Tomick v. United Parcel Service, Inc.

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TOMICK v. UNITED PARCEL SERVICE, INC.—DISSENT
PALMER, J., with whom McDONALD, J., joins, dis-
senting. I respectfully disagree with the majority’s con-
clusion that General Statutes § 46a-1041 does not
authorize an award of statutory punitive damages as a
remedy for discriminatory practices under the Connect-
icut Fair Employment Practices Act (act), General Stat-
utes § 46a-51 et seq. Guided by the well established
principles under which we construe the act, including
affording it a liberal construction in favor of employees
and reading it consistently with federal employment
discrimination laws, in particular, Title VII of the Civil
Rights Act of 1964, as amended by Title VII of the Civil
Rights Act of 1991, 42 U.S.C. § 2000e et seq. (2012),
I believe that reading § 46a-104 to authorize punitive
damages in appropriate cases is the better construction
because it would further the purposes of the act by
deterring particularly severe cases of discriminatory
conduct in the workplace. Moreover, those portions of
this court’s decision in Ames v. Commissioner of Motor
Vehicles, 267 Conn. 524, 839 A.2d 1250 (2004), on which
the majority relies in concluding that § 46a-104 does
not authorize a punitive damages award, are dicta that
I now believe were incorrect. I therefore would reverse
the judgment of the Appellate Court upholding the trial
court’s decision to set aside the jury’s award of statutory
punitive damages in the amount of $500,000 to the plain-
tiff, Michael Tomick. See Tomick v. United Parcel Ser-
vice, Inc., 157 Conn. App. 312, 341, 115 A.3d 1143 (2015).
Accordingly, I respectfully dissent.2
I agree with the majority’s statement of the back-
ground facts and procedural history of this case. I also
agree with the majority that, in determining whether
§ 46a-104 authorizes an award of punitive damages,
‘‘[w]e apply plenary review to this question of law, and
well established principles of statutory construction’’
under General Statutes § 1-2z. Commission on Human
Rights & Opportunities v. Echo Hose Ambulance, 322
Conn. 154, 159, 140 A.3d 190 (2016). I turn first to the
statutory text, as § 1-2z requires. Section 46a-104 pro-
vides: ‘‘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 includ-
ing, but not limited to, temporary or permanent injunc-
tive 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.’’ (Emphasis added.) The majority cor-
rectly concludes that § 46a-104 is ambiguous when read
in context, thus permitting resort to extratextual evi-
dence to determine whether it authorizes punitive dam-
ages. Unlike the majority, however, I conclude that the
‘‘legal . . . relief’’ authorized by § 46a-104 can include
punitive damages.
As the majority acknowledges, at least as a starting
point, the term ‘‘legal relief’’ means damages, and, in
the absence of further qualification or evidence of a
contrary legislative intent, has been ‘‘commonly under-
stood to include compensatory and punitive damages.’’
Travis v. Gary Community Mental Health Center, Inc.,
921 F.2d 108, 111 (7th Cir. 1990), cert. denied, 502 U.S.
812, 112 S. Ct. 60, 116 L. Ed. 2d 36 (1991); see also id.,
111–12 (considering intentional nature of retaliatory
discharge and holding that punitive damages are avail-
able under Fair Labor Standards Act, 29 U.S.C. § 216
[b] [1988], which provides for ‘‘such legal or equitable
relief as may be appropriate to effectuate the purposes
of [the antiretaliation provision of 29 U.S.C. § 215 (a)
(3) (1988)], including without limitation employment,
reinstatement or promotion and the payment of wages
lost and an additional equal amount as liquidated dam-
ages’’ [internal quotation marks omitted]); Greathouse
v. JHS Security, Inc., United States District Court,
Docket No. 11-CV-7845 (PAE) (GWG) (S.D.N.Y. Novem-
ber 13, 2015) (concluding that punitive damages are
available under antiretaliatory provision of federal Fair
Labor Standards Act); Jones v. Amerihealth Caritas,
95 F. Supp. 3d 807, 818 (E.D. Pa. 2015) (same); Haynes
v. Rhone-Poulenc, Inc., 206 W. Va. 18, 31–35, 521 S.E.2d
331 (1999) (phrase ‘‘legal . . . relief’’ in West Virginia
Human Rights Act authorizes punitive damages); cf.
Harris v. Richards Mfg. Co., 675 F.2d 811, 814 (6th
Cir. 1982) (civil rights statute authorizing ‘‘actual and
punitive damages’’ gives rise to claim for ‘‘legal relief’’
creating right to jury trial under seventh amendment);
but see Snapp v. Unlimited Concepts, Inc., 208 F.3d
928, 934–36 (11th Cir. 2000) (observing that ‘‘ ‘[l]egal
relief’ is certainly a broad formulation’’ but disagreeing
with Seventh Circuit’s decision in Travis on basis of
other language in Fair Labor Standards Act, which it
viewed as representative of Congress’ intent that dam-
ages be compensatory, including liquidated damages
provision), cert. denied, 532 U.S. 975, 121 S. Ct. 1609,
149 L. Ed. 2d 474 (2001).
The majority also acknowledges that the legislature’s
use of the phrase ‘‘including, but not limited to,’’ which
precedes the list of remedies in § 46a-104, reflects an
intent to be expansive with respect to the judicial relief
available for employment discrimination. This is
because the ‘‘word ‘includes’ is a term of expansion,’’
and the ‘‘phrase ‘but shall not be limited to,’ when ‘cou-
pled with the enumeration of specific or illustrative acts
of . . . conduct,’ ’’ evinces the legislature’s intent that
the statute include ‘‘a wide range’’ of remedial options,
with those listed in the statute being illustrative rather
than exclusive. Scholastic Book Clubs, Inc. v. Commis-
sioner of Revenue Services, 304 Conn. 204, 215, 38 A.3d
1183, cert. denied, U.S. , 133 S. Ct. 425, 184 L.
