Commission on Human Rights & Opportunities v. Cantillon ( 2021 )

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COMMISSION ON HUMAN RIGHTS AND
OPPORTUNITIES v. RICHARD
CANTILLON ET AL.
(AC 43534)
Alvord, Alexander and Vertefeuille, Js.
Syllabus
The defendant H filed a complaint with the plaintiff Commission on Human
Rights and Opportunities alleging discrimination in housing because of
race against the defendant C, her neighbor in a condominium complex.
C was defaulted in the underlying administrative proceeding. At the
hearing in damages, the plaintiff commission requested $75,000 in com-
pensatory damages. The human rights referee of the defendant Commis-
sion on Human Rights and Opportunities awarded H, inter alia, $15,000 in
compensatory damages for emotional distress. The plaintiff commission
filed a request for the referee to reconsider her decision, which request
was deemed denied after the referee failed to take further action. The
plaintiff commission then appealed the referee’s decision, claiming, pri-
marily, that the damages awarded were insufficient. The trial court
remanded the matter for further consideration of damages in light of
the Supreme Court’s decision in Patino v. Birken Mfg. Co. (304 Conn.
679). On remand, the referee issued a final decision that did not change
the amount of the damages awarded. The administrative appeal was
then argued before the trial court, which rendered judgment dismissing
the appeal and affirming the referee’s decision. On the plaintiff commis-
sion’s appeal to this court, held that the referee did not act unreasonably
or arbitrarily in her decision and the trial court did not abuse its discre-
tion in dismissing the plaintiff commission’s appeal and affirming the
referee’s decision: neither the referee nor the trial court misinterpreted
or misapplied Patino in the determination of emotional distress dam-
ages, as Patino did not establish a presumptive or mandatory range of
damages for emotional distress claims but merely addressed a general
range that such claims typically merit, references to that range in other
cases did not establish any binding principle pertaining to damage
awards in emotional distress actions, the fact that the emotional distress
damage award fell outside of that general range did not, by itself, create
a presumption of error, and, although it might have been instructive or
persuasive for the referee to consider damage awards and decisions
outside of the state, there was no legal mandate requiring her to do so;
moreover, neither the referee nor the trial court misapplied the factors
set forth in Commission on Human Rights & Opportunities ex rel.
Harrison v. Greco (CHRO No. 7930433) in the calculation of emotional
distress damages, as the referee did not act unreasonably in considering
the relationship between H and C because the nature of that relationship
was highly relevant to the degree of offensiveness and to the impact
the infliction of emotional distress had on H, H and C did not share a
power dynamic similar to that of a landlord and tenant because, as her
neighbor, C did not have any enforcement or supervisory power over
H and he lacked the ability to oppress or penalize her, the referee’s
conclusion that the discrimination was not public was a reasonable
factual finding in light of the evidence before her and this court declined
to disturb it, and, in discussing the public nature of C’s conduct and his
intentions relating to the same, the referee did not impose an additional
requirement without a legal basis but, rather, considered C’s intentions
as a means to analyze the circumstances surrounding the harassment
and its effect on H.
Argued March 2—officially released September 21, 2021
Procedural History
Appeal from the decision by 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 discrimination in housing
against the named defendant, brought to the Superior
Court in the judicial district of New Britain, where the
court, Cordani, J., rendered judgment dismissing the
appeal, from which the plaintiff appealed to this court.
Affirmed.
Michael E. Roberts, human rights attorney, for the
plaintiff (appellant).
Charles Krich, principal attorney, for the appellee
(defendant Commission on Human Rights and Opportu-
nities).
William Tong, attorney general, Clare E. Kindall,
solicitor general, and Colleen B. Valentine and Matthew
F. Larock, assistant attorneys general, filed a brief for
the state of Connecticut as amicus curiae.
Opinion
ALEXANDER, J. The plaintiff, the Commission on
Human Rights and Opportunities (plaintiff commis-
sion), appeals from the judgment of the Superior Court
dismissing its administrative appeal from the final deci-
sion of the defendant Commission on Human Rights
and Opportunities (defendant commission).1 On appeal,
the plaintiff commission argues that the Superior Court
erred in dismissing its administrative appeal because
the human rights referee (referee) and the Superior
Court (1) misinterpreted and misapplied Patino v.
Birken Mfg. Co., 304 Conn. 679, 41 A.3d 1013 (2012),
in the calculation of emotional distress damages, and
(2) misapplied the factors set forth in Commission on
Human Rights & Opportunities ex rel. Harrison v.
