CONNECTICUT JUDICIAL BRANCH v. GERMAINE GILBERT ET AL.
(SC 20514)
Supreme Court of Connecticut
April 26, 2022
McDonald, Mullins, Kahn, Ecker and Keller, Js.*
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
******************************************************
Pursuant to statute (
Pursuant further to statute (
Pursuant further to statute (
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 connection 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 (
- 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) :- 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 protections 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. - 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 violations under
§§ 46a-58 (a) and46a-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) and46a-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 discrimination, 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.
- 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 (
- The trial court incorrectly concluded that the state had waived its sovereign immunity with respect to the recovery of prejudgment and postjudgment 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, andconcluded that the state‘s waiver of sovereign immunity as to liability for civil rights violations under §§ 46a-58 (a) and46a-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 sovereign immunity only as to damages does not, by force of necessary implication, waive the state‘s immunity as to interest. - The trial court incorrectly concluded that the referee should have precluded 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:
- 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.
- 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 harassment, and such testimony was not merely evidence of garden-variety emotional distress but, instead, placed G‘s medical history at issue; moreover, 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.
- 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 commission 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 refereedid 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 operational 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 reinstating 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 precluding 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
Appeal from the decision of the defendant Commission on Human Rights and Opportunities awarding the named defendant back pay and certain damages, brought to the Superior Court in the judicial district of New Britain, where the case was tried to the court, Cordani, J.; judgment sustaining in part and reversing in part the appeal, from which the plaintiff appealed and the defendant Commission on Human Rights and Opportunities cross appealed. Reversed in part; vacated in part; further proceedings.
Colleen B. Valentine, assistant attorney general, with whom, on the brief, were William Tong, attorney general, Clare E. Kindall, solicitor general, and Matthew Larock, assistant attorney general, for the appellant-cross appellee (plaintiff).
Michael E. Roberts, human rights attorney, for the appellee-cross appellant (defendant Commission on Human Rights and Opportunities).
ECKER, J. This case arises from allegations of sexual harassment brought by the named defendant, Germaine Gilbert (complainant), a judicial marshal who is employed by the plaintiff, the Connecticut Judicial Branch (branch). Following a contested public hearing before the defendant Commission on Human Rights and Opportunities (commission), the human rights referee (referee) found that the allegations were substantiated and awarded the complainant back pay with interest, emotional distress damages, attorney‘s fees, and injunctive relief. The branch appealed, and the trial court sustained the appeal in part. The court upheld the referee‘s determinations that (1) emotional distress damages and attorney‘s fees were available remedies under the state employment discrimination law then in effect if the complainant was able to establish a violation of Title VII of the federal Civil Rights Act of 1964, as amended by Title VII of the Civil Rights Act of 1991,
The following background facts and procedural history are relevant. In 2012, the complainant brought a claim with the commission alleging that another judicial marshal, Gordon Marco, subjected her to severe and pervasive sexual harassment and unwanted sexual contact, potentially rising to the level of sexual assault, at various times between 2006 and 2012, while she was stationed primarily at the Danielson courthouse. The complainant alleged that the branch discriminated against her on the basis of her gender by, among other things, subjecting her to a hostile work environment, failing to adequately investigate her allegations, and failing to take adequate remedial steps to protect her. The complainant also claimed that the branch had retaliated by altering the conditions of her employment in response to her complaint. Most prominently, she alleged that, beginning in mid-2012, her supervisor, Russell Downer, reassigned her from Danielson, where she had been
Following a public hearing before the commission, the referee found that the complainant‘s allegations were substantiated, a finding that the branch does not contest in the present appeal. The referee awarded the complainant seven days of back pay for the work time she lost while attending the public hearing, as well as prejudgment and postjudgment interest on the back pay award, all pursuant to
The branch brought an administrative appeal pursuant to
The trial court agreed with the branch‘s third and fourth claims and, accordingly, vacated the award of emotional distress damages and the injunction. With respect to the first claim, the court agreed with the branch that Truelove compels the twin conclusions that
The branch appealed6 and the commission cross appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal and cross appeal to this court pursuant to
I
REMEDIES FOR EMPLOYMENT DISCRIMINATION UNDER STATE LAW
The branch‘s primary claim on appeal is that the trial court incorrectly concluded that the commission may award emotional distress damages and attorney‘s fees in an employment discrimination action under
A
Whether the commission has the authority to identify violations of Title VII and to award damages for those violations under state law presents a legal question that
Our analysis begins with the plain language of the state statutes. See
It is equally clear that the legislature has conferred on the commission the authority to identify violations of federal civil rights laws, such as Title VII, as a predicate to finding a violation of
Finally, with regard to remedies,
Nor is there any question that a violation of Title VII as a factual predicate of a
B
What the branch does contend is, first, that the commission exceeded its authority under federal law by “adjudicating” a Title VII claim, i.e., holding a formal hearing to determine whether the branch engaged in discriminatory practices, in violation of Title VII, and, second, that the commission ran afoul of Truelove by awarding damages and attorney‘s fees for employment discrimination under
1
The branch makes three interrelated arguments as to why, in its view, the commission has exceeded its authority under federal law. First, the branch contends that
The branch‘s statutory argument relies on
To begin with, the branch relies on a non sequitur insofar as the commission has never purported to adjudicate Title VII claims under the authority of
The United States Supreme Court has already rejected the argument that the authority to resolve alleged Title VII violations is limited by the conferral of jurisdiction in
The branch‘s second argument focuses on the fact that the EEOC itself lacks the authority to hold contested hearings to adjudicate Title VII claims and to award damages and attorney‘s fees for violations thereof. Although the federal agency can investigate such claims and attempt to mediate settlements between the parties, when such informal efforts fail, formal resolution can be obtained only by adjudication in federal or state court.