Ed. 2d 255 (2012); see also, e.g., State v. Jones, 51 Conn.
App. 126, 137–38, 721 A.2d 903 (1998) (definition of
drug paraphernalia in General Statutes [Rev. to 1995]
§ 21a-240 [20] [A], which used phrases ‘‘ ‘such as’ and
‘including, but not limited to,’ ’’ indicated legislature’s
‘‘clear intention that the items listed in the definition do
not constitute an exhaustive or exclusive list,’’ meaning
that listing of ‘‘pipe with a screen’’ did not evince legisla-
tive intent ‘‘that a possessor of a marijuana pipe be able
to escape liability by merely removing a screen, which
does not apparently effect its use in any way’’), cert.
denied, 247 Conn. 958, 723 A.2d 814 (1999).
Particularly illustrative of the breadth we attribute
to this language is Commission on Human Rights &
Opportunities v. Board of Education, 270 Conn. 665,
855 A.2d 212 (2004), in which this court considered
whether General Statutes (Rev. to 1997) § 46a-86 (c)
authorized the Commission on Human Rights and
Opportunities (commission) to award ‘‘personal com-
pensatory damages,’’ such as for emotional distress,
caused by a public school district’s act of discriminating
against a student on the basis of his race in violation of
General Statutes (Rev. to 1997) § 46a-58 (a). Id., 685–86.
General Statutes (Rev. to 1997) § 46a-86 (c) provides:
‘‘In addition to any other action taken hereunder, upon
a finding of a discriminatory practice prohibited by
section 46a-58, 46a-59, 46a-64, 46a-64c, 46a-81b, 46a-81d
or 46a-81e, 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 him as a
result of such discriminatory practice and shall allow
reasonable attorney’s fees and costs.’’ (Emphasis
added.) In rejecting the defendants’ claim that the com-
mission’s authority was limited to the ‘‘ ‘specifically
enumerated’ ’’ damages in General Statutes (Rev. to
1997) § 46a-86 (c); Commission on Human Rights &
Opportunities v. Board of Education, supra, 701; the
court emphasized the importance of the phrase
‘‘include, but not be limited to’’; (emphasis omitted;
internal quotation marks omitted) id., 702; as indicative
of the legislature’s intent to provide for an expansive
array of remedies under General Statutes (Rev. to 1997)
§ 46a-86 (c), particularly in light of ‘‘the broad remedial
purpose of the statute.’’ Id., 703; see also id., 689 (observ-
ing that ‘‘broad range of constitutional rights’’ encom-
passed by General Statutes [Rev. to 1997] § 46a-58 [a]
‘‘suggests that an award of compensatory damages for
a violation thereof need not necessarily be confined to
easily quantifiable monetary losses’’). Recognizing the
potential deterrent effect of damages awards, the court
also considered the ‘‘general’’ purpose of the human
rights statutes, namely, ‘‘to construct a remedy for dis-
crimination that will, so far as possible, eliminate the
discriminatory effects of the past as well as bar like
discrimination in the future.’’ (Internal quotation marks
omitted.) Id., 694.
Insofar as I agree with the majority that there are
two plausible readings of § 46a-104, thereby rendering it
ambiguous with respect to the authorization of punitive
damages, I look to extratextual sources as an aid to
understanding the meaning of the statute. As the major-
ity observes, the available legislative history is silent on
the question before us, but, in contrast to the majority, I
do not deem that silence dispositive evidence that ‘‘the
legislature deemed the remedies expressly authorized
in the act, including back pay, compensatory damages,
attorney’s fees, and costs, to be sufficient to carry out
its remedial purpose.’’ Text accompanying footnote 15
of the majority opinion. I do agree with the majority
that a comparison of § 46a-104 to related statutes is
instructive in divining the legislature’s intent, although
I am persuaded by the arguments of the commission,
as amicus curiae, to focus specifically on a comparison
with General Statutes (Supp. 2016) § 46a-86 (b).3 As
distinguished from § 46a-104, which governs the reme-
dies available to a court upon a finding of employment
discrimination, General Statutes (Supp. 2016) § 46a-86
(b) governs the commission’s remedial authority upon
a finding of employment discrimination. In contrast to
the breadth of § 46a-104, General Statutes (Supp. 2016)
§ 46a-86 (b) authorizes the commission only to supple-
ment orders of hiring or reinstatement with up to two
years of back pay, subject to adjustment for ‘‘[i]nterim
earnings, including unemployment compensation and
welfare assistance or amounts which could have been
earned with reasonable diligence on the part of the
person to whom back pay is awarded . . . .’’ General
Statutes (Supp. 2016) § 46a-86 (b). Section 46a-104,
however, imposes far fewer constraints on a court’s
authority to fashion a financial remedy for discrimina-
tion. This, of course, suggests that the legislature is well
aware of how to cabin a tribunal’s remedial authority
in cases of employment discrimination when it desires
to do so. See, e.g., Bridgeport Hospital v. Commission
on Human Rights & Opportunities, 232 Conn. 91, 112–
13, 653 A.2d 782 (1995) (considering limited remedies
provided by General Statutes [Rev. to 1995] § 46a-86
[b], and holding that ‘‘[t]he enactment of [§ 46a-104]
strongly indicates . . . that the legislature did not
intend to authorize [the commission] to award . . .