Greco, CHRO No. 7930433 (June 3, 1985) pp. 7–8, in the
determination of emotional distress damages. We are
unpersuaded and, accordingly, affirm the judgment of
the Superior Court.
The following facts, as found by the Superior Court,
and procedural history are relevant to our resolution
of this appeal. ‘‘On June 8, 2015, Kelly Howard . . .
filed a complaint with the [Commission on Human
Rights and Opportunities (CHRO)] against Richard Can-
tillon . . . her neighbor, alleging discrimination in
housing because of race in violation of General Statutes
§§ 46a-58 (a) and 46a-64c. [Specifically, Howard alleged
that she was subjected to verbal and physical harass-
ment in the form of racial slurs, including use of the
N-word, obscene gestures and threats of physical harm,
by Cantillon at the condominium complex where they
both resided.] The CHRO took up the matter. [Cantillon]
was defaulted in the underlying administrative proceed-
ing, and a hearing in damages was held. At the hearing in
damages, the CHRO requested $75,000 in compensatory
damages. The [referee] awarded $15,000 in compensa-
tory damages for emotional distress and $157.15 in com-
pensatory damages for out-of-pocket travel expenses.
The [referee] also awarded postjudgment interest at 10
percent per year, and entered cease and desist, as well
as nonretaliation orders. The CHRO filed a request for
the [referee] to reconsider her decision, but the [ref-
eree] took no action, and the request was deemed
denied. The CHRO timely appealed the decision of its
own [referee], complaining primarily that the damages
awarded were insufficient. On February 7, 2018, [the
Superior Court] remanded the matter for further consid-
eration of damages in light of the Supreme Court’s deci-
sion in Patino v. Birken Mfg. Co., [supra, 304 Conn.
679]. Upon remand, the [referee] issued a final decision,
but did not change the damages award.’’ (Footnote
omitted.) The administrative appeal subsequently was
briefed and argued before the Superior Court. On Octo-
ber 2, 2019, the Superior Court rendered a judgment
and accompanying memorandum of law dismissing the
appeal and affirming the referee’s decision. This appeal
followed. Additional facts will be set forth as necessary.
We begin our analysis by setting forth our standard
of review. The plaintiff commission appeals from the
judgment of the Superior Court dismissing its adminis-
trative appeal and affirming the decision of the referee.
‘‘It is well established that [j]udicial review of [an admin-
istrative agency’s] action is governed by the Uniform
Administrative Procedure Act [(UAPA) General Stat-
utes § 4-166 et seq.] . . . and the scope of that review
is very restricted. . . . With regard to questions of fact,
it is neither the function of the trial court nor of this
court to retry the case or to substitute its judgment for
that of the administrative agency.’’ (Internal quotation
marks omitted.) Dept. of Public Safety v. Freedom of
Information Commission, 298 Conn. 703, 716, 6 A.3d
763 (2010). ‘‘Even for conclusions of law, [t]he court’s
ultimate duty is only to decide whether, in light of the
evidence, the [agency] has acted unreasonably, arbi-
trarily, illegally, or in abuse of its discretion. . . .
[Thus] [c]onclusions of law reached by the administra-
tive agency must stand if the court determines that they
resulted from a correct application of the law to the
facts found and could reasonably and logically follow
from such facts.’’ (Internal quotation marks omitted.)
Chairperson, Connecticut Medical Examining Board
v. Freedom of Information Commission, 310 Conn.
276, 281, 77 A.3d 121 (2013).
In the present case, both parties ask us to reverse
the referee’s award of damages and the Superior Court’s
affirmance thereof. Specifically, both parties claim that
the referee misapplied Patino and the Harrison factors
in its determination of damages. We note that both
the plaintiff commission and the defendant commission
argue that they have raised pure questions of law such
that we must exercise our plenary review over their
claims. We disagree with this assertion. The present
case does not present a pure question of law because
it requires the review of the referee’s award of damages,
which constitutes a question of fact. See Westport Taxi
Service, Inc. v. Westport Transit District, 235 Conn. 1,
28, 664 A.2d 719 (1995). Accordingly, ‘‘the factual and
discretionary determinations of administrative agencies
are to be given considerable weight by the courts [and]
. . . it is for the courts, and not for administrative agen-
cies, to expound and apply governing principles of law.’’
(Internal quotation marks omitted.) Board of Education
v. Freedom of Information Commission, 217 Conn.
