Lopez v. William Raveis Real Estate, Inc.

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CARMEN LOPEZ v. WILLIAM RAVEIS
REAL ESTATE, INC., ET AL.
(SC 20574)
Robinson, C. J., and D’Auria, Mullins, Ecker and Keller, Js.
Syllabus
Pursuant to statute (§ 46a-64c (a) (1)), it is a discriminatory practice ‘‘[t]o
refuse to sell or rent after the making of a bona fide offer, or to refuse
to negotiate for the sale or rental of, or otherwise make unavailable
or deny, a dwelling to any person because of . . . lawful source of
income . . . .’’
Pursuant further to statute (§ 46a-64c (a) (3)), it is a discriminatory practice
‘‘[t]o make, print or publish, or cause to be made, printed or published
any notice, statement, or advertisement, with respect to the sale or rental
of a dwelling that indicates any preference, limitation, or discrimination
based on . . . lawful source of income . . . or an intention to make
any such preference, limitation or discrimination.’’
The plaintiff sought to recover damages for alleged housing discrimination
in connection with certain statements that the defendant H, a real estate
salesperson, made regarding the plaintiff’s participation in the Section
8 Housing Choice Voucher Program. H served as an independent contrac-
tor for the named defendant, R Co., a real estate broker. R Co., through
H, entered into a listing contract with the defendant V for the exclusive
right to lease an apartment owned by V and his wife. Thereafter, the
plaintiff, through her real estate agent, B, submitted an application and
offer to lease the apartment. After receiving the documents and speaking
with V, who wanted the apartment rented by April 1, 2017, H notified
B that they were ‘‘all set’’ for a lease commencing on that date. B
then sent H blank section 8 paperwork to accompany the plaintiff’s
application. H and B then proceeded to exchange e-mails and text mes-
sages, in which H repeatedly indicated that she was not aware that the
plaintiff would be using a section 8 voucher, that she would have to
speak to V, that the decision was up to V, and that she was not sure if
V would want to wait for the section 8 approval process. H eventually
texted B that V had received a competing offer for the apartment, and,
several hours later, H texted B that V had accepted the competing offer.
The plaintiff alleged that H violated § 46a-64c (a) (1) and (3) by denying
her the opportunity to rent the apartment on the basis of her lawful
source of income and by making statements that indicated any prefer-
ence, limitation, or discrimination on the basis of lawful source of
income, and, in addition, that R Co., V, and V’s wife were vicariously
liable for H’s statements. After a trial to the court, the trial court rendered
judgment for the defendants, concluding that the plaintiff had failed to
prove unlawful discrimination. Specifically, with respect to the plaintiff’s
claim under § 46a-64c (a) (3), the court determined that H’s statements
would not convey to an ordinary listener a rejection of or otherwise
disfavor a section 8 tenancy. On the plaintiff’s appeal from the trial
court’s judgment, held:
1. The trial court incorrectly concluded that H’s statements did not indicate
any preference, limitation, or discrimination based on lawful source of
income, in violation of § 46a-64c (a) (3):
a. Contrary to the plaintiff’s claim, the trial court properly applied the
ordinary listener standard in determining whether H’s statements con-
veyed an impermissibly discriminatory preference: this court considered
the statute’s legislative history, as well as cases interpreting federal fair
housing laws and the federal counterpart to § 46a-64c (a) (3), in particu-
lar, and concluded that, when a notice, statement, or advertisement that
allegedly violates § 46a-64c (a) (3) is plainly discriminatory on its face,
courts need not examine the surrounding context or the speaker’s intent
to determine whether the statement indicates any impermissible prefer-
ence, limitation, or discrimination to the ordinary listener, but, when
such a notice, statement, or advertisement is not discriminatory on its
face, courts may consider context and the intent of the speaker to aid
in determining the way an ordinary listener would have interpreted it; in
the present case, the trial court apparently concluded that H’s statements
were not facially discriminatory, and, because this court agreed with
that determination, it was not improper for the trial court to consider
the context of H’s statements in determining whether they indicated
any preference, limitation, or discrimination based on lawful source
of income.
b. The trial court’s conclusion that H’s statements would not have con-
veyed to an ordinary listener an impermissible preference with respect to
lawful source of income was clearly erroneous: there was overwhelming
evidence in the trial court’s factual findings that supported the plaintiff’s
housing discrimination claim, as, after indicating that the plaintiff was
‘‘all set,’’ H stated four separate times that she was not aware that the
plaintiff intended to use a section 8 voucher to pay rent and that she
was not sure whether V would want to wait, H had already made two
of those statements before receiving the competing offer, meaning that
she could not reasonably rely on the competing offer to explain her
earlier statements, and, in context, H’s statements could not reasonably
be understood to mean anything other than that the plaintiff’s intention
to use her section 8 voucher to pay rent would be an obstacle to her
lease application; moreover, the trial court’s conclusion in favor of H
undercut the broad protections afforded by § 46a-64c (a) (3), which is
intended to protect against the psychic injury caused by discriminatory
statements, especially in light of this state’s public policy that landlords
may not discriminate against housing applicants who use section 8 assis-
tance and the legislature’s manifest intent to afford low income families
access to the rental housing market; in the present case, the plaintiff
indicated that she was able to satisfy V’s interest in an April 1, 2017
tenancy, any preference to avoid the administrative process the section
8 program involved was an impermissible consideration under both sub-
divisions (1) and (3) of § 46a-64c (a), and this court was left with the
definite and firm conviction that the trial court’s conclusion that H’s
statements did not express a preference with respect to, or discriminate
on the basis of, the plaintiff’s lawful source of income was not simply
an alternative yet permissible view of the evidence.
2. Although the trial court did not address the issue of vicarious liability,
this court determined, as a matter of law, that R Co. was vicariously liable
for H’s statements but that V and his wife were not, and, accordingly,
this court reversed the judgment of the trial court and remanded the
case with direction to render judgment for the plaintiff as to liability
against H and R Co. under § 46a-64c (a) (3) and for further proceedings
to determine, inter alia, the damages to which the plaintiff was entitled:
the parties stipulated, and the trial court found, that R Co. is a real
estate broker and that H is R Co.’s independent contractor, and, because
H acted on behalf of R Co. when she executed the listing contract with
V and her statements were made in furtherance of that contract, R Co.
was liable to the same extent as if H were its employee pursuant to the
statute (§ 20-312a) governing the vicarious liability of real estate brokers;
moreover, although V and his wife had an independent contractor rela-
tionship with H, there was no evidence that the listing contract gave V
any control over H, and, in the absence of any exception to the general
rule that employers are not liable for the torts of their independent
contractors, V and his wife were not vicariously liable for any of H’s
statements.
Argued October 14, 2021—officially released April 19, 2022
Procedural History
Action to recover damages for alleged housing dis-
crimination, and for other relief, brought to the Superior
Court in the judicial district of Danbury, where the case
was tried to the court, Kowalski, J.; judgment for the
defendants, from which the plaintiff appealed. Reversed
in part; further proceedings.
Jeffrey Gentes, for the appellant (plaintiff).
Tracey Lane Russo, for the appellees (named defen-
dant et al.).
Vaccaro et al.).
Opinion
ROBINSON, C. J. In this appeal, we consider the
standard for determining whether a statement made in
connection with the sale or rental of a dwelling violates
General Statutes § 46a-64c (a) (3)1 by indicating a ‘‘pref-
erence, limitation, or discrimination,’’ or an ‘‘intention
to make any such preference, limitation or discrimina-
tion,’’ on the basis of an individual’s ‘‘lawful source of
income . . . .’’ The plaintiff, Carmen Lopez, appeals2
from the judgment of the trial court rendered in favor
of the defendants, William Raveis Real Estate, Inc.