Again, the branch misses the mark. The foregoing discussion demonstrates that the absence of EEOC 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. Indeed, Congress has expressed a strong preference for resolving matters that concurrently violate Title VII and state employment discrimination laws at the state level, with recourse to federal court provided as a supplemental rather than a preferred venue. As the United States Supreme Court explained in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S. Ct. 2024, 64 L. Ed. 2d 723 (1980), “throughout Title VII the word ‘proceeding’ is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, administrative and judicial.” Id., 62-63. “Initial resort to state and local remedies is mandated, and recourse to the federal forums is appropriate only when the [s]tate does not provide prompt or complete relief.” Id., 65. “Title VII explicitly leaves the [s]tates free, and indeed encourages them, to exercise their regulatory power over discriminatory employment practices. Title VII merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums.” Id., 67.
This sentiment pervades the legislative history of Title VII. During the legislative debates, both supporters and opponents of Title VII repeatedly expressed the view that the proposed legislation was predicated on the assumption that the nearly thirty states with functional fair employment practices laws and agencies (primarily northern and western states) generally could be relied on to enforce antidiscrimination law in those locations, and that the new federal agency, the EEOC, would focus its efforts and limited resources on enforcing the law in the states of the old Confederacy, which had not seen fit to create their own fair employment practices agencies.13 The primary sponsors of the legislation made numerous statements indicating their strong preference for resolving discrimination claims at the state level and emphasizing the central role that they envisioned state fair employment practices agencies would play in the enforcement of the federal law.14 The branch is therefore incorrect when it posits that there is no reason why Congress would permit state administrative agencies, but not the EEOC, to resolve claims based on violations of Title VII. During the debates over Title VII in 1964, and again with respect to the 1972
The congressional preference for resolving employment discrimination claims at the state level, using state remedies and state administrative agencies, is reflected in Title VII‘s “work sharing” scheme.15 Under the work sharing framework, the EEOC and state fair employment practices agencies such as the commission essentially exercise joint jurisdiction over employment discrimination claims filed in either venue, with the EEOC deferring action on many Title VII claims to give state agencies a first crack at resolving them. See United States Equal Employment Opportunity Commission, FY 2012 EEOC/FEPA Model Worksharing Agreement, available at https://www.eeoc.gov/fy-2012-eeocfepa-model-worksharing-agreement (last visited April 20, 2022). As the United States Court of Appeals for the Fourth Circuit has explained, “[t]he jurisdiction of [state fair employment practices] agencies overlaps that of the EEOC.” Equal Employment Opportunity Commission v. Navy Federal Credit Union, 424 F.3d 397, 410 n.15 (4th Cir. 2005), cert. denied, 547 U.S. 1041, 126 S. Ct. 1629, 164 L. Ed. 2d 335 (2006). “[Title VII is] best understood as creating a system of ‘cooperative federalism,’ under which, in the interests of comity, the EEOC and state and local authorities share primary responsibility to enforce the civil rights laws.” Id., 410.
The branch might have a better argument if federal courts had exclusive authority to adjudicate Title VII claims. But, in light of (1) the cooperative work sharing framework created under the federal mandate, (2) Congress’ express preference for resolving concurrent state and federal employment discrimination claims at the state level, and (3) “the humanitarian remedial policies” that underlie Title VII; New York Gaslight Club, Inc. v. Carey, supra, 447 U.S. 62; we are not persuaded by the branch‘s claim that the commission infringes on principles of federal supremacy by predicating a violation of
The branch‘s third argument is that litigation of a Title VII claim in a court affords the defendant/respondent various procedural protections-the rights to a jury trial, to remove an action from state court to federal
The United States Court of Appeals for the Second Circuit has rejected this very argument, finding no violation of federal law despite the contention that allowing a complainant to bring a Title VII claim before the commission, pursuant to
Indeed, both of the federal courts that have considered the question before us have concluded that, when the commission finds a Title VII violation as the factual predicate to a violation of
2
The branch also argues that, even if federal law does not bar the commission from awarding damages for Title VII violations under
We again are unpersuaded. Nothing in Truelove indicates that the legislature intended to preclude the commission from awarding a remedy authorized by
Two events occurring since Truelove was decided counsel against any expansion of the breadth of its holding. First, although the court in Truelove stated that the relevant legislative history shed no light on the intended interrelationship between
II
PREJUDGMENT AND POSTJUDGMENT INTEREST SOVEREIGN IMMUNITY
We next consider whether the trial court properly concluded that the state has waived its sovereign immunity with respect to prejudgment and postjudgment interest on awards under
“Sovereign immunity . . . presents a question of law over which we exercise de novo review. . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence.” (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
The federal courts have long applied the so-called “no-interest rule,” pursuant to which, in the absence of an express legislative waiver, Congress is presumed not to have waived the federal government‘s sovereign immunity with respect to prejudgment and postjudgment interest. Library of Congress v. Shaw, 478 U.S. 310, 311, 106 S. Ct. 2957, 92 L. Ed. 2d 250 (1986). The United States Supreme Court traced the history of and rationale for this rule in Shaw: “This requirement of a separate waiver reflects the historical view that interest is an element of damages separate from damages on the substantive claim. . . . Because interest was generally presumed not to be within the contemplation of the parties, common-law courts in England allowed interest by way of damages only when founded [on] agreement of the parties. . . . In turn, the [agreement basis] of interest was adopted by American courts. . . . Gradually, in suits between private parties, the necessity of an agreement faded. . . .”