153, 159, 585 A.2d 82 (1991); see also General Statutes
§ 4-183 (j). We iterate that we cannot substitute our
judgment for that of the referee and our ultimate duty
is to decide only if the referee ‘‘acted unreasonably,
arbitrarily, illegally, or in abuse of [her] discretion’’ and
that any conclusion of law must stand if we determine
that it ‘‘resulted from a correct application of the law
to the facts found . . . .’’ (Internal quotation marks
omitted.) Meriden v. Freedom of Information Commis-
sion, Conn. , , A.3d (2021).
I
The plaintiff commission first argues that the referee
and the Superior Court misinterpreted and misapplied
Patino v. Birken Mfg. Co., supra, 304 Conn. 679, in the
calculation of emotional distress damages. The plaintiff
commission contends that Patino stands for the propo-
sition that in ‘‘garden variety’’ emotional distress claims,
there is a presumptive monetary range of damages
between $30,000 and $125,000. See id., 708. The plaintiff
commission argues that, because the referee did not
‘‘consider analogous decisions from neighboring tribu-
nals’’ and the damage award in the present case fell
below this range, the referee committed an ‘‘error of
law.’’ The defendant commission argues similarly. We
disagree with the parties’ interpretation of Patino.
An analysis of Patino v. Birken Mfg. Co., supra, 304
Conn. 679, will facilitate our review of the parties’ argu-
ments. In Patino, the central issue on appeal was
‘‘whether General Statutes § 46a-81c (1) imposes liabil-
ity on employers for failing to take reasonable steps to
prevent their employees from being subjected to hostile
work environments based on their sexual orientation.’’
(Footnote omitted.) Id., 682. Our Supreme Court deter-
mined that it did and concluded that the phrase ‘‘ ‘terms,
conditions or privileges of employment’ constitutes a
term of art with a fixed legal meaning’’ and the use of
that phrase in § 46a-81c (1) evidenced the legislature’s
intent to permit hostile work environment claims under
the statute. Id., 697.
A tertiary claim on appeal was whether ‘‘the trial
court, in denying the motion to set aside the verdict
and the motion for remittitur, abused its discretion by
concluding that the $94,500 noneconomic damages
award was supported by the evidence and was not
excessive.’’ Id., 705. In its analysis of this claim, our
Supreme Court concluded that, ‘‘given the sustained
nature of the discrimination described by the plaintiff,
the severity of the hostility he experienced, and the
continued failure of the defendant to remedy the situa-
tion, the trial court did not abuse its discretion when it
concluded that the award was not excessive or shocking
when compared to verdicts awarded under similar cir-
cumstances. See, e.g., Gonzalez v. Bratton, 147 F. Supp.
2d 180, 208–209 (S.D.N.Y. 2001) ($250,000 compensa-
tory damages award for emotional distress claim under
both federal and state law) [aff’d, 48 Fed. Appx. 363(2d Cir. 2002)]; Oliver v. Cole Gift Centers, Inc., 85 F.
Supp. 2d 109, 114–15 (D. Conn. 2000) ($100,000 compen-
satory damages award in Title VII and Connecticut Fair
Employment Practices Act case); Ikram v. Waterbury
Board of Education, United States District Court,
Docket No. 3:95CV2478 (AHN), [1997 WL 597111, *4]
1997 U.S. LEXIS 14619 (D. Conn. September 9, 1997)
($100,000 compensatory damages award in Title VII
case); Annis v. Westchester, 939 F. Supp. 1115, 1121–22
(S.D.N.Y. 1996) ($100,000 compensatory damages
award based on 42 U.S.C. § 1983 civil rights violation
causing plaintiff’s emotional suffering) [aff’d in part,
vacated and remanded in part, 136 F.3d 239 (2d Cir.
1998)]; Rush v. Scott Specialty Gases, Inc., 930 F. Supp.
194, 199 (E.D. Pa. 1996) ($100,000 compensatory dam-
ages award based on Title VII claim for plaintiff’s emo-
tional distress and depression) [rev’d, 113 F.3d 476 (3d
Cir. 1997)]; see also Olsen v. Nassau, [615 F. Supp. 2d
35, 46 (E.D.N.Y. 2009)] (‘[g]arden variety emotional
distress claims generally merit $30,000 to $125,000
awards’ . . . ).’’ (Emphasis added; footnote omitted.)
Patino v. Birken Mfg. Co., supra, 304 Conn. 707–708.
