Commission on Human Rights and Opportunities v. Truelove and Maclean, Inc.

• Decision Date: 30 July 1996
• Docket Number: Nos. 15375,15376,s. 15375
• Citation: 238 Conn. 337,680 A.2d 1261
• Court: Connecticut Supreme Court
• Parties: COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES v. TRUELOVE AND MACLEAN, INC., et al.

Page 1261

680 A.2d 1261

238 Conn. 337

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES v. TRUELOVE AND MACLEAN, INC., et al.

Nos. 15375, 15376.

Supreme Court of Connecticut.

Argued April 24, 1996.

Decided July 30, 1996.

Charles Krich, Assistant Commission Counsel, with whom was Philip A. Murphy, Jr., Commission Counsel, for appellant in Docket No. 15375 (plaintiff).

Eddi Z. Zyko, Middlebury, for appellant in Docket No. 15376 (Kristine A. Jennings).

Donald A. Gray, Jr., Milford, for appellee in both cases (named defendant).

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and KATZ, JJ.

PETERS, Chief Justice.

This appeal principally concerns the applicability of the remedies provided by various general antidiscrimination statutes in the context of discriminatory employment practices. The claimant, Kristine A. Jennings, filed with the commission on human rights and opportunities (commission) a complaint alleging that her former employer, the defendant, Truelove and Maclean, Inc., ¹ had discriminated against her because of her pregnancy. After a public hearing, a commission hearing officer determined that the defendant had engaged in discriminatory employment practices, and awarded the claimant disability insurance benefits and damages for emotional distress. The trial court dismissed an appeal brought by the commission on behalf of the claimant, in which she sought additional relief, and granted the motion of the defendant to vacate the award of damages for emotional distress. The claimant and the commission appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. In March, 1981, the claimant began her full-time employment with the defendant. In November, 1984, due to fatigue and back strain caused by her pregnancy, the claimant considered herself incapable of effectively performing the duties and responsibilities associated with her employment. Accordingly, she spoke with the defendant's personnel manager to request a leave of absence. The personnel manager informed the claimant that the defendant had no policy that allowed for pregnancy disability leave and that the defendant would not allow such a leave of absence. ² The defendant's treasurer similarly informed the claimant that the defendant could not provide a leave of absence under the circumstances. When the claimant asked whether she could return to work for the defendant after the birth of her child, the personnel manager informed her that she would have to reapply for a position and that she would receive consideration if a position were available. Although the defendant invited the claimant to reapply, it did not guarantee her reemployment. Nonetheless, the defendant maintained that it would have favorably considered the claimant for any vacant position if she had reapplied because, as the defendant's personnel manager testified, she had been a good employee.

On December 14, 1984, the claimant terminated her employment with the defendant because of the denial of her request for a leave of absence and because of her physical inability to perform her duties effectively due to her pregnancy. After the birth of her child in January, 1985, the claimant never applied to the defendant for reinstatement to her former position or for employment in any other position. Approximately six months after the birth of her child, the claimant resumed employment, on a part-time basis, at an answering service. She subsequently terminated her employment with the answering service and took another part-time position with a bank.

In the complaint that the claimant filed with the commission, she claimed that the defendant had discriminated against her because of her pregnancy in a number of respects. The claimant alleged that, by denying her a leave of absence, the defendant had constructively terminated her employment and that this conduct had violated General Statutes §§ 46a-58(a) and 46a-60(a)(1) and (a)(7)(A) through (D). ³

After compliance with the required procedural steps, including a public hearing, the commission's hearing officer concluded that the defendant had discriminated against the claimant because of her pregnancy by refusing her a maternity leave of absence, in violation of § 46a-60(a)(7)(A), (B) and (C). The hearing officer found, however, that "after the termination and when [the claimant] was able to return to work, she never reapplied for her job, although she had been told she could reapply, but without a guarantee of rehiring. This hearing officer has reread [the claimant's] testimony on this point several times, but does not find a satisfactory explanation for her not reapplying.... One can only wonder why she did not reapply. The worst that could have happened was that she did not get a job with the [defendant]. As is she had no job with the [defendant] so she would have lost nothing if not rehired. This all becomes very speculative since she did not reapply for work." In light of these findings that any further award would be speculative, the hearing officer declined to award the claimant reinstatement and back pay pursuant to General Statutes § 46a-86(b). ⁴ The hearing officer awarded the claimant only $1815 in disability insurance benefits and $5000 in damages for emotional distress.