“The agreement requirement assumed special force when applied to claims for interest against the United States. As sovereign, the United States, in the absence of its consent, is immune from suit. . . . This basic rule of sovereign immunity, in conjunction with the requirement of an agreement to pay interest, gave rise to the rule that interest cannot be recovered unless the award of interest was affirmatively and separately contemplated by Congress. . . . The purpose of the rule is to permit the [g]overnment to occupy an apparently favored position . . . by protecting it from claims for interest that would prevail against private parties. . . .”
“For well over [one] century, this [c]ourt, executive agencies, and Congress itself consistently have recognized that federal statutes cannot be read to permit interest to run on a recovery against the United States unless Congress affirmatively mandates that result. The no-interest rule is expressly described as early as 1819 . . . .”
“[Accordingly,] [i]n analyzing whether Congress has waived the immunity of the United States, we must construe waivers strictly in favor of the sovereign . . . and not enlarge the waiver beyond what the language requires. . . . The no-interest rule provides an added gloss of strictness [on] these usual rules.”
“[T]here can be no consent by implication or by use of ambiguous language. Nor can an intent on the part of the framers of a statute or contract to permit the recovery of interest suffice whe[n] the intent is not translated into affirmative statutory or contractual terms. The consent necessary to waive the traditional immunity must be express, and it it must be strictly construed.” (Citations omitted; footnotes omitted; internal quotation marks omitted.) id., 314-18.
Applying these principles, the United States Supreme Court in Shaw concluded that prejudgment interest could not be awarded for employment discrimination claims under Title VII because, although Congress waived sovereign immunity with respect to liability and damages, it did not specifically and expressly authorize interest payments in the statute.20 See id., 319, 323. The court rejected the argument that prejudgment interest can be characterized as “damages,” a “penalty,” or “just compensation” so as to avoid the no-interest rule. (Internal quotation marks omitted.) id., 321; see Arneson v. Callahan, 128 F.3d 1243, 1247 (8th Cir. 1997) (no-interest rule applies notwithstanding that prejudgment interest awards are necessary to make whole victims of discrimination), cert. denied sub nom. Arneson v. Apfel, 524 U.S. 926, 118 S. Ct. 2319, 141 L. Ed. 2d 694 (1998).
Although our state courts have not articulated the no-interest rule with the same frequency or specificity as have our federal counterparts, it is apparent that the rule applies with equal force to the state under Connecticut law. In Struckman v. Burns, 205 Conn. 542, 534 A.2d 888 (1987), this court held that prejudgment interest was not available for a claim brought under the defective highway statute,
We applied these principles again in Hicks v. State, 297 Conn. 798, 1 A.3d 39 (2010), in which we held that postjudgment interest is not available against the state for damages awards under
Accordingly, under Struckman, if the legislature has waived the state‘s sovereign immunity as to interest, it must have done so either expressly or by force of necessary implication. It is clear that the state has not expressly waived its immunity with respect to interest on damages and back pay awarded pursuant to
The commission counters that liability for interest is inherent in the award of back pay and, therefore, that, by providing for the award of back pay against the state,
2d 33 (1991), the United States Court of Appeals for the District of Columbia Circuit, applying Loeffler, concluded that, in the absence of an express waiver, the government‘s sovereign immunity bars the award of interest on Title VII back pay awards. Several other federal courts of appeals have adopted the reasoning of Shaw and Brown in the Title VII context; see, e.g., Arneson v. Callahan, supra, 128 F.3d 1245-46; Woolf v. Bowles, 57 F.3d 407, 409-10 (4th Cir. 1995); Edwards v. Lujan, 40 F.3d 1152, 1154 (10th Cir. 1994), cert. denied sub nom. Edwards v. Dept. of Interior, 516 U.S. 963, 116 S. Ct. 417, 133 L. Ed. 2d 335 (1995); or with respect to similar statutes. See, e.g., Adam v. Norton, 636 F.3d 1190, 1192-93 (9th Cir. 2011); Ward v. Brown, 22 F.3d 516, 520 (2d Cir. 1994).22 But see DeRoche v. Massachusetts Commission Against Discrimination, 447 Mass. 1, 12-14, 848 N.E.2d 1197 (2006) (holding that, by permitting the award of back pay against public employer under commonwealth‘s antidiscrimination laws, state legislature by necessary implication also waived sovereign immunity as to interest awards).