The plaintiff commission argues that, based on this
language, ‘‘[t]he pertinent lessons of Patino . . . are
twofold: first, that the general range of garden variety
emotional distress damages claims in discrimination
cases is ordinarily between $30,000 and $125,000; and
second, that a tribunal calculating an award of damages
should not only look to its own previous decisions for
guidance, but should consider analogous decisions
from neighboring tribunals as well. That the referee
failed to adhere to these aspects of Patino on remand
constitutes an error of law.’’
To support its first assertion concerning a presump-
tive range of damages, the plaintiff commission focuses
on our Supreme Court’s citation to Olsen v. Nassau,
supra, 615 F. Supp. 2d 46, and the statement contained
therein that ‘‘[g]arden variety emotional distress claims
generally merit $30,000 to $125,000 awards.’’ (Internal
quotation marks omitted.) See Patino v. Birken Mfg.
Co., supra, 304 Conn. 708. The plaintiff commission
asserts that this favorable citation to Olsen demon-
strates a recognition by our Supreme Court that there
is a presumptive range of damages to be awarded in
so-called garden variety emotional distress claims. We
are not persuaded.
A review of Patino reveals that the holding pertaining
to the damage award was limited and based on the
particular factual circumstances of that case. Our
Supreme Court concluded that, ‘‘the trial court did not
abuse its discretion when it concluded that the award
was not excessive or shocking when compared to ver-
dicts awarded under similar circumstances.’’ (Empha-
sis added.) Id., 708. Additionally, the language from
Olsen v. Nassau, supra, 615 F. Supp. 2d 46, cited by
our Supreme Court addresses only a general range of
emotional distress damages as it states simply that
‘‘[g]arden variety emotional distress claims generally
merit $30,000 to $125,000 awards.’’ (Emphasis added;
internal quotation marks omitted.) In Patino, the
Supreme Court did not establish a presumptive or man-
datory range of damages. We decline to extend the
language of Patino and the cases cited therein to create
a presumptive or mandatory range for emotional dis-
tress damages.
The plaintiff commission directs us to multiple fed-
eral decisions in the United States District Court for
the District of Connecticut that, it argues, provide guid-
ance on the strength of the range of damages discussed
in Patino as a presumptive reference point for an emo-
tional distress damage award. See State v. Commission
on Human Rights & Opportunities, 211 Conn. 464, 470,
559 A.2d 1120 (1989) (‘‘[w]e have often looked to federal
employment discrimination law for guidance in enforc-
ing our own antidiscrimination statute’’ (internal quota-
tion marks omitted)). Specifically, the plaintiff commis-
sion points to Vera v. Alstom Power, Inc., 189 F. Supp.
3d 360 (D. Conn. 2016), appeal dismissed, United States
Court of Appeals, Docket No. 16-2488 (2d Cir. August
16, 2016), and Carmichael v. Advanced Nursing &
Rehabilitation Center of New Haven, LLC, United
States District Court, Docket No. 3:19CV908 (JBA), (D.
Conn. February 24, 2021), as persuasive authorities that
rely on the principles of Patino in analyzing emotional
distress damages.
In Vera v. Alstom Power, Inc., supra, 189 F. Supp.
3d 379, the District Court, as part of its discussion of
similar federal and state cases, cited Patino and the
language therein that ‘‘[g]arden variety emotional dis-
tress claims generally merit $30,000 to $125,000
awards.’’ (Emphasis added; internal quotation marks
omitted.) In Carmichael v. Advanced Nursing & Reha-
bilitation Center of New Haven, LLC, supra, United
States District Court, Docket No. 3:19CV908 (JBA), the
District Court noted in a footnote that its decision to
award $70,000 for the plaintiff’s ‘‘emotional injuries and
associated physical impacts’’ was ‘‘consistent with
other comparable cases in this [c]ircuit where compen-
satory damages awards range between $30,000 and
$125,000.’’
Although perhaps instructive, these cursory refer-
ences to a range of damages in other cases do not
persuade us that Patino stands for any binding princi-
ple pertaining to damage awards in emotional distress
actions. Contrary to the parties’ claims, there is not a
binding or presumptive range for emotional distress
damages recognized in this state. The claim that emo-
tional distress damage awards appear to fall generally
within a certain range does not by itself create a pre-
sumption of error if an award is outside that range.2
Rather, ‘‘[i]n garden variety emotional distress claims,
the evidence of mental suffering is generally limited to
the testimony of the plaintiff.’’ (Internal quotation
marks omitted.) Patino v. Birken Mfg. Co., supra, 304
Conn. 707, quoting Olsen v. Nassau, supra, 615 F. Supp.