damages’’ for emotional distress arising from employ-
ment discrimination). Accordingly, the majority’s deci-
sion effectively adding language to § 46a-104 limiting
the scope of the damages available to compensatory
damages runs afoul of the principle that we generally
do not supply statutory language that the legislature
appears to have chosen to omit.4 E.g., Dept. of Public
Safety v. State Board of Labor Relations, 296 Conn.
594, 605, 996 A.2d 729 (2010).
Other well established principles governing the con-
struction of the act further persuade me that § 46a-104
should be read to authorize awards of punitive damages.
The act is a remedial statutory scheme, and any ‘‘ambi-
guities [therein] . . . should be construed in favor of
persons seeking redress thereunder . . . .’’ (Citation
omitted; internal quotation marks omitted.) Commis-
sion on Human Rights & Opportunities v. Echo Hose
Ambulance, supra, 322 Conn. 165. This is particularly
so in the present case because an award of punitive
damages advances the goal of the act, which is to ‘‘rid
the workplace of discrimination . . . .’’ Sullivan v.
Board of Police Commissioners, 196 Conn. 208, 216,
491 A.2d 1096 (1985); see also Vollemans v. Wallingford,
103 Conn. App. 188, 197 n.7, 928 A.2d 586 (2007) (‘‘[t]he
noble purpose of [the act] . . . [was] to create an effec-
tive machinery in this state for the elimination of dis-
crimination in employment’’ [internal quotation marks
omitted]), aff’d, 289 Conn. 57, 956 A.2d 579 (2008). Puni-
tive damages awards support the act because the legis-
lature ‘‘contemplate[d] not merely compensating vic-
tims of discrimination for violations of their human
rights, but preventing violations of these rights. Preven-
tion requires deterrence—and deterrence . . .
requires the possibility of a penalty for those whose
actions are sufficiently culpable.’’ Haynes v. Rhone-
Poulenc, Inc., supra, 206 W. Va. 33; see Rice v. Cer-
tainTeed Corp., 84 Ohio St. 3d 417, 421, 704 N.E.2d 1217
(1999) (observing that state employment discrimination
statute had ‘‘a deterrent component concerned with
preventing socially noisome business practices’’); see
also Ulbrich v. Groth, 310 Conn. 375, 455 n.64, 78 A.3d
76 (2013) (‘‘punishment and deterrence are proper pur-
poses of an award of punitive damages under [the Con-
necticut Unfair Trade Practices Act (CUTPA), General
Statutes § 42-110a et seq.]’’); Commission on Human
Rights & Opportunities v. Board of Education, supra,
270 Conn. 695 (award of compensatory damages, when
‘‘statutorily authorized, does more than remedy the past
discrimination; it also serves as an important social
deterrent to future discriminatory conduct’’).
Moreover, giving effect to the broad language chosen
by the legislature in crafting the appropriate remedies
also is consistent with the principle that, whenever pos-
sible, we construe the act to ‘‘complement the provi-
sions’’ of Title VII, the federal employment discrimi-
nation statute. Commission on Human Rights &
Opportunities v. Echo Hose Ambulance, supra, 322
Conn. 160. With no statutory language in § 46a-104 pre-
cluding awards of punitive damages under the act or
otherwise cabining the type of damages available, I
would construe that statute’s capacious text in accor-
dance with the legislature’s general intent that the act be
construed consistently with federal antidiscrimination
law, which does specifically authorize courts to award,
in cases of intentional discrimination, punitive dam-
ages, compensatory damages, and attorney’s fees.5 See
42 U.S.C. § 1981a (a) (2012).
Finally, a construction of § 46a-104 to authorize the
punitive damages award in this case accords with per-
suasive sister state authority on this point, in particular,
decisions from the highest state courts of Ohio and West
Virginia.6 Particularly instructive is Haynes v. Rhone-
Poulenc, Inc., supra, 206 W. Va. 18, in which the West
Virginia Supreme Court of Appeals considered the avail-
ability of punitive damages for disability based employ-
ment discrimination under statutory language very
similar to that set forth in § 46a-104 (a). The statute
at issue in Haynes provided for injunctive relief and
‘‘affirmative action which may include, but is not lim-
ited to, reinstatement or hiring of employees, granting
of back pay or any other legal or equitable relief as the
court deems appropriate. In actions brought under this
section, the court in its discretion may award all or a
portion of the costs of litigation, including reasonable
[attorney’s] fees and witness fees, to the complainant.’’