The commission directs our attention to Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, 265 Conn. 127, 827 A.2d 659 (2003), the case on which the trial court relied in concluding that the state has waived its sovereign immunity with respect to interest payments under
Consistent with federal law, we conclude that the state has not waived its sovereign immunity with respect to prejudgment and postjudgment interest payable under
III
EMOTIONAL DISTRESS DAMAGES
Having held in part I of this opinion that the commission is authorized to award emotional distress damages in this case, we now must address the first issue in the commission‘s cross appeal, namely, whether the trial court correctly concluded that the complainant should have been precluded from recovering any emotional distress damages as a sanction for her refusal to produce her full medical and psychotherapy records during discovery.24 We disagree with the trial court that the referee was required to disallow any evidence of “garden-variety” emotional distress.25 We do agree with the branch, however, that certain evidence of treatment related emotional distress was improperly admitted. Although it is a close call, we are unable to conclude on this record that the evidentiary error was harmless. We therefore remand the case to the trial court with direction to remand to the commission for a new hearing in damages.
A
The record reveals the following relevant procedural facts. During the administrative proceedings, the branch issued discovery requests to both the complainant and the commission. The branch included the following request: “Please produce all medical records, counseling records, office notes, or other documents, if any, identifying any and all medical professionals who[m] the complainant consulted with or was treated by for emotional damages and/or physical damages that the complainant contends are related to [her] claims of discrimination.” No such records were produced in response to this request. The complainant‘s initial witness lists, however, included two proposed witnesses—Dawn Gurn, a therapist, and Michael E. Coyle, a psychologist—whom the complainant identified as individuals who provided mental health treatment to her. She indicated that she intended to call both of these witnesses in support of her claim for emotional distress damages. The branch objected to the proposed testimony because the complainant had failed to supply any medical or mental health records relating to either witness, despite its request.
The referee ruled on the branch‘s objections off the record, during a prehearing conference on September 29, 2014. The precise ruling is unclear. The record contains an e-mail to the parties on that date from Assistant Attorney General Ann E. Lynch, who presumably was serving as counsel to the branch. The e-mail states that “[t]his is to confirm that [the] [r]eferee . . . ordered [the] complainant to provide [the branch‘s] counsel . . . with a complete copy of . . . Coyle‘s file no later than October 15, 2014. In the alternative, on or before October 7, 2014, [the complainant] is to provide [the branch‘s] counsel with a release authorizing [the branch‘s] counsel to obtain a complete copy of . . . Coyle‘s file.” In its subsequent briefing to the commission, however, the branch repeatedly characterized the referee‘s September 29 oral ruling differently. In one motion, for instance, the branch states: “On September 29, 2014, during the prehearing conference, [the] [r]eferee . . . ruled that, if the complainant intended on pursuing anything other than garden-variety emotional distress, she needed to provide copies of her psychological or mental health records.” (Emphasis added.) The branch thus appears to acknowledge that the referee did not unconditionally order the complainant to disclose her private medical records but, instead, ruled that she would need to do so if she wished to recover anything more than garden-variety emotional distress damages.26
In any event, during the two years that passed between the referee‘s September, 2014 ruling and the November, 2016 hearing, the complainant made various attempts to accommodate the branch‘s discovery request while preserving her medical privacy. After obtaining an extension of time within which to produce the requested records, the complainant filed what she styled as a motion for a protective order. In that motion, she offered to provide the branch (1) a summary of her unredacted treatment history with Coyle, which would be filed under seal and be reviewable only by the branch‘s counsel and expert witnesses, and (2) Coyle‘s full treatment notes, which would be reviewable only by counsel at Coyle‘s office. The complainant attached to the motion a case summary drafted by Coyle, with certain personal information regarding the complainant redacted.27 Also attached was a treatment history listing the dates when the complainant saw Coyle and the fees she paid for those office visits.
The branch filed an objection to the motion, contending that the only appropriate remedy for the complainant‘s alleged discovery noncompliance was to preclude her from pursuing anything other than garden-variety emotional distress damages. The referee sustained the branch‘s objection.28
On several occasions during the hearing, the referee appeared to confirm that she had not unconditionally ordered the complainant to produce the records at issue but merely had ruled that the complainant would have to do so in order to obtain anything more than garden-variety emotional distress damages.29 In response to the branch‘s argument that the complainant was not permitted to withhold relevant records, the referee stated: “No. That was not my ruling. I ruled earlier in this case. I think a couple [of] years ago, I ruled. There will be no evidence of medical bills from doctors without the entire medical records being submitted.”30 The referee later reiterated: “I made a ruling . . . early on in this case that, unless they were providing full medical records, the only damages they would be entitled to would be garden-variety emotional distress damages.”
Consistent with these statements, and because the complainant had not produced all of the requested records by the time of the hearing, the referee ruled that the complainant would be allowed to put on evidence in support of her claim for garden-variety emotional distress but could not introduce medical records or other treatment related evidence of emotional distress damages. “[S]o we‘re clear about the emotional distress,” the referee ruled, “any evidence beyond the garden-variety emotional distress claim is precluded unless the full entire medical records are produced.”