(Raveis), Sarah Henry, a licensed real estate salesper-
son, and Anthony Vaccaro and Eve Vaccaro,3 in this
action alleging housing discrimination in violation of
§ 46a-64c (a). On appeal, the plaintiff claims that the
trial court, in considering whether Henry violated § 46a-
64c (a) (3) by making certain statements in the course
of renting an apartment owned by the Vaccaros, improp-
erly considered whether Henry had the subjective intent
to discriminate on the basis of lawful source of income
when she made those statements. The plaintiff specifi-
cally contends that she is entitled to judgment in her
favor because (1) Henry’s statements were facially dis-
criminatory, rendering her subjective intent irrelevant
as a matter of law, and (2) even if we were to conclude
that Henry’s statements were not facially discrimina-
tory, the trial court nevertheless incorrectly determined
that the statements, considered in context, did not con-
vey an impermissible preference. We conclude that,
although the trial court applied the proper legal stan-
dard in considering the plaintiff’s claims under § 46a-
64c (a) (3), its ultimate conclusion as to liability on the
facts of this case was clearly erroneous with respect
to Henry. Accordingly, we reverse in part the judgment
of the trial court.
The record reveals the following relevant facts, as
found by the trial court, and procedural history. At all
relevant times, the Vaccaros owned a two family home
located at 5 Prince Street in Danbury. On January 28,
2017, Vaccaro entered into an exclusive right to lease
listing contract with Raveis, through its authorized rep-
resentative, Henry, to lease a rental apartment located
in the two family home (rental apartment). Henry is a
real estate salesperson who is affiliated with Raveis, a
real estate broker, pursuant to an independent contrac-
tor agreement. Vaccaro informed Henry that he wanted
to ensure a new tenancy was in place for the rental
apartment by April 1, 2017. Henry listed the rental apart-
ment on the multiple listing service database, and, on
March 9, the plaintiff, through her real estate agent,
Sarah Becker, submitted to Henry an application and
offer to lease the rental apartment. Henry received the
documents on March 11, and, despite the plaintiff’s
having left blank portions of the offer to lease,4 Henry
forwarded the offer to Vaccaro on March 12. The next
day, March 13, following a phone call with Vaccaro,
Henry e-mailed Becker: ‘‘[A]ll set for April 1st. I will
get the lease over to you. [It’s] one month rent and one
month security.’’
Later on March 13, Becker sent Henry blank paper-
work for the Section 8 Housing Choice Voucher Program
(section 8) to accompany the plaintiff’s application to
lease the rental apartment. After Henry received the
section 8 documents on March 15, the following conver-
sation occurred:
At 8:29 a.m., Henry e-mailed Becker: ‘‘I wasn’t aware
that this was a [s]ection 8 tenant. I have to speak with
[Vaccaro] today. [He] is looking for a security deposit
for this rental . . . . I will give you a call later today.’’
At 9:46 a.m., Becker e-mailed Henry: ‘‘To whom
should [the] check be made out . . . . I can be there
for [the] housing inspection if you like, but [I] will need
access to [the] basement. It’s oddly one of the best
parts of [my] working with housing—free inspections.
I had a state paid tenant in one of my buildings for
[more than eight] years (not [section] 8 but similar),
the direct deposit payments and yearly inspections were
great really—that agency monitored the condition of
the apartment, and they kept a paper trail and photos.
No disagreements over who did what to a place, plus
I knew I’d get paid [which made it] easier to sleep at
night. Plus to get a voucher the state has already
checked out the tenant financially and their back-
ground, so that is a huge benefit to a landlord as well.
Win-win. [Vaccaro] hasn’t had anyone with voucher
assistance before? You can let him know that most of
the rent will come from the tenant, and a part from the
state via direct deposit, and other than that it’s pretty
normal. Let me know how I can help. . . . Will need
to get paperwork in ASAP so [we] can have [the] place
inspected fast to meet [the] April 1 start date. Usually
a place may fail the first time on a stuck/broken window
or no [ground fault circuit interrupter (GFCI)] outlets,
basic safety issues that should be in place for any tenant,
and then passes on [the] second trip. If [the] windows
function OK and [there are GFCI] outlets by [the] sinks,
[it] should be in good shape, place looks nice.’’
At 10:41 a.m., Henry texted Becker: ‘‘Good morning
I was not aware of the [s]ection 8 when I spoke with
you I’m not sure [Vaccaro] would want to wait. I know
it takes a couple of weeks for the process and he wants
to [rent] it by April 1st I will speak with him today and
let you know thanks.’’ (Emphasis added.)
At 12:31 p.m., Henry texted Becker: ‘‘I will speak
with [Vaccaro] later today to make a decision about
the rental.’’
At 1:36 p.m., Henry texted Becker: ‘‘You did not
inform me of section 8 when I spoke with you about
the offer. I have to present that to [Vaccaro]. [I’m] not
sure if [he] wants to [wait] through the process. It is
up to my client. We do not have a signed offer yet.’’
(Emphasis added.)
At 1:50 p.m., Henry texted Becker: ‘‘[Vaccaro] has
another offer he’s also looking at we do not have an
offer without a signed lease. You were not upfront with
me with [s]ection 8 and I didn’t [present it] to [Vaccaro]
that way as well. It’s up to [Vaccaro] what he would
like to do with the offers as well as the waiting. I will
get back to you tonight thank you.’’ (Emphasis added.)
At 1:52 p.m., Becker texted Henry: ‘‘It is not necessary
to identify [my] client as having a voucher to all places
she applies to, I respect her privacy, only that income
is sufficient.’’
At 2:23 p.m., Henry texted Becker: ‘‘Yes, it is neces-
sary by law. It needs to be on the offer if paying from
a [third] party. [Vaccaro] will let me know tonight
either way thanks.’’ (Emphasis added.)
At 7:09 p.m., Henry texted Becker: ‘‘Hi, [Vaccaro] has
decided to go with the other offer, [s]orry.’’
As reflected in the conversation, Henry received a
second offer to lease on behalf of Everton Thompson
and Saudia Dyer (Thompson and Dyer offer) on March
15, 2107, at 11:37 a.m. The Thompson and Dyer offer
was accompanied by a completed rental application. It
also proposed a lease term beginning on March 15, 2017,
and ending on February 28, 2018, a lease price of $1500
per month, and a security deposit of $3000, and identi-
fied no contingencies. Vaccaro instructed Henry to
accept the Thompson and Dyer offer and had a fully
executed lease for the rental apartment by March 18.
The plaintiff subsequently brought this action for,
inter alia, compensatory damages, punitive damages,
and declaratory and injunctive relief, claiming that the
defendants violated § 46a-64c (a) by (1) denying her the
opportunity to rent property on the basis of her lawful
source of income,5 in violation of subdivision (1) of
§ 46a-64c (a), and (2) making a statement with respect
to the rental of a dwelling that indicated a preference,
limitation, or discrimination on the basis of lawful source
of income, in violation of subdivision (3) of § 46a-64c (a).
The case was tried to the court over four days. The trial
court issued a memorandum of decision and rendered
judgment in favor of the defendants, concluding that
the plaintiff failed to prove that the defendants had
discriminated against her on the basis of her lawful
source of income in light of Henry’s statements. Given
its conclusion as to Henry’s liability, the trial court also
declined to reach the plaintiff’s derivative claims against
Raveis and the Vaccaros.
Subsequently, the plaintiff filed a motion for reargu-
ment and reconsideration on the grounds that the trial
court either failed to analyze her § 46a-64c (a) (3) claims
motive analysis applicable to § 46a-64c (a) (1) claims.
The trial court granted the plaintiff’s motion and issued
an addendum to its memorandum of decision, further
explaining its judgment in favor of the defendants on
the plaintiff’s § 46a-64c (a) (3) claims. Specifically, the
trial court stated in that addendum that it ‘‘must deter-
mine whether Henry’s statements convey a preference
against Lopez to an ordinary listener, hearing the state-
ments in context.’’ Applying that standard, the trial
court ultimately concluded that Henry’s statements did
‘‘not convey a rejection [of] or disfavor[ing] . . . a sec-
tion 8 tenancy’’ and, therefore, did not violate § 46a-
64c (a) (3).6 This appeal followed.