2d 46.
Further, to the extent that the plaintiff commission
argues that Patino holds that a tribunal calculating an
award of damages should consider analogous decisions
from neighboring jurisdictions in addition to awards
granted in this state, we find no support in the language
of the case that supports this proposition. In the present
case, the referee extensively analyzed the range of
awards issued from that office. Although it may be
instructive or persuasive for a tribunal to consider dam-
age awards and decisions outside of Connecticut, there
is no mandate in law requiring a tribunal to do so in
its analysis.
After a thorough review of the record, we find that
neither the referee nor the Superior Court misinter-
preted or misapplied Patino. Accordingly, we conclude
that the referee did not act unreasonably or arbitrarily
in her decision and that the Superior Court did not abuse
its discretion in dismissing the plaintiff commission’s
appeal and affirming the referee’s decision.
II
The plaintiff commission next argues that the referee
erred in her interpretation and application of the factors
set forth in Commission on Human Rights & Opportu-
nities ex rel. Harrison v. Greco, supra, CHRO No.
7930433, pp. 7–8, to determine emotional distress dam-
ages. Specifically, the plaintiff commission argues that
the referee erred in considering the relationship
between Howard and Cantillon; that the referee erred
in concluding that the discrimination was not public;
and that the Superior Court erroneously upheld the
referee’s findings. We are not persuaded.
We begin our analysis with a review of Harrison.
The complainant in that case, Donna Harrison, filed a
complaint with the CHRO alleging discrimination on the
basis of race in public accommodations, specifically,
rental housing, by the respondent, John Greco. Id., p.
1. In her discussion of the damage award for humiliation
and emotional distress, the hearing officer analyzed
numerous cases in Connecticut, as well as those from
other state and federal jurisdictions, and enumerated
a series of factors that other courts and administrative
officers had found relevant in their determinations of
awards for emotional distress and humiliation. Id., pp.
6–8. The hearing officer, quoting Commission on
Human Rights & Opportunities ex rel. Barboza v.
Chestnut Realty, Inc., CHRO No. 7830126 (April 12,
1983) p. 12, noted that ‘‘[t]he most important element
of such damages is the subjective internal emotional
reaction of the complainant to the discriminatory expe-
rience which he has undergone . . . .’’ (Internal quota-
tion marks omitted.) Commission on Human Rights &
Opportunities ex rel. Harrison v. Greco, supra, CHRO
No. 7930433, p. 7. The officer further noted that ‘‘[o]ther
factors that courts and administrative officers have
found relevant in determining the amount to award for
emotional distress and humiliation are . . . whether
the discrimination occurred in front of other people
. . . [and] the degree of offensiveness of the discrimi-
nation and the impact on the [complainant] . . . .’’
(Citations omitted.) Id., p. 8; see also Commission on
Human Rights & Opportunities v. Sullivan Associates,
Docket Nos. CV-XX-XXXXXXX-S and CV-XX-XXXXXXX-S,
2011 WL 3211150, *4 (Conn. Super. June 6, 2011)
(‘‘Under the Harrison analysis, the most important fac-
tor of such damages is the subjective internal emotional
reaction of the complainants to the discriminatory expe-
rience which they have undergone and whether the
reaction was intense, prolonged and understandable.
. . . Second, is whether the discrimination occurred in
front of other people. . . . For this, the court must
consider if the discriminatory act was 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 egre-
gious and was it done with the intention and effect
of producing the maximum pain, embarrassment and
humiliation.’’ (Citations omitted.)).
The plaintiff commission notes that the Harrison
factors are to be ‘‘weighed and considered, rather than
elements necessary to support a claim for emotional
distress damages . . . .’’ In the present case, the ref-
eree explicitly addressed the three Harrison factors
and engaged in a thorough analysis for each factor.
Nevertheless, the plaintiff commission argues that the
referee unreasonably departed from these criteria when
she considered the relationship between Howard and
Cantillon and increased the evidentiary threshold for
demonstrating that the discrimination was public in
nature. As a result of these alleged deviations, the plain-
tiff commission claims that the referee committed a
‘‘prejudicial error of law.’’ We are not persuaded.