At the hearing, the branch repeatedly objected to the admission of the complainant‘s evidence on two grounds. First, in a departure from the stance it took during the prehearing briefing, the branch argued that the complainant should be barred from introducing evidence even of garden-variety emotional distress. It contended that, without access to the complainant‘s medical records, it could not adequately cross-examine her regarding those claimed damages. The referee overruled those objections, stating that, in her view, the branch had an adequate opportunity for cross-examination without the records. Accordingly, the complainant was permitted to testify that she felt “dirty,” victimized, embarrassed, ashamed, and fearful as a result of Marco‘s conduct and the branch‘s inadequate response. She testified that, following the incidents, she had ceased to be a happy person; she suffered anxiety and nervousness, and would wake in the night crying. The complainant was visibly shaking and in tears during this testimony. Her testimony as to the emotional distress that she suffered during and following the Marco incidents was corroborated by the testimony of several other nonmedical witnesses, including her husband, John Gilbert, each of whom the referee found to be credible.
Second, the branch contended that some of the testimony by the complainant and her lay witnesses crossed the threshold from garden-variety to treatment related emotional distress damages because the testimony occasionally alluded to or directly referenced the complainant‘s use of mental health counselling and pharmaceuticals to treat her emotional distress. The referee‘s response to this second category of objections was not a model of clarity or consistency. When the branch objected to the complainant‘s testimony that her physician had prescribed daily Lexapro for depression and anxiety, the referee allowed her to testify as to the medication but not the amount. When the branch objected to testimony that the complainant saw Gurn for therapy, the referee allowed the complainant and her husband to testify that she went to Gurn but not about the “particulars” as to what occurred at the therapist‘s office. When the branch objected to testimony that the complainant was taking Tylenol PM and prescription sleep aids, the referee responded: “We really can‘t get into too much medical information, because we‘re not doing this based on her treatment. . . . [L]et‘s rephrase; just the over-the-counter [medications] that you know of . . . which does not have anything to do with records.” Finally, when the branch objected to testimony regarding the complainant‘s use of Xanax, the referee ruled: “I think we‘re not getting into physician visits. I outlined in the beginning what garden-variety emotional distress is and how it‘s analyzed. I really don‘t think [that] taking a medic[ation] necessitates a review of medical records, but I don‘t want to get into more treatment or anything that happened with a doctor.”31
“I really don‘t understand [the branch‘s] objection because . . . I‘m not letting in any evidence that pertains to [the complainant‘s] treatment. I know [that her husband] mentioned a prescription. We can strike that prescription . . . from the record . . . .”32
In her memorandum of decision, the referee largely avoids any mention of the complainant‘s use of medications or counselling services, and, in her analysis explaining her award of emotional distress damages, she makes no mention of that testimony. Her factual findings, however, do include three references to the complainant‘s use of “a prescription drug” or “medication” to treat insomnia, anxiety, and chest pains arising from the alleged abuse.33 Ultimately, the referee found that the complainant had suffered emotional distress as a result of the branch‘s discriminatory treatment. After citing case law for the proposition that garden-variety emotional distress claims generally merit $30,000 to $125,000 awards, she awarded the complainant $50,000 in emotional distress damages.
B
On appeal from the referee‘s decision, the trial court determined that (1) the complainant had failed to provide certain relevant, nonprivileged, discoverable information, in violation of the referee‘s orders, (2) there was no doubt that the branch was prejudiced thereby, and (3) limiting the complainant‘s testimony and recovery to garden-variety emotional distress damages did not cure the prejudice arising from these discovery violations. The court justified its decision to vacate the award of emotional distress damages as follows: “[The complainant] withheld clearly discoverable, nonprivileged information without justification and despite the referee‘s order otherwise. . . . [T]he court cannot allow such unilateral, unjustified and fundamentally unfair action to go without consequence, particularly when it prejudices the other side. . . . As a result, the court must vacate the emotional distress damage[s] award. The referee should have precluded all evidence concerning emotional and physical distress unless the proper discovery was provided. The referee‘s decision to allow garden-variety emotional distress evidence was made pursuant to improper procedure, was a clear error of law, and, as such, was an abuse of discretion.” (Footnote omitted.)
We agree with the commission that the trial court‘s judgment rests on a flawed analysis. The following well established principles govern our review. “This court reviews the trial court‘s judgment pursuant to the Uniform Administrative Procedure Act (UAPA),
“[T]he primary purpose of a sanction for [a] violation of a discovery order is to ensure that the defendant‘s rights are protected, not to exact punishment on the [complainant] for [her] allegedly improper conduct. . . . The determinative question for [a reviewing] court is not whether it would have imposed a similar sanction but whether the [referee] could reasonably conclude as [she] did given the facts presented. Never will the case on appeal look as it does to a [referee] . . . faced with the need to impose reasonable bounds and order on discovery.” (Citation omitted; internal quotation marks omitted.) Usowski v. Jacobson, 267 Conn. 73, 85, 836 A.2d 1167 (2003). “In order for [an] order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear. This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the [presiding officer] that we will review for abuse of that discretion.” (Internal quotation marks omitted.) Id.
The trial court appeared to rest its resolution of this issue on its view that the limitations imposed by the referee—allowing the complainant to argue for, substantiate, and recover only garden-variety emotional distress damages—were not sufficiently stringent as sanctions for what the court saw as violations of a discovery order. Neither the facts nor the law supports that conclusion.