Pursuant to General Statutes §§ 4-183 and 46a-94a, ⁵ the commission, on behalf of the claimant, appealed from the decision of the hearing officer to the Superior Court. The commission claimed, inter alia, that the hearing officer improperly had failed to award the claimant reinstatement and back pay pursuant to § 46a-86(b) and had failed to determine that the defendant had violated § 46a-60(a)(7)(D). The trial court granted the claimant's motion to be joined as a plaintiff in the appeal. The defendant subsequently moved to vacate the hearing officer's award of damages for emotional distress and disability insurance benefits. ⁶

The trial court dismissed the commission's appeal. With respect to the commission's claim that § 46a-86(b) required the hearing officer to award the claimant reinstatement and back pay, the court concluded that the denial of such remedies was proper because the statute made such relief discretionary rather than mandatory. With respect to the defendant's alleged violations of § 46a-60(a)(7)(D), the court concluded that such a claim was foreclosed by the hearing officer's findings of fact regarding the claimant's unexplained failure to reapply for her position with the defendant, findings of fact for which there was substantial evidence in the administrative record. Although the trial court vacated the hearing officer's award of damages for emotional distress; see footnote 6; the court sustained the hearing officer's award of disability insurance benefits. The court declined to consider the commission's claim that damages for emotional distress could be awarded pursuant to § 46a-58(a) because it determined that the claim had not been raised in the commission's appeal petition.

The commission and the claimant have both appealed from the judgment of the trial court. They claim that the trial court improperly: (1) vacated the hearing officer's award of damages for emotional distress; (2) upheld the hearing officer's decision not to award the claimant reinstatement and back pay; (3) upheld the hearing officer's determination that the defendant had not violated § 46a-60(a)(7)(D); and (4) considered evidence outside the administrative record in deciding the appeal. ⁷ We are not persuaded by any of these claims.

I

The commission contends that the trial court improperly concluded that the claimant was not entitled to an award of damages for emotional distress. Specifically, the commission argues that our decision in Fenn Mfg. Co. v. Commission on Human Rights & Opportunities, 232 Conn. 117, 652 A.2d 1011 (1995), in which we considered and denied such relief for violations of § 46a-60(a)(7), does not foreclose such relief for violations of § 46a-58(a). ⁸ The commission's argument is that § 46a-58(a) ⁹ encompasses claims of discriminatory employment practices and that violations of § 46a-58(a) entitle a claimant to damages for emotional distress pursuant to § 46a-86(c). ¹⁰ We disagree. ¹¹

A

Initially, we agree with the commission that the trial court should have addressed the merits of the commission's claim of an award of damages for emotional distress premised on § 46a-58(a). The trial court declined to do so on the ground that the commission had failed to raise the claim in its administrative appeal. We are persuaded, however, that the claim was properly before the trial court. Although the commission's petition to the Superior Court failed specifically to invoke the applicability of § 46a-58(a), the commission did raise the claim in its appeal to the trial court. The commission addressed the claim both in its original brief and in its reply brief. The defendant never contested the propriety of the commission's initial raising of the claim before the trial court and has never contended that it had been prejudiced in any way. To the contrary, the defendant argued the merits of the commission's claim in the trial court, addressing the issue in its brief, in its rebuttal brief and at oral argument. Under these circumstances, we are persuaded that the trial court should have addressed the commission's claim. Cf. Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496-97, 646 A.2d 1289 (1994); Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990), on appeal after remand, 222 Conn. 233, 610 A.2d 574 (1992).

Although we could remand this case to the trial court for consideration of the commission's claim on its merits, we have decided to address the claim ourselves. The...