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SUPREME COURT

OF THE

STATE OF CONNECTICUT
S.C. 19505
MICHAEL TOMICK
PLAINTIFF-APPELLANT
V.
UNITED PARCEL SERVICE, INC.
DEFENDANT-APPELLEE

BRIEF OF DEFENDANT-APPELLEE
UNITED PARCEL SERVICE, INC.
WITH SEPARATELY BOUND APPENDIX

FOR DEFENDANT-APPELLEE
UNITED PARCEL SERVICE, INC.:
MICHAEL C. HARRINGTON, ESQ.
PROLOY K. DAS, ESQ.
JENNIFER A. CORVO, ESQ.
SARAH GRUBER, ESQ.
TO BE ARGUED BY.
MICHAEL C. HARRINGTON, ESQ
mharrington@murthalaw.com

MURTHA CULLINA LLP


CITYPLACE I - 185 ASYLUM STREET
HARTFORD, CT 06103-3469
TEL.(860) 240-6000
FAX (860) 240-6150

TABLE OF CONTENTS
STATEMENT OF ISSUES.....................................................................................................ii
~~~
TABLE OF AUTHORITIES ...................................................................................................iii
NATURE OF THE PROCEEDINGS AND STATEMENT OF FACTS ................................... 1
ARGUMENT......................................................................................................................... 4
GENERAL STATUTES 46a-104 DOES NOT PROVIDE FOR PUNITIVE
DAMAGES................................................................................................................. 4

II.

A.

Standard of Review ......................................................................................... 4

B.

In Connecticut, Statutory Punitive Damages Must Be Explicitly Authorized.... 5

C.

The Plain Language of 46a-104 and Its Relationship to Other Statutes


Precludes an Interpretation that It Authorizes Punitive Damages ................... 8

D.

The Legislative History of 46a-104 Does Not Suggest Any Intention to


Provide Punitive Damages............................................................................ 14

E.

CFEPA Does Not Need Punitive Damages to Accomplish Its Remedial


Purpose Given the Significant Relief that May Be Awarded in Discrimination
Cases............................................................................................................ 15

F.

Title VII, on which CFEPA Was Modeled, Did Not Originally Provide for
Punitive Damages......................................................................................... 17

G.

A Majority of Superior Courts Have Concluded that 46a-104 Does Not Allow
for Punitive Damages.................................................................................... 20

H.

Other State Statutes Are Inapposite to Interpreting 46a-104 ..................... 22

PUNITIVE DAMAGES ARE LIMITED TO ATTORNEYS' FEES AS


DETERMINED BY THE COURT ............................................................................. 25
A.

Punitive Damages Are Limited to Attorneys' Fees ........................................ 25

B.

The Court Should Determine Any Award of Punitive Damages .................... 26

RELIEF REQUESTED........................................................................................................ 28

STATEMENT OF ISSUES
This Court certified the following issues for review:
(1)

Did the Appellate Court properly determine that General Statutes 46a-104

does not authorize the award of punitive damages?


If the answer to the first question is in the negative, does the award of punitive

damages in 46a-104 fall within the province of the court or the


Tomick v. United Parcel Serv., Inc., 317 Conn. 916 (2015).

jury?

(2)

TABLE OF AUTHORITIES
CASES
Ames v. Comm'r of Motor Vehicles, 267 Conn. 524(2004).........................................passim

Arthur Younq

&

Anastasia v. Gen. Cas. Co. of Wisconsin, 307 Conn. 706 (2013)........................................8


Co. v. Sutherland, 631 A.2d 354(D.C. 1993)......................................23-24

Barr v. Interbay Citizens Bank,635 P.2d 441 (Wash. 1981).............................................. 24


Bishop v. Kelly, 206 Conn. 608(1988)............................................................................... 27
Brewer v. Premier Golf Props., 168 Cal. App. 4th 1243(2008).......................................... 23
Bridgeport Hosp. v. CHRO, 232 Conn. 91 (1995).......................................................passim
Carver v. Citizen Utils., Co., 954 S.W.2d 34(Tenn. 1997)................................................. 23
Champagne v. Ravbestos-Manhattan, Inc., 212 Conn. 509(1989).................................... 17
Chestnut Realty, Inc. v. CHRO, 201 Conn. 350(1986)...................................................... 12
Chouhan v. Univ. of Conn. Health Ctr., No. CV-09-6002439S,
2013 WL 6335273(Conn. Super. Nov. 5, 2013)...................................................... 20
CHRO v. Bd. of Educ., 270 Conn. 665(2004).............................................................. 16-17
City of Newport v. Fact Concerts, Inc., 453 U.S. 247(1981).............................................. 17
Collins v. Colonial Penn Ins. Co., 257 Conn. 718(2001).................................................... 25
Craine v. Trinity Coll., No. CV-95-0555013S, 1999 WL 1315017
(Conn. Super. Dec. 27, 1999) .................................................................................21
Dairyland Ins. Co. v. Mitchell, 320 Conn. 205(2016)..................................................... 6, 18

DiLieto v. Cnty. Obstetrics

&

DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441 (1992)..................................... 13


Gynecology Grp., P.C., 316 Conn. 790(2015)..................... 15

Dwyer v. Waterfront Enters., Inc., No. CV-12-6032894S,


2013 WL 2947907(Conn. Super. May 24, 2013)..............................................20, 21
Fenn Mfq. Co. v. CHRO, No. CV-92-509435S,
1994 WL 51143(Conn. Super. Feb. 8, 1994).................................................... 14, 16

Fishbein v. Kozlowski, 252 Conn. 38(1999)...................................................................... 13


Fleming v. Garnett, 231 Conn. 77(1994).............................................................................5
Ford v. Blue Cross &Blue Shield, Inc., 216 Conn. 40(1990)............................................. 27
Hayes v. Rhone-Poulenc, Inc., 206 W.Va. 18(1999).........................................................24
Kentucky Dept of Corr. v. McCullough, 123 S.W.3d 130 (Ky. 2003).................................. 24
Label Svs. Corp. v. Aghamohammadi, 270 Conn. 291 (2004)........................................... 25
Loomis Elec. Prot., Inc. v. Schaefer, 549 P.2d 1341 (Alaska 1976)................................... 23
Mclnernev v. Polymer Res., Ltd., No. CV-11-6012308,
2012 WL 5519626(Conn. Super. Oct. 22, 2012)...............................................20, 21
Morello v. City of Norwich, No. CV-11-6010871,
2012 WL 1871589(Conn. Super. May 3, 2012)................................................20, 21

Perez v. D

&

Peckinpaugh v Post-Newsweek Stations Conn. Inc.,


No. 96-CV-2475, 1999 WL 334838(D. Conn. Mar. 17, 1999)............................. 5, 21
L Tractor Trailer Sch.; 117 Conn. App. 680(2009)........................................ 26

Piteau v. Bd. of Educ. of Hartford, 300 Conn. 667(2011).................................................... 8


Rice v. CertainTeed Corp., 704 N.E. 2d 1217(Ohio 1999)................................................ 23
Roman v. Dept of Corr., No. HHB-CV-05-5000278,
2006 WL 2556376(Conn. Super. Aug. 11, 2006)................................................ 5, 20
Shaw v. Greenwich Anesthesiology Assocs., P.C., 200 F. Supp. 2d 110
(D. Conn. Mar. 21, 2002)................................................................................... 20-21
Siuzdak v. Greater Bridgeport Cmty. Mental Health Ctr., No. CV-05-4013170S,
2009 WL 3740704(Conn. Super. Oct. 13, 2009)..................................................... 20
Tanski v. Gunther Int'I, Ltd., No. CV-10-6004925,
2010 WL 5095349(Conn. Super. Nov. 24, 2010).................................................... 20
Thibodeau v. Design Grp. One Architects, LLC, 260 Conn. 691 (2002)........................... 8, 9
Tomick v. United Parcel Serv., Inc., No. CV-06-4008944,
2010 WL 4723218 (Conn. Super. Oct. 28, 2010)............................................... 21, 22

Tomick v. United Parcel Serv., Inc., 135 Conn. App. 589(2012) ......................................... 2
Tomick v. United Parcel Serv., Inc., 305 Conn. 920(2012)..............................................2, 3
Tomick v. United Parcel Serv., Inc., No. CV-064008944,
2013 WL 3970230 (Conn. Super. July 16, 2013)....................................................... 3
Tomick v. United Parcel Serv., Inc., 157 Conn. App. 312(2015) ............................... 3, 7, 11
Tomick v. United Parcel Serv., Inc., 317 Conn. 916(2015)...............................................ii, 3
Trimachi v. Connecticut Workers Comp. Comm'n, No. CV-97-0403037S,
2000 WL 872451 (Conn. Super. June 14, 2000)................................................. 5, 21
Ulbrich v. Groth, 310 Conn. 375(2013).......................................................................... 6, 27
Washington v. Meachum, 238 Conn. 692(1996)............................................................... 10
Weaver v. Readco Mgmt., LLC, No. CV-10-6005041,
2010 WL 5095347(Conn. Super. Nov. 24, 2010).................................................... 20
Weems v. Citiqroup, Inc., 289 Conn. 769(2008)..................................................................4
Wright v. Colonial Motors, Inc., No. CV-11-6008335,
2012 WL 2044635(Conn. Super. May 16, 2012)..............................................20, 21

STATUTES
29 U.S.C. 626.................................................................................................................. 19
42 U.S.C. 1981a ..............................................................................................................19