(Emphasis added.) W. Va. Code Ann. § 5-11-13 (c) (Lex-
isNexis 2013). In concluding that ‘‘allowing an award
of punitive damages gives the statute’s language its
literal meaning and makes it unnecessary to apply rules
of construction or interpretation,’’ the court empha-
sized that ‘‘punitive damages are well within the broad
spectrum of remedies made available by the phrase
‘any other legal or equitable relief as the court deems
appropriate,’ because the term ‘any legal relief’ neces-
sarily includes punitive damages.’’ Haynes v. Rhone-
Poulenc, Inc., supra, 32. The court also emphasized
the liberal construction accorded the antidiscrimination
provision, and the deterrent value of punitive damages
in preventing employment discrimination. See id., 32–
33. Finally, the West Virginia court rejected the majori-
ty’s approach in the present case in rejecting the
employer’s comparative reliance on other human rights
statutes, in particular, the housing discrimination stat-
ute expressly providing for both ‘‘ ‘actual and punitive
damages . . . .’ ’’ Id., 34. Rather, the court agreed with
the plaintiff that the ‘‘remedial provisions of both [the
employment and housing discrimination statutes] pro-
vide for essentially the same broad range of legal and
equitable remedies, using different words to accomplish
the same purpose.’’ Id.; see also Rice v. CertainTeed
Corp., supra, 84 Ohio St. 3d 418–21 (punitive damages
are available under Ohio’s state employment discrimi-
nation statute, Ohio Rev. Code Ann. § 4112.99 [West
2007], which authorizes ‘‘a civil action for damages,
injunctive relief, or any other appropriate relief,’’ given
‘‘plain meaning’’ of broad statutory language without
‘‘restrictive modifier’’ on type of damages). Consistent
with these authorities, I would conclude that § 46a-104
authorizes an award of punitive damages in appropriate
employment discrimination cases.7
In reaching its contrary conclusion, the majority
deems the broad language of § 46a-104 and extratextual
evidence insufficiently specific to authorize an award
of punitive damages under Ames v. Commissioner of
Motor Vehicles, supra, 267 Conn. 524, which it deems
to embody this court’s ‘‘approach to statutory interpre-
tation’’ with respect to punitive damages. The majority
describes Ames as a ‘‘persuasive baseline position’’;
footnote 14 of the majority opinion; and states that
Ames ‘‘required, at least as a default rule, express statu-
tory authorization for statutory punitive damages as a
form of relief.’’ Text accompanying footnote 14 of the
majority opinion. The majority’s analysis is a faithful
and logical application of Ames. I believe, however, that
the analysis in Ames on which the majority relies is
legally flawed dictum that in fact does not furnish a
‘‘persuasive baseline position’’ for analyzing punitive
damage issues.8 Footnote 14 of the majority opinion.
In Ames, we considered whether the plaintiff could
recover ‘‘not only actual damages but also punitive dam-
ages and attorney’s fees’’; Ames v. Commissioner of
Motor Vehicles, supra, 267 Conn. 531; under a surety
bond furnished by a automobile dealer pursuant to Gen-
eral Statutes (Rev. to 1997) § 14-52 (b)9 ‘‘ ‘as indemnity
for any loss sustained by any person by reason of . . .
such licensee going out of business.’ ’’ Id., 530. The
claim against the bond in Ames arose from the dealer’s
allegedly wrongful repossession of the plaintiff’s car.
See id., 526. The plaintiff then obtained a default judg-
ment for compensatory damages, treble damages for
theft under General Statutes § 52-564, and attorney’s
fees under CUTPA, General Statutes § 42-110g (d). See
id., 526–27. We rejected the plaintiff’s argument that
the phrase ‘‘ ‘any loss’ contained in § 14-52 (b) (4) ‘is
an all encompassing term [that] contains no hint of an
exception.’ ’’ Id., 531. Using a variety of terms to
describe the damages giving rise to the claim, we
addressed what we deemed to be the ‘‘claim that [the
plaintiff was] entitled to recover punitive damages
against a surety bond furnished in accordance with
§ 14-52,’’ observing that, ‘‘[i]n particular, the plaintiff
[sought] indemnification under § 14-52 for the treble
damages that she was awarded pursuant to § 52-564.’’
(Emphasis added.) Id., 536. We then concluded: ‘‘An
award of multiple damages, however, is an extraordi-
nary remedy that is available only when the legislature
expressly provides for such damages by statute. E.g.,
DeMilo v. West Haven, 189 Conn. 671, 675–76, 458 A.2d
362 (1983); Alaimo v. Royer, 188 Conn. 36, 43, 448 A.2d
207 (1982). 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.’’10 (Citation
omitted; emphasis added.) Ames v. Commissioner of
Motor Vehicles, supra, 536.