The plaintiff commission first argues that the referee
erred by considering the relationship between Howard
and Cantillon. Specifically, the plaintiff commission
challenges the following passage from the referee’s
decision found in her analysis of the degree of offen-
siveness of the discriminatory actions and impact on
the complainant: ‘‘The present case stands in contrast
to several other housing harassment decisions of this
tribunal wherein the parties had a legal housing relation-
ship. See Commission on Human Rights & Opportuni-
ties ex rel. Brown v. Jackson, [CHRO Nos. 0750001 and
0750002, 2008 WL 5122193 (November 17, 2008)], and
Commission on Human Rights & Opportunities ex
rel. Scott v. [Jemison], CHRO No. 9950020, 2000 WL
35575662 (March 20, 2000) which both involved direct
discriminatory harassment of a tenant by a landlord.
See also Commission on Human Rights & Opportuni-
ties ex rel. Hartling v. Carfi, [CHRO No. 0550116, 2006
WL 4753467 (October 26, 2006)], which involved direct
discriminatory harassment of a condominium owner by
the property manager of the condominium complex. In
these three harassment cases, the respondent landlord,
or condominium association property manager as the
case may be, had the power and authority, and hence
far greater ability than the discriminator in the present
matter, to interfere with the housing rights and status
of the victim or to affect the provision or services or
facilities in connection with housing. In the present
case, where both parties are resident-owners, the
respondent, not being an association board member or
property manager of the condominium complex, had
no enforcement and supervisory power over the com-
plainant with respect to association rules or the provi-
sion or enjoyment of services or common facilities, and
lacked an ability to oppress or penalize her by virtue
of his authority.’’ (Footnotes omitted.) The plaintiff
commission challenges this analysis and argues that it
was an error of law for the referee to consider this
relationship in her decision.
A review of the referee’s decision reveals that she
considered the relationship between Howard and Can-
tillon as neighbors in contrast to harassment cases
involving a landlord-tenant relationship. The distinction
between the two circumstances is readily apparent. The
power dynamic found in harassment cases involving a
landlord-tenant relationship is highly relevant because
it pertains directly to the emotional reaction of the
complainant as well as to the degree of offensiveness
and the impact of the conduct on the complainant. As
the Superior Court noted in its decision: ‘‘If a landlord-
tenant relationship existed with the landlord being the
discriminating party, the conduct would be more likely
to have a more serious effect because the landlord has
a position of dominance over the tenant. For example,
the landlord is capable of taking actions that others
cannot, such as eviction, raising the tenant’s rent, or
refusing to make repairs, thereby having the potential
to engender more fear. If the parties have or had a
social relationship, the conduct may be more or less
hurtful, depending upon the relationship. Lastly, as fur-
ther example, if the parties had a relationship of trust
or authority, that relationship may affect how the dis-
criminatory conduct is perceived by the complainant.’’
We agree with the court’s analysis.
In the present case, Howard and Cantillon were
neighbors. The referee concluded, based on the evi-
dence before her, that Howard and Cantillon’s relation-
ship did not exhibit a similar power dynamic to that
of a landlord-tenant relationship, such that it would
increase the degree of offensiveness and impact on
Howard. The referee noted that ‘‘[Cantillon], not being
an association board member or property manager of
the condominium complex, had no enforcement and
supervisory power over the complainant with respect
to association rules or the provision or enjoyment of
services or common facilities, and lacked an ability to
oppress or penalize [Howard] by virtue of his authority.’’
Given our deference to the factual findings of the ref-
eree, as well as the highly relevant nature of the relation-
ship between a complainant and the party accused of
inflicting emotional distress, we conclude that the ref-
eree did not act unreasonably by considering the rela-
tionship between Howard and Cantillon in the pres-
ent case.
The plaintiff commission further argues that the ref-
eree erred in her determination that the discrimination
was not public. Whether the discrimination was public
is a question of fact. In her decision, the referee pointed
to specific testimony from Howard explaining that Can-
tillon would harass and direct racial slurs at her ‘‘ ‘espe-
cially when there were no witnesses to observe this
behavior.’ . . . ‘If I see him at the mailbox and he’s
with no one and I’m with no one, he would say ‘‘I’m
still going to get you, [N-word],’’ and that was mainly
every time that, if his wife is not in the car with him,
or no one is with me, that’s when he would do it.’ ’’
(Citation omitted; emphasis omitted.) On the basis of
this testimony and the totality of the evidence before
it, the referee concluded: ‘‘The complaint allegations,
and the testimony of the complainant and her former
boyfriend, establish that the respondent’s racially hos-
tile epithets and obscene-gesture harassment generally
were not visible or readily apparent to other persons.