Alaska Stat. 22.10.020 .................................................................................................... 23
Ark. Code Ann. 16-123-107............................................................................................. 23
C.R.S. 24-34-405................................................................................................................ 23
Del. Code Ann. tit. 19, 715 .............................................................................................. 23
Fla. Stat. 760.11 .............................................................................................................. 23
General Statutes 1-2z........................................................................................................ 8

General Statutes 4d-39 ....................................................................................... 10, 21, 27


General Statutes 7-471 ..................................................................................................... 8
General Statutes 14-52 ................................................................................................. 5, 7
General Statutes 14-295 ................................................................................................... 7
General Statutes 16-8d ....................................................................................... 10, 21, 27
General Statutes 19a-550 ......................................................................................... 10, 22
General Statutes 22-351 a ....................................................................................... 6, 8, 22
General Statutes 31-51 q ....................................................................................... 6, 18, 21
General Statutes 31-72 ..................................................................................................... 7

General Statutes
General Statutes

36a-428n ............................................................................................. 21
36a-618 ................................................................................... 6, 7-8, 21
42-110g

........................................................................................passim

General Statutes

35-53 .................................................................................................6, 7

General Statutes

35-35 .....................................................................................................7

General Statutes

31-290a

General Statutes

........................................................................................passim

General Statutes 31-76 ......................................................................................... 6, 13, 27

General Statutes 46a-60 ........................................................................................... 1, 2, 4

General Statutes 46a-86 ............................................................................... 11, 12, 14, 16

General Statutes 46a-89 ....................................................................................... 7, 12, 18

General Statutes

General Statutes

General Statutes 46a-104

........................................................................................passim

General Statutes 46a-98 ...................................................................................................7

52-240b ....................................................................................... 6, 7, 22
52-564a ........................................................................................... 7, 21

vi

General Statutes

52-571 c.................................................................................................. 7
54-41 r .............................................................................................. 6, 21

General Statutes

Haw Rev. Stat. 368-17 ................................................................................................... 23

Idaho Code Ann. 67-5908 ............................................................................................... 23

Minn Stat.

Me Rev. Stat. 5 4613...................................................................................................... 23


363A.29 ......................................................................................................... 23

Mo Rev. Stat. 213.111 .................................................................................................... 23

N.J. Stat. Ann. 2A:15-5.12............................................................................................... 23

N.J. Stat. Ann. 10:5-3 ...................................................................................................... 23

ORS 659A.885 ................................................................................................................ 23

R.I. Gen. Laws 28-5-29.1 ................................................................................................ 23

Tex Lab. Code

Tenn Code Ann. 4-21-311 .............................................................................................. 23


21.2585 .................................................................................................. 23

PUBLIC ACTS
P.A. 11-237 .......................................................................................................................... 6
P.A. 15-196 ....................................................................................................................6, 13
P.A. 90-246 ........................................................................................................................ 18
P.A. 91-331 ........................................................................................................................ 14

vii

OTHER AUTHORITIES
30A C.J.S. Equity 74 ......................................................................................................... 5
Connecticut Gen. Assembly Senate Proceedings 1991
Vol. 34 Part 8........................................................................................................... 15
Joint Standing Committee Hearings, Labor and Public Employees
Part 1, Feb. 28, 1991 ............................................................................................... 15
July 8, 2010 Hearing Transcript before Judge Emmet L. Cosgrove ................................... 25
Office of Legislative Research Bill Analysis........................................................................ 14

vin

NATURE OF THE PROCEEDINGS


AND STATEMENT OF FACTS
Plaintiff worked for United Parcel Service, Inc. ("UPS" or the "Company") as a
package car driver. On November 30, 2004, Plaintiff became injured while working. When
Plaintiff returned to work on December 2, 2004, Plaintiff had a heated exchange with his
supervisor. The next day, Plaintiff was informed that, based on a statement he made to his
supervisor the previous day, his employment was being terminated for violating the
Company's policy against workplace violence.
Plaintiff then filed an action in Superior Court challenging his discharge. The First
Amended Complaint, dated December 5, 2006, asserted seven causes of action against
the supervisor, Kevin Trudelle, and/or UPS:(1) negligent infliction of emotional distress; (2)
intentional infliction of emotional distress; (3) violation of General Statutes 31-51x; (4)
violation of the Americans with Disabilities Act (ADA) for disability discrimination; (5)
violation of the ADA for "regarded as" discrimination; (6) violation of General Statutes
46a-60(a)(1) for disability discrimination; and (7) violation of General Statutes 46a60(a)(1) for "regarded as" disability discrimination. The action was removed to federal
court.
Upon Defendants' motion, the federal District Court dismissed Count Seven, which
alleged a violation of General Statutes 46a-60(a)(1) for perceived disability. Following
discovery, Defendants moved for summary judgment on the remaining counts. The District
Court granted judgment in Defendants' favor on Plaintiff's two- claims under the ADA, but
declined to rule on the state law claims and remanded the case to state court. Thereafter,
the Superior Court granted summary judgment in Defendants' favor on Plaintiff's claim of
intentional infliction of emotional distress. Accordingly, three counts were tried to a jury,

Cosgrove, J., presiding: (1) negligent infliction of emotional distress against both UPS and
Trudelle; (2) violation of General Statutes 31-51x against UPS; and (3) violation of
General Statutes 46a-60(a)(1) against UPS.
At the close of Plaintiff's case, the Defendants moved for a directed verdict and took
exception to the Court's charging the jury on punitive damages under General Statutes
46a-104. The Trial Court reserved decision on the motion and ultimately denied it after
the jury returned its verdict. The jury reached a verdict for Plaintiff on each of the counts
and awarded compensatory damages as follows: (1) negligent infliction of emotional
distress: $250,000 against UPS and $50,000 against Trudelle; (2) violation of 31-51x:
$100,000 against UPS; and (3) violation of 46a-60: $100,000 against UPS. The jury also
awarded $500,000 in punitive damages against UPS under General Statutes 46a-60.
Following the trial, Defendants moved to set aside the verdict. The Trial Court set
aside the jury's award of punitive damages, concluding that such damages are not provided
for under General Statutes 46a-60, but otherwise denied the Defendants' motion.
Following post-trial briefing and argument, the Trial Court awarded backpay, ordered that
Plaintiff be immediately reinstated to the position of package car driver, and awarded
attorneys' fees. Both parties appealed.
