Bd. of Educ. of Waterbury v. Comm'n on Human Rights

• Decision Date: 24 May 2022
• Docket Number: AC 44570
• Citation: 212 Conn.App. 578,276 A.3d 447
• Parties: BOARD OF EDUCATION OF the CITY OF WATERBURY v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.
• Court: Connecticut Court of Appeals

212 Conn.App. 578

276 A.3d 447

BOARD OF EDUCATION OF the CITY OF WATERBURY

v.COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.

AC 44570

Appellate Court of Connecticut.

Argued February 7, 2022

Officially released May 24, 2022

Daniel J. Foster, corporation counsel, for the appellant (plaintiff).

Michael E. Roberts, human rights attorney, for the appellee (named defendant).

Cradle, Clark and DiPentima, Js.

CLARK, J.

The plaintiff, the Board of Education of the City of Waterbury, appeals from the judgment of the trial court dismissing its administrative appeal and affirming the decision of the named defendant, the Commission on Human Rights and Opportunities (commission), which concluded that the plaintiff had discriminated against the defendant Cynthia Leonard on the basis of her physical disability by failing to interview and promote her. On appeal, the plaintiff claims that (1) the trial court improperly affirmed the commission's award of back pay because the award was not supported by substantial evidence and (2) the commission exceeded its statutory authority in awarding compensatory damages. We disagree with the plaintiff's first claim and decline to review the second claim because it is unpreserved. We, accordingly, affirm the judgment of the trial court.

The following facts, as found by the commission's presiding human rights referee (referee), and procedural history are relevant to this appeal. Leonard was hired by the plaintiff in 2012 and was assigned to a secretarial position in the education personnel department, which served as the human resources department for the Waterbury school district.¹ She worked directly for the human resources assistant, James Murray, until his retirement in 2015. Murray and Leonard were the only two employees in the education personnel department that supported the grant funded administrative and teaching positions within the school district. Leonard performed many of the same tasks as Murray and covered Murray's duties when he was absent from the office.

Leonard has a hearing impairment as a result of injuries she sustained in a motor vehicle crash in 1992. Consequently, she tends to speak loudly, particularly when speaking on the telephone. Her colleagues on occasion had raised concerns to Shuana Tucker, the education personnel department's interim director, about the volume of Leonard's voice. Leonard's hearing impairment was generally known throughout the education personnel department and by others, including Scott Morgan, a human resources generalist, who worked for Waterbury's civil service personnel department. See footnote 1 of this opinion. Morgan had inquired if there was something wrong with Leonard because she was very loud and had told Murray that he thought that Leonard was loud and unprofessional.

In fall of 2014, Murray informed Leonard that he intended to retire in September, 2015. Murray encouraged Leonard to apply for his position, began teaching her the particular duties of the job that she was not already performing, and strongly supported her candidacy for human resources assistant. Murray had trained Leonard and thought she was an asset to the office. Tucker shared Murray's opinion of Leonard and both thought she was more than qualified for the position because she already was performing many of the duties and responsibilities required. On August 1, 2015, the job vacancy was posted online, and Leonard subsequently applied for the position.

The original job posting stated that applicants must have three years of human resources experience and that a bachelor's degree in human resources, business administration, or other related area was preferred. Leonard met those qualifications because she had worked for the plaintiff in its human resources department for more than three years, possessed a bachelor's degree in business administration, held a certificate in human resource management, and was working toward a master's degree in education. On her application, Leonard also noted that she had existing relationships with the schools, principals, and other staff that the education personnel department supported and that she already was performing the job requirements of the position. Leonard also passed the required civil service examination, ranking seventh on the list of candidates.

On or about August 14, 2015, Morgan learned that the vacant position had been posted online. Morgan felt that he had a " ‘vested interest’ " in assuring that the position was filled " ‘correctly’ " and instructed an employee to remove the job posting for the purpose of revising it. Morgan revised the posting to state that applicants were required to have four years of human resources experience and a bachelor's degree from an accredited university, no longer indicating a preference for applicants who possessed a human resources or business administration degree. According to Tucker, Morgan removed the posting without her department's authorization and did not follow standard practices when he revised the job requirements without the approval of the plaintiff's personnel committee.

