Tomick v. United Parcel Service, Inc. ( 2015 )

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MICHAEL TOMICK v. UNITED PARCEL
SERVICE, INC., ET AL.
(AC 35896)
DiPentima, C. J., and Beach and Prescott, Js.
Argued October 20, 2014—officially released May 19, 2015
(Appeal from Superior Court, judicial district of New
London, Cosgrove, J.)
Michael C. Harrington, with whom were Stella Szan-
tova Giordano and, on the brief, Jennifer A. Corvo, for
the appellant-appellee (named defendant).
Michael D. Colonese, with whom, on the brief, was
Cassie N. Jameson, for the appellee-appellant
(plaintiff).
Marc P. Mercier filed a brief for the Connecticut
Employment Lawyers Association as amicus curiae.
Charles Krich, principal attorney, filed a brief for the
Commission on Human Rights and Opportunities as
amicus curiae.
Opinion
DiPENTIMA, C. J. This employment discrimination
case returns to this court following our remand to the
trial court for a determination of the ‘‘date of the adverse
employment decision’’ and whether the plaintiff was
qualified to perform the essential duties of his position
at that time. Tomick v. United Parcel Service, Inc.,
135 Conn. App. 589, 613, 43 A.3d 722 (Tomick I), cert.
denied, 305 Conn. 920, 47 A.3d 389 (2012). We instructed
the court that it was ‘‘not precluded from reconsidering
the issue of which analytical framework should be
applied and what each framework requires the plaintiff
to establish to make out a prima facie case.’’ Id., 613
n.17. On appeal, the defendant United Parcel Service,
Inc.,1 argues that the trial court abused its discretion
in denying the defendant’s motion for a directed verdict
because the plaintiff, Michael Tomick, failed to estab-
lish a prima facie case of disability discrimination pursu-
ant to General Statutes § 46a-60.2 Specifically, the
defendant claims that the court erred in finding that
(1) the adverse employment action occurred on Decem-
ber 1 or 2, 2004, and (2) the plaintiff was qualified to
perform the essential functions of his job on that date.
In his cross appeal, the plaintiff argues that the court
improperly set aside the award of punitive damages on
the ground that such an award was not authorized by
General Statutes § 46a-104. We affirm the judgment of
the court.
The plaintiff brought this employment discrimination
action against the defendant, claiming, inter alia, that
the defendant terminated his employment in violation of
§ 46a-60 (count six). The facts that the jury reasonably
could have found were set forth by this court in Tomick
I and are as follows: The plaintiff worked as a package
car driver for the defendant. ‘‘On January 3, 2003, the
plaintiff suffered a back injury during the course of
his employment. He received a 13 percent permanent
disability of his lumbar spine. The plaintiff took a leave
of absence until November, 2003, when he returned to
work with no restrictions.
‘‘On November 30, 2004, the plaintiff reinjured his
back when he stepped off a stoop while delivering a
package. He sent an electronic message to the [defen-
dant’s Norwich] center informing the defendant of his
situation and completed his route. That evening, [Kevin]
Trudelle [the business manager of the defendant’s Nor-
wich/Niantic center] discussed the injury with Michael
Hebert, the plaintiff’s direct supervisor, and Hebert noti-
fied the defendant’s insurance carrier of the accident.
‘‘The next morning, December 1, the plaintiff was
experiencing back pain. He called the center to request
the day off to recover. Trudelle approved the absence
and instructed the plaintiff to seek medical treatment.
The plaintiff was examined at Pequot Medical Center,
where he indicated to the treating physician that he
needed to be released for full duty because it was the
peak season for the defendant’s business. The plaintiff
told the physician that he would be able to perform his
job with a helper, and the physician released the plain-
tiff for full duty. The plaintiff called Trudelle to inform
him that he was released for full duty and requested a
helper for the day. Trudelle told the plaintiff that he
would have a helper that day, but he did not then take
any steps to ensure that the plaintiff would be assigned
a helper to his route. . . .
‘‘On December 2, the plaintiff returned to work. When
he arrived that morning, he was told by both the pre-
loader who was loading his truck and Hebert that he
was going to have a helper. Because the plaintiff was
returning to work after an injury, Hebert accompanied
the plaintiff for a portion of his route that morning
to evaluate his knowledge of safety methods, as was
standard practice.
‘‘After completing the training, Hebert instructed the
plaintiff to meet a helper at a specified location at noon.
The helper was not in the designated meeting location
at that time, so the plaintiff contacted the center by
electronic message. The plaintiff also called Trudelle
to inquire about the helper. Trudelle told the plaintiff
that it was the first he had heard that the plaintiff did
not have a helper and transferred him to Mark Appleton,
a human resources supervisor and the helper coordina-
tor. Appleton was not aware that the plaintiff was sup-
posed to be assigned a helper that day, but began
looking for a helper.
‘‘At that time, the plaintiff called his wife. He told
her that he had not been assigned a helper that day and
that he was in significant pain. He also told her he
would be coming home for lunch, as was typical. The
plaintiff then sent several messages to the center to
communicate that he was going home for lunch, that
he needed to come off the road and that he needed to
see a physician. On the way to his home, the plaintiff
received a message instructing him to call Trudelle
immediately.
‘‘When the plaintiff arrived home, he found his wife
crying, and she told him that she had called Trudelle.
The plaintiff’s wife told Trudelle that she thought her
husband was being singled out and that she thought he
was going to have a nervous breakdown. Trudelle told
the plaintiff’s wife that the plaintiff was not being honest
and that he had gone ‘above and beyond’ to help the
plaintiff. The plaintiff called Trudelle from his home,
as instructed, and told him that his back was still hurting
and that he needed to see a physician. Trudelle told
the plaintiff that if he ‘couldn’t do the fucking job, [to]
bring the fucking truck back to the building.’ Trudelle
then asked if the plaintiff wanted anybody to come pick
up the truck or if the plaintiff could drive it back to
the center. The plaintiff said he would bring the truck
back after his lunch break.
‘‘When the plaintiff returned to the center, he found
another driver waiting to take over his route. The plain-
tiff was upset and in physical pain and went to speak
with Trudelle. He asked Trudelle what was going on
because he thought he was supposed to have a helper
assigned to his route. Trudelle told the plaintiff that his
wife had called and said that the plaintiff was having
a nervous breakdown. The plaintiff said that he was at
his wit’s end and needed to see a physician because of
his pain. Trudelle told the plaintiff that he was acting
irrationally and that he would be sent for a fitness for
duty test and a substance abuse test. The plaintiff was
upset by this and told Trudelle that he was going to the
medical clinic to be seen by a physician for his back
pain. The plaintiff maintained that he would not go for
a fitness for duty test, and Trudelle told him that if he
did not go he could be fired. At that point, the plaintiff
believed that his employment had been terminated.