On appeal, the plaintiff asks us to direct judgment in
her favor, claiming that Henry’s statements were
facially discriminatory on the basis of her lawful source
of income, in violation of § 46a-64c (a) (3), rendering
it unnecessary to consider the context of those state-
ments. The plaintiff further claims that the record sup-
ports a conclusion as a matter of law that the other
defendants, Raveis and the Vaccaros, are vicariously
liable for Henry’s statements. We address each claim
in turn.
I
We begin with the plaintiff’s claims with respect to
whether the trial court correctly determined that Hen-
ry’s statements did not violate § 46a-64c (a) (3). Specifi-
cally, the plaintiff argues that (1) the trial court applied
an improper legal standard in considering this claim,
and (2) the trial court’s finding that Henry’s statements
did not convey a discriminatory message to an ordinary
listener was clearly erroneous.
A
We first address the plaintiff’s claim that the trial
court improperly applied the ordinary listener standard
articulated by the United States Court of Appeals for
the Second Circuit in Soules v. United States Dept. of
Housing & Urban Development, 967 F.2d 817 (2d Cir.
1992), when it considered the context surrounding Hen-
ry’s statements in determining whether they stated a
preference or discriminated on the basis of lawful
source of income, in violation of § 46a-64c (a) (3). Rely-
ing on the Second Circuit’s subsequent decision in
Rodriguez v. Village Green Realty, Inc., 788 F.3d 31(2d Cir. 2015), the plaintiff argues that, under Soules,
the proper analysis of facially discriminatory state-
ments like those made by Henry is limited to whether
an ordinary listener would infer that the speaker had
stated a preference against a member of the protected
class, and does not take into account whether the
speaker had the subjective intent to discriminate. To
this end, the plaintiff also argues that the trial court
improperly failed to decide at the outset whether Hen-
ry’s statements were facially discriminatory in determin-
ing whether it was appropriate to consider their con-
text, instead concluding that it is always appropriate
to consider context in determining whether a statement
violates § 46a-64c (a) (3).
In response, Raveis and Henry argue that the plaintiff
misreads Soules and that, under that case, the trial court
properly considered context in determining whether
Henry’s statements violated § 46a-64c (a) (3). The Vac-
caros, relying on several federal district court decisions
following Soules, namely, Thurmond v. Bowman, 211
F. Supp. 3d 554, 566 (W.D.N.Y. 2016), appeal dismissed,
Docket No. 16-3545, 2016 WL 10100759 (2d Cir. Novem-
ber 1, 2016), Short v. Manhattan Apartments, Inc., 916
F. Supp. 2d 375, 394 (S.D.N.Y. 2012), and Mancuso v.
Douglas Elliman LLC, 808 F. Supp. 2d 606, 625
(S.D.N.Y. 2011), argue that the trial court properly
applied the ordinary listener test, as utilized in the Sec-
ond Circuit, because the ordinary listener always con-
siders statements in their context. We agree with the
plaintiff’s argument that the ordinary listener considers
context only when necessary to analyze a notice, state-
ment, or advertisement that is not clearly discrimina-
tory on its face, but, applying that standard, we con-
clude that the trial court properly considered context
in the present case.
Whether the trial court applied the proper standard
for analyzing the statements under § 46a-64c (a) (3)
presents an issue of statutory construction that raises a
question of law, over which we exercise plenary review.
See, e.g., Boisvert v. Gavis, 332 Conn. 115, 141, 210
A.3d 1 (2019). ‘‘It is well settled that we follow the plain
meaning rule pursuant to General Statutes § 1-2z in
construing statutes to ascertain and give effect to the
apparent intent of the legislature.’’ (Internal quotation
marks omitted.) Ledyard v. WMS Gaming, Inc., 338
Conn. 687, 696, 258 A.3d 1268 (2021).
As required by § 1-2z, we begin with the text of the
statute, which provides in relevant part that it is ‘‘a
discriminatory practice’’ to ‘‘make, print or publish, or
cause to be made, printed or published any notice,
statement, or advertisement, with respect to the sale
or rental of a dwelling that indicates any preference,
limitation, or discrimination based on . . . lawful
source of income . . . or an intention to make any
such preference, limitation or discrimination.’’ General
Statutes § 46a-64c (a) (3); see footnote 1 of this opinion
(complete text of § 46a-64c (a) (1) and (3)).
Section 46a-64c (a) (3) is silent as to the proper stan-
dard by which to analyze statements alleged to violate
the statute, leaving the statute susceptible to multiple,
plausible interpretations as to the proper standard. See
Thomas v. Dept. of Developmental Services, 297 Conn.
391, 400, 999 A.2d 682 (2010) (silence as to scope of
provision rendered statute ambiguous with respect to
its scope because there was more than one plausible
interpretation). When silence renders a statutory provi-
sion ambiguous ‘‘with respect to [the issue at hand],
our analysis is not limited by . . . § 1-2z . . . . In
addition to the words of the statute itself, we look to
. . . the legislative history and circumstances sur-
rounding 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.’’ (Citation omitted; inter-
nal quotation marks omitted.) Curry v. Allan S. Good-
man, Inc., 286 Conn. 390, 407, 944 A.2d 925 (2008).
Turning to the legislative history, we note that then
state Senator Richard Blumenthal described the bill that
was enacted in 1990 as the Connecticut Discriminatory
Housing Practices Act as having ‘‘all the standards and
assurances that exist under federal law’’ and ‘‘incorpo-
rat[ing] the federal [Fair Housing Act, 42 U.S.C. 3601
et seq. (federal act)] into our state statute . . . .’’ 33
S. Proc., Pt. 2, 1990 Sess., p. 3494. With no on point
discussion in the legislative history of the provision
enacted as § 46a-64c (a) (3), we are left to consider
how the state fair housing act relates to common-law
principles and federal fair housing laws. In interpreting
our state fair housing laws, ‘‘we are guided by the cases
interpreting federal fair housing laws . . . despite dif-
ferences between the state and federal statutes.’’ (Cita-
tion omitted.) Miko v. Commission on Human Rights &
Opportunities, 220 Conn. 192, 202, 596 A.2d 396 (1991);
see, e.g., Curry v. Allan S. Goodman, Inc., supra, 286
Conn. 407 (‘‘this court previously has determined that
Connecticut antidiscrimination statutes should be inter-
preted in accordance with federal antidiscrimination
laws’’). We find particularly instructive the construc-
tions of the federal act by the United States Court of
Appeals for the Second Circuit in the absence of a
United States Supreme Court decision on point. See
Feehan v. Marcone, 331 Conn. 436, 478, 204 A.3d 666(‘‘[i]n considering claims of federal law, it is well settled
that, when the United States Supreme Court has not
spoken, we find decisions of the Second Circuit particu-
larly persuasive’’), cert. denied, U.S. , 140 S. Ct.
144, 205 L. Ed. 2d 35 (2019). Accordingly, we will look
to cases interpreting 42 U.S.C. § 3604 (c),7 which is the
federal counterpart to § 46a-64c (a) (3), even though
the state statute is unique insofar as it includes lawful
source of income as a protected class.
Our analysis begins with the Second Circuit’s deci-
sion in Ragin v. New York Times Co., 923 F.2d 995 (2d
Cir.), cert. denied, 502 U.S. 821, 112 S. Ct. 91, 116 L. Ed.
2d 54 (1991), in which that court analyzed the statutory
language of 42 U.S.C. § 3604 (c) in upholding the denial
of a motion to dismiss an action claiming that a newspa-
per had violated the federal act by publishing real estate
advertisements that featured virtually no black models,
thus indicating a preference for white purchasers. See
id., 998–1000. ‘‘Beginning [its] analysis with the statu-
tory language, [the Second Circuit noted that] the first
critical word is the verb ‘indicates.’ Giving that word
its common meaning, [the court] read the statute to be
violated if an ad for housing suggests to an ordinary
reader that a particular race is preferred or dispreferred
for the housing in question.’’ Id., 999.
