TENISHA O‘REGGIO v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
SC 20847
Supreme Court of Connecticut
August 1, 2024
Robinson, C. J., and McDonald, D‘Auria, Mullins, Ecker, Alexander and Dannehy, Js.
Argued March 20—officially released August 1, 2024
The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of 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 Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the 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 an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
Appeal from the decision of the human rights referee for the named defendant that the defendant Department of Labor was not liable to the plaintiff for her claim of a hostile work environment, brought to the Superior Court in the judicial district of New Britain and tried to the court, Klau, J.; judgment affirming the decision, from which the plaintiff appealed to the Appellate Court, Prescott, Seeley and Eveleigh, Js., which affirmed the trial court‘s judgment, and the plaintiff, on the granting of certification, appealed to this court. Affirmed.
James V. Sabatini, for the appellant (plaintiff).
Michael E. Roberts, human rights attorney, for the appellee (named defendant).
Colleen B. Valentine, assistant attorney general, with whom, on the brief, were William Tong, attorney general, Joshua Perry, solicitor general, and Michael K. Skold, deputy solicitor general, for the appellee (defendant Department of Labor).
Opinion
ALEXANDER, J. This certified appeal raises the question of who qualifies as a “supervisor” and renders an employer vicariously liable for the creation of a hostile work environment in violation of the Connecticut Fair Employment Practices Act (state act),
The record reveals the following relevant facts and procedural history. The plaintiff began working for the department in 2009 and was promoted in 2012 to the position of adjudicator in the unemployment unit of its Bridgeport office, where she reported to the unit‘s program services coordinator, Diane Krevolin. Krevolin had the authority to assign work, to approve requests for leave, to set employee schedules, to provide training, and to conduct performance reviews. She did not have the authority to hire, fire, or otherwise discipline any employee. In 2016, the plaintiff, who is Black, filed an internal complaint with the department‘s office of human resources (HR), claiming that Krevolin, who is white, had made several racially discriminatory statements to her and in her presence.1 The plaintiff met with HR personnel, and, the following day, the department placed Krevolin on paid administrative leave. HR personnel and the department‘s equal employment opportunity manager each conducted separate internal investigations into the plaintiff‘s claim. Both investigations concluded that Krevolin had made discriminatory statements. After considering the results of the investigations and Krevolin‘s lengthy record of service with the department, which lacked any previous disciplinary actions, the commissioner of labor issued Krevolin a one day suspension without pay and required her to attend diversity training.
After the internal investigations were completed, the plaintiff requested that she be allowed to report to someone other than Krevolin or to sit in an area away from Krevolin, but each of those requests were denied. The department determined that the plaintiff could not report directly to the person above Krevolin in the organizational structure,2 and Krevolin‘s union contract did not allow her to be involuntarily transferred for disciplinary purposes. Because the plaintiff felt that she could not continue to report to Krevolin, she took a position in another division of the department. The new position was for a durational basis from December, 2016, to December, 2017, after which time the plaintiff could request to return to her former position in the unemployment unit. Although Krevolin retired in October, 2017, the plaintiff did not seek to return to her former position when eligible in December, 2017. In March, 2019, the plaintiff asked to return to her former position, and the department granted that request.
The plaintiff thereafter filed an administrative appeal from the commission‘s decision to the trial court pursuant to
The plaintiff appealed from the trial court‘s judgment to the Appellate Court. The sole issue in the appeal was whether the trial court had incorrectly applied the Vance definition of “supervisor” to the plaintiff‘s hostile work environment claim. See O‘Reggio v. Commission on Human Rights & Opportunities, supra, 219 Conn. App. 10. The Appellate Court concluded that the Vance definition
On appeal, the plaintiff, joined in part by the commission,6 claims that the Appellate Court incorrectly applied the Vance definition of “supervisor” to her claim seeking to hold the department vicariously liable under the state act for the creation of a hostile work environment by Krevolin. The plaintiff contends that the Vance definition undermines the remedial nature of the state act because it is unduly narrow and that we should instead adopt a definition of “supervisor” that includes employees who have the authority to control the conditions under which subordinate employees do their daily work.