‘‘The plaintiff exited Trudelle’s office and left the
building yelling and swearing. As he exited, he tele-
phoned his union steward but did not reach him. He
then called his wife, who reviewed the collective bar-
gaining agreement and told the plaintiff that refusing a
fitness for duty test could be a ground for discharge.
Trudelle followed the plaintiff to the parking lot. As the
plaintiff reached the lot, supervisor Ray Congdon was
walking up the driveway to the lot. Trudelle was on
the telephone with [Charles A.] Sheahan, [a division
manager] describing the situation. Per Sheahan’s
instructions, Trudelle informed the plaintiff that they
would call the state police if he got into his car. Trudelle
also told the plaintiff that he needed to accompany him
for a fitness for duty test and drug test immediately.
When the plaintiff again refused, Trudelle told him he
was fired, and it was again the plaintiff’s understanding
that his employment had been terminated. The plaintiff,
while standing approximately ten yards from Trudelle,
said, ‘I should have kicked your ass for what you said
to my wife earlier today.’ Trudelle then told Sheahan
over the telephone that the plaintiff said he ‘might kick
[Trudelle’s] ass,’ and the plaintiff corrected him and
said, ‘I didn’t say I was going to kick your ass. I said I
shoulda.’ When the plaintiff again refused to accompany
Trudelle to the clinic, Congdon suggested, as an attempt
to defuse the situation, that the plaintiff go with Con-
gdon to the clinic instead and the plaintiff acquiesced.
‘‘The plaintiff was seen at the clinic by Geraldine S.
Ruffa, a physician. After examining the plaintiff, she
did not find it necessary to administer a urinalysis drug
test. The physician released the plaintiff back to work,
but at a modified duty status with a lifting restriction
of no more than fifteen pounds and minimum bending,
squatting and twisting. She prescribed two medications
and reminded the plaintiff that he should not use them
at work or drive while using them because they cause
drowsiness. The plaintiff was to be reevaluated on
December 8, 2004.
‘‘Congdon called Trudelle from the medical center
and informed him that the physician did not think it was
necessary to perform a drug test because the plaintiff’s
behavior was explained by the amount of pain he was
suffering. Trudelle told Congdon to instruct the plaintiff
to call the center the next morning at nine o’clock to
be told when to report for light duty.
‘‘At some point after receiving the call from Congdon,
Trudelle spoke to Sheahan. Trudelle told Sheahan that
a drug test was not administered to the plaintiff. After
consultation with Nick Reut, the district labor manager,
Sheahan decided that the plaintiff’s employment should
be terminated for workplace violence. By the time the
plaintiff arrived for light duty on December 3, Trudelle
and Sheahan, with the assistance of [district risk man-
ager Victor] Birch, had finalized a plan for terminating
the plaintiff’s employment.
‘‘On December 3, the plaintiff arrived at the center
at approximately 8:20 a.m. to speak with a union repre-
sentative. He was able to speak briefly with a union
representative, Michael Rabbit, until Trudelle told the
plaintiff that the union representative had work to do,
requested that the plaintiff leave the building and
instructed him to call at nine o’clock. The plaintiff
waited in his car until nine o’clock when he called
Trudelle from the parking lot. Trudelle requested that
the plaintiff return at about two o’clock that afternoon
in casual clothes for temporary alternate work.
‘‘When the plaintiff returned to the center that after-
noon, he met in a conference room with Trudelle, Birch
and a union representative, John Fitzgerald. The plain-
tiff was asked initially about November 30, the date of
his injury. They then discussed the events of December
2. Trudelle and Birch left the room and determined that
Trudelle would ask the plaintiff to submit to a fitness
for duty test. When they returned to the room, Trudelle
asked the plaintiff to submit to the test, and the plaintiff
responded that he would submit to the test. Trudelle
and Birch left the room again to confer, and when they
returned Trudelle informed the plaintiff that he would
not be sent for a fitness for duty test. Trudelle told
the plaintiff that his employment was terminated for
violating the defendant’s policy against workplace vio-
lence, in light of the altercation the prior day.’’ (Foot-
notes omitted.) Id., 594–600.
The subsequent pertinent procedural history of the
case is as follows. ‘‘On September 29, 2006, the plaintiff
filed a seven count complaint against [Trudelle and the
defendant], alleging (1) negligent infliction of emotional
distress against the defendants, (2) intentional infliction
of emotional distress against the defendants, and (3)
violations of [General Statutes] § 31-51x against the
defendants. Counts four and five alleged violations of
42 U.S.C. § 12112 (a) against the defendant. Counts six
and seven alleged violations of § 46a-60 (a) (1) against
the defendant. The defendants removed the case to
federal District Court by notice of removal on October
20, 2006.
‘‘On December 5, 2006, the plaintiff filed in the District
Court an amended complaint that withdrew his claim
in count three against Trudelle. On December 6, 2006,
the defendants filed a motion to dismiss counts one,
two, three and seven. The District Court granted the
motion with respect to count seven and denied the
motion with respect to counts one, two and three. On
September 20, 2007, the defendants filed a motion for
summary judgment on all remaining counts. The Dis-
trict Court granted the motion with respect to counts
four and five, and remanded the remaining counts to
the Superior Court.
‘‘The defendants thereafter filed in the Superior Court
a motion for summary judgment on February 23, 2009,
on all remaining counts. The court granted the motion
with respect to count two, but denied it as to the
remaining counts.
‘‘A jury trial commenced on June 29, 2010. After the
plaintiff rested on July 6, 2010, the defendants moved
for a directed verdict on counts one, three and six. The
court heard argument on the matter and reserved a
decision. On July 9, 2010, the jury returned a verdict in
favor of the plaintiff, answering all twelve interrogato-
ries in the affirmative. The jury awarded the plaintiff
$250,000 for negligent infliction of emotional distress
as to the defendant, $50,000 for negligent infliction of
emotional distress as to Trudelle, $100,000 for a viola-
tion of § 31-51x and $100,000 for disability discrimina-
tion. Additionally, the jury awarded $500,000 in
punitive damages.
‘‘Several posttrial motions were filed. On July 19,
2010, the defendants timely moved to set aside the ver-
dict. On the same day, the defendants also moved to
set aside the award of punitive damages. . . .