To begin with, although the complainant clearly did not fully comply with the discovery request for the production of her medical records, she also did not actually violate any discovery order found in the record before the commission. The branch issued a broadly worded request for medical records. In response, none was provided. When the complainant submitted a list of witnesses containing the names of medical care providers, the branch objected to those witnesses. Although the dispute was apparently addressed off the record, it appears from the branch‘s briefing before the commission and from the referee‘s statements at the hearing that the complainant would be allowed, in essence, to opt either to produce her full medical records or to decline to do so and to seek only garden-variety emotional distress damages. She chose the latter course.34 The branch has not directed our attention to anything in the record suggesting that the referee issued an unconditional order requiring production of the records.
Nevertheless, the referee‘s order limiting the complainant to garden-variety emotional distress damages, although not denominated a sanction by the referee, could fairly be viewed as a sanction, in that the order penalizes the complainant‘s failure to comply with a proper discovery demand by limiting her ability to recover damages to a degree proportional to the discovery noncompliance. Cf.
Moreover, it is clear from the record that the referee did not consider the complainant‘s conduct to be egregious or in bad faith. The complainant made various efforts to find a compromise that would satisfy the branch‘s requests while preserving her medical privacy. See footnote 28 of this opinion. When those efforts failed, she was given a choice by the referee that allowed her to refuse production of the medical records without violating the court order. For these reasons, we cannot affirm the judgment of the trial court simply vacating altogether the award of emotional distress damages, a result that effectively substituted a severe sanction for the more moderate ruling made by the referee with oversight responsibility in the proceedings.
C
We do agree with the branch, however, that the referee improperly admitted testimony that went beyond mere garden-variety emotional distress, in seeming violation of her own rulings. We cannot conclude on this record that such error was harmless.
The precise contours of what counts as garden-variety emotional distress have not been litigated in the present case. See footnote 25 of this opinion. Even if we were to construe the concept expansively, however, testimony regarding a complainant‘s use of medications or counseling and other medical treatment crosses the line into treatment related emotional distress and, thus, places her medical history at issue. See, e.g., Ruhlmann v. Dept. of Social Services, 194 F.R.D. 445, 449-50 (N.D.N.Y. 2000). As we discussed, in at least four instances, the referee allowed the complainant or her husband to testify, over the objections of the branch, as to her use of various over-the-counter and prescription medications to treat her insomnia and anxiety. Although the referee struck at least one such reference from the record, the other references apparently were admitted. The referee referenced these facts in her findings, and, from her statements during the hearing, she appeared to believe that they were potentially admissible and relevant. Allowing the challenged testimony to come in when the branch had been denied access to the requested records was an abuse of discretion.
“In order to reverse an agency decision on the basis of an erroneous evidentiary ruling, it [also] is necessary that the appellant demonstrate that substantial rights . . . have been prejudiced . . . .” (Internal quotation marks omitted.) Recycling, Inc. v. Commissioner of Energy & Environmental Protection, 179 Conn. App. 127, 153, 178 A.3d 1043 (2018); see
However, because the referee made several findings of fact regarding the complainant‘s need for medication, we are unable to conclude that the improperly admitted evidence did not factor into her damages calculation. On remand for a new hearing in damages, the complainant will present evidence of garden-variety emotional distress only, and the referee will assess damages in an amount deemed reasonable and appropriate in light of that evidence.37
IV
INJUNCTIVE RELIEF
Finally, we turn to the issue of whether the trial court properly vacated the injunction requiring that the branch “give the complainant the option of returning to the Danielson courthouse,” from where she had been transferred after reporting the abuse to her superiors.38 The commission contends that the injunction was authorized, if not required, by the commission‘s broad mandate to eliminate the effects of past discriminatory employment practices, to make victims whole, to bar like discrimination in the future, and to ensure that victims are not made to suffer further for the conduct of the sexual harasser. See, e.g.,
The following procedural history is relevant to this issue. The complainant alleged in her complaint that the branch was retaliating against her for reporting Marco‘s harassment and sexual assaults. The referee found that, in December, 2011, after the complainant reported Marco‘s conduct to her supervising judicial marshal, Philip Gaudette, Gaudette “yelled at her that . . . if she kept up the emotional behavior, he would move her.” The following summer, Downer reassigned the complainant from Danielson, where she had been assigned since 2006, to the Willimantic and Putnam courthouses, each of which was significantly farther from her residence. Although Downer testified that he transferred her because he needed a female marshal at those locations, the complainant testified that Downer “told her that he moved her to Putnam because she was too emotional about the Marco incidents.” The referee further found that, although judicial marshals can at times be transferred between courthouses, the norm is for the branch to assign them to the courthouse closest to their homes to minimize the impacts of inclement weather. Moreover, the referee found that “[t]here are also examples of other women marshals never being transferred.” Notably, although the complainant had requested that Marco, rather than she, be transferred, the branch allowed Marco to remain in Danielson after the complainant was transferred, and he was promoted to acting lead marshal there in 2014.
The referee determined that, “[w]hen the complainant continued to be upset about working with Marco, who was continuing his behavior, the [branch] ultimately transferred her to a more inconvenient location, thereby inflicting hardship on the [complainant]. . . . [Transfer] to a less desirable location . . . [is an alteration] of the conditions of her workplace.” The referee ultimately concluded: “The complainant was transferred to a courthouse that was at least [one-half] hour farther away from where she was originally assigned. The [branch] argued that [it] transferred the complainant because [it] needed a female [marshal] at another courthouse. Given the timing and frustration with the complainant‘s upset regarding working with Marco, it is unlikely that is the only or main reason for her transfer.” (Emphasis added.)