‘‘[The court] read the word ‘preference’ to describe
any ad that would discourage an ordinary reader of a
particular race from answering it.’’ Id., 999–1000. ‘‘More-
over, the statute prohibits all ads that indicate a racial
preference to an ordinary reader whatever the advertis-
er’s intent. To be sure, the intent of the creator of an
ad may be relevant to a factual determination of the
message conveyed . . . but the touchstone is neverthe-
less the message. If, for example, an advertiser seeking
to reach a group of largely white consumers were to
create advertisements that discouraged potential black
consumers from responding, the statute would bar the
ads, [regardless of] whether the creator of the ad had
a subjective racial intent.’’8 (Citation omitted; emphasis
added.) Id., 1000. The court also noted that the ‘‘ordinary
reader is neither the most suspicious nor the most insen-
sitive of our citizenry.’’ Id., 1002. Considering the adver-
tisement at issue in the context of twenty years of
advertisements, the Second Circuit determined that it
presented a viable claim of a violation of 42 U.S.C.
§ 3604 (c) by stating racial preferences in the context
of the sale of real estate, emphasizing ‘‘a long-standing
pattern of publishing real estate ads in which models
of potential consumers are always white while black
models largely portray service employees, except for
the exclusive use of black models for housing in pre-
dominantly black neighborhoods.’’ Id., 1001.
Subsequently, the Second Circuit more clearly deline-
ated when and why the ordinary listener considers evi-
dence beyond the statement itself in Soules v. United
States Dept. of Housing & Urban Development, supra,
967 F.2d 817. In Soules, the court considered whether
a real estate agent violated the federal act by asking a
prospective tenant how old her child was because ‘‘an
elderly person lived in the first floor unit, and . . . she
did not want an upstairs resident who would make too
much noise.’’ Id., 820. The court stated that, ‘‘[i]n cases
[in which statements] are clearly discriminatory, a court
may look at [the statement] and determine whether it
indicates an impermissible preference to an ordinary
reader, and inquiry into the author’s professed intent
is largely unnecessary.’’ Id., 824. The court also stated
that, because written content does not communicate
the inflection of the speaker, ‘‘courts must turn to other
evidence in determining whether a violation of the [fed-
eral act] occurred.’’ Id., 825. ‘‘[Fact finders] may exam-
ine intent . . . because it helps determine the manner
in which a statement was made and the way an ordinary
listener would have interpreted it.’’ Id. Deeming the real
estate agent’s statement not facially discriminatory, the
court stated that the context and intent of the speaker
could either expose an impermissible preference or
simply explain why the statement was made, and upheld
the administrative law judge’s conclusion that the state-
ments at issue were made to determine whether the
prospective tenants were noisy.9 Id., 825–26; see also
Jancik v. Dept. of Housing & Urban Development, 44
F.3d 553, 554–55 (7th Cir. 1995) (considering context,
including two statements that indicated express prefer-
ence against children and teenagers, to determine that
‘‘ ‘mature person preferred’ ’’ advertisement expressed
impermissible preference).
Significantly, the Second Circuit also suggested in
Soules that context is particularly helpful when there
may be a legitimate reason for inquiring into one’s status
as a protected class, observing that, ‘‘whereas [t]here
is simply no legitimate reason for considering an appli-
cant’s race . . . there are situations in which it is legiti-
mate to inquire about the number of individuals interested
in occupying an apartment and their ages.’’ (Internal
quotation marks omitted.) Soules v. United States Dept.
of Housing & Urban Development, supra, 967 F.2d 824.
‘‘In [Soules], for example, [the real estate agent] asked
[the perspective tenant] whether her child was noisy
and later stated that an elderly tenant ‘would probably
not be able to take a noisy child running around.’ Depend-
ing on the context and intent of the speaker, the latter
question either could intimate an impermissible prefer-
ence or simply might explain—to a desired tenant—
why the first question had been asked. It also might
send a message that a tenant with a noisy child will
probably be confronted with regular complaints from
the elderly tenant making the apartment less attractive
to the prospective tenant.’’ Id., 825.
Finally, in Rodriguez v. Village Green Realty, Inc.,
supra, 788 F.3d 36–39, the Second Circuit considered
whether there was sufficient evidence to raise a genuine
issue of material fact as to whether a real estate agent
had violated 42 U.S.C. § 3604 (c) by making certain
comments with respect to the tenants’ disabled child.
Concluding that 42 U.S.C. § 3604 (c) could be violated
even if the person who was the subject of the statements
did not actually qualify as disabled under the federal
act; id., 41; the court explained that it would contradict
the language of 42 U.S.C. § 3604 (c) to hold that the
inquiry depended on the speaker’s subjective state of
mind. See id., 53. Rather, the inquiry under 42 U.S.C.
§ 3604 (c) depends on whether the challenged state-
ment conveyed a prohibited preference to the ordinary
listener, with the ‘‘ ‘touchstone’ ’’ of the inquiry being
the message itself.10 Id. Section 3604 (c) prohibits all
ads that indicate an impermissible preference to an
ordinary reader, regardless of intent. See id. However,
when the message does not convey an impermissible
preference on its face, courts may turn to evidence
beyond the message to determine whether the ordinary
reader would, in fact, interpret the message to violate
the statute. See id.Guided by this Second Circuit case law, we conclude
that, when a notice, statement, or advertisement that
allegedly violates § 46a-64c (a) (3) is plainly discrimina-
tory on its face, courts need not examine the sur-
rounding context or the speaker’s intent to determine
whether the statement indicates any impermissible
preference, limitation, or discrimination to the ordinary
listener. When, however, such a notice, statement, or
advertisement is not facially discriminatory, courts may
consider the context and intent of the speaker to aid
in determining the way an ordinary listener would have
interpreted it.11 In the present case, the trial court did
not expressly conclude whether the statements were
facially discriminatory, stating only that ‘‘Henry made
no statement that conveys the message that she was
disinclined to proceed with a prospective . . . tenancy
[by the plaintiff] because of section 8 program participa-
tion.’’ We understand that statement to mean that the
court concluded that the statements were not facially
discriminatory—a conclusion with which we agree.
Thus, it was not improper for the trial court to consider
the context of the statements in determining whether
they stated a preference with respect to lawful source
of income, in violation of § 46a-64c (a) (3).12
B
We now turn to the plaintiff’s contention that the trial
court incorrectly concluded that Henry’s statements,
even when considered in context, would not have con-
veyed an impermissible preference to an ordinary lis-
tener. Under Second Circuit case law, the ordinary lis-
tener inquiry is one of fact. See, e.g., Ragin v. Harry
Macklowe Real Estate Co., 6 F.3d 898, 906 (2d Cir. 1993)
(‘‘[T]he inquiry directed by Ragin [v. New York Times
Co., supra, 923 F.2d 995] is whether a hypothetical ordi-
nary reader would find that a defendant’s ads expressed
an impermissible racial preference. Like the inquiry in
negligence cases concerning whether a defendant’s con-
duct conformed with that of the reasonable person, this
question is one that the [fact finder] can answer by view-
ing the ads and the defendants’ conduct and then apply-
ing common sense.’’ (Emphasis in original.)); Soules v.
United States Dept. of Housing & Urban Development,
supra, 967 F.2d 825 (‘‘[i]t is for this reason that [fact
finders] may examine intent, not because a lack of
design constitutes an affirmative defense to [a] . . .
violation [of the federal act], but because it helps deter-
mine the manner in which a statement was made and
the way an ordinary listener would have interpreted
it’’); Ragin v. New York Times Co., supra, 1000 (‘‘the
intent of the creator of an ad may be relevant to a factual
determination of the message conveyed’’ (emphasis
added)); Gilead Community Services, Inc. v. Crom-
well, 432 F. Supp. 3d 46, 68 (D. Conn. 2019) (‘‘whether
the various statements . . . ‘convey a prohibited pref-
erence or discrimination to the ordinary listener’ . . .
should be determined by the jury’’ (citation omitted;
emphasis in original)).