‘‘On October 28, 2010, the court, in a written decision,
decided the remaining motions. The court denied the
defendants’ motions to set aside the verdict . . . and
granted the defendant’s motion to set aside the award
of punitive damages.’’ Id., 600–602. Both the defendant
and the plaintiff appealed from the judgment of the
court.
In Tomick I, the defendant argued that the trial court
erred in denying its motion for a directed verdict as to
count six because the plaintiff failed to establish a prima
facie case of disability discrimination pursuant to § 46a-
60, specifically as to the proof that the plaintiff was
qualified to perform the essential functions of his job.
Id., 610. The defendant further argued that the court
‘‘did not apply precedent holding that the relevant date
for determining whether a person is qualified is the
date of the adverse employment action, and incorrectly
determined that the relevant date was the same as that
when the termination process occurred.’’ Id. We agreed
with the defendant’s argument, but concluded that the
record did not reflect which analytical framework the
court applied in determining whether the plaintiff had
met his prima facie case.3 Id., 612. We further deter-
mined that the ‘‘finding made by the court that is before
us is its conclusion that the plaintiff was a qualified
individual on the operative date.’’ Id. We thus assumed,
‘‘without deciding, that the court required the plaintiff
to show that he was a qualified individual at the time
of the adverse employment decision so as to make out
a prima facie case.’’ Id. We declined to address the
merits of the claim, however, and remanded the matter
to the trial court because ‘‘[a]bsent factual findings as
to December 2, 2004, or December 3, 2004, the record
is inadequate to ascertain whether the plaintiff would
prevail under the correct legal standard.’’ Id., 613. In
doing so, we specifically instructed the court that it
was ‘‘not precluded from reconsidering the issue of
which analytical framework should be applied and what
each framework requires the plaintiff to establish to
make out a prima facie case.’’4 Id., 613 n.17.
On remand, the trial court applied the pretext/
McDonnell Douglas Corp.-Burdine framework, finding
it ‘‘the appropriate test because here the defendant has
offered evidence that it terminated the plaintiff for viola-
tion of its workplace violence [policy], not as a defense,
but rather as a response to the plaintiff’s claim that the
firing was pretextual.’’
As to the date of the adverse employment decision,
the court determined that ‘‘the jury reasonably could
have found that the adverse employment decision, i.e.,
the decision to terminate the plaintiff, occurred on
December 1 [2004] and was communicated to [the]
plaintiff by his supervisor in the parking lot on Decem-
ber 2, 2004. The meeting in the presence of the union
representative on December 3, 2004, confirmed or rati-
fied the earlier decision communicated to the plaintiff
on December 2, 2004.’’
As to the plaintiff’s qualification to perform the essen-
tial job functions, the court first held that the plaintiff
was required to establish that he could perform the
essential duties of his position on the date of the adverse
employment decision under either analytical frame-
work and then found that he ‘‘was qualified to perform
the essential job functions [of a package car driver] on
December 1 and December 2, 2004.’’ The court further
concluded, however, that ‘‘as of the late afternoon of
December 2, 2004, the plaintiff was placed under medi-
cal restrictions and medications that would have pre-
vented the plaintiff from performing the essential
functions of the package car driver position.’’ Having
made the requisite findings, the court reaffirmed its
denial of the defendant’s motion for a directed verdict,
stating that the plaintiff had established ‘‘his prima facie
case for disability discrimination because the jury could
have reasonably found that the plaintiff was qualified
to work on December 2, 2004, when the defendant ter-
minated the plaintiff based on his history of having a
disability.’’ These appeals followed. Additional facts and
procedural history will be set forth as necessary.
I
DEFENDANT’S APPEAL
The defendant claims that the court abused its discre-
tion in denying its motion for a directed verdict as to
count six because the plaintiff failed to establish a prima
facie case of disability discrimination pursuant to § 46a-
60. Specifically, the defendant claims that the court
erred in finding that (1) the adverse employment action
occurred on December 2, 2004, and (2) that the plaintiff
was qualified to perform the essential functions of his
job on that date. We affirm the denial of the defendant’s
motion for a directed verdict because we conclude that,
under the circumstances of this particular case,
whether the plaintiff was qualified for his position on
the date of the adverse employment decision is not
relevant to the question of whether he was discrimi-
nated against by the defendant on the basis of his preex-
isting disability.
We begin by setting forth the appropriate legal frame-
work. The ‘‘standards of review for the denial of a
motion for a directed verdict and denial of a motion to
set aside a verdict are the same. . . . Ordinarily, [t]he
proper appellate standard of review when considering
the action of a trial court granting or denying a motion
to set aside a verdict . . . [is] the abuse of discretion
standard. . . . [O]ur review of a trial court’s refusal to
direct a verdict . . . takes place within carefully
defined parameters. We must consider the evidence,
including reasonable inferences which may be drawn
therefrom, in the light most favorable to the parties who
were successful at trial . . . giving particular weight to
the concurrence of the judgments of the judge and the
jury, who saw the witnesses and heard the testimony
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Tomick I, supra, 135 Conn. App. 603.
‘‘Directed verdicts are not favored. . . . As a general
rule, the decision to set aside a verdict entails the exer-
cise of a broad legal discretion . . . that, in the absence
of clear abuse, we shall not disturb.’’ (Citations omitted;
internal quotation marks omitted.) Rawls v. Progressive
Northern Ins. Co., 310 Conn. 768, 775–76, 83 A.3d 576(2014). We note further that, to the extent that the
claims raise questions of law, our review is plenary.
See Bridgeport Harbour Place I, LLC v. Ganim, 131
Conn. App. 99, 153, 30 A.3d 703 (applying plenary review
where questions of law were raised by defendant, claim-
ing that court improperly denied motion for directed
verdict and to set aside verdict), cert. granted on other
grounds, 303 Conn. 904, 905, 31 A.3d 1179, 1180 (2011)
(appeals withdrawn January 26 and 27, 2012).
A
Applicable Analytical Framework
‘‘The legal standards governing discrimination claims
involving adverse employment actions are well estab-
lished. The framework this court employs in assessing
disparate treatment discrimination claims under Con-
necticut law was adapted from the United States
Supreme Court’s decision in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973), and its progeny.’’5 (Internal quotation marks
omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65,
73, A.3d (2015); Vollemans v. Wallingford, 103
Conn. App. 188, 928 A.2d 586 (2007) (where employee
claims disparate treatment under facially neutral
employment policy, courts employ McDonnell Douglas
Corp.-Burdine framework), aff’d, 289 Conn. 57, 956
A.2d 579 (2008). Furthermore, it is well settled that
‘‘[w]e look to federal law for guidance on interpreting
state employment discrimination law, and the analysis
is the same under both.’’6 Feliciano v. Autozone, Inc.,
supra, 73; Curry v. Allan S. Goodman, Inc., 286 Conn.