The trial court vacated the injunction. The court concluded that the order “is clearly an abuse of discretion,” “an error of law,” and “not properly tailored,” because it (1) is unnecessary to achieve the purposes of the state‘s antidiscrimination statutes and to prevent further discriminatory conduct, insofar as Marco is no longer stationed at Danielson,39 (2) infringes on the discretion of the branch to assign the complainant and other judicial marshals to the courthouse of its choosing on the basis of its operational needs, and (3) places no time limitation on how long the branch must continue to assign the complainant to Danielson.
Our review is governed by the following well established principles. As the trial court recognized,
In view of these principles, although we share the concerns expressed by the trial court, we find none sufficient to warrant the court‘s decision to simply vacate the injunction as a matter of law. With respect to the first point raised by the court, it is true that Marco‘s retirement eliminated any possibility that the complainant might be assigned to a courthouse where she would have to serve alongside him. The primary purpose for reinstating an employee who is transferred after complaining of sexual harassment, however, is to vindicate the important public policy against punishing or retaliating against victims who report abuse. See, e.g., Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991) (“[w]e strongly believe that the victim of sexual harassment should not be punished for the conduct of the harasser . . . [by having] to work in a less desirable location“); Jean-Baptiste v. District of Columbia, supra, 958 F. Supp. 2d 51 (issuing permanent injunction even though defendant no longer employed alleged abuser), appeal dismissed, Docket No. 13-7124, 2014 WL 812812 (D.C. Cir. January 21, 2014). That purpose was served by the referee‘s order regardless of Marco‘s particular circumstances at the time relief was granted.
The trial court made clear that its ruling vacating the injunction was predicated on the assumption that the complainant‘s superiors did not transfer her out of any retaliatory intent.41 This conclusion is contrary to the referee‘s factual findings. Although the referee did not use language containing an explicit finding that the complainant was transferred in retaliation for her complaint, the referee strongly implied that such was the case when she marshaled the relevant evidence of retaliation and concluded that “it is unlikely that [the branch‘s stated rationale] is the only or main reason for her transfer.” The referee‘s factual findings leading to this statement and expressing disbelief in the branch‘s proffered explanation—including Gaudette‘s threats of reassignment expressly linked to the complainant‘s “emotional behavior” and Downer‘s explanation to the complainant that the reassignment was due to her “emotional” reaction to the Marco incidents—overwhelmingly point to a retaliatory animus. For all intents and purposes, these factual findings, read fairly, amount to a determination by the referee that the transfer was pretextual and retaliatory. See, e.g., Richardson v. Dept. of Correctional Service, 180 F.3d 426, 444 (2d Cir. 1999) (transfer and reassignment to less favorable work location following complaint of employment discrimination constitute prima facie evidence of retaliation). If we are correctly construing the referee‘s findings in this respect, then the primary assumption underlying the trial court‘s decision to vacate the injunction was incorrect. On remand, the referee will have the opportunity to clarify, in express terms, whether she finds that the transfer was most likely retaliatory and not merely an ordinary operational decision made on the basis of legitimate, nonretaliatory considerations.
If, in fact, the branch sought to retaliate against the complainant or to resolve the pattern of harassment and abuse by transferring her to a less convenient location while allowing her abuser to remain in Danielson, then the trial court‘s second rationale for vacating the injunction also falls by the wayside. If retaliatory animus motivated the decision, it is irrelevant that, under ordinary circumstances, the branch, as the employer, has the discretion to assign judicial marshals to the workplace of its choosing, and that the employee cannot refuse such a transfer or insist on being reassigned to a former workplace.42 Connecticut, like other jurisdictions, has articulated a clear public policy against punishing victims of sexual harassment and assault by involuntarily transferring the victim, rather than the perpetrator, either to resolve the situation or as retaliation for reporting. When such an improper transfer has occurred, affording the victim the opportunity to return to his or her former workplace, or “rightful place,” is the preferred means of vindicating that policy. (Internal quotation marks omitted.) Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1391 (5th Cir. 1978), cert. denied sub nom. Local 13000, United Steelworkers of America, AFL-CIO-CLC v. Parson, 441 U.S. 968, 99 S. Ct. 2417, 60 L. Ed. 2d 1073 (1979); see, e.g., Reeves v. Board of Education, 828 F.2d 1096, 1101-1102 (5th Cir. 1987); McGill v. Board of Education, 602 F.2d 774, 776 (7th Cir. 1979); see also Nord v. United States Steel Corp., 758 F.2d 1462, 1473 (11th Cir. 1985) (“Title VII claimants are . . . presumptively entitled to reinstatement under the ‘make whole’ policy“); Stewart v. General Motors Corp., 756 F.2d 1285, 1291 (7th Cir. 1985) (remedial injunction simply protects complainant‘s preexisting right to be treated equally with other employees).