In my view, we drew two false equivalencies in Ames
in comparing punitive damages to statutory attorney’s
fees and statutory multiple damages awards and, unfor-
tunately, used loose drafting language in arriving at our
conclusion. First, it was improper to assume that the
same analysis applies to punitive damages and statutory
attorney’s fees. In contrast to attorney’s fees awarded
pursuant to a statutory exception to the American Rule,
a punitive damages award, whether at common law11
or pursuant to statute, requires the plaintiff to prove
‘‘a reckless indifference to the rights of others or an
intentional and wanton violation of those rights.’’ Vand-
ersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978);
see Ulbrich v. Groth, supra, 310 Conn. 446 (noting in
case involving CUTPA that ‘‘the flavor of the basic
requirement to justify an award of punitive damages is
described in terms of wanton and malicious injury, evil
motive and violence’’ [internal quotation marks omit-
ted]).
Second, and perhaps more significantly, in Ames, we
improperly used the doctrinally distinct terms multiple
damages and punitive damages interchangeably. This
rendered inapt our reliance on Alaimo v. Royer, supra,
188 Conn. 36, in which this court concluded that the
terms ‘‘punitive damages’’ and ‘‘exemplary damages’’
are ‘‘merely alternate labels for the same remedy,’’
which is distinct from statutory provisions authorizing
multiple damages, such as treble damages for theft
under § 52-564.12 Id., 42–43. Indeed, in Harty v. Cantor
Fitzgerald & Co., 275 Conn. 72, 881 A.2d 139 (2005), this
court followed Alaimo and concluded that an arbitrator
had the authority to award statutory double damages
for unpaid wages under General Statutes § 31-72; id.,
92, 98–99; despite the submission providing that he was
‘‘not authorized or entitled to include as part of any
award . . . special, exemplary or punitive damages or
amounts in the nature of special, exemplary or puni-
tive damages regardless of the nature or form of the
claim or grievance that has been submitted to arbitra-
tion . . . .’’ (Emphasis added; internal quotation marks
omitted.) Id., 76; see also Caulfield v. Amica Mutual
Ins. Co., 31 Conn. App. 781, 786 n.3, 627 A.2d 466 (insur-
ance policy exclusion for punitive and exemplary dam-
ages did not encompass statutory multiple damages
under General Statutes § 14-295 for injuries, death or
property damage arising from enumerated traffic viola-
tions), cert. denied, 227 Conn. 913, 632 A.2d 688 (1993).
It is, therefore, at best imprecise to refer to statutory
multiple damages as ‘‘punitive’’ in the absence of
‘‘express designation by the legislature’’ to that particu-
lar effect. See Harty v. Cantor Fitzgerald & Co., supra,
91–92 n.10 (surveying punitive damage statutes and
observing that some specifically limit punitive damages
awards to ‘‘multiples of compensatory damages,’’
whereas others provide no such limit).
Finally, beyond being legally flawed, the foregoing
discussion in Ames with respect to whether the plaintiff
could recover her punitive damages award and attor-
ney’s fees against the bond required by § 14-52 was a
non sequitur that was dictum. See, e.g., Cruz v. Mon-
tanez, 294 Conn. 357, 376–77, 984 A.2d 705 (2009). In
Ames, we simply did not need to consider whether a
particular remedy, such as attorney’s fees or punitive
damages, was statutorily authorized, in order to deter-
mine whether those portions of the judgment consti-
tuted a ‘‘loss’’ within the meaning of § 14-52. First, the
plaintiff in Ames had already been awarded those reme-
dies in the underlying litigation, and the only question
was whether she could collect them against the bond.
See Ames v. Commissioner of Motor Vehicles, supra,
267 Conn. 526–27. Thus, the real crux of the statutory
construction of § 14-52 lay in our review of the legisla-
tive history of that provision, which, we observed,
reflected the legislature’s view that the bond simply
provide ‘‘some financial security’’ for customers to
‘‘obtain reimbursement for money owed to them.’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 537. In addition to citing Restatement principles
governing the law of sureties; see Ames v. Commis-
sioner of Motor Vehicles, supra, 538–39 n.11, citing
Restatement (Third), Suretyship and Guaranty § 73, pp.
290–91 (1996); which preclude the collection of penal-
ties beyond the original obligation, we also noted the
relatively small bond amount required under § 14-52
specifically, and compared other surety statutes, such
as those governing state and municipal construction
contracts; see Ames v. Commissioner of Motor Vehi-
cles, supra, 537–38; to indicate that, ‘‘had the legislature
intended for the dealer’s bond to indemnify consumers
beyond their actual or compensatory damages, the leg-
islature likely would have mandated a significantly
larger bond, as it has done in other statutory contexts.’’
Id., 537. In my view, this analysis, which was more
focused on the purpose and history of § 14-52, indicates
that our consideration in Ames of whether attorney’s
fees and punitive damages were viable remedies under
§ 14-52 was merely dictum. I thus do not believe that we
should be bound or even guided by Ames in considering
whether § 46a-104 authorizes awards of punitive dam-
ages in employment discrimination cases.13
In sum, I would conclude that § 46a-104 authorized
the jury’s punitive damages award in the present case.
Consequently, I would reverse the judgment of the
Appellate Court and remand the case to that court with
direction to remand the case to the trial court to direct
judgment with direction to render judgment reinstating
that award.
Accordingly, I respectfully dissent.
1
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.’’