In response, the department argues that the Appellate Court correctly applied the Vance definition of “supervisor” because this court has “long followed federal Title VII precedent in determining an employer‘s liability when an employee is subject to a hostile work environment.” See, e.g., Brittell v. Dept. of Correction, 247 Conn. 148, 166–67, 717 A.2d 1254 (1998) (applying definition of “hostile work environment” from federal case law in case brought under state act). The department further argues that “powerful policy interests” support adopting the Vance definition of “supervisor.” The department also argues that the definition urged by the plaintiff “requires murky factual determinations and risks inconsistent results.” We agree with the department that, for the purposes of vicarious liability, a supervisor is an employee “empowered by the employer to take tangible employment actions against the victim“; Vance v. Ball State University, supra, 570 U.S. 424; including those individuals authorized to take such action subject to approval by higher management. See id., 437 n.8.
We begin with the principles that govern our standard of review in an appeal from the decision of an administrative agency. Under the Uniform Administrative Procedure Act,
We turn next to the legal principles governing our construction and application of the state act. “This court previously has determined that Connecticut antidiscrimination statutes should be interpreted in accordance with federal antidiscrimination laws.” (Internal quotation marks omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 689, 41 A.3d 1013 (2012). “We look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both.” (Internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 73, 111 A.3d 453 (2015). Thus, guided by the long line of cases following Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), in which the United States Supreme Court first recognized that the creation of a hostile or abusive work environment was a violation of Title VII; id., 66; this court has determined that, to establish a claim of hostile work environment under the state act, “the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that [are] sufficiently severe or pervasive to alter the conditions of the victim‘s employment and create an abusive [work] environment . . . .”7 (Emphasis omitted; inter-nal quotation marks omitted.) Patino v. Birken Mfg. Co., supra, 691.
“We also have recognized that our legislature‘s intent, in general, was to make [the state act] complement the provisions of Title VII.” Commission on Human Rights & Opportunities v. Echo Hose Ambulance, 322 Conn. 154, 160, 140 A.3d 190 (2016). Accordingly, we previously have
In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998), the United States Supreme Court adopted a framework setting forth the circumstances under which an employer may be held vicari-ously liable under Title VII for an employee‘s creation of a hostile work environment.8 In establishing that framework, the court was guided by § 219 (2) (d) of the Restatement (Second) of Agency, recognizing an exception to the general rule that employers are not liable for those tortious acts that are committed outside the scope of employment; that exception allows for vicarious liability when the employee was “aided in accomplishing the tort by the existence of the agency relation.” (Internal quotation marks omitted.) Vance v. Ball State University, supra, 570 U.S. 428, quoting 1 Restatement (Second), Agency § 219 (2) (d), p. 481 (1958); see Faragher v. Boca Raton, supra, 803 (“[w]hen a person with supervisory authority discriminates in the terms and conditions of subordinates’ employment, his actions necessarily draw [on] his superior position over the people who report to him . . . whereas an employee generally cannot check a supervisor‘s abusive conduct the same way that she might deal with abuse from a [coworker]“); Burlington Industries, Inc. v. Ellerth, supra, 761-62 (“When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted [in the absence of] the agency relation. A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury.“).
