238 Conn. 337 | Conn. | 1996
Lead Opinion
This appeal principally concerns the applicability of the remedies provided by various general antidiscrimination statutes in the context of discriminatory employment practices. The claimant, Kristine A. Jennings, filed with the commission on human rights and opportunities (commission) a complaint alleging that her former employer, the defendant, Truelove and Maclean, Inc.,
The following undisputed facts are relevant to this appeal. In March, 1981, the claimant began her full-time employment with the defendant. In November, 1984, due to fatigue and back strain caused by her pregnancy, the claimant considered herself incapable of effectively performing the duties and responsibilities associated with her employment. Accordingly, she spoke with the defendant’s personnel manager to request a leave of absence. The personnel manager informed the claimant that the defendant had no policy that allowed for pregnancy disability leave and that the defendant would not allow such a leave of absence.
On December 14, 1984, the claimant terminated her employment with the defendant because of the denial of her request for a leave of absence and because of her physical inability to perform her duties effectively
In the complaint that the claimant filed with the commission, she claimed that the defendant had discriminated against her because of her pregnancy in a number of respects. The claimant alleged that, by denying her a leave of absence, the defendant had constructively terminated her employment and that this conduct had violated General Statutes §§ 46a-58 (a) and 46a-60 (a) (1) and (a) (7) (A) through (D).
Pursuant to General Statutes §§ 4-183 and 46a-94a,
The commission and the claimant have both appealed from the judgment of the trial court. They claim that the trial court improperly: (1) vacated the hearing officer’s award of damages for emotional distress; (2) upheld the hearing officer’s decision not to award the claimant reinstatement and back pay; (3) upheld the hearing officer’s determination that the defendant had not violated § 46a-60 (a) (7) (D); and (4) considered evidence
I
The commission contends that the trial court improperly concluded that the claimant was not entitled to an award of damages for emotional distress. Specifically, the commission argues that our decision in Fenn Mfg. Co. v. Commission on Human Rights & Opportunities, 232 Conn. 117, 652 A.2d 1011 (1995), in which we considered and denied such relief for violations of § 46a-60 (a) (7), does not foreclose such relief for violations of § 46a-58 (a).
Initially, we agree with the commission that the trial court should have addressed the merits of the commission’s claim of an award of damages for emotional distress premised on § 46a-58 (a). The trial court declined to do so on the ground that the commission had failed to raise the claim in its administrative appeal. We are persuaded, however, that the claim was properly before the trial court. Although the commission’s petition to the Superior Court failed specifically to invoke the applicability of § 46a-58 (a), the commission did raise the claim in its appeal to the trial court. The commission addressed the claim both in its original brief and in its reply brief. The defendant never contested the propriety of the commission’s initial raising of the claim before the trial court and has never contended that it had been prejudiced in any way. To the contrary, the defendant argued the merits of the commission’s claim in the trial court, addressing the issue in its brief, in its rebuttal brief and at oral argument. Under these circumstances, we are persuaded that the trial court should have addressed the commission’s claim. Cf. Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496-97, 646 A.2d 1289 (1994); Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990), on appeal after remand, 222 Conn. 233, 610 A.2d 574 (1992).
Although we could remand this case to the trial court for consideration of the commission’s claim on its merits, we have decided to address the claim ourselves. The claim involves a question of law that requires no further factual foundation, namely, whether § 46a-58 (a) applies to discriminatory employment practices, and the parties have fully briefed the claim before this court. We agree, therefore, with the commission that addressing the merits of its claim will serve the interests of judicial economy. See Matarazzo v. Rowe, 225 Conn. 314, 324, 623 A.2d 470 (1993); Rose v. Freedom of Infor
B
With respect to the merits of the commission’s claim, we are persuaded that § 46a-58 (a) does not encompass claims of discriminatory employment practices that fall within the purview of § 46a-60.