The Appellate Court issued its decision on May 22, 2012. Tomick v. United Parcel
Serv., Inc., 135 Conn. App. 589, cert. denied, 305 Conn. 920 (2012). The Appellate Court
concluded, inter alia, that the Trial Court had awarded an improper sum of attorneys' fees
and had abused its discretion by applying an incorrect standard in evaluating Plaintiff's
disability claim. The Appellate Court remanded the matter back to the Trial Court to
determine the date of the disputed adverse employment action and to determine whether

Plaintiff had been a qualified individual on that date. Both parties petitioned the Supreme
Court for further review, which the Supreme Court denied. Tomick, 305 Conn. 920.
The Trial Court, Cosgrove, J., held a hearing on remand and, on July 16, 2013,
issued its decision in which it found the relevant date on which the disputed adverse action
had occurred and again declined to award punitive damages. Tomick v. United Parcel
Serv., Inc., No. CV-064008944, 2013 WL 3970230 (Conn. Super. July 16, 2013). Both
parties again appealed.
On May 19, 2015, the Appellate Court (DiPentima, C.J., and Beach and Prescott,
Js.) issued its unanimous decision in which it, inter alia, affirmed the Trial Court's refusal to
award punitive damages. Tomick v. United Parcel Serv., Inc., 157 Conn. App. 312 (2015).
The Appellate Court concluded that, because General Statutes 46a-104 does not contain
an explicit authorization for punitive damages, the Trial Court properly set aside the jury's
award of punitive damages. Id. at 337-41.
The Plaintiff filed a petition for certification, which this Court granted on July 8, 2015.
Tomick v. United Parcel Serv., Inc., 317 Conn. 916 (2015). This Court limited the petition
to the following questions:
(1)

Did the Appellate Court properly determine that General Statutes 46a-104

does not authorize the award of punitive damages?


(2)

If the answer to the first question is in the negative, does the award of punitive

damages in 46a-104 fall within the province of the court or the jury?

~a

ARGUMENT
I.

GENERAL STATUTES 46a-104 DOES NOT PROVIDE FOR PUNITIVE


DAMAGES
This Court should affirm the judgment of the Appellate Court, which properly

declined to read into 46a-104 the relief of punitive damages. Section 46a-104 of the
General Statutes sets forth what relief may be awarded if employment discrimination under
46a-60 is proven in a civil action. In relevant part, 46a-104 permits a court to award
"legal and equitable relief which it deems appropriate including, but not limited to,
temporary or permanent injunctive relief, attorneys' fees and court costs." Section 46a-104
has no mention of punitive damages. This Court has previously recognized that, when the
legislature intends to permit punitive damages, it does so expressly in a statute. See Ames
v. Comm'r of Motor Vehicles, 267 Conn. 524, 536 (2004). Given the absence of an
express authorization of punitive damages in 46a-104, no canon of statutory construction
or policy desire can transform the language of 46a-104 into an explicit authorization for
punitive damages. Therefore, the Appellate Court was correct in holding that General
Statutes 46a-104 does not authorize an award of punitive damages in addition to an
award of attorneys' fees.
A.

Standard of Review

Both certified questions call upon this Court to interpret General Statutes 46a-104.
As such, the Court's standard of review is plenary. Weems v. Citigroup, Inc., 289 Conn.
769, 778-79 (2008).

B.

In Connecticut, Statutory Punitive Damages Must Be Explicitly


Authorized

Like punitive damages, attorneys' fees are a form of legal relief. See Legal Relief,
Generally, 30A C.J.S. Equity 74 (citing Hanik v. Pennsylvania Power Co., 308 Pa. Super.
352, 359 (1982) (counsel fees are legal reliefl). This Court has recognized that certain
forms of legal relief, such as attorneys' fees and punitive damages, are considered
"extraordinary." Ames, 267 Conn. at 536. As such, they are "available only when the
legislature expressly provides for such damages by statute." Id.; see also id. ("[A]s with
attorneys' fees, we require explicit statutory language to support an award of punitive
damages."); Bridgeport Hosp. v. CHRO, 232 Conn. 91, 100-101, 113 n.20 (1995); Flemin
v. Garnett, 231 Conn. 77, 94 (1994)(courts "require a clear expression of the legislature's
intent to create a statutory exception" for attorneys' fees because "when the General
Assembly wants to authorize the award of attorneys' fees it knows how to do it" (internal
citations and quotation marks omitted)); Trimachi v. Connecticut Workers Comp. Comm'n,
No. CV-97-0403037S, 2000 WL 872451, at *4 (Conn. Super. June 14, 2000) (Devlin, J);
Roman v. Dept of Corr., No. HHB-CV-05-5000278, 2006 WL 2556376, at *8-9 (Conn.
Super. Aug. 11, 2006)(Shaban, J.); Peckinpaugh v. Post-Newsweek Stations Conn., Inc.,
No. 96-CV-2475, 1999 WL 334838(D. Conn. Mar: 17, 1999)(Covello, J.).
In 2004, this Court discussed in Ames whether punitive damages were available
under General Statutes 14-52. Because 14-52 did not specifically provide for recovery
of punitive damages, this Court held that such a recovery was not authorized. Ames, 267
Conn. at 536. As this Court set forth in Ames, when the legislature intends to provide for
punitive damages, it must do so expressly. Id. Here, the Appellate Court appropriately
pointed to statutes in which the legislature, in accordance with Ames, has explicitly

provided for punitive damages. See, e.q., General Statutes 31-51q (whistleblower);
General Statutes 31-76 (discrimination in compensation on the basis of sex)'; General
Statutes 31-290a (discharge of employee for filing workers' compensation claim); General
Statutes 42-110g (CUTPA); General Statutes 35-53 (UTSA); General Statutes 52240b (products liability); General Statutes 54-41 r (wiretapping); General Statutes 22351 a (intentional killing of animal); and General Statutes 36a-618 (action against loan
broker).2 Thus, because the legislature must, pursuant to Ames, affirmatively authorize
punitive damages if it intends for them to be available, by negative implication, it need not,
as CELA suggests (CELA, p. 4), state when it is not intending to authorize punitive
damages. Indeed, neither the Appellate Court nor the Supreme Court has ever inferred

Section 31-76 authorizes "such legal and equitable relief as the court deems just and
proper" and, in addition, when an employer is found to have intentionally violated the
statute or acted with reckless indifference to an employee's rights, states explicitly
that the court may award punitive damages. Similarly, just last year, the legislature
passed An Act Concerning Pay Equity and Fairness, which expressly authorizes
courts to award "such legal and equitable relief as the court deems just and proper,"
and also expressly provides for punitive damages. P.A. 15-196. Having been aware
of Ames since 2004, and Ames' requirement that punitive damages must be
expressly provided in order to be available, the legislature's failure to provide for
punitive damages when it amended 46a-104 in 2011 (P.A. 11-237, 15), and yet
its explicit provision authorizing punitive damages in P.A. 15-196 with almost
identical language, is telling. See Dairyland Ins. Co. v. Mitchell, 320 Conn. 205, 215
(2016)("The legislature is presumed to be aware of the courts' interpretation of a
statute and its subsequent nonaction may be understood as a validation of that
interpretation, particularly when it affirmatively amended the statute subsequent to
such interpretation, but chose not to amend the specific provision of the statute at
issue."(internal alterations and quotation marks omitted)).
2

Contrary to Plaintiff's suggestion, this Court similarly held that a party can recover
attorneys' fees and punitive damages only when a statute expressly authorizes both.
Ulbrich v. Groth, 310 Conn. 375, 449-50 (2013). (Plaintiff Brief, p. 20). In
interpreting CUTPA to authorize both attorneys' fees and punitive damages, this
Court noted: "[T]he fact that the legislature enacted two distinct provisions indicates
that it contemplated two distinct types of awards." Id. at 449.

legislative authorization for either punitive damages or attorneys' fees from a general
authorization to provide "legal relief." Similarly, because 46a-104 does not expressly
authorize punitive damages, no such damages can be read into 46a-104.
Plaintiff attempts to avoid this Court's holding in Ames that punitive damages must
be expressly authorized by statute to be available by claiming it was dicta. (Plaintiff Brief,
p. 18). In discussing Ames, the Appellate Court noted that the question before this Court
had been whether a plaintiff could "recover punitive damages against a surety bond
furnished in accordance with 14-52." Tomick, 157 Conn. App. at 340. This Court's
answer to that question was not dicta, but rather was essential to the Court's resolution of
whether the statute at issue, though silent on punitive damages, nevertheless authorized
such punitive damages. Id.