Guided by this “aided-in-the-accomplishment theory of vicarious liability“; Vance v. Ball State University, supra, 570 U.S. 432; the United States Supreme Court concluded that “[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Burlington Industries, Inc. v. Ellerth, supra, 524 U.S. 765. If a supervisor‘s harassment culminates in a
Conversely, if the harassing employee is a coworker and not a supervisor of the victim, the burden imposed by the affirmative defense does not apply, and the employer is liable only if the victim can show the employer was negligent in failing to prevent harassment from taking place. See Vance v. Ball State University, supra, 570 U.S. 448–49. “[Although] the reasonableness of an employer‘s response to . . . harassment is at issue under both standards, the plaintiff must clear a higher hurdle under the negligence standard [applicable to harassment by coworkers], where she bears the burden of establishing her employer‘s negligence, than under the vicarious liability standard [applicable to harassment by supervisors], where the burden shifts to the employer to prove its own reasonableness and the plaintiff‘s negligence.” Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir. 1999), cert. denied, 530 U.S. 1215, 120 S. Ct. 2219, 147 L. Ed. 2d 251 (2000); see also Swinton v. Potomac Corp., 270 F.3d 794, 804 (9th Cir. 2001) (Discussing burden shifting scheme and stating that “[i]t might reasonably be argued . . . that employers are ‘better off’ in the negligence context, [in which] the plaintiff is required to prove both the employer‘s knowledge of the harassment (or that it should have known) and that it failed to take reasonable corrective action. In the strict liability context, the plaintiff is required to prove significantly less in the prima facie case: merely that the harasser was his supervisor.“), cert. denied, 535 U.S. 1018, 122 S. Ct. 1609, 152 L. Ed. 2d 623 (2002).
Under the Ellerth/Faragher framework, it is, therefore, analytically important to determine whether an alleged harasser is a supervisor or a coworker. Because a split developed among the federal courts of appeals with respect to the meaning of the term “supervisor,” the United States Supreme Court adopted a definition of that term in Vance. The court concluded in Vance that a supervisor is an employee empowered by the employer “to take tangible employment actions against the victim, i.e., to effect a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” (Internal quotation marks omitted.) Vance v. Ball State University, supra, 570 U.S. 431. Additionally, if the coworker is empowered to take a tangible employment action subject to approval by higher management, that coworker might also qualify as a supervisor. Id., 437 n.8.
Adopting the Vance definition is consistent with our well established body of case law holding that “our legislature‘s intent, in general, was to make [the state act] complement the provisions of Title VII.” Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn. 160. Although this court has occasionally interpreted the state act differently from Title VII, “it has done so only in circumstances in which there is clear evidence of a contrary legislative intent.” Id., 162; see, e.g., McWeeny v. Hartford, 287 Conn. 56, 69, 946 A.2d 862 (2008) (concluding that guidance from case law interpreting Title VII was unnecessary because relevant language of state act was “susceptible of only one reasonable interpretation“); see also Vollemans v. Wallingford, 103 Conn. App. 188, 217, 928 A.2d 586 (2007) (concluding that following guidance from federal case law would contradict intent of state legislature), aff‘d, 289 Conn. 57, 956 A.2d 579 (2008). Neither the parties’ briefs nor our independent research has found anything in the text or legislative history of the state act indicating that the legislature desired to depart from federal law with respect to the proof and defense of hostile work environment claims. See Patino v. Birken Mfg. Co., supra, 304 Conn. 695–97. We note that the dissent‘s rejection of the Vance definition is inconsistent with this court‘s approach in interpreting the state act “in accordance with federal antidiscrimination laws.” (Internal quotation marks omitted.) Id., 689; see, e.g., Feliciano v. Autozone, Inc., supra, 316 Conn. 73 (“[w]e look to federal law for guidance on interpreting state employment discrimination law, and the analysis is the same under both” (internal quotation marks omitted)).