Our conclusion that § 46a-58 (a) does not apply to discriminatory employment practices encompassed by § 46a-60 finds support in § 46a-86,
Subsection (b) of § 46a-86 sets forth the remedies available to a victim of a “discriminatory employment practice.” Subsection (c) of § 46a-86, in contrast, sets forth separate remedies available to a victim of a “discriminatory practice prohibited by section 46a-58 . . . .” The presence of these two separate subsections, § 46a-86 (b) and (c), reflects “a clear intention by the legislature to restrict the scope of both subsections to only certain types of discrimination.” Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 106, 653 A.2d 782 (1995). The fact that § 46a-86 provides separate remedies for discriminatory employment practices under § 46a-60 and for discriminatory practices under § 46a-58 (a) is strong evidence of the legislature’s intent that § 46a-58 (a) does not govern employment claims encompassed by § 46a-60.
We thus conclude that § 46a-58 (a) provides no basis for claims of discriminatory employment practices that fall within the scope of § 46a-60. In this case, the hearing officer determined that the defendant had violated
II
The claimant contends that the trial court improperly concluded that she was not entitled to an award of reinstatement and back pay. Specifically, the claimant argues that § 46a-86 (b)
A
Whether a hearing officer is required to award reinstatement and back pay upon a finding of discriminatory employment practices depends on a proper inteipretation of § 46a-86 (b). We approach this issue in light of well established principles of statutory construction. “It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history
“As with any issue of statutory interpretation, our initial guide is the language of the statute itself.” (Internal quotation marks omitted.) Herbert S. Newman & Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 756, 674 A.2d 1313 (1996); see Bridgeport Hospital v. Commission on Human Rights & Opportunities, supra, 232 Conn. 98. Section 46a-86 (b) provides that a hearing officer, upon a finding of discriminatory employment practices, “may order the hiring or reinstatement of employees, with or without back pay . . . .” (Emphasis added.) We have consistently held that “may” is directory rather than mandatory. See, e.g., Seals v. Hickey, 186 Conn. 337, 345-17, 441 A.2d 604 (1982). The word “may,” unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion. See id., 345; Ridgeway v. Ridgeway, 180 Conn. 533, 540, 429 A.2d 801 (1980); see also A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 611, 577 A.2d 709 (1990).
The interpretation of “may” in § 46a-86 (b) as directory rather than mandatory is, furthermore, consistent with the policy that the statute is designed to implement. Under our laws prohibiting discrimination in the workplace, a hearing officer must construct a remedy for discriminatory employment practices in order to render a decree that will, “so far as possible, ehminate the discriminatory effects of the past as well as bar like discrimination in the future.” (Internal quotation marks omitted.) State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 478, 559 A.2d 1120 (1989); see Bridgeport Hospital v. Commission on Human Rights & Opportunities, supra, 232 Conn. 111; Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 230-31, 487 A.2d 201 (1985). This remedial goal is furthered by vesting in a hearing officer broad discretion to award reinstatement, back pay or other appropriate remedies specifically tailored to the particular discriminatory practices at issue.
Thus, guided by the plain language of the statute and by the purpose the statute was intended to further, we conclude that § 46a-86 (b) does not mandate that a hearing officer award reinstatement and back pay to a victim of discriminatory employment practices. Rather,
B
We agree with the trial court that the hearing officer’s refusal to award the claimant reinstatement and back pay was not an abuse of discretion.
The claimant also contends that the trial court improperly concurred in the hearing officer’s determination that the defendant had not violated § 46a-60 (a) (7) (D). We agree with the trial court.
“Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . This ‘substantial evidence rule’ is embodied in General Statutes § 4-183 (j) (5) and (6). . . .” (Citations omitted; internal quotation marks omitted.) Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 259-60, 673 A.2d 101 (1996); Dolgner v. Alander, 237 Conn. 272, 280-81, 676 A.2d 865 (1996).