2
I recognize that this court certified a second question to be answered
should we conclude that § 46a-104 provides for an award of punitive dam-
ages, namely, ‘‘does the award of punitive damages in § 46a-104 fall within
the province of the court or the jury?’’ Tomick v. United Parcel Service,
Inc., 317 Conn. 916, 117 A.3d 854 (2015). Neither the majority nor the
Appellate Court addressed this issue because their conclusion that § 46a-
104 does not authorize a punitive damages award rendered it unnecessary
to do so. See Tomick v. United Parcel Service, Inc., supra, 157 Conn. App.
334 n.10; footnote 10 of the majority opinion. In view of the fact that a
majority of my colleagues disagree with me on the threshold question posed
by this appeal, I see no need to address this second issue.
3
General Statutes (Supp. 2016) § 46a-86 (b) provides: ‘‘In addition to any
other action taken under this section, upon a finding of a discriminatory
employment practice, the presiding officer may order the hiring or reinstate-
ment of any individual, with or without back pay, or restoration to member-
ship in any respondent labor organization. Liability for back pay shall not
accrue from a date more than two years prior to the filing or issuance of
the complaint. Interim earnings, including unemployment compensation
and welfare assistance or amounts which could have been earned with
reasonable diligence on the part of the person to whom back pay is awarded
shall be deducted from the amount of back pay to which such person is
otherwise entitled. The amount of any deduction for interim unemployment
compensation or welfare assistance shall be paid by the respondent to the
commission which shall transfer such amount to the appropriate state or
local agency.’’
4
I acknowledge the majority’s argument that ‘‘the legislature expressly
authorized punitive damages in other human rights statutes but did not do
so within § 46a-104, and, thus, reading § 46a-104 to allow punitive damages
despite the fact that it does not explicitly authorize such damages would
render those express authorizations for punitive damages superfluous.’’ In
so concluding, the majority relies on numerous human rights statutes, in
particular General Statutes (Supp. 2016) § 46a-89 (b) (1), which permits the
commission to seek from a court punitive damages awards for violations of
General Statutes § 46a-64 (discriminatory public accommodations), General
Statutes § 46a-64c (discriminatory housing practices), General Statutes
§ 46a-81d (sexual orientation public accommodations discrimination), and
General Statutes § 46a-81e (sexual orientation housing discrimination). Sub-
division (1) of General Statutes (Supp. 2016) § 46a-89 (b) must, however,
be read in conjunction with subdivision (2) of subsection (b) of that statute,
which implements subdivision (1) and limits such punitive damages to
$50,000. The majority also cites the discriminatory credit practices statute,
General Statutes (Supp. 2016) § 46a-98, with subsection (c) of that statute
authorizing punitive damages awards of not more than $1000 to ‘‘an aggrieved
person,’’ and subsection (d) of that statute providing for punitive damages
in a class action that ‘‘shall not exceed the lesser of five thousand dollars
or one per cent of the net worth of the creditor.’’
In my view, the majority’s comparative analysis of these statutes and
§ 46a-104, although superficially appealing, fails to account for the fact that
there are different types of statutory punitive damages awards. As this court
recently stated, ‘‘against the backdrop of our ‘conservative’ measure of
common-law punitive damages, ‘the legislature has authorized punitive dam-
age[s] awards for certain causes of action. These statutes fall into three
categories: (1) those that limit the amount of the award to no more than
two times the actual damages incurred; (2) those that designate a specific,
albeit modest, dollar limit for such awards; and (3) those that authorize
punitive damages, but leave the amount of the award to the discretion of
the court.’ ’’ Hylton v. Gunter, 313 Conn. 472, 486 n.14, 97 A.3d 970 (2014);
see also footnote 11 of this opinion. Given the different types of punitive
damages available pursuant to statute, I believe that the legislature used
the term ‘‘punitive damages’’ in the provisions on which the majority relies,
namely, General Statutes (Supp. 2016) §§ 46a-89 (b) and 46a-98 (c) and (d),
to describe the limited amount of such damages that they authorize. In
contrast, the legislature did not need to use the term ‘‘punitive damages’’
in § 46a-104 because it did not intend to circumscribe the amount of such
damages that it authorizes, beyond appellate review for reasonableness and
constitutionality. See, e.g., Ulbrich v. Groth, 310 Conn. 375, 454–56, 78 A.3d
76 (2013). Accordingly, reading the broad language of § 46a-104 to allow for
punitive damages awards does not render the term ‘‘punitive damages’’
superfluous in the statutes cited by the majority. See Rice v. CertainTeed
Corp., 84 Ohio St. 3d 417, 420, 704 N.E.2d 1217 (1999) (rejecting employer’s
reliance on use of word ‘‘punitive damages’’ elsewhere in human rights
statutes to ‘‘[buttress] its position that the word ‘damages’ standing alone
does not include punitives’’ because existence of specific provisions capping
or flooring punitive damages ‘‘presupposes their general availability’’).
