Pursuant to statute (§ 46a-58 (a)), ‘‘[i]t shall be a discriminatory practice
. . . for any person to subject, or cause to be subjected, any other
person to the deprivation of any rights, privileges or immunities, secured
or protected by the Constitution or laws of this state or of the United
States, on account of . . . sex . . . .’’
Pursuant further to statute ((Supp. 2012) § 46a-86 (b)), ‘‘upon a finding of
a discriminatory employment practice, the [human rights referee] may
order the hiring or reinstatement of employees, with or without back
pay . . . .’’
Pursuant further to statute ((Supp. 2012) § 46a-86 (c)), ‘‘upon a finding of
a discriminatory practice prohibited by section 46a-58 . . . the [referee]
shall determine the damage suffered by the complainant . . . as a result
of such discriminatory practice and shall allow reasonable attorney’s
fees and costs.’’
The named defendant, G, who is employed as a judicial marshal by the
plaintiff, the Connecticut Judicial Branch, filed a complaint with the
defendant Commission on Human Rights and Opportunities in connec-
tion with her allegations that another judicial marshal, M, had subjected
her to severe and pervasive sexual harassment while they were stationed
together at a particular courthouse. Specifically, G alleged that the
branch discriminated against her on the basis of her gender by subjecting
her to a hostile work environment, failing to investigate her allegations
and to take remedial steps to protect her, and retaliating against her
for making her complaint by reassigning her to courthouses farther from
her residence. G claimed that the branch’s misconduct violated the
employment discrimination statute (§ 46a-60), as well as the general
antidiscrimination statute, § 46a-58 (a), and 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.), as a predicate for G’s claim under § 46a-58 (a),
insofar as § 46a-58 (a) includes within its ambit ‘‘the deprivation of any
rights . . . secured or protected by the . . . laws . . . of the United
States . . . .’’ During the administrative proceedings before the commis-
sion, the branch issued a request for the production of all of G’s medical
records, but G produced nothing in response. The branch then objected
when G indicated that she intended to call her therapist and psychologist
as witnesses in support of her claim for emotional distress damages. In an
off-the-record ruling, the commission’s human rights referee apparently
ruled that, if G intended to pursue anything other than a garden-variety
emotional distress claim, she must provide copies of her medical records.
Because G had not produced all of her records at the time of the hearing
on her complaint, the referee ruled that she could introduce evidence
in support of her claim for garden-variety emotional distress but not
medical records or other treatment related evidence of emotional dis-
tress damages. After the hearing, the referee found that G’s claims were
substantiated. In connection with the violation of § 46a-60, the referee
awarded G back pay, as well as prejudgment and postjudgment interest
on the back pay, pursuant to § 46a-86 (b). In connection with the violation
of § 46a-58 (a), the referee awarded G attorney’s fees and $50,000 in
emotional distress damages pursuant to § 46a-86 (c). The referee also
ordered that the branch ‘‘give [G] the option of returning to the . . .
courthouse’’ to which she assigned before she reported the harassment.
On appeal to the trial court, that court rejected the branch’s claims
that the commission was not authorized to award attorney’s fees and
emotional distress damages to victims of employment discrimination
under either § 46a-58 (a) or § 46a-60 and that the award of prejudgment
and postjudgment interest against the state under § 46a-86 (b) is barred
by the state’s sovereign immunity. Nonetheless, the trial court agreed
with the branch’s claim that the referee improperly awarded G emotional
distress damages in light of her failure to produce her medical records,
allegedly in violation of the referee’s discovery orders, and, accordingly,
vacated the award of emotional distress damages. The trial court also
vacated the injunction requiring the branch to allow G the option of
returning to the courthouse to which she previously had been assigned,
concluding that the injunction was an abuse of discretion and not prop-
erly tailored. From the judgment rendered thereon, the branch appealed
and the commission cross appealed. Held:
1. The branch could not prevail on its claim that the trial court incorrectly
had concluded that the commission was authorized to award emotional
distress damages and attorney’s fees in an employment discrimination
action under the general antidiscrimination statute, § 46a-58 (a), and