In another effort to avoid the holding of Ames, Plaintiff attempts to make a distinction
between "treble or multiple damages" and "punitive damages." (Plaintiff Brief, p. 18). No
such distinction exists. Punitive damages, whether capped at a certain sum,3 limited to a
multiple of a certain amount,4 or left for a judge to determine,5 are all designed to deter

Etc ., General Statutes 46a-89(b)(CHRO may petition court for punitive damages
up to $50,000); General Statutes 46a-98 (court may allow punitive damages up to
$5,000); General Statutes 52-564a (punitive damages limited to $300).
Etc ., General Statutes 14-295 ("trier of fact may award double or treble damages");
General Statutes 31-72 ("twice the full amount of such wages, with costs and such
reasonable attorney's fees as may be allowed by the court"); General Statutes 3535 ("shall recover treble damages"); General Statutes 52-571 c ("the court shall
award treble damages").
trial on liability, but court determines
Etc ., General Statutes 42-110g(a)
punitive damages); General Statutes 52-240b (trier of fact determines whether to
award punitive damages, court determines amount); General Statutes 35-53 (court
determines punitive damages); General Statutes 46a-98 (punitive damages in
amount "court may allow"); General Statutes 36a-618 ("such punitive damages as
(jury

conduct in the future. See Anastasia v. Gen. Cas. Co. of Wisconsin, 307 Conn. 706, 709
n.2 (2013)(statutory exemplary damages intended to punish violator for offense legislature
deems to be a public wrong). Contrary to Plaintiff's suggestion, when the legislature
expressly grants statutory punitive damages, it does not necessarily do so as "multiple
damages." (Plaintiff Brief, p. 18); see, e.q., General Statutes 42-110g (CUTPA).
Neither this Court nor the Appellate Court has inferred a legislative intent to award
punitive damages from the phrase "legal relief." In his effort to encourage this Court to
make such an inference, Plaintiff cites Piteau v. Bd. of Educ. of Hartford, 300 Conn. 667,
685 (2011). (Plaintiff Brief, pp. 8-9). However, not only did the Piteau decision follow the
Ames decision, but in Piteau, the Court reviewed the action of an administrative agency.
Id. In doing so, this Court affirmed the State Labor Board's award of attorneys' fees
because of the Board's historic interpretation of General Statutes 7-471(5). Id. However,
despite the broad authority given to the Board to take "such further affirmative action as will
effectuate the policies of [the Municipal Employers Labor Relations Act]," this Court did not
suggest that the punitive damages could be awarded by the Labor Board. Accordingly,
Plaintiff's reliance on Piteau is misplaced.
C.

The Plain Language of 46a-104 and Its Relationship to Other Statutes


Precludes an Interpretation that It Authorizes Punitive Damages

It is well established that, in construing a statutory provision, a court is to ascertain


the legislature's intent by reviewing the language of the statute and its relationship to other
statutes.

If the language is plain and unambiguous, no further inquiry is necessary.

Bridgeport Hosp., 232 Conn. at 98; General Statutes 1-2z; see also Thibodeau v. Design
may be awarded by the Superior Court"); General Statutes 22-351 a ("the Court
may award punitive damages"); General Statutes 31-290a ("the Court may also
award punitive damages").
0

Grp. One Architects, LLC, 260 Conn. 691 (2002) (statutory language determines
legislature's intended public policy decision). Regardless of any policy decision that would
favor reforming a statute's language, a court must enforce the statute as written.
Bridgeport Hoses, 232 Conn. at 101 n.8 (court cannot override legislature's intent); id. at
113 (court "cannot simply interpolate one statute into another to include what might be a
wise provision in place of a clear expression of legislative will" (internal quotation marks
omitted)).
UPS agrees that a statute is to be construed so that no part of the statute is
superfluous.

UPS also agrees that "including, but not limited to" is inclusive, non-

exhaustive language. (Plaintiff Brief, p. 8). However, the fact that language is inclusive
does not mean that the phrase implicitly includes relief for which ex ress authorization is
required. Moreover, the fact that the legislature did not authorize punitive damages does
not negate the fact that it did authorize the courts to issue various forms of legal and
equitable relief depending on the circumstances of a case (e.g_, front pay, back pay,
reimbursement for medical expenses incurred due to a lapse in employer-sponsored health
insurance, past contributions to employer-sponsored retirement funds, reimbursement for
educational expenses if a term of employment, etc.). As this Court has commented, while
the CHRO was not authorized by the legislature to award compensatory damages or
attorneys' fees, it nevertheless had "broad authority to construct remedies for employees
who have suffered discrimination in the workplace," which was to be exercised "to
accomplish the remedial purpose of the statute, which is to restore those wronged to their
rightful economic status absent the effects of the unlawful discrimination." Bridgeport
HOSp, 232 Conn. at 111 (citation and internal quotation marks omitted). Similarly, this

~7

Court can reasonably interpret the plain language of 46a-104 to include a wide variety of
legal and equitable relief as appropriate, while adhering to this Court's precedent regarding
punitive damages.
The thrust of Plaintiff's and the amici's argument is that the language of 46a-104 is
so broad that the right to punitive damages must be implied. (Plaintiff Brief, p. 20; CHRO,
p. 6; CELA, p. 5). However, the plain meaning of the word "explicit" is crucial. Ames, 267
Conn. at 536 ("[W]e require explicit statutory language to support an award of punitive
damages." (emphasis added)). "In order to ascertain the plain meaning of a word, it is
appropriate to look to the dictionary definition." Washington v. Meachum, 238 Conn. 692
n.14, 715 (1996). "Explicit" is defined by the dictionary to mean "nothing implied:
unequivocal." Webster's Third New International Dictionary of the English Language 801
(1993).
Indeed, the Connecticut legislature knows how to provide for punitive damages
awards and uses explicit language when it does so.6 Merely because Plaintiff disagrees
with the Appellate Court's decision not to read into 46a-104 a remedy that requires
explicit authorization, does not mean that the Appellate Court failed to abide by well-settled

See, e.q., General Statutes 4d-39(c) (in action by attorney general to prosecute
violation under General Statutes 4d-36, 4d-37 or 4d-38, court may "award (inter
alia] punitive damages"); General Statutes 16-8d(b) (in action by employee
alleging retaliation for disclosure of substantial misfeasance, malfeasance or
nonfeasance in management of, inter alia, public service company, court "may
award punitive damages"); General Statutes 19a-550(e) ("punitive damages may
be assessed" in civil action in which there is finding of willful or reckless deprivation
of rights under patients' bill of rights implemented in accordance with 19a-550);
General Statutes 31-290a(b) (in action alleging retaliation against employee for
.award punitive damages");
filing workers' compensation claim, "court may
attorneys' fees and punitive
permitting
both
(expressly
General Statutes 42-110g
damages).

rules of statutory interpretation.' To the contrary, the Appellate Court properly determined
that the clear absence of "punitive damages" from 46a-104 means that such damages
are not available under the statute.
In response to the briefs of the amici filed by the Commission on Human Rights and
Opportunities ("CHRO") and the Connecticut Employment Lawyers Association ("CELA"),
and contrary to the CHRO's or the CELA's suggestion, UPS is not advocating for an
artificially narrow interpretation of the statute, but rather an accurate interpretation based on
its plain terms.

As written, the statute does authorize a court to issue broad relief

depending on the facts of the case; it does not however, provide for punitive damages. See
Bridgeport Hosp., 232 Conn. at 98 ("[A]bsent express statutory authorization for the
awarding of such damages, the policy arguments of CHRO are an insufficient basis upon
which to award them.").
The Court need not look beyond the plain text of 46a-104 and its relationship to
other provisions in the Human Rights and Opportunities chapter of the General Statutes to
determine that punitive damages are not available under 46a-104. Indeed, reference to
other provisions in that chapter only reinforce the interpretation reached by the Appellate
Court in declining to read into 46a-104 authorization for punitive damages in the absence
of express language to that effect.$

To that point, Plaintiff claims that the Appellate Court failed to review the plain
meaning of 46a-104, notwithstanding that the Court specifically noted that," o n its
face, the language of the statute does not expressly provide for punitive damages;
however, it does provide for an award of attorneys' fees and court costs." Tomick,
157 Conn. App. at 336(emphasis added).
$

The CELA and the CHRO each compare 46a-104 to 46a-86(c) and (d), which do
not apply to claims of employment discrimination, in an attempt to show that the
legislature was capable of limiting the available statutory remedies. (CHRO Brief, p.