Moreover, the facts found by the hearing officer, which the claimant and the commission have not challenged as unsupported by substantial evidence, do not indicate that it would have been futile for the claimant to have reapplied for a position with the defendant. The defendant offered the claimant the opportunity to reapply for her former position, and encouraged her to do so. The claimant, however, never availed herself of that opportunity. The hearing officer found that the claimant had not offered “a satisfactory explanation for her not reapplying.”
Section 46a-60 (a) (7) (D) expressly provides, as a condition precedent to establishing a violation thereof, that a claimant must “[signify] her intent to return” to employment with the employer. Our review of the
IV
The claimant next contends that in reaching its decision the trial court improperly relied on evidence not contained in the administrative record. Although this claim is ambiguously stated, we will construe it as an allegation that the trial court considered evidence not contained in the administrative record regarding the claimant’s employment history subsequent to the birth of her child. This claim is meritless. There is nothing in the trial court’s memorandum of decision that indicates that the trial court, in reaching its decision, looked beyond the information contained in the administrative record. To the contrary, our review of the record reveals that the trial court relied solely on facts found by the hearing officer, which in turn had been based on the claimant’s own testimony at the public hearing. This claim of impropriety has no evidentiary basis.
The judgment is affirmed.
In this opinion CALLAHAN, NORCOTT and KATZ, Js., concurred.
Robert J. Haggerty, the commission’s hearing officer, who was also named as a defendant, is not involved in this appeal. References to the defendant are to Truelove and Maclean, Inc.
Although the defendant maintained a disability insurance policy that provided for maternity and pregnancy disability benefits, no representative of the defendant explained to the claimant whether such benefits were available to her.
General Statutes § 46a-58 provides in relevant part: “Deprivation of rights. Desecration of property. Cross burning. Penalty, (a) It shall be a discriminatory practice in violation of this section 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 religion, national origin, alienage, color, race, sex, blindness or physical disability. ...”
General Statutes § 46a-60 provides in relevant part: “Discriminatory employment practices prohibited, (a) It shall be a discriminatory practice in violation of this section:
“(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness ....
“(7) For an employer, by himself or his agent: (A) To terminate a woman’s employment because of her pregnancy; (B) to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy; (C) to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer; (D) to fail or refuse to reinstate the employee
General Statutes § 46a-86 provides in relevant part: “Complaint: Determination; orders; dismissal, (a) If, upon all the evidence presented at the hearing conducted pursuant to section 46a-84, the presiding officer finds that a respondent has engaged in any discriminatory practice, the presiding officer shall state his findings of fact and shall issue and file with the commission and cause to be served on the respondent an order requiring the respondent to cease and desist from the discriminatory practice and further requiring the respondent to take such affirmative action as in the judgment of the presiding officer will effectuate the purpose of this chapter.
“(b) In addition to any other action taken hereunder, upon a finding of a discriminatory employment practice, the presiding officer may order the hiring or reinstatement of employees, with or without back pay, or restoration to membership in any respondent labor organization, provided, liability for back pay shall not accrue from a date more than two years prior to the
“(c) 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. . . .”
General Statutes § 4-183 provides in relevant part: “Appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. . . .”
General Statutes § 46a-94a provides in relevant part: “Appeal to superior court from order of presiding officer, (a) The Commission on Human Rights and Opportunities, any respondent or any complainant aggrieved by a final order of a presiding officer . . . may appeal therefrom in accordance with section 4-183, except venue for such appeal shall be in the judicial district in which the discriminatory practice is alleged to have occurred or in the judicial district in which such person resides or transacts business. . . .”
In response to the defendant’s motion, the trial court modified the hearing officer’s award by vacating the award of damages for emotional distress in
Although the defendant appealed from the decision of the hearing officer on its merits, the trial court dismissed that appeal as untimely.
The commission raises the first claim, and the claimant raises the remaining three claims.
In Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 116, 653 A.2d 782 (1995), we expressly left undecided whether a violation of employment laws is also a violation of § 46a-58 (a).
See footnote 3.
See footnote 4.