that statute’s civil remedies provision, § 46a-86 (c):
a. The commission did not exceed its authority under federal law by
adjudicating a Title VII claim, that is, by holding a formal hearing to
determine whether the branch had engaged in discriminatory practices
in violation of Title VII: the United States Supreme Court previously had
rejected the branch’s argument that the federal statute (42 U.S.C. § 2000e-
5 (f)) that allows for the bringing of a judicial action to enforce Title
VII authorizes only courts, and not administrative agencies, to formally
resolve Title VII claims, and that argument was unavailing particularly
in light of the fact that the commission does not purport to formally
adjudicate Title VII claims but merely identifies discriminatory practices
under Title VII for purposes of applying state law; moreover, the fact
that the federal Equal Employment Opportunity Commission itself lacks
the authority to formally adjudicate Title VII claims does not indicate
an intention to bar state agencies from identifying Title VII violations
for purposes of determining whether state law has been violated, as
there was a strong congressional preference, acknowledged by the United
States Supreme Court, pervasive in the legislative history of Title VII,
and reflected in Title VII’s work sharing scheme, for resolving matters
at the state level that involve the concurrent violation of Title VII and
state employment discrimination laws; furthermore, this court rejected
the branch’s argument that allowing a state fair employment practices
agency, such as the commission, to find and penalize Title VII violations
under state law would upset a carefully calibrated federal scheme that
balances the availability of remedies with important procedural protec-
tions and, instead, found persuasive the rationales of those federal courts
that have considered the issue and concluded that, because § 46a-58 (a)
explicitly adopts federal antidiscrimination law as part of the substantive
conduct it regulates, when the commission finds a Title VII violation as
the factual predicate to a violation of § 46a-58 (a), it does so as a matter
of Connecticut law and, therefore, does not infringe on principles of
federal supremacy.
b. There was no merit to the branch’s claim that, even if federal law
does not bar the commission from awarding damages for Title VII viola-
tions under §§ 46a-58 (a) and 46a-86 (c), the commission is precluded
from doing so under state law, as construed by this court’s prior case
law: nothing in this court’s precedent holding that state employment
discrimination claims can be brought only under § 46a-60, the statute
specifically dedicated to such claims, and not under § 46a-58 (a), the
general antidiscrimination statute, indicated that the legislature intended
to preclude the commission from awarding a remedy authorized by § 46a-
86 (c) for a violation of § 46a-58 (a) predicated on a discriminatory
practice prohibited by federal law; moreover, in light of the sweeping
language of §§ 46a-58 (a) and 46a-86 (c), as well as a recent amendment
(P.A. 19-16, § 7) making economic damages and attorney’s fees available
to a party who prevails on a state law claim of employment discrimina-
tion, this court refrained from reconsidering or extending that precedent,
even though the legislative scheme may not create the most elegant
framework for assigning different remedies to different discriminatory
practices on the basis of the jurisdictional source of the injury.
2. The trial court incorrectly concluded that the state had waived its sover-
eign immunity with respect to the recovery of prejudgment and postjudg-
ment interest on awards under § 46a-86, and, accordingly, the referee’s
award of interest was vacated: this court followed the ‘‘no-interest rule,’’
as articulated by the federal courts and applied with equal force to the
state under Connecticut law, pursuant to which, in the absence of an
express waiver, the legislature is presumed not to have waived sovereign
immunity with respect to prejudgment and postjudgment interest, and
concluded that the state’s waiver of sovereign immunity as to liability
for civil rights violations under §§ 46a-58 (a) and 46a-60, and as to back
pay and damages under § 46a-86 (b) and (c), did not constitute a waiver
as to interest on such awards, as it was clear that the state has not
expressly waived its immunity with respect to interest on such back
pay and damages; moreover, the legislature did not waive sovereign
immunity by necessary implication because, insofar as interest is not
traditionally awarded as a part of damages, a statutory waiver of sover-
eign immunity only as to damages does not, by force of necessary
implication, waive the state’s immunity as to interest.