‘‘A finding of fact is clearly erroneous when there is
no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Emphasis added; internal quotation marks omitted.)
McKay v. Longman, 332 Conn. 394, 417, 211 A.3d 20(2019). Further, ‘‘[b]ecause it is the trial court’s function
to weigh the evidence and [to] determine credibility,
we give great deference to its findings. . . . In
reviewing factual findings, [w]e do not examine the
record to determine whether the [court] could have
reached a conclusion other than the one reached. . . .
Instead, we make every reasonable presumption . . .
in favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) Connecticut Light & Power Co. v. Proc-
tor, 324 Conn. 245, 259, 152 A.3d 470 (2016).
We begin with the facts that the trial court included
in its addendum discussing the plaintiff’s § 46a-64c (a)
(3) claim. As support for its conclusion that Henry’s
statements did not violate § 46a-64c (a) (3), the trial
court cited the fact that Henry forwarded a sample
lease to the plaintiff after finding out about her section
8 status. We fail to see the significance of this fact in
light of the overwhelming evidence in the trial court’s
findings that support the plaintiff’s § 46a-64c (a) (3)
claim.13 Immediately prior to learning about the plain-
tiff’s section 8 status, Henry had communicated that
the deal was ‘‘all set for April 1st.’’ After Henry learned
of the plaintiff’s section 8 status, she abruptly shifted
gears to inform Becker that (1) they did ‘‘not have an
offer without a signed lease,’’ (2) Henry was ‘‘not sure
[Vacarro] would want to wait,’’ as she knew it took ‘‘a
couple of weeks for the process,’’ and (3) according to
Henry, Vaccaro had to decide ‘‘whether he would want
to wait for the section 8 program process to run its
course given his expressed desire to have the [rental
apartment] rented by April 1, 2017,’’ as the trial court
stated. In the hours following her receipt of the plain-
tiff’s section 8 forms, Henry stated four separate times
that she was not previously aware of the plaintiff’s
intention to use a section 8 voucher to pay the rent.
The Vaccaros argued that the fact that the plaintiff’s
initial paperwork was incomplete was also relevant to
place Henry’s statements in context, as was the exis-
tence of the competing offer from Thompson and Dyer.
The facts, however, undermine the strength of this argu-
ment. After the plaintiff’s initial submission of incom-
plete paperwork, Henry had stated that the deal was
still ‘‘all set for April 1st.’’ In regard to the competing
offer, the trial court found that it was e-mailed to Henry
at 11:37 a.m. on March 15, 2017. By that time, Henry
had already made two of the four statements at issue
and had stated that she was not sure Vaccaro would
want to wait. The chronology of events does not reason-
ably permit her to rely on the competing offer to explain
the statements that she made earlier that morning.
Thus, the trial court’s ultimate finding that the ordinary
listener would not have inferred that Henry’s statements
indicated any preference, limitation or discrimination
was inconsistent with all but one of the subordinate
facts it found. Put differently, Henry’s statements could
not reasonably be understood in context to mean any-
thing other than that the plaintiff’s intention to use her
section 8 voucher to pay the rent would be a stumbling
block to completing the transaction.
Beyond being inconsistent with the other facts it
found, the trial court’s conclusion undercuts the broad
protections provided by § 46a-64c (a) (3). As the plain-
tiff argues, the purpose of 42 U.S.C. § 3604 (c), the
federal provision on which § 46a-64c (a) (3) is modeled,
‘‘is to protect against the ‘psychic injury’ caused by
discriminatory statements made in relation [to] the
housing market.’’14 See R. Schwemm, ‘‘Discriminatory
Housing Statements and § 3604 (c): A New Look at
the Fair Housing Act’s Most Intriguing Provision,’’ 29
Fordham Urb. L.J. 187, 249–50 (2001); see also United
States v. Space Hunters, Inc., 429 F.3d 416, 424–25
(2d Cir. 2005) (‘‘[T]he [D]istrict [C]ourt’s view that [the
provision’s] purpose is to ‘prevent expressions that
result in the denial of housing’ is too narrow. The statute
also ‘protect[s] against [the] psychic injury’ caused by
discriminatory statements made in connection with the
housing market. . . . If that were not so, Congress
likely would not have made [the provision] applicable
to dwellings that are otherwise exempt from [the act’s]
prohibition on discrimination.’’ (Citations omitted.)).
Our statute mirrors the broad language of the federal
provision and differs only in its inclusion of additional
protected classes, such as lawful source of income. See
footnotes 1 and 7 of this opinion.
The protections against psychic injury provided by
§ 46a-64c (a) (3) are particularly significant with respect
to lawful source of income. ‘‘Unlike the federal provi-
sions governing section 8, the provisions of § 46a-64c,
which require landlords to accept otherwise qualified
tenants whose lawful source of income may include
section 8 housing assistance, are mandatory. Pursuant
to this statute, it is a part of the public policy of this state
that landlords may not discriminate against housing
applicants because such applicants, otherwise qualified
as potential tenants, look to section 8 assistance for
payment of the stipulated rent.’’15 (Emphasis added.)
Commission on Human Rights & Opportunities v.
Sullivan Associates, 250 Conn. 763, 774, 739 A.2d 238(1999). The statute reflects ‘‘the legislature’s manifest
intent to afford low income families access to the rental
housing market.’’ Id., 782. Given the mandatory nature
of the section 8 program in Connecticut, landlords may
not justify disfavoring housing vouchers, which are a
lawful source of income, by claiming reluctance to under-
take the various administrative burdens that attend par-
ticipation, such as undergoing rental unit inspections.16
See id., 778–82 (rejecting claim that exception existed
under antidiscrimination provision allowing landlords
not to participate in section 8 program by refusing use of
statutorily mandated lease); see also DiLiddo v. Oxford
Street Realty, Inc., 450 Mass. 66, 77, 876 N.E.2d 421(2007) (declining to carve out exception to mandatory
section 8 program in Massachusetts for landlords facing
substantial economic harm from compliance with its
requirements).
Thus, given that the plaintiff indicated that she would
have been able to meet Vaccaro’s desired occupancy
date of April 1, 2017, particularly with Becker’s demon-
strated desire to expedite the transaction, any prefer-
ence to avoid the administrative process of the section
8 program in this transaction could not have been a
determinative consideration in Vaccaro’s rental deci-
sion under § 46a-64c (a) (1), which, ipso facto, renders
it impermissible under § 46a-64c (a) (3) for Henry to
express that Vaccaro planned to consider the length of
the section 8 process in his rental decision.17 Henry
stated that she was ‘‘not sure if [Vaccaro] wants to
[wait] through the process’’ and that it was up to him.
By expressing that Vaccaro may not want to participate
in the section 8 approval process, and that the transac-
tion may not proceed after Becker had surprised her
with the plaintiff’s section 8 status, Henry indicated
that the administrative process would be a significant
consideration in Vaccaro’s rental decision, which is a
clear indication of an intention to make a preference
based on lawful source of income.