5
The majority also disagrees with the plaintiff’s reliance on Title VII and
other federal laws, observing that ‘‘Congress . . . specifically amended Title
VII by enacting the Civil Rights Act of 1991 to provide for compensatory
and punitive damages. . . . [Even though Congress took] affirmative steps
to provide expressly for punitive damages, the Connecticut legislature has
not yet followed suit.’’ (Citation omitted; footnote omitted.) I do not view
the language difference between the state and federal statutes as one with
a distinction because § 46a-104 is broadly phrased in terms of ‘‘legal relief,’’
and does not describe particular types of available damages awards. In other
words, I view them as two different ways to say the same thing. See Haynes
v. Rhone-Poulenc, Inc., supra, 206 W. Va. 34 (‘‘It appears . . . that the two
statutes use different approaches to reach the same result—giving . . .
courts a broad grant of remedial powers to address a serious social problem.
We do not infer from one statutory provision that uses one form of language
to grant a broad range of remedial relief an intent to preclude such relief
under another statute that can also be fairly read to include a similar broad
range of available relief.’’).
6
I recognize that this position appears to be a minority view with respect to
courts interpreting state employment discrimination statutes lacking express
authorization for punitive damages. See, e.g., Ackelson v. Manley Toy Direct,
L.L.C., 832 N.W.2d 678, 681, 684–86, 688–89 (Iowa 2013) (citing authorities
in support of conclusion that punitive damages are not authorized under
Iowa Code § 216.15 [9] [a] [8] [Supp. 2009], which authorizes ‘‘ ‘[p]ayment
to the complainant of damages for an injury caused by the discriminatory
or unfair practice which damages shall include but are not limited to actual
damages, court costs and reasonable [attorney’s] fees’ ’’). Some of these
cases, however, involve significantly different statutory language, which,
for example, does not contain the word ‘‘damages’’ or other expansive terms
as does § 46a-104. See, e.g., Indiana Civil Rights Commission v. Alder, 714
N.E.2d 632, 638 (Ind. 1999) (statute describing compensation for ‘‘ ‘losses
incurred’ ’’ did not authorize agency to award punitive damages because
‘‘ ‘losses’ ’’ implies emotional or economic loss, ‘‘the purpose of punitive
damages is not to compensate for injury, and punitive damages do not
compensate a ‘loss’ of the claimant’’ but, rather, ‘‘are designed to penalize
or punish or deter the defendant’’). Others are simply a different take on
the issue that I believe affords too little weight to the remedial nature of
such statutes. See, e.g., Hoy v. Angelone, 554 Pa. 134, 141–42, 720 A.2d 745
(1998) (holding that Pa. Stat. Ann. tit. 43, § 962 [c] [West 1991] does not
authorize punitive damages, despite broad language with respect to reme-
dies, on basis of comparison with other statutes that expressly award puni-
tive damages, and concluding that use of phrase ‘‘ ‘affirmative action’ ’’ to
describe remedies phrase limits financial remedies to those that ‘‘[serve] to
achieve the remedial goals of the [statute],’’ such as ‘‘make-whole measures,
i.e., reinstatement, hiring, and back pay,’’ given primarily punitive purpose
of punitive damages).
7
Other sister state cases are similarly persuasive. See, e.g., Loomis Elec-
tronic Protection, Inc. v. Schaefer, 549 P.2d 1341, 1342–43 (Alaska 1976)
(concluding that punitive damages were available remedy under Alaska
human rights statute authorizing court to ‘‘ ‘order any other relief, including
the payment of money, that is appropriate’ ’’ given statute’s broad language
and legislature’s ‘‘[intent] to put as many ‘teeth’ into [the] law as possible’’);
Commodore Home Systems, Inc. v. Superior Court, 32 Cal. 3d 211, 218–21,
649 P.2d 912, 185 Cal. Rptr. 270 (1982) (concluding that California Fair
Employment and Housing Act, which provides right of action but is silent
as to remedy, authorizes punitive damages award in light of Cal. Civil Code
§ 3294, under which punitive damages are authorized in noncontract cases
unless ‘‘a contrary legislative intent appears’’); Arthur Young & Co. v. Suther-
land, 631 A.2d 354, 370–72 (D.C. 1993) (concluding that District of Columbia
Human Rights Act permits awards of punitive damages for employment
discrimination given statutory language authorizing court to ‘‘ ‘grant such
relief as it deems appropriate, including, but not limited to, such relief as
is provided in’ ’’ statute providing human rights administrative agency with
remedial powers, which include compensatory damages and attorney’s fees);
see also Coghlan v. H.J. Heinz Co., 851 F. Supp. 815, 818–19 (N.D. Tex.
1994) (concluding that punitive damages are available for discrimination
claims pursuant to Caballero v. Central Power & Light Co., 858 S.W.2d 359,
360 [Tex. 1993], which recognized right to jury trial for ‘‘damages’’ claims
under Texas human rights statutes).
8
I acknowledge, with some chagrin, that I authored this court’s decision in
Ames and I therefore must accept full responsibility for its incorrect dictum.
9
Hereinafter, all references to § 14-52 are to the 1997 revision.