390, 415, 944 A.2d 925 (2008); Craine v. Trinity College,
259 Conn. 625, 637 n.6, 791 A.2d 518 (2002); Levy v.
Commission on Human Rights & Opportunities, 236
Conn. 96, 103, 671 A.2d 349 (1996); Walker v. Dept. of
Children & Families, 146 Conn. App. 863, 875 n.8, 80
A.3d 94 (2013), cert. denied, 311 Conn. 917, 85 A.3d
653 (2014).
In general, to ‘‘establish a prima facie case of discrimi-
nation [under the McDonnell Douglas Corp.-Burdine
framework], the complainant must demonstrate that
(1) he is in the protected class; (2) he was qualified for
the position; (3) he suffered an adverse employment
action; and (4) that the adverse action occurred under
circumstances giving rise to an inference of discrimina-
tion. . . . The level of proof required to establish a
prima facie case is minimal and need not reach the
level required to support a jury verdict in the plaintiff’s
favor.’’ (Citation omitted; internal quotation marks
omitted.) Vollemans v. Wallingford, supra, 103 Conn.
App. 220. ‘‘Under the McDonnell Douglas-Burdine
[framework], the burden of persuasion remains with
the plaintiff. . . . Once the plaintiff establishes a prima
facie case, however, the burden of production shifts to
the defendant to rebut the presumption of discrimina-
tion by articulating (not proving) some legitimate, non-
discriminatory reason for the plaintiff’s rejection. . . .
Because the plaintiff’s initial prima facie case does not
require proof of discriminatory intent, the McDonnell
Douglas-Burdine [framework] does not shift the bur-
den of persuasion to the defendant. Therefore, [t]he
defendant need not persuade the court that it was actu-
ally motivated by the proffered reasons. . . . It is suffi-
cient if the defendant’s evidence raises a genuine issue
of fact as to whether it discriminated against the plain-
tiff. . . . Once the defendant offers a legitimate, non-
discriminatory reason, the plaintiff then has an
opportunity to prove by a preponderance of the evi-
dence that the proffered reason is pretextual.’’ (Cita-
tions omitted; internal quotation marks omitted.) Levy
v. Commission on Human Rights & Opportunities,
supra, 236 Conn. 107–109.
B
Prima Facie Case of Discrimination
In its brief, the defendant argues that ‘‘[i]t is funda-
mental, under both state and federal law, that a plaintiff
bringing a claim of disability [discrimination] must be
capable of performing his/her essential job functions
as of the date of the adverse employment action being
challenged . . . .’’ We disagree.
It is beyond dispute that the prima facie case require-
ments under McDonnell Douglas Corp.-Burdine are
meant to be flexible. Even in McDonnell Douglas Corp.
v. Green, supra, 411 U.S. 792—the case that first out-
lined the model— the United States Supreme Court
explicitly stated that the ‘‘facts necessarily will vary in
Title VII cases, and the specification above of the prima
facie proof required from respondent is not necessarily
applicable in every respect to differing factual situa-
tions.’’ Id., 802 n.13. Later, the Supreme Court further
clarified the adaptability of the test, stating that the
McDonnell Douglas Corp. decision ‘‘did not purport
to create an inflexible formulation’’ of a prima facie
showing and that the ‘‘importance of McDonnell Doug-
las lies, not in its specification of the discrete elements
of proof there required, but in its recognition of the
general principle that any Title VII plaintiff must carry
the initial burden of offering evidence adequate to cre-
ate an inference that an employment decision was based
on a discriminatory criterion . . . .’’ International
Brotherhood of Teamsters v. United States, 431 U.S.
324, 358, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977); see
also Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 n.6, 101 S. Ct. 1089, 67 L. Ed. 2d 207(1981) (‘‘[McDonnell Douglas Corp.] standard is not
inflexible’’). Furthermore, in United States Postal Ser-
vice Board of Governors v. Aikens, 460 U.S. 711, 715,
103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983), the Supreme
Court plainly stated that the ‘‘factual inquiry in a Title
VII case is [whether] the defendant intentionally dis-
criminated against the plaintiff. . . . In other words,
is the employer . . . treating some people less favor-
ably than others because of their race, color, religion,
sex, or national origin. . . . The prima facie case
method established in McDonnell Douglas was never
intended to be rigid, mechanized, or ritualistic. Rather,
it is merely a sensible, orderly way to evaluate the
evidence in light of common experience as it bears
on the critical question of discrimination.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) This principle has since been adopted and
affirmed by our Supreme Court. See Levy v. Commis-
sion on Human Rights & Opportunities, supra, 236
Conn. 108 n.20 (McDonnell Douglas Corp. ‘‘standard is
not rigid; the prima facie elements should be modified
appropriately depending on the respective factual sce-
nario’’); see also Miko v. Commission on Human
Rights & Opportunities, 220 Conn. 192, 204, 596 A.2d
396 (1991) (‘‘the requirements of proof [under McDon-
nell Douglas Corp.-Burdine] must be tailored to the
particular facts of each case’’); Chestnut Realty, Inc.
v. Commission on Human Rights & Opportunities,
201 Conn. 350, 361, 514 A.2d 749 (1986) (same).
Nevertheless, to support its narrow interpretation of
the McDonnell Douglas Corp.-Burdine model, the
defendant cites to both federal and Connecticut cases
in which courts have required a showing of qualification
as part of the prima facie case. Close examination of
these cases, however, reveals that the courts required
a showing of qualification precisely because it was ger-
mane to the issues involved. For example, in Curry v.
Allan S. Goodman, Inc., supra, 286 Conn. 398–99, one
of the cases cited by the defendant, our Supreme Court
required the plaintiff to show that he was qualified to
perform the essential duties of the job because the
employer’s stated reason for termination was its inabil-
ity to continue employing the plaintiff with or without
a reasonable accommodation. Simply stated, the
employer’s position was that the plaintiff could not do
his job or any other job and, therefore, the employer
was not required to continue employing the plaintiff.
Thus, the plaintiff’s qualifications were essential in
determining whether the employer could in fact employ
the plaintiff with or without a reasonable accommo-
dation.
Similarly, in McBride v. BIC Consumer Products Mfg.