Tucker had taken intermittent leave to care for a family member in August and early September, 2015. Morgan covered Tucker's duties while she was away from the office, including interviewing prospective candidates for the human resources assistant position. Leonard was not granted an interview because Morgan had concluded that she did not satisfy the revised minimum qualifications, which required applicants to have four years of human resources experience. Morgan and Murray interviewed six candidates and subsequently hired Anne Phelan and Jaclyn Planas.² Neither Phelan nor Planas possessed a bachelor's degree in human resources or business administration and neither of them had Leonard's experience supporting grant funded positions within the school district. After Murray retired in September, 2015, Leonard became the interim human resources assistant until mid-November, 2015, when Phelan's employment began.

On January 12, 2016, Leonard filed a complaint with the commission, alleging that the plaintiff had violated General Statutes (Rev. to 2015) § 46a-60 (a) (1),³ as well as General Statutes § 46a-58 (a),⁴ due to a deprivation of her rights under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (2012) (ADA), and Title VII of the Civil Rights Act of 1964, as amended by Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2 (2012).⁵ The commission investigated Leonard's complaint and, upon finding reasonable cause that a discriminatory employment practice had occurred and that efforts to conciliate had failed, held a hearing pursuant to General Statutes § 46a-84. The two day hearing commenced on October 16, 2018. The referee issued a memorandum of decision on October 3, 2019, concluding that the plaintiff had unlawfully discriminated against Leonard, in violation of the ADA and § 46a-60 (a) (1), on the basis of her disability by failing to interview and promote her. The referee awarded Leonard $118,353.06 in back pay, as well as prejudgment and postjudgment interest, and $35,000 in emotional distress damages.

The plaintiff appealed to the trial court from the referee's decision, claiming, inter alia, that the referee improperly awarded Leonard back pay because there was no evidence to support Leonard's claim that she suffered a compensable injury. More specifically, the plaintiff argued that there was no evidence establishing that Leonard would have been selected for the position if she had been granted an interview, and, therefore, the back pay award was unduly speculative. Additionally, the plaintiff contended that the emotional distress damages awarded to Leonard were excessive under the facts of this case. The trial court dismissed the appeal and affirmed the decision, concluding that the referee's decision to award Leonard back pay was supported by substantial evidence and that the referee did not abuse her discretion in awarding Leonard emotional distress damages.⁶ This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the plaintiff claims that the trial court improperly affirmed the commission's award of back pay to Leonard because it is based on speculation and is not supported by the evidentiary record. The plaintiff argues that there was no evidence or findings made by the referee to support the referee's conclusion that Leonard would have been selected for the position had she been interviewed, and, as a result, she was not entitled to receive a back pay award. The commission counters that the court correctly determined that the substantial evidence in the record supported the referee's conclusion that Leonard would have been promoted in the absence of the plaintiff's discriminatory action of not interviewing Leonard for the position. We agree with the commission.

We first set forth the standard of review and legal principles that guide our resolution of the plaintiff's claim. "There is no absolute right of appeal to the courts from a decision of an administrative agency. ... The [Uniform Administrative Procedure Act (UAPA)] grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances. ... Judicial review of an administrative decision is governed by General Statutes § 4-183 (a) of the UAPA, which provides that [a] person who has exhausted all administrative remedies ... and who is aggrieved by a final decision may appeal to the [S]uperior [C]ourt ...." (Internal quotation marks omitted.) Peters v. Dept. of Social Services , 273 Conn. 434, 442, 870 A.2d 448 (2005).

"Review of an appeal taken from the order of an administrative agency such as the [commission] is limited to determining whether the agency's findings are supported by substantial and competent evidence and whether the agency's decision exceeds its statutory authority or constitutes an abuse of...