. . . [T]he discriminatory harassment occurred in front
of other people only twice.’’ (Citations omitted.)
The plaintiff commission argues that the evidence
before the referee established that the harassment
occurred ‘‘exclusively in the open’’ and that others were
aware of Cantillon’s behavior, and, therefore, the evi-
dence establishes that there were more than two
instances of ‘‘public’’ discrimination. It is well estab-
lished that, ‘‘[w]ith regard to questions of fact, it is
neither the function of the trial court nor of this court
to retry the case or to substitute its judgment for that of
the administrative agency.’’ (Internal quotation marks
omitted.) Dept. of Public Safety v. Freedom of Informa-
tion Commission, supra, 298 Conn. 716. Our review of
the record leads us to the conclusion that the referee’s
factual determinations were reasonable given the evi-
dence before her.
The plaintiff commission further argues that the refer-
ee’s conclusions regarding the public nature of the dis-
crimination contains an error of law. Specifically, the
plaintiff commission argues that the referee impermissi-
bly implemented a requirement that more than one per-
son must be present for the discrimination to be public
and erred as a matter of law in concluding that the
discrimination was not public. We disagree. The plain-
tiff commission attempts to characterize the referee’s
factual findings that the discrimination was not public
as a question of law. We conclude that the referee’s
determination was a factual finding based on the evi-
dence before her and agree that the harassment gener-
ally was not visible or apparent to other persons. We
will not disturb this factual finding.
The plaintiff commission next argues that the referee
added an additional requirement that the discriminatory
conduct be intentionally public for the express purpose
of inflicting greater pain and distress. Specifically, the
plaintiff commission points to the referee’s conclusions
that ‘‘there is no evidence that the respondent aimed
his hostile speech and conduct at the complainant in
the presence of other listeners with the intent to inflict
greater emotional distress’’ and ‘‘[t]he absence in the
present case of public humiliation done with the inten-
tion and effect of producing the maximum pain, embar-
rassment and humiliation . . . militates against a
higher-end award’’; (citation omitted; internal quotation
marks omitted); and argues that the referee erred as a
matter of law in considering the intentionality of the
discrimination as part of its analysis of the public nature
of the discriminatory actions. We disagree.
In its decision on appeal, the Superior Court properly
analyzed this argument stating: ‘‘Discriminatory con-
duct of this type . . . is always intentional, and the
choice to engage in that conduct in public, where the
effect is obvious, is also always intentional. The [refer-
ee’s] quote thus merely recognizes that when a respon-
dent intentionally chooses to publically exhibit discrim-
inatory conduct towards another person, that
discriminatory conduct will have the effect of producing
the maximum pain, embarrassment and humiliation.’’
The referee, in her discussion of the public nature of
the conduct, considered Cantillon’s intentions behind
the conduct as a means to analyze the circumstances
surrounding the harassment and its effect on Howard.
We do not agree with the plaintiff commission that the
referee was imposing an additional requirement with
no basis in law. The ultimate goal of a human rights
referee, in determining damages, is to thoughtfully and
thoroughly consider the evidence and circumstances
pertaining to the misconduct at issue.3 See Thames Tal-
ent, Ltd. v. Commission on Human Rights & Opportu-
nities, 265 Conn. 127, 136, 827 A.2d 659 (2003) (‘‘[t]his
remedial goal is furthered by vesting in a hearing officer
broad discretion to award . . . appropriate remedies
specifically tailored to the particular discriminatory
practices at issue’’ (emphasis added; internal quotation
marks omitted)). As the Superior Court correctly stated,
‘‘[f]lexibility must be maintained to consider other
potentially important evidence that may be relevant
in particular cases.’’ Indeed, the plaintiff commission
agrees that the Harrison factors are not elements that
must be met to support a claim for emotional distress
damages but are, instead, factors to be weighed and
considered among other evidence. We conclude that
the referee acted reasonably in her analysis pertaining
to the public nature of the discriminatory conduct and
that the Superior Court did not abuse its discretion in
dismissing the appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 46a-94a authorizes the Commission on Human Rights
and Opportunities (CHRO) to appeal to the Superior Court an adverse
decision of a presiding officer. General Statutes § 4-183 requires the CHRO,
in such instances, to serve the agency that rendered the final decision. In
the present case, the CHRO appealed the decision of its own human rights
referee and thus named and served itself as defendant. See Blinkoff v.