Co., 583 F.3d 92, 96–97 (2d Cir. 2009), another accommo-
dation case cited by the defendant, the plaintiff was
required to make a sufficient showing that she was
capable of performing the essential functions of either
her predisability position or some other position to
which she could have been reassigned because the
employer’s stated reason for the termination of her
employment was that she had refused to accept the
proposed accommodation of her disability and failed
to propose any alternative accommodation that would
allow her to return to work in her previous position.
Once again, the plaintiff’s qualifications were germane
to the determination of whether it was possible for
the employer to accommodate and thus continue to
employ her.7
If, however, the question of qualification is not rele-
vant to the main question of whether there was discrimi-
nation, our Supreme Court holds that no such showing
is necessary on the part of the plaintiff. See Perez-
Dixon v. Bridgeport, 304 Conn. 483, 43 A.3d 69 (2012). In
Perez-Dixon, the plaintiff, an African-American school
principal, was accused of sexually abusing a student—
an allegation that was later determined to be unsubstan-
tiated. Pending the investigation, the district superinten-
dent placed the plaintiff on administrative leave.
Thereafter, the plaintiff brought an action, claiming that
other employees were treated more favorably than the
plaintiff under similar circumstances. On review, our
Supreme Court concluded that the plaintiff’s claim was
subject to the McDonnell Douglas Corp.-Burdine
framework analysis. The court explicitly stated, how-
ever, that even though in ‘‘some employment contexts,
such as claims involving hiring, promoting or granting
tenure, the plaintiff must show that she was qualified
to hold her employment position,’’ because, in this par-
ticular case, ‘‘the question of whether the plaintiff was
qualified for her position is not relevant to the question
of whether she was subjected to harsher discipline than
other employees on the basis of her race, we conclude
that it is not an element of her prima facie case.’’ Id.,514 n.34.
Having reviewed the history and the purpose behind
the McDonnell Douglas Corp.-Burdine framework, as
well as the evolution of the case law interpreting and
applying it, we conclude that the defendant’s view of
the law governing employment discrimination is con-
trary to that expressed in McDonnell Douglas Corp.-
Burdine and its progeny. The McDonnell Douglas
Corp.-Burdine framework does not create, as the
defendant contends, a ‘‘fundamental’’ requirement that
a plaintiff bringing a claim of disability discrimination
‘‘must be capable of performing his/her essential job
functions as of the date of the adverse employment
action being challenged . . . .’’ (Emphasis added.) On
the contrary, the McDonnell Douglas Corp.-Burdine
framework mandates a flexible approach tailored to
the specific factual circumstances of each case.
With these principles in mind, we now turn to the
present dispute. Our examination of the factual circum-
stances of this particular case convinces us that the
question of whether the plaintiff was qualified to per-
form the essential duties of his position at the time of
the termination is not relevant for two reasons.
First, unlike in the cases relied on by the defendant
in its brief, in this case the plaintiff was already an
employee of the defendant, and his qualifications for
the position held at the time were not being challenged;
i.e., the defendant was not asserting that it could no
longer continue to employ the plaintiff, with or without
reasonable accommodations, on the basis of his unsatis-
factory performance or lack of qualifications as a result
of his disability. On the contrary, the defendant stead-
fastly maintained throughout this litigation that it ‘‘has
never asserted that it discharged [the plaintiff] because
of his alleged disability.’’ Instead, the defendant always
maintained that it terminated the plaintiff’s employment
for a violation of its workplace violence policy.
Second, it is axiomatic that requiring a plaintiff to
establish his or her job qualification serves the purpose
of eliminating one of the most common ‘‘legitimate rea-
sons on which an employer might rely to reject a job
applicant: an absolute or relative lack of qualifications
. . . .’’ (Emphasis added.) International Brotherhood
of Teamsters v. United States, supra, 431 U.S. 358 n.44;
see also Texas Dept. of Community Affairs v. Burdine,
supra, 450 U.S. 253–54 (‘‘[t]he prima facie case serves
an important function in the litigation: it eliminates
the most common nondiscriminatory reasons for the
plaintiff’s rejection’’). In this case, however, the defen-
dant could not have relied on the plaintiff’s alleged lack
of qualifications because, at the time of the termination,
the defendant did not know whether the injury the
plaintiff sustained on November 30, 2004, had rendered
the plaintiff unqualified, and it is settled, of course, that
after-acquired ‘‘evidence may not be used to prove an
employer’s motivation with respect to a prospective
or current employee because the employer did not have
those facts before it at the time that it made the con-
tested decision.’’ (Emphasis in original.) Curry v. Allan
S. Goodman, Inc., supra, 286 Conn. 422 n.19.
Consequently, because the question of whether the
plaintiff was qualified for his position is not relevant
to the question of whether he was discriminated against
by the defendant, we conclude that it is not an element
of his prima facie case.8 To establish his prima facie
case of discrimination in this case, the plaintiff had to
present evidence that: (1) he belonged to a protected
class; (2) he was subject to an adverse employment
action; and (3) the adverse action took place under
circumstances permitting an inference of discrimina-
tion. The review of the record confirms that he pre-
sented evidence to prove each remaining element, and,
thus, established his prima facie case of discrimination.
Therefore, we conclude that the trial court did not abuse
its discretion in denying the defendant’s motion for a
directed verdict.
II
PLAINTIFF’S CROSS APPEAL
The plaintiff claims on cross appeal that the court
erred in concluding that § 46a-104 does not authorize
an award of punitive damages.9 Specifically, the plaintiff
argues that by ‘‘using the phrase, ‘including, but not
limited to,’ to modify the phrase ‘legal and equitable
relief,’ the legislature undoubtedly intended to autho-
rize all forms of appropriate legal and equitable relief,
including punitive damages,’’ which, he claims, ‘‘are
undeniably a form of legal relief . . . .’’ We are not per-
suaded.
The following facts, as found by the court, and proce-
dural history are relevant to our discussion. ‘‘On July
9, 2010, the jury determined that the plaintiff’s physical
disability was a motivating factor in [the defendant’s]
decision to terminate his employment. It further
responded affirmatively to jury interrogatory [no.] 12,
which asked, ‘Do you believe that [the defendant] will-
fully violated the plaintiff’s rights such that he should be
entitled to an award of punitive damages?’ Thereafter,
in an appropriate blank on the verdict form, the jury
awarded the plaintiff $500,000 in punitive damages.’’
On July 16, 2010, the defendant filed a motion to set
aside the award, and the plaintiff filed a memorandum
of law in opposition to the motion on August 9, 2010.