The trial court ultimately concluded that Henry’s
statements ‘‘would not have been understood as dis-
criminatory by an ordinary listener . . . .’’ However, a
violation of § 46a-64c (a) (3) does not require discrimi-
natory animus. Nor does it require a rejection of or
disfavoring a lawful source of income. Section 46a-64c
(a) (3) bars statements that a reasonable listener would
understand to convey an intention to make any such
‘‘preference, limitation, or discrimination . . . .’’ In
light of the broad language of § 46a-64c (a) (3) and the
abundance of facts supporting an inference that the
ordinary listener would have understood Henry’s state-
ments to fall within the reach of the statute, we are left
with a definite and firm conviction that the trial court’s
conclusion was not simply an alternative yet permissi-
ble view of the evidence. See, e.g., American Diamond
Exchange, Inc. v. Alpert, 101 Conn. App. 83, 96, 920
A.2d 357 (‘‘whe[n] there are two permissible views of
the evidence, the [fact finder’s] choice between them
cannot be clearly erroneous’’ (internal quotation marks
omitted)), cert. denied, 284 Conn. 901, 931 A.2d 261(2007). It was clear error for the trial court to find that
Henry’s statements did not indicate even so much as
an intention to make an impermissible consideration
of section 8 in the rental decision. Accordingly, we
conclude that the plaintiff is entitled to judgment as a
matter of law as to liability on her § 46a-64c (a) (3)
claim against Henry,18 with remand to the trial court
necessary for consideration of the plaintiff’s claims for
damages, attorney’s fees, and declaratory and injunctive
relief. See, e.g., Channing Real Estate, LLC v. Gates,
326 Conn. 123, 132–33, 161 A.3d 1227 (2017).
II
Because the trial court rendered judgment in favor
of the defendants on the basis of its conclusion as
to Henry’s statements, it did not reach the plaintiff’s
derivative liability claims. The plaintiff argues that there
is sufficient evidence in the record to conclude as a
matter of law that, pursuant to General Statutes § 20-
312a,19 Raveis is vicariously liable for Henry’s conduct.
The plaintiff also asserts that, by virtue of authorizing
Raveis and Henry to list a unit that he and his wife
owned, Vaccaro created an agency relationship with
the Vaccaros as the principals and Raveis and Henry
as their agents, and, thus, the Vaccaros are vicariously
liable for the tortious acts of Raveis and Henry. In
response, the defendants claim that agency law requires
a fact intensive inquiry, and, because the trial court
did not adjudicate the vicarious liability claims against
them, there is no record for this court to consider. We
agree with the plaintiff that Raveis is vicariously liable
for Henry’s statements as a matter of law but disagree
with respect to the Vaccaros.
This court need not remand the case for the trial
court’s decision on the issue of vicarious liability if it
can be determined as a matter of law on the record
before us. See Hudson Wire Co. v. Winsted Brass Work-
ers Union, 150 Conn. 546, 552, 191 A.2d 557 (1963). In
other words, if the evidence necessary for resolution
is undisputed, then this court can decide the issue as
a matter of law without need for a remand for factual
findings. See, e.g., Salmon v. Dept. of Public Health &
Addiction Services, 259 Conn. 288, 309–310, 788 A.2d
1199 (2002); see also Allstate Ins. Co. v. Palumbo, 296
Conn. 253, 267–68, 994 A.2d 174 (2010) (citing cases).
Again, turning to cases interpreting the federal act,
we note that the United States Supreme Court has stated
that the federal statute incorporates ‘‘ordinary [tort
related] vicarious liability rules . . . .’’ Meyer v. Holley,
537 U.S. 280, 285, 123 S. Ct. 824, 154 L. Ed. 2d 753(2003). As applied in the state law context, under this
court’s well established vicarious liability jurispru-
dence, an employer is liable for the negligent and wilful
torts of an employee that occurred within the scope
of employment and were done in furtherance of the
employer’s business. E.g., A-G Foods, Inc. v. Pepperidge
Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990); see
Matthiessen v. Vanech, 266 Conn. 822, 840 n.16, 836
A.2d 394 (2003) (‘‘an employer generally is liable for
intentional torts committed by his employees to the
same extent that he is liable for damages arising out of
the negligent or reckless conduct of those employees’’).
In Connecticut, the vicarious liability of a real estate
broker is governed by § 20-312a, which provides: ‘‘In
any action brought by a third party against a real estate
salesperson affiliated with a real estate broker as an
independent contractor, such broker shall be liable to
the same extent as if such affiliate had been employed
as a real estate salesperson by such broker.’’ The parties
stipulated to the fact that Raveis is a broker and that
Henry is a real estate salesperson associated with
Raveis by an independent contractor agreement. The
trial court also made these findings in its memorandum
of decision. Thus, under § 20-312a, Raveis is liable to
the same extent as if Henry were its employee.
The trial court found that Henry acted on behalf of
Raveis when she executed the exclusive right to lease
listing contract with Vaccaro in relation to the rental
apartment. It cannot reasonably be contended that
statements made about the plaintiff’s prospective ten-
ancy in the Vaccaros’ rental apartment were not in
furtherance of the listing contract, and there is no evi-
dence to suggest that Henry’s conversations with
Becker in regard to the rental apartment were outside
the scope of that engagement. Therefore, we conclude
as a matter of law that Raveis is vicariously liable for
Henry’s statements in violation of § 46a-64c (a) (3).
The plaintiff also asserts that, having authorized
Raveis and Henry to list a unit that he and his wife
owned, Vaccaro created an agency relationship with
the Vaccaros as the principal and Raveis and Henry as
their agents, and, thus, the Vaccaros are vicariously
liable for the wrongful acts of those agents. At oral
argument before this court, counsel for the Vaccaros
argued that Vaccaro hired Henry as an independent
contractor and provided no training, tools, equipment
or instructions, other than the desired amount of rent,
and, thus, cannot be held liable for her wrongful acts.
We agree with the Vaccaros and conclude that Henry
had an independent contractor relationship with them
for purposes of their vicarious liability.
A principal is generally liable for the authorized acts
of their agent. E.g., Rich-Taubman Associates v. Com-
missioner of Revenue Services, 236 Conn. 613, 619, 674
A.2d 805 (1996). Agency is ‘‘the fiduciary relationship
[resulting] from [the] manifestation of consent by one
person to another that the other shall act on his [or
her] behalf and subject to his [or her] control, and
consent by the other so to act . . . .’’ (Internal quota-
tion marks omitted.) Fiano v. Old Saybrook Fire Co.
No. 1, Inc., 332 Conn. 93, 102, 209 A.3d 629 (2019). ‘‘The
test of the [agency] relationship is the right to control.
It is not the fact of actual interference with the control,
but the right to interfere, that makes the difference
between an independent contractor and a servant or
agent.’’ (Internal quotation marks omitted.) Tianti v.
William Raveis Real Estate, Inc., 231 Conn. 690, 697,
651 A.2d 1286 (1995). Further, ‘‘[a]n independent con-
tractor has been defined as one who, exercising an
independent employment, contracts to do a piece of
work according to his own methods and without being
subject to the control of his employer, except as to the
result of his work.’’ (Internal quotation marks omit-
ted.) Id.Turning to the record, we observe that the listing
contract Henry executed between Raveis and Vaccaro
stated that ‘‘[Raveis] will use reasonable efforts to lease
the [rental apartment].’’ This provision does not state
or imply that the Vaccaros had the right to intervene
as to the means or methods by which to lease the listed
property. Outside of the limited terms of the listing
contract, there is no evidence to suggest that Vaccaro
had the right to control anything other than the result,
namely, the terms of the lease and which offer he
accepted.20 Accordingly, we conclude that Vaccaro and
Henry had an independent contractor relationship as a
matter of law.
Generally, an employer is not liable for the torts of
its independent contractors. E.g., Gazo v. Stamford,
255 Conn. 245, 257, 765 A.2d 505 (2001). ‘‘The explana-
tion for [this rule] most commonly given is that, [because]
the employer has no power of control over the manner
in which the work is to be done by the contractor, it is
to be regarded as the contractor’s own enterprise, and
[the contractor], rather than the employer, is the proper
party to be charged with the responsibility of preventing
the risk, and bearing and distributing it.’’ (Internal quo-
tation marks omitted.) Pelletier v. Sordoni/Skanska
Construction Co., 264 Conn. 509, 517–18, 825 A.2d 72(2003).
The plaintiff raised an exception to this general prin-
ciple in its brief to this court, at least as to Eve Vaccaro.
