award
of no more than nominal emotional distress damages
is permissible. See, e.g., Richey v. Main Street Stafford,
LLC, 110 Conn. App. 209, 224–25, 954 A.2d 889 (2008).
It would be an odd rule indeed if we were to hold, on
the one hand, that it is permissible to award only a few
dollars in the many cases in which the plaintiff’s distress
falls somewhere within the ordinary range of emotional
harms endured in the course of any human life but
then to hold, on the other hand, that, when more than
nominal damages are awarded, the award must be
$30,000 or more. Surely, across the broad spectrum of
purely emotional human anguish, one can imagine an
injury warranting a $15,000 award. Whether this was
that injury, under the circumstances of this case, was
a question for the referee. Notwithstanding our own
view that this case certainly may have merited a more
substantial award, pursuant to our standard of review,
namely, to decide only whether, in light of the evidence,
the referee has acted unreasonably, arbitrarily, illegally,
or in abuse of her discretion; see, e.g., Meriden v. Free-
dom of Information Commission, 338 Conn. 310, 318,
258 A.3d 1 (2021); we cannot conclude that the referee
committed reversible error.
That brings us to the third point. The commission
has not identified any other area of the law in which
the courts of this state have taken the extraordinary
step of establishing a limit—upward or downward—
on the amount of damages that presumptively can be
awarded by a Connecticut jury, court, or administrative
agency. And for good reason. Public sentiments regard-
ing the range of damages that is fair and fitting in differ-
ent types of legal actions can vary widely and evolve
rapidly. See, e.g., Wochek v. Foley, 193 Conn. 582, 586,
477 A.2d 1015 (1984) (‘‘[t]he question of damages in
personal injury cases, especially in these times of chang-
ing values, is always a difficult one’’ (internal quotation
marks omitted)). For that reason, determining whether
to establish some minimum or maximum permissible award
for any particular cause of action, in light of evolving
public sentiments and the conflicting societal interests
involved, is a quintessentially legislative, rather than judicial,
function, especially when that determination involves
an executive agency. See, e.g., Jarmie v. Troncale, 306
Conn. 578, 624–25, 50 A.3d 802 (2012) (tort reform is
proper domain of legislature); Jones v. Karraker, 98 Ill.
2d 487, 492, 457 N.E.2d 23 (1983) (‘‘In our opinion plac-
ing a limit on the maximum or minimum amount of an
award . . . is a legislative prerogative. We decline to
do so.’’). In Connecticut, our legislature has exercised
that prerogative on multiple occasions, establishing
minimum9 and maximum10 damages of various sorts
across a range of actions. It has not done so here.
Fourth, we are not persuaded by the commission’s
argument that, if we decline to set a floor for emotional
distress damages awards consistent with the lower end
of the prevailing range of awards in the Second Circuit,
then there will be a forum shopping problem. The con-
cern, it seems, is that complainants may choose to file
an action in a federal district court, where they can be
assured of a recovery of at least $30,000, rather than
to file a claim with the commission.
Although forum shopping can be a problem in certain
contexts; see, e.g., Adams v. Aircraft Spruce & Spe-
cialty Co., 345 Conn. 312, 348, 284 A.3d 600 (2022)
(discussing concerns regarding forum shopping by non-
resident plaintiffs); one must be careful not to overstate
the concern. See, e.g., New London County Mutual Ins.
Co. v. Nantes, 303 Conn. 737, 750–51, 36 A.3d 224 (2012).
In the present case, the commission has presented no
evidence that complainants have in fact been engaging
in forum shopping of this sort, and there are many
reasons why we believe that the concerns expressed
by the commission are overstated. As we discussed,
Olsen appears to have overstated the floor for garden-
variety emotional distress damages in the Second Cir-
cuit. One need not look far to find recent federal cases
in Connecticut in which emotional distress damages of
less than $30,000 were awarded.11
We note that, even if federal jury awards were in the
range that Olsen indicated, there are many differences
between pursuing an administrative complaint before
the commission and litigating a civil action in federal
court—everything from different statutes of limitations
and institutional support for injured parties to alacrity
and mandatory mediation—that might make one venue
or the other more advantageous for a particular com-
plainant. Accordingly, we do not see a serious forum
shopping problem here.
II
The second principal argument raised by the commis-
sion is that the referee, in fashioning the damages
award, incorrectly applied and expanded the so-called
‘‘Harrison factors.’’ In Harrison, the commission
adopted a three factor test to be applied when calculating
emotional distress damages. See Commission on
human Rights & Opportunities ex rel. Harrison v.