10
With respect to the claim for attorney’s fees, the court in Ames cited
Fleming v. Garnett, 231 Conn. 77, 93–94, 646 A.2d 1308 (1994), for the
proposition that ‘‘[t]he [common-law] rule in Connecticut, also known as
the American Rule, is that attorney’s fees and ordinary expenses and burdens
of litigation are not allowed to the successful party absent a contractual or
statutory exception. . . . Because we must respect the legislative preroga-
tive of choosing the special circumstances under which [attorney’s fees]
awards may be made . . . we require a clear expression of the legislature’s
intent to create a statutory exception [to the rule].’’ (Citation omitted; inter-
nal quotation marks omitted.) Ames v. Commissioner of Motor Vehicles,
supra, 267 Conn. 532–33. Noting a myriad of other ‘‘clearly articulated statu-
tory exceptions to our common-law rule’’ with respect to attorney’s fees;
id., 533; we recognized that, ‘‘when the General Assembly want[s] to autho-
rize the award of attorney’s fees it [knows] how to do it. . . . Section 14-
52, however, is devoid of any express language authorizing an award of
attorney’s fees. In the absence of such language, we will not presume that
the legislature intended for [that statute] to operate in derogation of our
long-standing common-law rule disfavoring the award of attorney’s fees to
the prevailing party.’’ (Citation omitted; internal quotation marks omitted.)
Id.; see also id., 534–35 (rejecting plaintiff’s reliance on General Statutes
§ 14-176 because, inter alia, ‘‘it is reasonable to presume that the legislature
considered attorney’s fees to be an ‘expense’ within the meaning of § 14-
176, rather than a component of any ‘loss’ or ‘damage,’ because attorney’s
fees are a cost, or expense, frequently associated with litigation’’).
11
After concluding that ‘‘it appears that the legislature deemed the reme-
dies expressly authorized in the act, including back pay, compensatory
damages, attorney’s fees, and costs, to be sufficient to carry out its remedial
purpose’’; text accompanying footnote 15 of the majority opinion; the major-
ity observes that, ‘‘in Connecticut, common-law punitive damages are limited
to attorney’s fees and costs’’; footnote 15 of the majority opinion, citing
Hylton v. Gunter, 313 Conn. 472, 484, 97 A.3d 970 (2014); and, ‘‘[a]s such,
by allowing for awards of attorney’s fees and costs, § 46a-104 already in
effect provides [for] common-law punitive damages as a remedy, and for
the plaintiff to recover more in damages, the legislature would have had to
expressly said as much.’’ Footnote 15 of the majority opinion. Although
the majority’s observation is accurate, I emphasize that it is not legally
inconsistent to award both attorney’s fees and punitive damages under § 46a-
104. See Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn.
40, 63–65, 578 A.2d 1054 (1990) (observing that ‘‘structure’’ of General Stat-
utes § 31-290a ‘‘offers compelling evidence that the legislature knew exactly
what it was doing in providing such overlapping remedies,’’ namely, punitive
damages and attorney’s fees, for wrongful termination in retaliation for filing
for workers’ compensation benefits); see also Ulbrich v. Groth, supra, 310
Conn. 449–51 and n.62 (‘‘disavow[ing]’’ Ford to extent that it suggests that
punitive damages under CUTPA, in absence of other statutory limiting lan-
guage, are limited to second award of attorney’s fees).
12
I believe that the citation in Ames to DeMilo v. West Haven, supra, 189
Conn. 671, was similarly misplaced, insofar as DeMilo did not involve puni-
tive damages but merely observed that a jury award of multiple damages
had to be specifically authorized by statute. See id., 675–76. Thus, in DeMilo,
a general verdict relative to a complaint with common-law and statutory
claims could not justify an award of treble damages for the destruction of
a bridge under General Statutes § 52-566 when the record did not ‘‘clearly’’
show that ‘‘the jury found the damages under the statute allowing the trebling
or doubling of the damages, and not for any other alleged cause of action.’’
(Emphasis omitted; internal quotation marks omitted.) Id., 680.
13
Seemingly in contradiction to Ames, as the plaintiff observes, this court
has stated that expansive remedial authority conferred by statutory language
such as ‘‘includes, but not limited to,’’ also allows an award of attorney’s
fees, notwithstanding the American Rule. See Piteau v. Board of Education,
300 Conn. 667, 684–86, 15 A.3d 1067 (2011) (rejecting futility based claim
that plaintiff did not have to exhaust remedies by presenting claim to state
Board of Labor Relations [board] prior to commencing civil action because
board was not authorized to grant relief that was sought insofar as General
Statutes § 7-471 [5] [B], providing for order of ‘‘such further affirmative
action as will effectuate the policies of sections 7-467 to 7-477, inclusive,
including but not limited to’’ reinstatement and withdrawal of bargaining
unit certification, had been interpreted to include attorney’s fees). Piteau
is of limited persuasive value in the present case, however, because the
court did not squarely consider whether § 7-471 (5) permitted attorney’s fees.
But see Council 4, AFSCME, AFL-CIO v. State Board of Labor Relations, 111
Conn. App. 666, 676, 961 A.2d 451 (2008) (holding, with limited analysis and
not considering American Rule, that ‘‘imposition of attorney’s fees and costs
is consistent with . . . § 7-471 [5]’’ because board ‘‘made a specific finding
that the award would be an effective and legitimate remedy for breach by
the [plaintiff] union of the duty of fair representation’’), cert. denied, 291
Conn. 901, 967 A.2d 112 (2009).