Commission on Human Rights & Opportunities, 129 Conn. App. 714, 719,
20 A.3d 1272 (‘‘[w]e recognize that, pursuant to . . . § 46a-94a (a) and in
accord with the rules provided in . . . § 4-183, the [CHRO] has the statutory
right to appeal from the final decision of its own hearing officer’’ (footnote
omitted)), cert. denied, 302 Conn. 922, 28 A.3d 341 (2011); see also Commis-
sion on Human Rights & Opportunities v. Torrington, 96 Conn. App. 313,
314 n.1, 901 A.2d 46 (‘‘[i]n its administrative appeal, the plaintiff, appealing
from the decision of its human rights referee, properly named itself as a
defendant’’), cert. denied, 280 Conn. 929, 909 A.2d 957 (2006).
The defendant commission represents that it is prevented, however, from
advocating for both sides in an appeal under Quist v. Commission on
Human Rights & Opportunities, Court of Common Pleas, Tolland County,
Docket No. 5055 (November 10, 1975), because it owes a ‘‘continuing obliga-
tion to the [complainant] . . . .’’ See also Commission on Human Rights &
Opportunities v. Board of Education, 270 Conn. 665, 682, 855 A.2d 212 (2004)
(‘‘under its statutory regime, the [CHRO], and not the original complainant,
carries the laboring oar in investigating, attempting to mediate, presenting,
and ultimately administratively adjudicating, a claim of discrimination filed
by an individual complainant’’). The defendant commission has elected to
support the plaintiff commission. The present case thus presents us with
the unusual situation of both parties on appeal advocating for the same
interests; specifically, asking this court to reverse the decision of the Supe-
rior Court, vacate the referee’s award of damages and remand the case for
a new calculation of damages.
Additionally, neither the complainant, Kelly Howard, nor the respondent,
Richard Cantillon, appeared in Superior Court or participated in the appeal.
The state of Connecticut has, pursuant to Practice Book § 67-7, filed an
amicus curiae brief in the present matter advocating for a position averse
to certain arguments of both the plaintiff and the defendant commissions.
The state did not participate in oral argument.
2
In the present case, the plaintiff commission has alleged a violation of
§ 46a-64c. Damage awards under that statute are issued pursuant to General
Statutes § 46a-86 (c), which is silent as to any range or minimum amount
of damages that a presiding officer must award on a finding of discriminatory
practice and provides only that ‘‘the presiding officer shall determine the
damage suffered by the complainant, which damage shall include, but not
be limited to, the expense incurred by the complainant for obtaining alternate
housing or space, storage of goods and effects, moving costs and other
costs actually incurred by the complainant as a result of such discriminatory
practice and shall allow reasonable attorney’s fees and costs. . . .’’ In the
absence of any language in the statute, we cannot conclude that a binding
or presumptive range of damages in emotional distress claims is recognized
in Connecticut. See Kobyluck Bros., LLC v. Planning & Zoning Commis-
sion, 167 Conn. App. 383, 391, 142 A.3d 1236 (‘‘[a] court must interpret a
statute as written . . . and it is to be considered as a whole, with a view
toward reconciling its separate parts in order to render a reasonable overall
interpretation’’ (internal quotation marks omitted)), cert. denied, 323 Conn.
935, 151 A.3d 383 (2016).
3
We note that both the plaintiff commission and the defendant commission
have directed us to numerous cases detailing the long history of racial hatred
and bigotry associated with the racial epithet used by Cantillon. See State
v. Liebenguth, 336 Conn. 685, 703–704, 250 A.3d 1 (2020), cert. denied,
U.S. , 141 S. Ct. 1394, 209 L. Ed. 2d 132 (2021); Rogers v. New Britain,
189 F. Supp. 3d 345, 356 (D. Conn. 2016); In re John M., 201 Ariz. 424, 428,
36 P.3d 772 (App. 2001).
In her decision, the referee made detailed findings of fact regarding Cantil-
lon’s regular use of that racial epithet directed at Howard. In making her
damages award, the referee expressly stated: ‘‘There is no doubt that the
respondent’s race-based verbal harassment, obscene gestures, and threaten-
ing conduct were highly offensive and inflammatory. The pervasive and
persistent use of derogatory racial epithets . . . and race-based threats
. . . over a period of seven years is patently offensive and well recognized
as such.’’ Accordingly, we conclude that the referee properly considered
the weight of this word and its effect. The parties’ arguments that we consider
the use of that specific word in our analysis of the referee’s factual findings
does not persuade us to reverse her factual findings.