Greco, supra, Docket No. 7930433, pp. 7–8. ‘‘Under the
Harrison analysis, the [first and] most important factor
[in calculating emotional distress] damages is the sub-
jective internal emotional reaction of the complainants
to the discriminatory experience [that] they have under-
gone and whether the reaction was intense, prolonged
and understandable. . . . [The second factor] . . . is
whether the discrimination occurred in front of other
people. . . . For this, the [referee] must consider
[whether] the discriminatory act was [performed] in
public and in view or earshot of other persons which
would cause a more intense feeling of humiliation and
embarrassment. . . . The third and final factor is the
degree of the offensiveness of the discrimination and
the impact on the complainant. . . . In other words,
was the act egregious and was it done with the intention
and effect of producing the maximum pain, embar-
rassment and humiliation.’’ (Internal quotation marks
omitted.) Commission on Human Rights & Opportu-
nities ex rel. Cortes v. Valentin, 213 Conn. App. 635,
653, 278 A.3d 607, cert. denied, 345 Conn. 962, 285 A.3d
389 (2022); see also Commission on Human Rights &
Opportunities ex rel. Harrison v. Greco, supra, pp. 7–8.
In the present case, the commission contends that the
referee erred by, among other things, considering fac-
tors other than those highlighted in the test, such as
the fact that Cantillon did not hold a position of power
over the complainant, and misconstruing the second
factor, namely, public humiliation.
We agree with the Appellate Court that the referee
invoked the applicable legal standard, that her applica-
tion of that standard did not represent an abuse of
discretion, and that her factual findings were not clearly
erroneous. See Commission on Human Rights &
Opportunities v. Cantillon, supra, 207 Conn. App.
681–86.
Harrison recognizes that the subjective factors—the
emotional and psychological impacts of the discrimina-
tory conduct on the complainant—will always be the
most important because what we ultimately are assessing
is the degree of actual emotional distress suffered. The
parties do not contend otherwise. The referee recog-
nized this principle, observing, at the outset, that the
complainant’s ‘‘internal subjective emotional reaction
to [Cantillon’s] racially motivated harassment is the key
element and the most important consideration.’’
Although the referee found that this element was
satisfied, so as to warrant some award of emotional
distress damages, she also repeatedly emphasized what
she found to be various limiting or mitigating factors.
First, the complainant relied on her own testimony to
support her emotional distress claim, which was largely,
though not completely, uncorroborated by relatives,
friends, or associates. Second, the emotional distress
was not enough to cause the complainant to seek medi-
cal or psychological help; nor did it cause her to miss
any work or compel her to move from her condomin-
ium. Third, the distress did not rise to a level at which
it interfered with her ability to sleep or eat. Indeed,
there was no evidence of any recognized symptoms of
severe emotional distress, such as ‘‘depression, mental
anxiety, panic attacks, isolation, sleeplessness, weight
loss, or increased [alcohol consumption] . . . .’’ From
those facts, the referee determined that ‘‘there is no
indication from the evidence presented that any emo-
tional damage[s] suffered by the complainant [were]
severe or had long-term implications or ramifications.’’
The commission does not contest any of those factual
findings. Rather, the commission’s primary challenge
is that the referee did not adequately or appropriately
weigh various objective factors. Specifically, the com-
mission contends that the referee afforded insufficient
weight to the unique heinousness of the N-word, the
fact that Cantillon’s abuse of the complainant did not
occur entirely out of the public view,12 and the secretive
nature of Cantillon’s conduct, but that the referee gave
too much weight to the fact that Cantillon was merely
a neighbor. But, as we stated, although these objective
considerations are relevant to a referee’s assessment
of emotional damages, they are secondary to the subjec-
tive factors. The referee correctly recognized that the
subjective factors are paramount, she considered deter-
minants that are directly relevant to assessing subjec-
tive emotional distress, and, on the basis of those
considerations and her own observations, she found,
as a factual matter, that the complainant’s subjective
emotional distress, although serious, was not so severe
or disabling as to warrant an award in the range sought
by the commission.13 Her factual findings in that regard
are entitled to substantial deference. Although we might
have assessed the complainant’s condition differently,
and although we certainly have some questions regard-
ing the weight that the referee afforded to some of the
secondary, objective factors, her conclusions were not
arbitrary, illegal, or an abuse of discretion, which would
be required to overturn them.14
We have one final observation. We understand that
some of the commission’s arguments could be construed
as a critique of the Harrison test itself. The commission,
for example, appears to take issue with the fact that
the second Harrison factor assumes that public dis-
crimination, which may be particularly embarrassing or
humiliating, is necessarily more egregious than private,
physically threatening discrimination, which may be
more terrifying.