In arguing for a broader approach, the dissent rejects the oft cited proposition that “our legislature‘s intent, in general, was to make [the state act] complement the provisions of Title VII.” Commission on Human Rights & Opportunities v. Echo Hose Ambulance, supra, 322 Conn. 160. Specifically, the dissent argues that this proposition is the result of a misreading of Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, 170 Conn. 327, 331, 365 A.2d 1210 (1976), by this court in Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 53, 448 A.2d 801 (1982). Although we recognize the dissent‘s criticisms of the analysis in Wroblewski, this proposition has been advanced in countless employment discrimination decisions and has put the legislature on notice of our consistent interpretation of the state act. Given the interest in stability in the context of statutory interpretation, and the legislature‘s primary role in formulating the public policy of our state; see, e.g., Graham v. Commissioner of Transportation, 330 Conn. 400, 417–18, 195 A.3d 664 (2018) (discussing principles of legislative acquiescence and stare decisis); we decline to depart from guiding principles of federal law in the absence of an indication of legislative intent to the contrary. We acknowledge that there are good and persuasive arguments that support the dissent‘s adoption of a broader definition of who qualifies as a supervisor. The legislature, however, has not expressly set forth its intent for us to adopt such a definition. To the extent that the legislature wishes to define the term “supervisor” more broadly, it is of course free to adopt legislation directing that approach or, in the alternative, clarifying the persuasive value of federal case law as it has in other contexts.9
The United States Supreme Court in Vance reasoned that the Vance definition of “supervisor” is “easily workable” and “can be applied without undue difficulty at both the summary judgment stage and at trial.” Vance v. Ball State University, supra, 570 U.S. 432. Indeed, whether an employee is a supervisor or simply a coworker can usually be “readily determined” by written documentation in official company records as opposed to “a highly case-specific evaluation of numerous factors.” Id.
The dissent, the plaintiff, and the commission nonetheless encourage us to reject the Vance definition, relying heavily on the argument advanced by Justice Ruth Bader Ginsburg in her dissenting opinion in Vance. Justice Ginsburg concluded that a definition that does not include employees who have the authority to direct daily work activities “hinder[s] efforts to stamp out discrimination in the workplace” by “reliev[ing] scores of employers of responsibility for the behavior” of their employees. Vance v. Ball State University, supra, 570 U.S. 463, 468 (Ginsburg, J., dissenting); see also Aguas v. State, 220 N.J. 494, 528, 107 A.3d 1250 (2015) (rejecting Vance definition and concluding that more expansive definition of “supervisor” “prompts employers to focus attention not only on an elite group of [decision makers] at the pinnacle of the organization, but on all employees granted the authority to direct the day-to-day responsibilities of subordinates, and to ensure that those employees are carefully selected and thoroughly trained“). We disagree for two reasons. First, when a harasser is not a supervisor under Vance, an employer may nevertheless be held liable upon proof that it was negligent in failing to prevent that harassment. See Vance v. Ball State University, supra, 446. A plaintiff could therefore still prevail by showing, for example, that “an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints . . . .” Id., 449. Thus, an employer is not relieved of responsibility for the behavior of its employees when its own negligence has led to the creation or continuation of a hostile work environment. See id., 446. This is particularly so when an employee has put the employer on notice of the hostile work environment created by a coworker, rendering the employer‘s complaint process—and the employee‘s participation in that process—of paramount importance in any assessment of the employer‘s negligence.
Second, by encompassing within the definition of “supervisor” those employees empowered by the employer to take tangible employment actions subject to approval by higher management, the
We acknowledge that coworkers are, unfortunately, more than capable of creating hostile work environments. We conclude nonetheless that ” ‘something more’ is required in order to warrant vicarious liability,” and that something more requires the harasser to have the power to take tangible employment actions. Id., 439. In the absence of a contrary expression of intent by the legislature with respect to the state act, the Vance definition strikes a reasonable balance between accomplishing the antidiscrimination purpose of the state act and protecting the legitimate interests of employers. See id., 431-32. It would upset settled expectations with respect to our jurisprudence interpreting the state act for us to depart from the Vance definition of “supervisor.”
In the present case, the commission made no factual findings as to whether Krevolin was a supervisor under the Vance definition. A remand to the commission, however, is unnecessary because
The judgment of the Appellate Court is affirmed.
In this opinion McDONALD, D‘AURIA and DANNEHY, Js., concurred.