Relying on Alexander v. Riga, 208 F.3d 419, 432–33 (3d
Cir. 2000), cert. denied, 531 U.S. 1069, 121 S. Ct. 757,
148 L. Ed. 2d 660 (2001), the plaintiff argues that the
duty not to discriminate is nondelegable in nature. This
court has previously stated that ‘‘[t]he nondelegable
duty doctrine is . . . an exception to the rule that an
employer may not be held liable for the torts of its
independent contractors.’’ Gazo v. Stamford, supra, 255
Conn. 257. The United States Supreme Court, however,
has held that the duty not to discriminate under the
federal act is not nondelegable in nature because a
conclusion to the contrary would extend vicarious lia-
bility beyond the ordinary tort principles imposed by
the federal act. See Meyer v. Holley, supra, 537 U.S.
286; see also id., 290. Having concluded that Henry was
an independent contractor, and, in the absence of an
exception to the general rule that employers are not
liable for the torts of their independent contractors, we
conclude that the Vaccaros are not vicariously liable
for any of Henry’s statements that constitute a violation
of § 46a-64c (a) (3).21
The judgment is reversed in part and the case is
remanded with direction to render judgment for the
plaintiff as to liability against the defendants Sarah
Henry and William Raveis Real Estate, Inc., in connec-
tion with the plaintiff’s claim under § 46a-64c (a) (3)
and for further proceedings in accordance with this
opinion; the judgment is affirmed with respect to the
trial court’s determination that the defendants Anthony
Vaccaro and Eve Vaccaro were not liable to the plaintiff.
In this opinion the other justices concurred.
1
General Statutes § 46a-64c (a) provides in relevant part: ‘‘It shall be a
discriminatory practice in violation of this section:
‘‘(1) To refuse to sell or rent after the making of a bona fide offer, or to
refuse to negotiate for the sale or rental of, or otherwise make unavailable
or deny, a dwelling to any person because of race, creed, color, national
origin, ancestry, sex, gender identity or expression, marital status, age, lawful
source of income, familial status or status as a veteran.
***
‘‘(3) To make, print or publish, or cause to be made, printed or published
any notice, statement, or advertisement, with respect to the sale or rental
of a dwelling that indicates any preference, limitation, or discrimination
based on race, creed, color, national origin, ancestry, sex, gender identity
or expression, marital status, age, lawful source of income, familial status,
learning disability, physical or mental disability or status as a veteran, or
an intention to make any such preference, limitation or discrimination. . . .’’
2
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we subsequently granted the plaintiff’s motion to transfer this
appeal from the Appellate Court pursuant to General Statutes § 51-199 (c)
and Practice Book § 65-2.
3
For purposes of convenience, we refer to the defendants individually as
appropriate. Consistent with the trial court’s memorandum of decision, we
refer to Anthony Vaccaro individually as ‘‘Vaccaro’’ and to Eve Vaccaro by
her full name.
4
The trial court found the following facts with respect to the plaintiff’s
offer to lease: ‘‘The offer to lease identified [the plaintiff] as the tenant,
Prince Street as the premises, a lease term starting on April 1, 2017, ending
‘[one] year, may renew,’ and a lease price of $1500 per month, but left a
blank where it would have been indicated that an initial deposit was tendered
with the offer. There were other blanks that were not filled in on the offer
to lease, including two consecutive lines that were left blank, as follows:
‘‘Security Deposit: Payable to Landlord or Landlord’s Agent upon Signing
of Lease: $
‘‘Additional Rent: Payable to Landlord or Landlord’s Agent upon Signing
of Lease: $
‘‘Although these lines were left blank, the words ‘AS REQUESTED’ were
handwritten next to the additional rent line. . . . The offer to lease further
provided that it would expire at midnight ‘ASAP’ if not accepted by all parties
and identified as a contingency ‘kitchen sink faucet leaking, needs repair.’ ’’
5
By way of background, General Statutes § 46a-63 (3) defines ‘‘lawful
source of income’’ as ‘‘income derived from Social Security, supplemental
security income, housing assistance, child support, alimony or public or
state-administered general assistance.’’ (Emphasis added.) ‘‘[T]he lawful
sources of income protected from discrimination by § 46a-64c include ‘sec-
tion 8 rental subsidies as a form of housing assistance.’ ’’ Commission on
Human Rights & Opportunities v. Sullivan Associates, 250 Conn. 763, 775,
739 A.2d 238 (1999).
6
In reaching this conclusion, the trial court focused extensively on Becker
and her communications with the plaintiff. The trial court stated: ‘‘[F]rom
Becker’s messages and conduct on March 15, it appears that Becker immedi-
ately jumped to the conclusion that [the plaintiff’s] section 8 participation
was a problem. . . .
‘‘Then, in an exchange of messages between Becker and [the plaintiff]
beginning at 10:59 a.m., Becker asked [the plaintiff] if she could call her
housing contact because ‘the landlord is a flight risk’ and is ‘trying to back
off which is illegal and I will report them.’ . . . By 1:35 p.m., Becker mes-
saged [the plaintiff] that ‘[she] called the president of the real estate board.
If they do continue with the other offer (that suddenly exists) you have [a]
legal case against [the] landlord [and] his agent. Minimum fine is around
[$5000] to them.’ By 9:05 p.m., Becker told [the plaintiff] that she had a
‘perfect paper trail on this discrimination case and [was] reporting [it] to
[the relevant state authorities]’ and had identified counsel who was willing
to help her pursue a discrimination claim.’’
7
Section 3604 (c) of title 42 of the 2018 edition of the United States Code
provides that it is unlawful ‘‘[t]o make, print, or publish, or cause to be
made, printed, or published any notice, statement, or advertisement, with
respect to the sale or rental of a dwelling that indicates any preference,
limitation, or discrimination based on race, color, religion, sex, handicap,
familial status, or national origin, or an intention to make any such prefer-
ence, limitation, or discrimination.’’
8
In responding to the plaintiff’s reliance on Ragin v. New York Times
Co., supra, 923 F.2d 995, Raveis and Henry set forth this quoted language
without analysis or context. Having considered it, we understand the Second
Circuit to mean that the analysis must begin with the message itself, with
the speaker’s subjective intent only relevant when a court must look beyond
the plain language of the statement at issue to determine whether it conveys
an impermissible preference.
9
The Vaccaros argue that the court in Soules stated the proper inquiry
was whether the ordinary listener, in light of all the circumstances, would
have interpreted the statement to indicate an impermissible preference. It
is true that the court stated such, but it did so in a portion of the decision
immediately preceding this section, which distinguished the statements in
question from those that are facially discriminatory and discussed the dis-
tinct analysis that facially discriminatory statements warrant. See Soules v.
United States Dept. of Housing & Urban Development, supra, 967 F.2d 824.
10
The defendants argue that the court in Rodriguez did not articulate a
standard for facially discriminatory statements. However, the court
expressly stated that, ‘‘[u]nder [42 U.S.C. §] 3604 (c), the speaker’s subjective
belief is not determinative. What matters is whether the challenged state-
ments convey a prohibited preference or discrimination to the ordinary
listener.’’ (Emphasis omitted.) Rodriguez v. Village Green Realty, Inc., supra,
788 F.3d 53.
11
The three federal District Court cases cited by the Vaccaros do not
support their argument that the ordinary listener always considers context
in evaluating an allegedly discriminatory statement. In Mancuso, the court
proceeded to a consideration of context only following its initial assessment
that the statement in question did ‘‘not clearly convey an impermissible
preference to an ordinary person.’’ Mancuso v. Douglas Elliman, LLC, supra,
808 F. Supp. 2d 626; see Short v. Manhattan Apartments, Inc., supra, 916
F. Supp. 2d 394 (reciting standard from Mancuso, in which statements in
question were not clearly discriminatory and, thus, warranted consideration
of context). Further, although the court in Thurmond stated that the ‘‘ordi-
nary listener hears the statement in context,’’ it proceeded to forgo a consid-
eration of the context as the statements at issue therein were ‘‘plainly’’ in
violation of the federal act. Thurmond v. Bowman, supra, 211 F. Supp. 3d
566; see id., 567 (‘‘[the] statements, in and of themselves, are enough to
trigger liability under [42 U.S.C.] § 3604 (c), because the intent of the speaker
is not determinative of liability’’).