11

But even looking beyond 46a-104 and other provisions in that chapter is of no avail
to Plaintiff. Plaintiff claims that there is a textual difference between 46a-104 and the
statutes the Appellate Court referenced in its decision for the idea that when the legislature
intends to authorize punitive damages it knows how to do so expressly. (Plaintiff Brief, pp.

3; CELA Brief, p. 4). However, they not only fail to read 46a-86(c) properly
together with other provisions of the chapter, but they also misunderstand the
significance of the phrase "including but not limited to." While it is true that courts
have construed the "include, but not to be limited to" language in 46a-86(c) to
include compensatory damages other than those specifically enumerated, no court
has ever held that 46a-86(c) allows punitive damages. Indeed, this Court has held
to the contrary. Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 365-66 (1986).
Furthermore, when 46a-86(c) is read together with 46a-89(b), it becomes
apparent that the legislature in fact did not authorize punitive damages with the
phrase "include, but not be limited to."
Section 46a-89(b) allows the CHRO to file a petition in court in certain cases where it
seeks punitive damages in a public accommodation or housing discrimination case.
General Statutes 46a-89(b)(1). The petition must request, inter alia, an award of
damages "based on the remedies available under subsection (c) of section 46a-86"
and "an award of punitive damages payable to the complainant, not to exceed fifty
thousand dollars." General Statutes 46a-89(b)(2). "It is a basic tenet of statutory
construction that the legislature `did not intend to enact meaningless provisions."'
Bridgeport Hosp., 232 Conn. at 100 (citation omitted). If "include, but not be limited
to" already included punitive damages, the legislature would not have needed to
authorize them explicitly in 46a-89(b)(2)(C). In other words, to find that 46a86(c) authorizes an award of punitive damages is to render 46a-89(b)(2)(C)
meaningless. Accordingly, because "include, but not be limited to" language
excludes punitive damages in 46a-86(c), the same logic should apply to 46a104, which is in the same chapter.
Moreover, it is significant that the legislature gave the CHRO the authority to seek
punitive damages in cases involving discrimination in public accommodations or in
housing, but not in employment. Unlike employment discrimination cases, which
generally involve a dispute between private parties, housing and public
accommodation cases tend to involve segments of the general public who are being
denied services or housing opportunities on the basis of some protected categories,
and constitute wrongs against the larger society. Where discrimination implicates
the rights of a broad section of the population, the legislature may have reasonably
concluded that the CHRO should be able to seek harsher sanctions than it could in
the employment context. Nevertheless, even in such cases, punitive damages are
capped at $50,000.
12

11-12). But, of the statutes cited by the Appellate Court, of particular note are 31-76(b)
(discrimination in pay on basis of sex) and Public Act 15-196, An Act Concerning Pay
Equity and Fairness, which, tellingly, authorize courts to award "such legal and equitable
relief as the court deems just and proper" as well as attorneys' fees and punitive damages.
If the Plaintiff's interpretation of 46a-104 were correct in that this Court could authorize
punitive damages solely by reference to language "such legal and equitable relief as the
court deems just and proper," both 31-76(b) and Public Act 15-196 would contain
superfluous language, as both of those statutes specifically reference punitive damages.
Indeed, Public Act 15-196 was passed only last year, after the Appellate Court issued its
decision in this case in which it declined to authorize punitive damages in the absence of
express language to that effect. It is well-settled that the legislature "is presumed to be
aware of decision law" when passing legislation. DeAlmeida v. M.C.M. Stamping Corp., 29
Conn. App. 441, 451 (1992). Moreover, "an axiomatic rule of statutory construction is that
statutes should be construed so that no part of a legislative enactment is to be treated as
insignificant and unnecessary, and there is a presumption of purpose behind every
sentence, clause or phrase in a legislative enactment." Fishbein v. Kozlowski, 252 Conn.
38, 61 (1999). Because the legislature does not enact superfluous language, as clearly
evidenced by 31-76(b) and Public Act 15-196, the legislature could not have intended to
authorize punitive damages in 46a-104 from a general authorization of "legal relief." See
footnote 1, supra.
Therefore, in light of Connecticut's requirement that statutory punitive damages be
expressly authorized, and because 46a-104 does not have such an express
authorization, the plain language of 46a-104 demonstrates that the legislature did not

13

intend to authorize punitive damages. Accordingly, the Appellate Court's decision should
be affirmed.
D.

The Legislative History of 46a-104 Does Not Suggest Any Intention to


Provide Punitive Damages

Although this Court need not go beyond the express language of the statute, the
legislative history of 46a-104 further demonstrates that the legislature did not intend to
authorize punitive damages.
Prior to 1991, employment discrimination complaints could only be taken to court on
appeal after the CHRO made a finding of liability. See Office of Legislative Research Bill
Analysis; see also (Plaintiff Brief, p. 28; CELA Brief, p. 4). A complainant could recover
only compensatory damages before the CHR0.9 General Statutes 46a-86; Bridgeport
HOSp, 232 Conn. at 111; Fenn Mfq. Co. v. CHRO, No. CV-92-509435S, 1994 WL 51143,
at *30 (Conn. Super. Feb. 8, 1994) (Sheldon, J.), aff'd, 232 Conn. 117 (1995) (cited in
CELA Brief, p. 4). During the 1991 legislative session, Senate Bill 292, entitled "An Act
Concerning Certain Discriminatory Practices" was passed as Public Act 91-331, which was
codified as 46a-100 through 46a-104 of the Connecticut General Statutes. Pursuant to
Public Act 91-331, for the first time, complainants were allowed to bring an action in court
prior to final action by the CHRO. General Statutes 46a-86; Bridgeport Hosp., 232 Conn.
at 111; Fenn Mfg. Co., 1994 WL 51143, at *30.
Nothing in the legislative history suggests that the legislature intended to provide for
punitive damages in court when an individual could not have gotten them from the CHRO.
Rather, the stated purpose of the bill was to address the backlog of cases at the CHRO by

As this Court has previously observed, the CHRO's original enabling statute, which
contained the phrase "including but not limited to," did not authorize punitive
damages. Bridgeport Hosp., 232 Conn. at 111.
14

providing complainants with an alternate forum to resolve their complaints by creating a


private right of action to be brought in Superior Court. See Connecticut Gen. Assembly
Senate Proceedings 1991 Vol. 34 Part 8 at 2576; Joint Standing Committee Hearings,
Labor and Public Employees Part 1, Feb. 28, 1991, at 000060-61.
In light of the fact that punitive damages were never debated as part of the
legislative history, and given that the purpose of the act was to give complainants an
alternate forum to the CHRO, which has never been authorized to award punitive damages,
the legislative history strongly suggests that the legislature had no intention to authorize
punitive damages in 46a-104.
E.

CFEPA Does Not Need Punitive Damages to Accomplish Its Remedial


Purpose Given the Significant Relief that May Be Awarded in
Discrimination Cases

As a policy matter, punitive damages are unnecessary to accomplish the remedial


purpose of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes
46a-51 et seq. Plaintiff claims, in one breath, that this Court is not to legislate in the guise
of statutory interpretation, even though, in another breath, he advances public policy
considerations to urge this Court to allow punitive damages under General Statutes 46a104. (Plaintiff Brief, pp. 10-11, 20). Whether punitive damages are an "appropriate"
remedy, given the other remedies available under state law, is a question for the
legislature. (CHRO Brief, p. 2). See DiLieto v. Cnty. Obstetrics & Gynecologv Grp., P.C.,
316 Conn. 790, 803-804 (2015) ("It is not the province of this court, under the guise of
statutory interpretation, to legislate such a policy, even if we were to agree with [a party]
that it is a better policy than the one endorsed by the legislature as reflected in its statutory
language."). Likewise, it is not for this Court to determine the "necessity for incentives to
enforce civil rights"; it is for the legislature.(CELA Brief, p. 6).