On October 28, 2010, the court issued a comprehensive
written memorandum of decision granting, inter alia,
the defendant’s motion to set aside the award of puni-
tive damages.
In its memorandum of decision, the court, having
reviewed the legislative history, the policy that the stat-
ute was designed to address, and the language of § 46a-
104 as compared with other statutory provisions, con-
cluded that ‘‘punitive damages are not authorized in this
case to be imposed by either the jury or the court.’’10 Id.
We first note that the question of whether § 46a-104
authorizes an award of punitive damages previously
has not been addressed directly by either this court or
our Supreme Court.11 We further note that there is a
split of authority within our Superior Courts on the
issue. See Jill Tracy v. Smith Ins., Inc., Superior Court,
judicial district of New London, Docket No. CV-14-
6020529-S (November 4, 2014) (finding that § 46a-104
allows awarding punitive damages and listing Superior
Court decisions in support and opposition).
We begin by setting forth the applicable standard of
review. ‘‘The trial court possesses inherent power to
set aside a jury verdict which, in the court’s opinion,
is against the law or the evidence. . . . Ultimately,
[t]he decision to set aside a verdict entails the exercise
of a broad legal discretion . . . that, in the absence of
clear abuse, we shall not disturb.’’ (Citation omitted;
internal quotation marks omitted.) Perez v. D & L Trac-
tor Trailer School, 117 Conn. App. 680, 709, 981 A.2d
497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062(2010). However, we employ a plenary standard of
review in deciding the question of statutory interpreta-
tion. See Miller v. Egan, 265 Conn. 301, 327, 828 A.2d
549 (2003).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case
. . . . In seeking to determine that meaning, General
Statutes § 1-2z directs us first to consider the text of
the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Footnote omitted; internal quo-
tation marks omitted.) Vincent v. New Haven, 285 Conn.
778, 784–85, 941 A.2d 932 (2008). ‘‘An axiomatic rule of
statutory construction is that statutes should be con-
strued so that no part of a legislative enactment is to
be treated as insignificant and unnecessary, and there
is a presumption of purpose behind every sentence,
clause or phrase in a legislative enactment.’’ (Internal
quotation marks omitted.) Fishbein v. Kozlowski, 252
Conn. 38, 61, 743 A.2d 1110 (1999).
Section 46a-104 provides: ‘‘The court may grant a
complainant in an action brought in accordance with
section 46a-100 such legal and equitable relief which it
deems appropriate including, but not limited to, tempo-
rary or permanent injunctive relief, attorney’s fees and
court costs. The amount of attorney’s fees allowed shall
not be contingent upon the amount of damages
requested by or awarded to the complainant.’’ On its
face, the language of the statute does not expressly
provide for punitive damages; however, it does provide
for an award of attorney’s fees and court costs.
In Ames v. Commissioner of Motor Vehicles, 267
Conn. 524, 839 A.2d 1250 (2004), our Supreme Court
considered whether explicit statutory language is
required for an award of multiple damages, which are
a form of punitive damages. See Harty v. Cantor Fitz-
gerald & Co., 275 Conn. 72, 92 n.10, 881 A.2d 139 (2005)
(‘‘this court has, on occasion, referred to a statutory
multiple damage provision as providing punitive dam-
ages even in the absence of such express designation
by the legislature’’). In Ames, the court was asked to
determine whether General Statutes § 14-52 authorized
an award of punitive damages.12 The plaintiff in the
case brought an action against the defendant, a used
automobile dealer, for the unlawful repossession of the
plaintiff’s automobile. The plaintiff sought to recover
statutory, actual, punitive and treble damages pursuant
to General Statutes § 52-564 as well as attorney’s fees
under the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq.13 The defen-
dant was defaulted for failure to appear, and the court
awarded the plaintiff damages that included treble dam-
ages and attorney’s fees. The defendant failed to satisfy
the judgment and went out of business. Consequently,
after the Commissioner of Motor Vehicles invoked the
surety bond posted by the defendant pursuant to § 14-
52, the plaintiff argued that the surety bond should have
been used to satisfy the judgment, including the punitive
damages and attorney’s fees.
On appeal, the court rejected the plaintiff’s claim,
stating that an ‘‘award of multiple damages . . . is an
extraordinary remedy that is available only when the
legislature expressly provides for such damages by stat-
ute. . . . Accordingly, as with attorney’s fees, we
require explicit statutory language to support an award
of punitive damages. Put simply, just as the legislature
knows how to authorize an award of attorney’s fees
when it wishes to do so . . . it also knows how to
authorize an award of punitive damages. E.g., General
Statutes § 4d-39 (c) (in action by attorney general to
prosecute violation under General Statutes §§ 4d-36,
4d-37 or 4d-38, court may ‘award [inter alia] punitive
damages’); General Statutes § 16-8d (b) (in action by
employee alleging retaliation for disclosure of substan-
tial misfeasance, malfeasance or nonfeasance in man-
agement of, inter alia, public service company, court
‘may award punitive damages’); General Statutes § 19a-
550 (e) (‘punitive damages may be assessed in civil
action in which there is finding of wilful or reckless
deprivation of rights under patients’ bill of rights imple-
mented in accordance with § 19a-550’); General Statutes
§ 31-290a (b) (in action alleging retaliation against
employee for filing workers’ compensation claim, ‘court
may . . . award punitive damages’).’’ (Citations omit-
ted.) Ames v. Commissioner of Motor Vehicles, supra,
267 Conn. 536. Thus, the court concluded that, because
‘‘§ 14-52 makes no mention of punitive damages, the
plaintiff cannot prevail on her claim that she may
recover such damages under [the statute].’’ Id.
In his brief, the plaintiff argues that Ames is inappo-
site because the ‘‘any loss’’ language under scrutiny in
Ames is dramatically different from the language in
§ 46a-104, which provides for ‘‘all forms of legal and
equitable relief,’’ including punitive damages. In addi-
tion, the plaintiff argues that the holding of the case is
limited to the language of § 14-52 and, thus, the court’s
statements regarding punitive damages are dicta and
not binding on this court. We are not persuaded by the
plaintiff’s arguments.
Even if we agreed, arguendo, with the plaintiff that
language of § 46a-104 is sufficiently broad to provide
for punitive damages, we nevertheless conclude that
such a reading of the statute would be contrary to our
established law. In Connecticut, common-law punitive
damages, if awarded, ‘‘are restricted to cost of litigation
less taxable costs of the action being tried . . . .’’