We are sympathetic to the commission’s argument
that, although the subjective factors will always be the
most important, a host of more objective factors also
may assist a referee in the difficult task of assessing
another individual’s internal psychological state, based
on our shared understanding of what sorts of experi-
ences tend to be the most traumatic and distressing.
Those objective factors may include those emphasized
by the commission—the heinous nature of the language
involved, the insidious, secretive character of the dis-
crimination, and the fact that the verbal abuse was
paired with physical threats—as well as many other
factors. For these and other reasons, we are not entirely
convinced that the Harrison test represents a reason-
able framework for assessing emotional distress damages.
The parties have not asked us to reject the Harrison
three factor test, however. Given the unique procedural
posture of this case, in which opposing viewpoints have
not been represented, this is not the case in which to
do so. Therefore, we save for another day the question
of whether we should reexamine the Harrison frame-
work.
We cannot overstate the vileness of Cantillon’s lan-
guage and his ongoing campaign to terrorize the com-
plainant and, at times, her daughter and her former
boyfriend, on the basis of their race. He should not be
rewarded for the complainant’s admirable resilience in
the face of malice. We have little doubt that Cantillon’s
heinous conduct reasonably could have resulted in a
damages award many times higher. But the referee, as
the finder of fact, was in the best position to assess the
necessarily uncertain nature and degree of the com-
plainant’s internal distress, and it would not be proper
for us to substitute our own judgment for those factual
determinations. See, e.g., Meriden v. Freedom of Infor-
mation Commission, supra, 338 Conn. 318.
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C. J., and McDONALD
and D’AURIA, Js., concurred.
1
By way of example, Cantillon called the complainant a ‘‘nigger’’ as many
as five times per week, he told her that ‘‘[n]iggers don’t belong here,’’ and
he warned her, ‘‘I’m . . . going to get you nigger.’’ He also called her former
boyfriend a ‘‘nigger,’’ and he went so far as to call her daughter a ‘‘fat,
Black nigger.’’
2
Specifically, the complainant alleged that Cantillon had engaged in dis-
criminatory housing practices in violation of General Statutes § 46a-64c and
the federal Fair Housing Act, 42 U.S.C. 3601 et seq., as applied via General
Statutes § 46a-58 (a). In its amicus brief in opposition to certain arguments
of the commission, the state raises the question of whether a housing discrim-
ination claim is cognizable against a neighbor under either the federal or
the state fair housing law. Because Cantillon is not present to argue that a
claim may not be brought against a neighbor, in accordance with state and
federal fair housing law, we assume, without deciding, that such a claim
will lie under at least some circumstances.
3
The term ‘‘garden-variety’’ is a bit of a misnomer, in that it seems to
disparage these types of claims, when, in reality, it merely refers to mental
suffering that is established primarily through the testimony of a plaintiff
or a complainant and not through expert medical or psychological evidence.
See, e.g., Patino v. Birken Mfg. Co., supra, 304 Conn. 707; see also, e.g.,
Connecticut Judicial Branch v. Gilbert, 343 Conn. 90, 127–28 n.25, 272 A.3d
603 (2022) (discussing definition of garden-variety emotional distress). That
said, a claim of mental suffering that is supported only by the testimony of
that individual may be more difficult for the trier of fact to assess than one
that is corroborated by expert testimony.
4
General Statutes § 46a-94a (a) authorizes the commission (as plaintiff)
to appeal to the Superior Court an adverse decision of a presiding officer,
but the commission (as defendant) understands itself to be prevented from
defending the decision of the officer because it owes a continuing obligation
to the complainant. As a result, the defendant commission filed its brief
arguing essentially the same position as the plaintiff commission. The com-
plainant is also a defendant, although she has not participated in the appeal.
In the interest of simplicity, we refer to the plaintiff commission and the
defendant commission collectively as the commission, except when it is
necessary to identify one of those parties individually.
5
We granted the plaintiff commission’s petition for certification to appeal,
limited to the following issue: ‘‘Did the Appellate Court correctly conclude
that the trial court had properly determined that the . . . referee adjudicat-
ing the underlying housing discrimination claim applied the proper legal
principles in awarding the claimant ‘garden-variety’ damages for emotional
distress in the amount of $15,000 against [Cantillon], a neighbor who repeat-
edly subjected the claimant to racially motivated verbal and physical harass-
ment?’’ Commission on Human Rights & Opportunities v. Cantillon, 340
Conn. 909, 909–10, 264 A.3d 94 (2021).