15

The fact that 46a-104 is a remedial statute that should be broadly construed does
not require that punitive damages be inferred. (Plaintiff Brief, p. 10). Indeed, Title VII of the
Civil Rights Act is very much a remedial statute and, even as a remedial statute, did not
provide for punitive damages for nearly 30 years, and only now provides limited punitive
and compensatory damages.

This Court has already recognized that compensatory

damages, "where statutorily authorized, do[] more than remedy the past discrimination;
[they] also serve[) as an important social deterrent to future discriminatory conduct."
CHRO v. Bd. of Educ., 270 Conn. 665, 695 (2004). The CHRO, the independent state
agency charged with investigating and adjudicating claims of discrimination, has never
been authorized to award punitive damages and, even so, has been active for over 50
years in addressing and remedying claims of discrimination. General Statutes 46a-86;
Bridgeport Hosp., 232 Conn. at 111; Fenn Mfq. Co, 1994 WL 51143, at *30; see footnote 9,
supra. Therefore, contrary to the suggestion of the Plaintiff and the amici, CFEPA will
remain an effective remedial statute without punitive damages.
In arguing in favor of punitive damages, Plaintiff, CELA, and the CHRO minimize the
significance of the remedies to which a successful plaintiff may be entitled under CFEPA.
The suggestion that, without punitive damages, CFEPA's remedies are inadequate rings
hollow in light of the countless awards of back pay, compensatory damages for emotional
distress, attorneys' fees and costs that have been awarded under the statute. In addition, a
prevailing plaintiff, among other remedies, may be reinstated to his or her former position.
Taken together, these remedies appropriately serve the legislature's goals of making a
prevailing plaintiff whole, correcting past discrimination, and deterring future acts of
discrimination. See CHRO v. Bd. of Educ., 270 Conn. 665, 695 (2004) (compensatory

16

damages also deter future discrimination). It is difficult to accept the suggestion that,
because it is not authorized to award punitive damages, the CHRO cannot eliminate
discrimination. Indeed, in this case, pursuant to CFEPA, the trial court awarded Plaintiff
more than $260,000 in compensatory damages and attorneys' fees, and reinstated him to
his former position with no loss of seniority. Punitive damages would serve no further
remedial purpose.~o
Furthermore, as the CHRO has acknowledged, over time, the legislature has
modified its approach to claims of discrimination. (CHRO Brief, p. 5). Nowhere in that
evolution did the legislature ever express its intent to authorize punitive damages with
regard to claims of employment discrimination.
F.

Title VII, on which CFEPA Was Modeled, Did Not Originally Provide for
Punitive Damages

Although each federal statute has its own remedial scheme, related federal antidiscrimination statutes also suggest that, if the legislature had intended to authorize
punitive damages, it would have done so specifically.
As Plaintiff notes, at the time 46a-104 was enacted, Title VII and the ADA did not
provide for punitive damages. (Plaintiff Brief, p. 23). For nearly 30 years, until the statute
was amended in 1991, Title VII provided only for reinstatement, backpay, and other
equitable remedies. Title VII did not provide for compensatory or punitive damages. With
this backdrop, one would expect that, if the legislature had intended to provide relief greater

'o

Indeed, the CELA and the CHRO stress CFEPA's remedial purpose, but never
address the question of whether punitive damages are, in fact, remedial. As the
CHRO acknowledges in its brief, the purpose of punitive damages is to punish a
defendant and deter future conduct. (CHRO Brief, p. 7) (citing City of Newport v.
Fact Concerts, Inc., 453 U.S. 247, 266-67 (1981)). See also Champagne v.
Ravbestos-Manhattan, Inc., 212 Conn. 509, 533(1989).

`~~

than federal law, it would have done so explicitly. Furthermore, Title VII was later amended
to provide for limited compensatory and punitive damages. In the twenty years since Title
VII was amended, the Connecticut legislature has amended CFEPA, and yet has chosen
not to amend the statute to expressly include punitive damages. Contrary to the amici's
suggestion, the legislature's course of inaction does not establish that 46a-104 is more
expansive than Title VII; rather, it establishes that the legislature knew it needed to amend
46a-104 to provide punitive damages as a remedy and declined to do so. If the state
legislature had wanted to provide for punitive damages, as did Congress in 1991, the
legislature could have done so." Cf. Dairvland Ins. Co. v. Mitchell, 320 Conn. 205, 215
(2016)("The legislature is presumed to be aware of the courts' interpretation of a statute
and its subsequent nonaction may be understood as a validation of that interpretation,
particularly when it affirmatively amended the statute subsequent to such interpretation, but
chose not to amend the specific provision of the statute at issue." (internal alterations and
quotation marks omitted)).

11

It is telling that, in 1983, the legislature passed another employment statute, General
Statutes 31-51 q, which prohibits retaliation against an employee for exercising his
free speech rights and explicitly authorizes punitive damages. The legislature
passed 46a-104 eight years later but chose not to include this explicit language
about punitive damages.
Another example is that, in 1990, the legislature amended the housing discrimination
statute, 46a-89(b)(2), to provide for punitive damages. See P.A. 90-246. As the
Supreme Court has observed, the CHRO originally had virtually identical remedial
powers in housing and employment cases until the legislature amended the statute
to authorize the CHRO to award additional damages, including punitive damages,
for housing discrimination. Bridgeport Hosp., 232 Conn. at 111; see footnote 8,
supra. In doing so, the Court recognized that the legislature had not previously
authorized punitive damages for housing cases and had not done so for employment
cases.

18

Moreover, CELA and the CHRO point to the relief provisions of Title VII as the model
for CFEPA without taking into account that both statutory schemes strike a balance
between compensating plaintiffs, on one hand, and limiting the potential for excessive
awards, on the other. When Congress amended Title VII in 1991 to include awards for
compensatory damages and punitive damages, it struck this balance by capping the
amount a plaintiff can recover for compensatory and punitive damages.12 CFEPA, too,
strikes a balance by allowing plaintiffs to recover uncapped compensatory damages, but no
punitive damages. The CHRO and CELA advocate for the extraordinary position that a
prevailing plaintiff under CFEPA should be entitled not only to unlimited compensatory
damages, but also unlimited punitive damages. Given the damages caps in Title VII, any
argument that equates the remedial purpose of a statute with unrestrained damages
awards fails to hold water.
Similarly, the Age Discrimination in Employment Act, which was enacted in 1967,
does not provide for punitive damages, but authorizes the court to award:
such legal or equitable relief as may be appropriate to effectuate
the purposes of this Act, including without limitation judgments
compelling employment, reinstatement or promotion, or
enforcing the liability for amounts deemed to be unpaid
minimum wages or unpaid overtime compensation under this
section.
29 U.S.C. 626(b). In addition, "liquidated damages, in the amount of a plaintiff's back pay
are available for willful violations." Id. Therefore, to the extent the legislature modeled
12

Specifically, the maximum amount of compensatory and punitive damages an


employee can recover under Title VII is $300,000. Employers with 15 to 100
employees may not be held liable for more than $50,000 in combined compensatory
and punitive damages. For employers with 101 to 200 employees, the cap
increases to $100,000, and for employers with 201 to 500, it increases to $200,000.
Employers with more than 500 employees may be liable up to $300,000. 42 U.S.C.
1981 a(b).

19

Connecticut's anti-discrimination act against federal law, it would have expressly provided
for punitive damages if it had intended to do so.
G.

A Majority of Superior Courts Have Concluded that 46a-104 Does Not


Allow for Punitive Damages

Prior to the Appellate Court's decision in this case, no appellate court had directly
ruled on the issue of whether punitive damages could be awarded in actions brought under
46a-100 et seq, though a majority of Superior Courts had concluded that punitive
damages were not recoverable.13 See, e.q., Chouhan v. Univ. of Conn. Health Ctr., No.