(Internal quotation marks omitted.) Harty v. Cantor
Fitzgerald & Co., supra, 275 Conn. 93; Larsen Chelsey
Realty Co. v. Larsen, 232 Conn. 480, 517 n.38, 656 A.2d
1009 (1995) (‘‘[u]nder Connecticut common law, the
term ‘punitive damages’ refers to the expenses of bring-
ing the legal action, including attorney’s fees, less tax-
able costs’’). Thus, if the plaintiff’s interpretation of the
statute were to prevail, he would effectively be allowed
to double his recovery of litigation costs because, of
course, § 46a-104 already explicitly authorizes an award
of attorney’s fees and costs. Such a result would alter
our settled common-law rule limiting punitive damages
to a single recovery of litigation expenses because their
purpose is to make a victim whole while avoiding the
potential injustice resulting from unfettered exercise
of discretion by a jury.14 See Label Systems Corp. v.
Aghamohammadi, 270 Conn. 291, 335, 852 A.2d 703(2004) (‘‘[l]imiting punitive damages to litigation
expenses, including attorney’s fees, fulfills the salutary
purpose of fully compensating a victim for the harm
inflicted’’ [internal quotation marks omitted]). Our law
is clear, however; a court ‘‘will not interpret a statute
to have the effect of altering prior statutory or common
law unless the language of the statute clearly expresses
an intent to have such an effect.’’ Elliot v. Sears, Roe-
buck & Co., 229 Conn. 500, 515, 642 A.2d 709 (1994);
see also Ulbrich v. Groth, 310 Conn. 375, 448, 78 A.3d
76 (2013) (same). Our review of the language in § 46a-
104 does not reveal a clear intent to provide multiple
recovery of attorney’s fees and litigation costs, and we
will not infer one.
We also disagree with the plaintiff that the court’s
rationale concerning punitive damages in Ames is mere
dictum. ‘‘Dictum includes those discussions that are
merely passing commentary . . . those that go beyond
the facts at issue . . . and those that are unnecessary
to the holding in the case.’’ (Internal quotation marks
omitted.) Cruz v. Montanez, 294 Conn. 357, 376–77,
984 A.2d 705 (2009). In Ames, the court discussed and
decided the issue of whether the plaintiff was ‘‘entitled
to recover punitive damages against a surety bond fur-
nished in accordance with § 14-52.’’ Ames v. Commis-
sioner of Motor Vehicles, supra, 267 Conn. 536. Thus,
the court’s analysis of the issue was not only germane,
but it was essential to the resolution of the question of
whether the language of the statute authorized an award
of punitive damages.15 Therefore, we are not persuaded
by the plaintiff’s argument that we should disregard the
court’s analysis in Ames as dictum. To the contrary, we
conclude that it is binding on this court.
Additionally, our review of title 46a of our General
Statutes reveals that our legislature explicitly has pro-
vided for punitive damages in at least three separate
instances therein. See General Statutes § 46a-98 (c) and
(d) (explicitly providing punitive damages in cases of
discriminatory credit practices with a specified maxi-
mum cap); General Statutes § 46a-98a (authorizing puni-
tive damages in cases of housing discrimination
pursuant to General Statutes § 46a-89 [b] limited to
$50,000); General Statutes § 46a-89 (b) (allowing puni-
tive damages in cases of discriminatory public accom-
modations and housing practices pursuant to General
Statutes §§ 46a-64, 46a-64 [c], and General Statutes
§§ 46a-81d and 46a-81e, which prohibit public accom-
modations and housing discrimination based on sexual
orientation). These explicit provisions further persuade
us that the legislature knows how to provide for punitive
damages when it deems it appropriate. Ames v. Com-
missioner of Motor Vehicles, supra, 267 Conn. 536.
Because the language of § 46a-104 does not explicitly
provide for punitive damages, the plaintiff is not entitled
to such relief under the statute. We thus conclude that
the court did not abuse its discretion in setting aside
the award of punitive damages.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At all relevant times, Kevin Trudelle was the business manager of the
Norwich/Niantic center of United Parcel Service, Inc. We refer to United
Parcel Service, Inc., individually, as the defendant, to Trudelle by name and
to both parties collectively as the defendants.
2
General Statutes § 46a-60 (a) provides in relevant part: ‘‘It shall be a
discriminatory practice in violation of this section: (1) For an employer, by
the employer or the employer’s agent, except in the case of a bona fide
occupational qualification or need, to refuse to hire or employ or to bar or
to discharge from employment any individual or to discriminate against
such individual in compensation or in terms, conditions or privileges of
employment because of the individual’s . . . physical disability . . . .’’
3
During the trial, the plaintiff maintained that his claim should have been
analyzed under the mixed motive framework articulated by the United States
Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.
Ct. 1775, 104 L. Ed. 2d 268 (1989). The defendant, on the other hand, argued
that the claim was subject to the pretext framework analysis established
by the United States Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 252–56, 101 S. Ct. 1089, 67
L. Ed. 2d 207 (1981). See Tomick I, supra, 135 Conn. App. 610–11.
4
Because we remanded the claim brought pursuant to § 46a-60, we did
not review the plaintiff’s challenge to the court’s setting aside the award of
punitive damages. Tomick I, supra, 135 Conn. App. 594 n.4.
5
We further note that the pretext/McDonnell Douglas Corp.-Burdine
framework is not an exclusive means of proving employment discrimination
in Connecticut. Depending on the circumstances of the case, a plaintiff may
be able to prove his claim under a different framework. ‘‘A mixed-motive
case exists when an employment decision is motivated by both legitimate
and illegitimate reasons. . . . In such instances, a plaintiff must demon-
strate that the employer’s decision was motivated by one or more prohibited
statutory factors. Whether through direct evidence or circumstantial evi-
dence, a plaintiff must submit enough evidence that, if believed, could
reasonably allow a [fact finder] to conclude that the adverse employment
consequences resulted because of an impermissible factor. . . . The critical
inquiry [in a mixed-motive case] is whether [a] discriminatory motive was
a factor in the [employment] decision at the moment it was made. . . .
Under this model, the plaintiff’s prima facie case requires that the plaintiff
prove by a preponderance of the evidence that he or she is within a protected
class and that an impermissible factor played a motivating or substantial
role in the employment decision. . . .
‘‘Once the plaintiff has established his prima facie case, the burden of
production and persuasion shifts to the defendant. [T]he defendant may
avoid a finding of liability only by proving by a preponderance of the evidence
that it would have made the same decision even if it had not taken [the
impermissible factor] into account.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) Levy v. Commission on Human Rights &
Opportunities, 236 Conn. 96, 105–106, 671 A.2d 349 (1996).