This is not to say that logistical considerations are wholly irrelevant in fashioning proper relief. Before ordering the branch to reinstate the complainant, the referee must consider factors such as (1) whether, and to what extent, the branch‘s relocation of the complainant to other courthouses since 2012 departs from the norms that have applied to other marshals; see, e.g., Stolzenburg v. Ford Motor Co., 143 F.3d 402, 407 (8th Cir. 1998); see also Chace v. Champion Spark Plug Co., 732 F. Supp. 605, 610 (D. Md. 1990) (ordering reinstatement with same salary and benefits as are accorded to other employees); (2) what impact keeping the complainant at Danielson will have on the operational needs of the branch and whether any imposition in that regard will outweigh the benefit to her of being assigned to a courthouse closer to her home; see, e.g., Equal Employment Opportunity Commission v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 836 (6th Cir. 1997) (remanding for balancing of equities prior to reinstatement); Hiraldo-Cancel v. Aponte, supra, 925 F.2d 14 (deferring to District Court‘s balancing of equities); Patrolmen‘s Benevolent Assn. of City of New York, Inc. v. New York, No. 97 CIV. 7895 (SAS), 2000 WL 1538608, at *3 (S.D.N.Y. October 18, 2000) (concluding that judicial interference via injunction would interfere with internal operations and could diminish efficacy of response of New York City Police Department), aff‘d, 310 F.3d 43 (2d Cir. 2002), cert. denied, 538 U.S. 1032, 123 S. Ct. 2076, 155 L. Ed. 2d 1061 (2003); (3) whether reinstating her at Danielson did or will require the reassignment of any innocent employees; see, e.g., Hicks v. Board of Education, 814 F. Supp. 1044, 1050 (M.D. Ala. 1993) (setting forth factors to be considered in deciding whether to issue injunction that would require “bumping” innocent employee in order to reinstate prevailing complainant); and (4) to what extent the facts on the ground now differ from what they were at the time of the hearing. See, e.g., Parson v. Kaiser Aluminum & Chemical Corp., supra, 575 F.2d 1390 (“practices may have altered since this case was first tried“); Chace v. Champion Spark Plug Co., supra, 732 F. Supp. 609 (“intervening historical circumstances can make [reinstatement] impossible or inappropriate“); Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, supra, 265 Conn. 137 (“reinstatement may be impractical, imprudent or even impossible“).
Likewise, with respect to the trial court‘s third concern, the apparently unbounded nature of the injunction, the commission on remand should clarify the scope and duration of the injunction, bearing in mind the following principles: “A party moving for [a permanent] injunction [under Title VII] must show (1) she has suffered irreparable injury, (2) remedies available at law, such as monetary damages, are inadequate to compensate for that injury, (3) considering the balance of hardships between the plaintiff and [the] defendant, a remedy in equity is warranted and (4) the public interest would not be disserved by a permanent injunction. . . . The . . . necessary determination is that there exists some cognizable danger of recurrent violation.” (Citations omitted; internal quotation marks omitted.) Pierce v. Philadelphia, 391 F. Supp. 3d 419, 445 (E.D. Pa. 2019), aff‘d, 811 Fed. Appx. 142 (3d Cir. 2020); see Howe v. Akron, 801 F.3d 718, 754 (6th Cir. 2015) (“permanent injunctions should be tailored to redress the harm without hamstringing local government“); Equal Employment Opportunity Commission v. Creative Networks, LLC, 912 F. Supp. 2d 828, 846 (D. Ariz. 2012) (“[p]ermanent injunctive relief is warranted [when the] . . . defendant‘s past and present misconduct indicates a strong likelihood of future violations” (internal quotation marks omitted)). If the commission determines that the scope of the branch‘s misconduct and the balance of the equities do not warrant an order that permanently precludes the branch from reassigning the complainant, then the commission should specify at what point or under what circumstances the injunction will expire. See, e.g., Howe v. Akron, supra, 801 F.3d 754-55 (modifying permanent injunction to extend for one promotional cycle); Equal Employment Opportunity Commission v. Service Temps, Inc., 679 F.3d 323, 338-39 (5th Cir. 2012) (limiting remedial injunction to two years); Locke v. Kansas City Power & Light Co., 660 F.2d 359, 368 and n.11 (8th Cir. 1981) (recommending that District Court retain jurisdiction over matter for six months following reinstatement of complainant, during which employer would “carry the burden of persuasion that any dismissal of [the complainant] is based entirely on legitimate, nondiscriminatory factors“). And, lastly, any order should specify whether, during the course of the injunction, the branch may continue to assign the complainant to other courthouses on a short-term basis consistent with its operational needs and norms. See, e.g., Vega v. Chicago Park District, 351 F. Supp. 3d 1078, 1087 (N.D. Ill. 2018) (defendant was required to apply same policies to complainant as are applied to other employees), aff‘d, 954 F.3d 996 (7th Cir. 2020).
On remand, the referee will have the opportunity to make the necessary findings and, if appropriate, to issue a new injunction consistent with those findings and with established law. See, e.g., Brown v. Dept. of Transportation, 597 F.3d 1160, 1186 (11th Cir. 2010) (holding that District Court had authority to order complainant transferred to comparable position nearest her residence but remanding case for court to state with greater clarity and specificity how injunction was to be carried out).
The judgment is reversed with respect to the award of prejudgment and postjudgment interest, and emotional distress damages, and with respect to the order of injunctive relief, the award of prejudgment and post judgment interest is vacated, and the case is remanded for further proceedings consistent with this opinion; the judgment is affirmed in all other respects.
In this opinion the other justices concurred.