CV-09-6002439S, 2013 WL 6335273, at *11 nn.9-10 (Conn. Super. Nov. 5, 2013)(Weise,
J.); Dwver v. Waterfront Enters., Inc., No. CV-12-6032894S, 2013 WL 2947907, at *12-13
(Conn. Super. May 24, 2013) (Fischer, J.); Mclnernev v. Polymer Res., Ltd., No. CV-116012308, 2012 WL 5519626, at *3-4(Conn. Super. Oct. 22, 2012)(Swienton, J.); Wright v.
Colonial Motors, Inc., No. CV-11-6008335, 2012 WL 2044635, at *1-2 (Conn. Super. May
16, 2012)(Doherty, J.); Morello v. City of Norwich, No. CV-11-6010871, 2012 WL 1871589,
at *1-6 (Conn. Super. May 3, 2012)(Martin, J.); Weaver v. Readco Mgmt., LLC, No. CV10-6005041, 2010 WL 5095347, at ~2 (Conn. Super. Nov. 24, 2010)(Cosgrove, J.); Tanski
v. Gunther Int'I, Ltd., No. CV-10-6004925, 2010 WL 5095349, at *1 (Conn. Super. Nov. 24,
2010)(Cosgrove, J.); Siuzdak v. Greater Bridgeport Cmty. Mental Health Ctr., No. CV-054013170S, 2009 WL 3740704, at *4-5 (Conn. Super. Oct. 13, 2009) (Bellis, J.); Roman,
2006 WL 2556376, at *8-9; Shaw v. Greenwich Anesthesiology Assocs., P.C., 200 F.
13

~n its brief, the CHRO cites to various Superior Court decisions that have held that
punitive damages are available under General Statutes 46a-104, some of which
expressly held that any such award is limited to attorneys' fees. Many of the
decisions that the CHRO cites are in response to a motion to strike and contain
limited analysis of the issue, largely resting on the fact that 46a-104 does not
preclude the award of punitive damages.(CHRO Brief, p. 2).

20

Supp. 2d 110 (D. Conn. Mar. 21, 2002) (Dorsey, J.) (anesthesiologist not entitled to
punitive damages on successful claim against clinic for disability discrimination under
CFEPA, since award of attorney fees satisfied any entitlement she had to such damages);
Peckinpaugh, 1999 WL 334838, at *1-4; Craine v. Trinity Coll., No. CV-95-0555013S, 1999
WL 1315017, at *11-12 (Conn. Super. Dec. 27, 1999) (Peck, J.), rev'd in part on other
roq unds, 259 Conn. 625 (2002).
In a detailed and well-reasoned Superior Court decision issued over 15 years ago,
Trimachi, 2000 WL 872451, at *4, the court held that punitive damages and attorneys' fees
could not both be legally awarded under 46a-104. In so holding, the court concluded that
it was "illustrative that where the legislature authorizes an award of punitive damages in
addition to attorneys['] fees, it expressly provides so in the statutes." Id. at *5. In particular,
the court referenced CUTPA and various other statutes where punitive damages were
allowed in addition to attorneys' fees. Id. (citing General Statutes 4d-39(c), 16-8d(b),
31-51 q, 31-290a(b), 36a-428n(k)(5), 36a-618, 52-564a(a), and 54-41 r).
Similarly, the Trial Court in this case engaged in a thorough analysis in concluding
the punitive damages are not authorized under 46a-104.

Numerous courts have

subsequently relied upon the Trial Court's decision. See Dwyer, 2013 WL 2947907, at *12
13; McInerney, 2012 WL 5519626, at *3-4; Wright, 2012 WL 2044635, at *1-2; Morello,
2012 WL 1871589, at *4-5. Having reviewed the statute's language as compared to other
statutory provisions, as well as its history, the Trial Court held that "punitive damages are
not authorized in this case to be imposed by either the jury or the court." Tomick v. United
Parcel Serv., Inc., No. CV-06-4008944, 2010 WL 4723218, at *15 (Conn. Super. Oct. 28,
2010). The Trial Court noted that several statutes explicitly permit a court to award punitive

21

damages: General Statutes 31-290a (discrimination for filing claim under workers'
compensation act), General Statutes 42-110g (CUTPA), General Statutes 52-240b
(product liability actions), and General Statutes 19a-550 (patients' bill of rights). It further
observed that General Statutes 22-351 a (liability for killing companion animal) provides
that, in addition to the plaintiff's entitlement to economic damages "including, but not limited
to, expenses of veterinary care," the statute also expressly awards "punitive
damages ...together with a reasonable attorneys fee." Id. at *14. The court concluded that
the legislature's wording of the statute "tends to undercut" the Plaintiff's argument that,
when the legislature uses expansive language when discussing damages, it intends to
include authorization for a court to award punitive damages. Id. Moreover, the Trial Court
observed that, despite being modeled after Title VII, CFEPA omitted the express
authorization of punitive damages found in Title VII. Id. at *14-15.
This Court should adopt the reasoning of the Appellate Court and the Trial Court,
and similarly conclude that punitive damages are not available under 46a-104.
H.

Other State Statutes Are Inapposite to Interpreting 46a-104

Just as Plaintiff and the amici's citation to general canons of construction fails to
advance their argument, so does their reliance on the statutory schemes of other
jurisdictions. The CHRO notes that half of the states have statutes that provide punitive
damages for violation of their respective anti-discrimination statute. (CHRO Brief, p. 2).
The CHRO, however, provides no analysis of whether such state's statute expressly
provides for punitive damages, whether the state allows for unlimited emotional distress, or
whether the punitive damages are capped.

Nevertheless, in light of Connecticut's

requirement that the statutory authorization for punitive damages be explicit, the statutory

22

schemes of other jurisdictions do not constitute even persuasive authority unless they, too,
share this special rule that requires explicit authorization for punitive damages.
First, unlike Connecticut's statute, many states have expressly authorized punitive
damages.'4 In other words, each of these statutes contain the words "punitive damages."
Connecticut's statute does not. See Ames, 267 Conn. at 536.
Second, Plaintiff focuses upon statutes from Ohio and West Virginia, which have
each been found to provide for punitive damages even though such damages were not
expressly authorized by statute.

However, this fact does nothing for Plaintiff's case

because none of these jurisdictions has precedent requiring explicit authorization for
punitive damages. For example, the Ohio Supreme Court has expressly rejected the
notion that "specificity is the rule for punitives." Rice v. CertainTeed Corp., 704 N.E. 2d
1217, 1219 (Ohio 1999). Accordingly, because the statutes Plaintiff relies upon are not like
Connecticut's, Plaintiff's citations to them are not helpful to his case.15

14

See Ark. Code Ann. 16-123-107(c)(2)(A) (2011); C.R.S. 24-34-405 (2013); Del.
Code Ann. tit. 19, 715(1)(c) (2014); Fla. Stat. 760.11 (2013); Haw. Rev. Stat.
368-17 (2013); Idaho Code Ann. 67-5908(3)(e) (2014); Me. Rev. Stat. 5
4613(2)(6); Minn. Stat. 363A.29(4)(a) (2013); Mo. Rev. Stat. 213.111 (2)
(2011); N.J. Stat. Ann. 10:5-3 and 2A:15-5.12 (2014) (providing for punitive
damages whenever defendant's "acts or omissions were actuated by actual malice
or accompanied by a wanton and willful disregard of persons who foreseeably might
be harmed"); ORS 659A.885 (2012); R.I. Gen. Laws 28-5-29.1 (2013); Tenn.
Code Ann. 4-21-311 (2013) (authorizing punitive damages in only housing
discrimination cases; see Carver v. Citizen Utils., Co., 954 S.W.2d 34(Tenn. 1997));
Tex. Lab. Code 21.2585 (2013).

15

Plaintiff's citations to Alaska, California and the District of Columbia are all
distinguishable. (Plaintiff Brief, p. 26 n.32). See Loomis Elec. Prot., Inc. v.
Schaefer, 549 P.2d 1341, 1343 (Alaska 1976) (punitive damages authorized by
broad language of separate jurisdictional statute, Alaska Stat. 22.10.020); Brewer
v. Premier Golf Props., LP, 168 Cal. App. 4th 1243, 1254-55 (2008) (punitive
damages available under Fair Employment and Housing Act because Act codified
common law cause of action for which punitive damages were recoverable); Arthur
23

Finally, in this appeal, Plaintiff does not cite to state statutes that more closely
resemble the statutory scheme in Connecticut. For example, Washington and Kentucky
both have discrimination statutes with broad language. Specifically, Washington's statute
incorporates all remedies provided for in Title VII, and Kentucky's statute allows for
attorneys' fees and "any other remedies contained in this chapter." These two states are
also similar to Connecticut in that each of them has a special rule for punitive damages.