Having reviewed the record before us, we conclude that, in this case,
the court properly applied the pretext/McDonnell Douglas Corp.-Burdine
framework. The plaintiff argued at trial that the defendant’s stated reason
for the termination of his employment—workplace violence—was ‘‘not
believable,’’ that the defendant was looking for a ‘‘gotcha’’ moment, ‘‘a
reason,’’ and ‘‘every possible excuse in the book’’ to terminate his
employment.
6
We note, however, that ‘‘while often a source of great assistance and
persuasive force . . . it is axiomatic that decisions of the United States
Supreme Court [or lower federal courts] are not binding on Connecticut
courts tasked with interpreting our General Statutes. Rather, Connecticut
is the final arbiter of its own laws.’’ (Citation omitted; internal quotation
marks omitted.) Vollemans v. Wallingford, supra, 103 Conn. App. 199–200.
7
Having reviewed the remainder of the cases relied on by the defendant,
we conclude that they offer no support for the defendant’s position because
the issue of qualification was relevant to the resolution of these cases. See
Timmons v. General Motors Corp., 469 F.3d 1122 (7th Cir. 2006); Chasse
v. Computer Sciences Corp., 453 F. Supp. 2d 503 (D. Conn. 2006); Henderson
v. United Parcel Service, United States District Court, Docket No.
3:03CV2135 (CFD) (D. Conn. March 23, 2007); Erisoty v. Merrow Machine
Co., 34 Conn. App. 708, 643 A.2d 898, cert. denied, 231 Conn. 908, 648 A.2d
151 (1994); Morris v. Tri-Town Teachers Federal Credit Union, Superior
Court, judicial district of Fairfield, Docket No. CV-98-0354839-S (July 13,
2000).
8
Accordingly, we need not address whether the trial court correctly deter-
mined the date of the adverse employment decision and that the plaintiff
was qualified to perform the essential functions of his job on that date.
9
General Statutes § 46a-104 provides: ‘‘The court may grant a complainant
in an action brought in accordance with section 46a-100 such legal and
equitable relief which it deems appropriate including, but not limited to,
temporary or permanent injunctive relief, attorney’s fees and court costs.
The amount of attorney’s fees allowed shall not be contingent upon the
amount of damages requested by or awarded to the complainant.’’
10
The plaintiff also argues that punitive damages under § 46a-104 must
be awarded by the jury and not the court. Because we conclude that § 46a-
104 does not authorize an award of punitive damages, we need not address
the plaintiff’s argument. But see Jackson v. Water Pollution Control Author-
ity, 278 Conn. 692, 710 n.16, 900 A.2d 498 (2006) (‘‘§ 46a-104 appears to
leave the issue of remedy to the trial court’s sound discretion’’).
11
See Perez v. D & L Tractor Trailer School, 117 Conn. App. 680, 709–10,
981 A.2d 497 (2009) (affirming trial court’s award of attorney’s fees as
form of punitive damages because § 46a-104 explicitly authorizes award of
attorney’s fees), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010); see also
Ware v. State, 118 Conn. App. 65, 87 n.14, 983 A.2d 853 (2009) (declining
to address whether § 46a-104 authorizes punitive damages against private
party).
12
General Statutes § 14-52 (b) (4) requires, inter alia, licensed automobile
dealers and repairers to post a surety bond that could be used ‘‘as indemnity
for any loss sustained by any customer by reason of any acts of the licensee
constituting grounds for suspension or revocation of the license or such
licensee going out of business. . . .’’ (Emphasis added.)
13
General Statutes § 52-564 provides, inter alia, that ‘‘[a]ny person who
steals any property of another, or knowingly receives and conceals stolen
property, shall pay the owner treble his damages.’’
General Statutes § 42-110g (d) provides, inter alia, that a party prevailing
under a CUTPA claim may be awarded ‘‘costs and reasonable attorneys’
fees . . . .’’
14
The plaintiff further argues that, because punitive damages in this case
are authorized by the statute, they are not subject to the common-law
limitations. To support this proposition, the plaintiff relies on our Supreme
Court holdings in Ulbrich v. Groth, 310 Conn. 375, 78 A.3d 76 (2013); Med-
ValUSA Health Programs, Inc. v. MemberWorks, Inc., 273 Conn. 634, 872
A.2d 423, cert. denied sub nom. Vertrue, Inc. v. MedValUSA Health Pro-
grams, Inc., 546 U.S. 960, 126 S. Ct. 479, 163 L. Ed. 2d 363 (2005); and
Freeman v. Alamo Management Co., 221 Conn. 674, 607 A.2d 370 (1992).
Having reviewed these decisions, we conclude that they are inapposite to
this case. The statutes at issue in Ulbrich, MedValUSA Health Programs,
Inc., and Freeman explicitly allow an award of punitive damages. As such,
the holdings in these cases squarely adhered to our long-standing principle
that we ‘‘recognize only those alterations of the common law that are clearly
expressed in the language of the statute . . . .’’ Lynn v. Haybuster Mfg.,
Inc., 226 Conn. 282, 290, 627 A.2d 1288 (1993); see also Hylton v. Gunter,
313 Conn. 472, 486 n.14, 97 A.3d 970 (2014) (‘‘[p]unitive damages under
these statutes, particularly under statutes that provide for awards of fees
and costs in addition to punitive damages like CUTPA . . . are distinct
from common-law punitive damages because they are not intended merely
to compensate the plaintiff for the harm caused by the defendant but, rather,
serve a broader . . . purpose’’ [citation omitted; internal quotation marks
omitted]). Section 46a-104 does not contain such clear expression and,
therefore, we are not persuaded by the plaintiff’s argument.
15
In his brief, the plaintiff further argues that the holding in Ames is
inapposite because ‘‘the objectives of § 14-52 and [the Connecticut Fair
Employment Practices Act, General Statutes § 46a-51 et seq., of which § 46a-
104 is a part] could not be more different. While § 14-52 was enacted to
allow consumers to obtain reimbursement for some of the money owed
to them by automobile dealers who have gone out of business, [the fair
employment practices act] was enacted to eradicate workplace discrimina-
tion’’ and, thus, it ‘‘must be interpreted with that remedial purpose in mind.’’
(Emphasis in original.) We conclude, however, that our interpretation of
§ 46a-104 as not allowing for punitive damages does not thwart the remedial
purpose of the fair employment practices act because the statute already
provides for attorney’s fees and costs that, ‘‘when viewed in the light of the
increasing costs of litigation, also [serve] to punish and deter wrongful
conduct.’’ Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992).