The commission also contends that the trial court improperly refused to consider whether the claimant was entitled to interest on the award she received. We disagree. The trial court concluded that the issue of an award of interest was so inadequately briefed by the commission that the issue had been abandoned. Our review of the commission’s brief to the trial court discloses that it offered no meaningful argument or accompanying analysis as to the issue of an award of interest. “Where an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived.” Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 115, 653 A.2d 782 (1995). Although the commission provided a relatively more complete discussion of the issue in its reply brief, discussion of an issue in a reply brief does not cure the inadequacy of the original brief. Cf. Commissioner v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 659 n.2, 594 A.2d 958 (1991) (“[a]lthough the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error” [internal quotation marks omitted]). We thus conclude that the trial court properly declined to address the issue of an award of interest.
See footnote 3.
According to our research, the legislative history of §§ 46a-58 and 46a-60 sheds no light on the issue of whether claims of discriminatory employment practices that fall within the scope of § 46a-60 may be brought under § 46a-68 (a).
See footnote 4.
In light of our resolution of the commission’s claim, we need not decide in this case whether damages for emotional distress may be awarded for a violation of § 46a-58 (a). See General Statutes § 46a-86 (c).
See footnote 4.
Our review of the applicable legislative history fails to inform the issue of whether the legislature intended to mandate awards of reinstatement and back pay in § 46a-86 (b).
The claimant contends that the trial court improperly shifted the burden of proof to her and the commission on the issue of whether the hearing officer should have granted an award of reinstatement and back pay. We disagree. The claimant offers no evidence to support her claim, and our review of the record discloses no impropriety on the part of the trial court in this respect. As the plaintiffs in the administrative appeal from the hearing officer’s decision, the commission and the claimant had the burden of establishing that the hearing officer’s refusal to award reinstatement and back pay was improper. See General Statutes § 4-183 (j). The trial court, acting in an appellate capacity, properly reviewed each of the claims raised by the commission and the claimant in light of this governing principle.
The claimant contends that § 46a-86 (b) requires the hearing officer to order reimbursement to the department of labor for unemployment compensation benefits received by her for the period during which she was unem
Dissenting Opinion
dissenting. The court continues to read narrowly the legislative grant of jurisdiction to the commission on human rights and opportunities (CHRO). See Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 653 A.2d 782 (1995); Fenn Mfg. Co. v. Commission on Human Rights & Opportunities, 232 Conn. 117, 652 A.2d 1011
To begin, a review of the CHRO’s statutory scheme must consider its beneficent purposes. By enacting the statutes under title 46a, Connecticut’s human rights laws, the legislature set out not only to prevent impermissible discrimination, but also to compensate, as nearly as possible, the victims of discrimination. As part of title 46a, the Connecticut Fair Employment Practices Act (act); General Statutes § 46a-51 et seq.; was enacted to eliminate discriminatory practices from the workplace. As such, the act is composed of remedial statutes, which are to “be construed liberally to effectuate their beneficent purposes.” Civil Service Commission v. Trainor, 39 Conn. Sup. 528, 532, 466 A.2d 1203 (1983); see also Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995) (remedial statutes are to “be liberally construed in favor of those whom the legislature intended to benefit”). Indeed, the court in this case has failed to abide by this canon of statutory construction.
“[T]he victim of a discriminatory practice is to be accorded his [or her] rightful place in the employment scheme, that is, he [or she] has a right to be restored to the position he [or she] would have attained absent the unlawful discrimination. . . . Where prohibited discrimination is involved, the hearing officer has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in
“Read in its entirety, the [act] not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the CHRO.” Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216, 491 A.2d 1096 (1985). “It is the CHRO that is charged with the primary responsibility of determining whether discriminatory practices have occurred and what the appropriate remedy for such discrimination must be.” Dept. of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 488, 503 A.2d 1151 (1986).