Similar to Connecticut, in Washington, punitive damages must be "expressly authorized by
the legislature." Barr v. Interbay Citizens Bank, 635 P.2d 441, 444(Wash. 1981)(citations
omitted). Kentucky has a punitive damages statute that applies to "cases in which punitive
damages are already authorized by common law or by statute." Kentucky Dept of Corr. v.
McCullough, 123 S.W.3d 130, 139 (Ky. 2003).

Interestingly, the states that have

discrimination statutes with broad statutory language and that also have a special rule for
punitive damages, have each concluded that the discrimination statute does not support
awards for punitive damages. Put another way, the states that are most like Connecticut
do not authorize punitive damage awards under their discrimination statutes.
Therefore, if the laws of other jurisdictions demonstrate anything, it is that the Trial
Court's decision to set aside the jury's award of punitive damages was both legally correct
and logically sound.

Young & Co. v. Sutherland, 631 A.2d 354, 371-72 (D.C. 1993) (finding specific
indications in legislative history of D.C. Human Rights Act that punitive damages
were intended by legislature); Hayes v. Rhone-Poulenc, Inc., 206 W.Va. 18 (1999)
(no rule regarding punitive damages).

24

II.

PUNITIVE DAMAGES ARE LIMITED TO ATTORNEYS' FEES AS DETERMINED


BY THE COURT
Should this Court reverse the Appellate Court, and infer authorization of punitive

damages under 46a-104, any award of punitive damages should be limited to attorneys'
fees, which should be determined by the Trial Court.16
A.

Punitive Damages Are Limited to Attorneys' Fees

An award of punitive damages in Connecticut has long been generally limited to the
costs of litigation, including attorneys' fees, less taxable costs. See Label Sys. Corp. v.
Aghamohammadi, 270 Conn. 291, 335 (2004) ("Limiting punitive damages to litigation
expenses, including attorneys' fees, fulfills the salutary purpose of fully compensating a
victim for the harm inflicted on him while avoiding the potential for injustice which may
result from the exercise of unfettered discretion by a jury." (citations and internal quotation
marks omitted)).
While Plaintiff may couch his argument for punitive damages in statutory
interpretation language, Plaintiff has cited no case in which the "including, but not limited to"
language has been read to give a court the implied authority to exercise unfettered
discretion in awarding statutory punitive damages. Accordingly, because 46a-104 does
not explicitly provide for punitive damages, any award of punitive damages should be
limited to an award under common law, which limits punitive damages to attorneys' fees as
determined by the trial court.

16

As an initial matter, contrary to Plaintiff's suggestion, Defendant did object to the jury
being charged on the issue of punitive damages. (Transcript 7/8/10, pp. 97-98).
Accordingly, Defendant did not waive its right to take a position on the second
certified question. Furthermore, even if Defendant had not properly objected to the
jury being charged, this Court may nevertheless reach the second certified issue.
See Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 727 (2001) (claims of
statutory construction reviewable under plain error doctrine).
25

In Perez v. D & L Tractor Trailer Sch., 117 Conn. App. 680 (2009), the Appellate
Court confirmed that any punitive damages would be limited to attorneys' fees when it
quoted a colloquy befinreen the Superior Court and counsel, whereby the Superior Court
stated that the only punitive damages it would award under 46a-104 were attorneys' fees:
The Court: And doesn't 46a-104 provide that attorneys' fees
can be ...awarded?
[The Defendant's Counsel]: Yes, it does, Your Honor.
The Court: And haven't I ruled that the only punitive damages
I'm going to award are attorneys' fees?
[The Defendant's Counsel]: Yes, Your Honor, but in
Connecticut ...the only fees you can get under punitive
damages are attorneys' fees.
The Court: That's all I'm awarding.
Id. at 710.
Therefore, if this Court finds that the legislature did authorize punitive damages, any
punitive damage award should be limited to attorneys' fees.
B.

The Court Should Determine Anv Award of Punitive Damages

Plaintiff argues that there is a constitutional right to have a jury decide punitive
damages, and that the legislature could not abrogate that right. (Plaintiff Brief, p. 33).
However, this Court has never recognized such a constitutional right. Indeed, several
statutes, including CUTPA, expressly reserve to the Court the power to award punitive
damages. General Statutes 42-110g(g)("there shall be a right to a jury trial except with
respect to the award of punitive damages"). If such a constitutional right existed, the
legislature would not have been able to pass such a statute.
In this case, as with several other statutes, the statute provides that "the court" may
award legal and equitable relief as it deems just and proper. See General Statutes 31-

290a; General Statutes 4d-39; General Statutes 16-8d; General Statutes 35-53;
General Statutes 31-76. This Court has interpreted this language to mean that the court,
not the jury, must determine punitive damages. See Ford v. Blue Cross &Blue Shield, Inc.,
216 Conn. 40, 61 (1990)(court, not jury, to decide punitive damages in 31-290a action),
overruled on other grounds, Ulbrich v. Groth, 310 Conn. 375 (2013); Bishop v. Kelly, 206
Conn. 608, 617 (1988) (court, not jury, to determine multiple damages under 14-295).
This is because, "[i]n legal usage, authority conferred upon a `court' normally contemplates
action by a judge and not a jury." Id. at 616.x
'
Accordingly, if the Court determines that
46a-104 provides for punitive damages, the Trial Court should decide the amount, limited
to attorneys' fees.

This Court has stated that it has interpreted the term "court" to include the jury in
only two "rare" instances, which it noted have not been cited for this point of
statutory construction. Bishop, 206 Conn. at 616 n. 5. These two instances involved
an action to quiet title and wrongful timber cutting. Id.
27

RELIEF REQUESTED
For the reasons provided above, Defendant United Parcel Service respectfully
requests that this Court affirm the Appellate Court's judgment affirming the Trial Court's
judgment setting aside the jury's award of punitive damages.

DEFENDANT APPELLEE
UNITED PARCEL SERVICE, INC.

M'chael C. Harrin ton


Proloy K. Das
Jennifer A. Corvo
Sarah Gruber

MURTHA CULLINA LLP


CityPlace I - 185 Asylum Street
Hartford, Connecticut 06103-3469
Telephone: (860) 240-6000
Facsimile: (860) 240-6150
Its Attorneys

28

CERTIFICATION
hereby certify: (1) that the foregoing Brief and Appendix: (a) comply with the
applicable provisions of Practice Book Sections 62-7, 67-1, 67-2, and 67-7; (b) are true
copies of the brief and appendix that were submitted electronically; and (c) do not contain
names or other personal identifying information that is prohibited from disclosure by rule,
statute, court order, or case law; and (2) that copies were delivered or mailed U.S. First
Class Mail, postage prepaid, and via the last known email address of counsel of record for
whom an e-mail address has been provided, this 19t" day of February 2016 to all counsel of
record and to the trial judge as stated below:
Michael D. Colonese
Cassie Jameson
Brown Jacobson, P.C.
22 Courthouse Square
P.O. Box 391
Norwich, CT 06360
Phone:(860) 889-3321
Facsimile:(860)886-0673
mcolonese(a~brownjacobson.com
Marc P. Mercier
Beck & Eldergill P.C.
447 Center Street
Manchester, CT 06040
Phone:(860)646-5606
Facsimile:(860)646-0054
mmercier c(,~.beckeldergill.com
Charles Krich,
Michael Roberts
CHRO, Legal Division
25 Sigourney Street, 7t" Floor
Hartford, CT 06106
Phone: (860) 541-4715
Facsimile: (860) 246-5265
Charles.krichCa~ct.gov
michael.e.roberts(cr~trgov

Honorable Emmet L. Cosgrove


New London Superior Court
70 Huntington Street
New London, CT 06320

Mi hael C. Harringt n
Commissioner of the Super o

6709764v1

ourt