3. The trial court incorrectly concluded that the referee should have pre-
cluded G from recovering any emotional distress damages as a sanction
for her refusal to produce her full medical records, and, because the
referee improperly admitted certain testimony that went beyond mere
garden-variety emotional distress, this court reversed the trial court’s
judgment with respect to the issue of emotional distress damages, and
the case was ultimately remanded to the commission for a new hearing
in damages:
a. The trial court’s decision with respect to G’s claim for emotional
distress was apparently based on its view that the referee, by restricting
G to arguing for and recovering only garden-variety emotional distress
damages, did not impose sufficiently stringent sanctions for what the
trial court viewed as violations of a discovery order, and that conclusion
was not supported by either the facts or the law: although G did not
fully comply with the request for the production of her medical records,
nothing in the record suggested that the referee issued an unconditional
order requiring the production of the records, and G did not actually
violate any discovery order, insofar as the referee essentially allowed
her to opt either to produce her full medical records or to decline to do
so and to seek only garden-variety emotional distress damages; moreover,
the governing regulations afford the referee broad discretion over the
sanctions to be imposed for violations of discovery orders, and, viewing
the referee’s order as such a sanction, this court concluded that the trial
court failed to afford appropriate deference to the referee’s oversight of
the discovery process by effectively reversing the referee’s sanction on
that ground that it was too lenient; furthermore, it was clear that the
referee did not consider G’s conduct to be egregious or in bad faith,
especially in light of G’s efforts to find a compromise that would satisfy
the branch’s production requests while preserving her medical privacy.
b. The referee nonetheless abused her discretion by admitting certain
testimony that went beyond mere garden-variety emotional distress,
seemingly in violation of the referee’s own rulings, and this court could
not conclude that that error was harmless: on at least four occasions,
and over the branch’s objections, the referee allowed G or her husband
to testify as to G’s use of various over-the-counter and prescription
medications to treat her insomnia and anxiety arising from the harass-
ment, and such testimony was not merely evidence of garden-variety
emotional distress but, instead, placed G’s medical history at issue; more-
over, only one of those references was struck from the record, the referee
appeared to believe that the statements were potentially admissible and
relevant, and admitting the challenged testimony when the branch had
been denied access to G’s medical records was an abuse of discretion;
furthermore, insofar as the referee made several findings of fact regarding
G’s need for medication, this court could not conclude that the improperly
admitted evidence did not factor into the referee’s damages calculation.
4. The trial court improperly vacated the injunction requiring that the branch
give G the option of returning to the courthouse at which she was
originally stationed, as none of the concerns expressed by that court
was sufficient to warrant vacating the injunction as a matter of law,
and the appropriate remedy was to remand the matter to the commission
for additional briefing, to hold a new hearing, and to potentially craft
a more narrowly tailored injunction: § 46a-86 (a) clearly grants the com-
mission the authority to issue reasonable injunctive relief tailored to
eliminating discriminatory practices and their effects, and, although M’s
retirement in 2020 eliminated the possibility that G and M might be
assigned to the same courthouse, the primary purpose of reinstating an
employee who is transferred after complaining of sexual harassment,
such as G, is to vindicate the important public policy against punishing
victims who report abuse, and that purpose was served by the referee’s
order regardless of M’s retirement; moreover, even though the referee
did not expressly find that G’s transfers were retaliatory in nature, the
referee’s factual findings overwhelmingly pointed to a retaliatory animus
and an implicit determination that the transfers were pretextual, and
the trial court’s assumption that G was not transferred on the basis of
retaliatory intent was therefore contrary to the referee’s factual findings;
furthermore, if the branch did seek to retaliate or to resolve the pattern
of harassment by transferring G to a less convenient location while
allowing M to remain at the courthouse where the harassment occurred,
it was irrelevant that, under ordinary circumstances, the branch, as the
employer, has the discretion where to assign judicial marshals, and
allowing G to return to her original workplace was the preferred means
of vindicating the policy against punishing victims who report abuse,
and, to the extent that logistical considerations and the branch’s opera-
tional needs are relevant to fashioning proper relief, this court instructed
that, before ordering the branch to reinstate G, on remand, the referee
must consider factors such as whether the branch’s previous relocation
of G to other courthouses departed from the norms applied to other
marshals, whether the impact of keeping G at the original courthouse
on the operational needs of the branch outweighs the benefit to G of
being assigned to a courthouse closer to her home, and whether reinstat-
ing G will require the reassignment of other employees; in addition,
insofar as the trial court had been concerned about the apparently
unbounded nature of the injunction issued by the referee, this court
instructed that, on remand, the referee should clarify the scope and
duration of the injunction, whether the extent of the branch’s misconduct
and the balancing of the equities warrant a permanent injunction preclud-
ing the branch from reassigning G, if a permanent injunction is not
warrant, at what point or under what circumstances the injunction will
expire, and whether, during the course of the injunction, the branch
may continue to assign G to other courthouses on a short-term basis
consistent with its operational needs.
Argued January 15, 2021—officially released April 26, 2022 Procedural History