6
See, e.g., Lore v. Syracuse, 670 F.3d 127, 177 (‘‘New York cases vary
widely in the amount of damages awarded for mental anguish. Many do
reduce awards to $30,000 or below.’’ (Internal quotation marks omitted.)),
modified, 460 Fed. Appx. 73 (2d Cir. 2012); MacMillan v. Millennium Broad-
way Hotel, 873 F. Supp. 2d 546, 550–51, 561, 563 (S.D.N.Y. 2012) (holding,
in employment discrimination case, that motion for new trial concerning
compensatory damages would be granted unless plaintiff agreed to remittitur
reducing amount of compensatory damages, observing that, ‘‘[when] a plain-
tiff offers only sparse evidence of emotional distress . . . courts have
reduced such awards to as little as $10,000,’’ and concluding that ‘‘an award
of $30,000 constitutes the maximum that [can] be upheld . . . as not exces-
sive’’ (internal quotation marks omitted)); Charvenko v. Barbera, Docket
No. 09-CV-6383T, 2011 WL 1672471, *6–8 (W.D.N.Y. March 30, 2011) (award-
ing $1000 in emotional distress damages in connection with default judgment
in housing discrimination claim, and reviewing case law supporting compara-
bly low awards when testimony of distress is largely conclusory or limited
to describing feelings of humiliation) (report and recommendation adopted,
Docket No. 09-CV-6383T, 2011 WL 1659882 (W.D.N.Y. May 3, 2011)); see
also, e.g., Borja-Fierro v. Girozentrale Vienna Bank, Docket No. 91 Civ.
8743 (CMM), 1994 WL 240360, *4 (S.D.N.Y. May 27, 1994) (‘‘in the vast
majority of cases [involving similarly vague and conclusory testimony regard-
ing mental anguish], courts found awards of $5,000 to $10,000 to be appro-
priate’’).
7
It bears emphasizing that all of these federal cases were decided in the
context of motions for remittitur, rather than for additur. ‘‘[T]he Supreme
Court of the United States has declared, as a matter of federal law, that any
additur violates the right to a jury trial that is guaranteed by the seventh
amendment to the United States constitution.’’ (Emphasis omitted.) Turner
v. Pascarelli, 88 Conn. App. 720, 723, 871 A.2d 1044 (2005).
8
Although this has remained the prevailing view, as exemplified by our
recent decision in Munn v. Hotchkiss School, supra, 326 Conn. 540, in a few
older cases, this court suggested that cases from other jurisdictions, although
not determinative, may offer some guidance in determining a fair and reason-
able range of damages. See, e.g., Wochek v. Foley, 193 Conn. 582, 587, 477
A.2d 1015 (1984); Gorczyca v. New York, New Haven & Hartford Railroad
Co., 141 Conn. 701, 705, 109 A.2d 589 (1954).
9
See, e.g., General Statutes § 42-251 (b) (establishing minimum damages
award of $250 for violation of rent-to-own agreement laws); General Statutes
§ 54-41r (establishing minimum compensatory damages award of $1000 for
tampering with contents of private communications and for illegal wiretap-
ping and electronic surveillance).
10
See, e.g., General Statutes § 35-53 (b) (capping punitive damages in
wilful and malicious misappropriation actions); General Statutes § 46a-89 (b)
(2) (C) (same, discriminatory housing and public accommodations practices
actions); General Statutes § 46a-98 (c) and (d) (same, discriminatory credit
practice actions); General Statutes § 52-240b (same, product liability
actions); and General Statutes § 52-564a (c) (capping civil damages that may
be awarded to property owner in shoplifting action).
11
See, e.g., Champagne v. Columbia Dental, P.C., Docket No. 3:18-cv-
01390 (VLB), 2022 WL 951687, *1 (D. Conn. March 30, 2022) ($10,000 for
sexual harassment and discrimination); Brown v. B&D Land Clearing &
Logging, LLC, Docket No. 3:17-CV-01413 (KAD), 2020 WL 13248680, *4 (D.
Conn. March 3, 2020) ($10,000 for wrongful termination).
12
Consistent with the testimony, the referee found that, although Cantillon
had directed racially disparaging slurs and obscene gestures at the complain-
ant primarily when the two were alone and there were no witnesses to
observe the harassment, witnesses did observe two such incidents, as well
as Cantillon’s threat, at a public meeting, to punch the complainant in the
face. The commission argues that, rather than emphasizing the largely private
nature of the harassment, the referee should have simply deemed the second
Harrison factor satisfied on the basis of the handful of public incidents.
13
The defendant commission concedes that ‘‘this is not a case [in which
the complainant] felt embarrassed or humiliated . . . .’’
14
We have considered the plaintiff commission’s other arguments, and,
to the extent that the Appellate Court did not directly dispose of them, we
conclude that they are without merit.