In this case, the CHRO awarded compensatory damages in the amount of $5000 for emotional distress suffered by the claimant, Kristine A. Jennings, as a result of the defendant Truelove and Maclean, Inc.’s discriminatory employment practices. Specifically, Jennings was found to have been constructively discharged because of her pregnancy.
This conclusion, however, ignores the plain language of § 46a-58 (a),
In this case, the statute that triggered the protection of § 46a-58 (a) was § 46a-60. Pursuant to § 46a-60,
The majority asserts that General Statutes § 46a-86, which sets forth the remedies available to a victim of
The majority also rests its opinion upon a partially quoted canon of statutory construction set forth in Gaynor v. Union Trust Co., 216 Conn. 458, 476-77, 582 A.2d 190 (1990). The complete canon stated in Gaynor is as follows: “It is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling. . . . Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail; and if both cannot apply, the particular provision will be treated as an exception to the general provision.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id. It is fundamental that “when two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes . . . [and] where there is areason
Moreover, the legislative history supports the CHRO’s position that it has jurisdiction to award compensatory damages for emotional distress caused by discriminatory employment practices on the basis of sex. This history indicates that § 46a-58 (a) (formerly § 53-34) was intended to have broad application. Originally, the CHRO did not have jurisdiction to enforce § 46a-58 (a). 18 H.R. Proc., Pt. 10, 1975 Sess., pp. 4808-4810. In 1971, the General Assembly attempted to give the CHRO investigative and enforcement powers over § 46a-58 (a) complaints by passing Senate Bill No. 1772, but then Governor Thomas J. Meskill vetoed that attempt and stated that “[t]he subject matter of [§ 46a-58 (a)] is so broad and general as to provide imprecise direction for an executive commission. Such broad subject matter is more properly relegated to the courts who now have authority in this area.” Conn. Senate Journal, Pt. 3, Spec. Sess., August 1971, p. 74. In 1973, a similar bill, House Bill No. 8400, was passed and was again vetoed by Governor Meskill.
In 1975, however, No. 75-462 of the 1975 Public Acts was adopted to allow the CHRO to investigate and enforce complaints raised under § 46a-58 (a). Representative Thomas C. Clark stated that the “[b]ill . . .
Finally, “it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.” (Internal quotation marks omitted.) Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 372, 627 A.2d 1296 (1993). As Judge Maloney of the Superior Court noted in a 1994 memorandum of decision in which he addressed this issue: “The CHRO . . . cites an unbroken string of (its administrative) decisions going back 14 years in which it has awarded damages for emotional distress in employment discrimination cases . . . .” (Emphasis added; internal quotation marks omitted.) Bridgeport Hospital v. Commission on Human Rights & Opportunities, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV920299985 (January 31, 1994).
Therefore, I would hold that the CHRO has jurisdiction to award compensatory damages, pursuant to §§ 46a-58 (a) and 46a-86 (c), for emotional distress in order to compensate the claimant for her emotional injury.
Accordingly, I dissent.
I was not a member of the panels of Supreme Court justices that decided these cases.
Discrimination on the basis of sex “includes but is not limited to discrimination related to pregnancy . . . .” General Statutes § 46a-51 (17).
Jennings alleged a violation of § 46a-58 (a) in her complaint to the CHRO.
General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness . . .
General Statutes § 46a-86 (b) expressly provides in relevant part: “In addition to any other action taken hereunder, upon afinding of adiscriminatory employment practice, the presiding officer may order the hiring or reinstatement of employees, with or without back pay, or restoration to membership in any respondent labor organization . . . .” (Emphasis added.)
General Statutes § 46a-86 (c) provides in relevant part: “In addition to any other action taken hereunder, upon a finding of a discriminatory practice prohibited by section 46a-58 . . . the presiding officer shad determine the damage suffered by the complainant . . . and shall allow reasonable attorney’s fees.” (Emphasis added.) Accordingly, an individual, such as Jennings, who is discriminated against in violation of § 46a-58 and who suffers emotional distress, may be awarded compensatory damages pursuant to § 46a-86 (c).