12
We note that the plaintiff claims that the trial court’s finding that Henry
did not subjectively intend to discriminate was clearly erroneous. We need
not consider this claim because, although it would have been proper for
the trial court to consider Henry’s subjective intent insofar as the statements
were not facially discriminatory, we nevertheless agree with Raveis and
Henry that the trial court did not do so in its § 46a-64c (a) (3) analysis.
Indeed, in its memorandum of decision, the trial court focused on the
plaintiff’s § 46a-64c (a) (1) claim, including in its findings. It does not address
whether the trial court found that Henry intended to indicate a preference
in her statements to Becker. The trial court’s addendum, which specifically
addresses the § 46a-64c (a) (3) claim, similarly lacks a finding as to whether
Henry intended her statements to Becker to be discriminatory. The adden-
dum relies on context only to determine how the ordinary listener would
have interpreted the nonfacially discriminatory statements.
13
The trial court also spent a significant portion of its discussion on
text messages exchanged between Becker and the plaintiff subsequent to
Becker’s receipt of the text messages from Henry. See footnote 6 of this
opinion. We disagree with the trial court’s extensive reliance on these state-
ments because Becker’s subjective reaction to Henry’s statements hardly
informs how an ordinary listener would understand Henry’s statements.
14
We note that 42 U.S.C. § 3604 (c) is itself broader than the other federal
antidiscrimination laws on which it is modeled, namely, Title VII of the
Civil Rights Act, which provides in relevant part: ‘‘It shall be an unlawful
employment practice for an employer . . . to print or publish or cause to
be printed or published any notice or advertisement relating to employment
. . . indicating any preference, limitation, specification, or discrimination,
based on race, color, religion, sex, or national origin . . . .’’ 42 U.S.C.
§ 2000e-3 (b) (2018). Section 3604 (c) expanded those protections into the
fair housing context by adding ‘‘statement[s]’’ to the practices banned by
the provision and by adding language that brought even stated intentions
under the protection of fair housing laws. 42 U.S.C. § 3604 (c) (2018). That
expansion was consistent with an overarching goal of the federal act, which
is to promote ‘‘truly integrated and balanced living patterns.’’ 114 Cong. Rec.
3422 (1968), remarks of Senator Walter F. Mondale.
15
In contrast, in states with voluntary section 8 programs, statutes banning
lawful source of income discrimination often have been read to allow land-
lords to refuse a section 8 tenant for legitimate business reasons related to
compliance with that program’s requirements. See, e.g., Dussault v. RRE
Coach Lantern Holdings, LLC, 86 A.3d 52, 60 (Me. 2014) (‘‘We recognize the
. . . purpose [of the Maine Human Rights Act] to protect public assistance
recipients’ rights to secure decent housing. We will not, however, read into
[that act] a mandate that landlords accept terms of tenancy that are otherwise
required only if the landlord chooses to participate in a voluntary federal
program.’’); Edwards v. Hopkins Plaza Ltd. Partnership, 783 N.W.2d 171,
177 (Minn. App. 2010) (‘‘Minnesota law does not require property owners
in Minnesota to participate in [s]ection 8 programs. . . . And we conclude
that refusal to participate in a voluntary program for a legitimate business
reason does not constitute discrimination under the [Minnesota Human
Rights Act].’’ (Citations omitted.)).
16
However, ‘‘nothing in the statutes forbidding discrimination against ten-
ants receiving section 8 rental subsidies requires landlords to accept tenants
who may be unqualified to rent for nondiscriminatory reasons such as, for
example, a poor rental history, poor references, or poor credit. The target of
the statutes is, instead, the unspoken presumption that section 8 assistance
recipients, by virtue only of their source of income, are undesirable tenants
for a landlord’s rental properties.’’ (Footnote omitted.) Commission on
Human Rights & Opportunities v. Sullivan Associates, supra, 250 Conn.
776.
17
This is not to say that the plaintiff’s status as a section 8 voucher
holder automatically required the Vaccaros to rent the apartment to her, or
otherwise privilege her application over other applications. Indeed, the trial
court found credible Vaccaro’s testimony that Thompson and Dyer presented
a better offer. This illustrates the distinction between the protections offered
by subdivisions (1) and (3) of § 46a-64c (a). Subdivision (3) prohibits all
statements that express even an intention to indicate a preference or limita-
tion based on any of the protected classes. As a result, there can be a
violation of § 46a-64c (a) (3) even in the absence of a violation of § 46a-64c (a)
(1). Put differently, the defendants did not violate the housing discrimination
statute by the act of communicating and taking a better offer. Rather, Henry
violated the statute by making a statement that an ordinary listener surely
would understand to mean that the section 8 approval process could be
a determinative consideration in the rental decision, when, as previously
discussed, it cannot be.
18
Although there are instances in which a reversal by this court based
on a holding of clear error required a new trial as an appellate remedy; see,
e.g. McDermott v. State, 316 Conn. 601, 611, 113 A.3d 419 (2015) (determining
that requirement of different legal standard generally entitles parties to new
trial); Naples v. Keystone Building & Development Corp., 295 Conn. 214,
225, 990 A. 2d 326 (2010) (trial court’s damages award was clearly erroneous
and case was remanded for new trial limited to determining adequate dam-
ages); a review of our case law does not require a new trial as to liability
in the present case. We find persuasive our recent decision in Bilbao v.
Goodwin, 333 Conn. 599, 217 A.3d 977 (2019). In that case, we reviewed
the trial court’s factual determination that an agreement was not supported
by consideration. See id., 617. In determining that the trial court’s finding
was clearly erroneous and that the agreement was supported by consider-
ation, this court cited inconsistent facts and facts supporting the contrary
conclusion, as well as the trial court’s improper reliance on certain case
law. See id., 617–20. Rather than remanding the case for a new trial, this
court remanded with direction to render the judgment the trial court would
have rendered in the absence of its clearly erroneous factual finding. See
id., 623; see also Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 556–57,
893 A.2d 389 (2006) (concluding that trial court’s agency determination was
clearly erroneous and directing judgment consistent with lack of agency
relationship); Echavarria v. National Grange Mutual Ins. Co., 275 Conn.
408, 419–20, 880 A.2d 882 (2005) (concluding that trial court’s finding of
actual notice was clearly erroneous and directing judgment consistent with
lack of notice).
19
General Statutes § 20-312a provides: ‘‘In any action brought by a third
party against a real estate salesperson affiliated with a real estate broker
as an independent contractor, such broker shall be liable to the same extent
as if such affiliate had been employed as a real estate salesperson by
such broker.’’
20
The plaintiff also did not provide any support for holding an owner
liable for the wrongful acts of a real estate salesperson. The case cited by the
plaintiff purporting to do so in its posttrial memorandum actually involved
vicarious liability for the actions of an agent acting as a property manager.
Although it is well established that, under the federal act, ‘‘owners of real
estate may be held vicariously liable for discriminatory acts by their agents
and employees’’; (internal quotation marks omitted) United States v. Hylton,
944 F. Supp. 2d 176, 190 (D. Conn. 2013), aff’d, 590 Fed. Appx. 13 (2d Cir.
2014); the plaintiff does not provide any authority for the proposition that
real estate salespersons who are hired as independent contractors under
circumstances similar to those in the present case are deemed to be agents
for purposes of tort liability, and our independent research does not
reveal any.
21
Because we conclude that Vaccaro, the contracting owner involved in
the transaction, is not vicariously liable, we can assume without deciding that
Eve Vaccaro, a noncontracting owner of the rental apartment, is similarly
not subject to vicarious liability.