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*********************************************** 
BOARD OF EDUCATION OF THE CITY

OF WATERBURY v. COMMISSION

ON HUMAN RIGHTS AND

OPPORTUNITIES ET AL.

(AC 44570)

Cradle, Clark and DiPentima, Js.

Syllabus

The plaintiff employer appealed to the trial court from the decision of the

defendant Commission on Human Rights and Opportunities sustaining

a disability discrimination complaint filed by the defendant employee,

L, and awarding L, inter alia, back pay and emotional distress damages.

L, who is hearing impaired, was hired by the plaintiff in 2012 and assigned

to a secretarial position in its education personnel department. She

worked directly for the human resources assistant, M, and performed

many of the same tasks as him and covered his duties when he was

absent from the office. As a result of her hearing impairment, L tended

to speak loudly, and, on occasion, coworkers had raised concerns to

T, the department’s interim director, about the volume of her voice. In

addition, S, who worked in the civil service personnel department, had

inquired whether there was something wrong with L and had told M

that he thought that L was loud and unprofessional. In 2014, M informed

L that he intended to retire the following year. M encouraged L to apply

for his position, began teaching her any duties of the position that she

was not already performing, and strongly supported her candidacy.

In August, 2015, the position was posted online, and L submitted an

application. L met the qualifications listed in the posting. Two weeks

later, S had the job posting removed and revised because he felt that

he had a vested interest in assuring that the position was filled correctly.

S interviewed prospective candidates for the position. Six candidates

were interviewed for the position and two, P and J, were hired. L was

not granted an interview because S concluded that she did not satisfy

the revised minimum requirement of four years of human resources

experience set forth in the revised job posting. After M retired, L became

the interim human resources assistant until P’s employment commenced. In her complaint, L claimed that the plaintiff had discriminated

against her on the basis of her physical disability by failing to interview

and promote her. Following a hearing, the commission’s human rights

referee concluded that the plaintiff had unlawfully discriminated against

L on the basis of her disability in violation of statute ((Rev. to 2015)

§ 46a-60 (a) (1)) and the Americans with Disabilities Act of 1990 (42

U.S.C. § 12101 et seq.), and awarded L back pay and emotional distress

damages. The plaintiff appealed to the trial court, which dismissed the

appeal and affirmed the commission’s decision, concluding, inter alia,

that the award of back pay was supported by substantial evidence and

that the referee did not abuse her discretion in awarding emotional

distress damages. On the plaintiff’s appeal to this court, held:

1. The plaintiff could not prevail on its claim that the trial court improperly

affirmed the commission’s award of back pay because the award was

not supported by substantial evidence: contrary to the plaintiff’s contention, the referee’s decision clearly indicated that the award of back

pay was predicated on a finding that L would have been promoted to

the human resources assistant position if not for the plaintiff’s unlawful

discrimination; moreover, the referee’s conclusion that, in the absence

of the unlawful discrimination, L would have been interviewed for and

promoted to that position was supported by substantial evidence, as

there was evidence that L had worked for the plaintiff for more than

three years under M’s supervision and guidance, M encouraged L to

apply for his position, began training her on any duties she did not

already perform, and participated in the candidate interviews, both T

and M thought that L was more than qualified for the position because

she already had experience performing the precise duties required, and
L held one of the preferred undergraduate degrees specified in the

original job posting and had established relationships with personnel

throughout the plaintiff’s school district; furthermore, there was no merit

to the plaintiff’s contention that the referee improperly marshaled the

evidence in favor of finding that L would have been chosen for the

position because L placed only seventh on a civil service examination

list, as the referee properly found that being placed on that list meant

that the candidate was qualified for the position, and, although it was

possible that L may not have been selected for the position, the referee

properly resolved any uncertainty in favor of L in light of the remedial

aims underlying the state’s antidiscrimination laws.

2. This court declined to review the plaintiff’s claim that the award of

emotional distress damages was improper because the commission is

not authorized to award compensatory damages pursuant to statute

(§ 46a-58) in employment discrimination cases that fall within the scope

of § 46a-60, as that claim was not raised before the commission or

the trial court and, therefore, was not preserved for appellate review;

moreover, this court declined the plaintiff’s request to review its unpreserved claim pursuant to our supervisory authority over the administration of justice in light of our Supreme Court’s recent decision in Connecticut Judicial Branch v. Gilbert (343 Conn. 90) because, having reviewed

that decision, this court was not persuaded that the exercise of such

authority was warranted.

Argued February 7—officially released May 24, 2022

Procedural History

Appeal from the decision of the human rights referee

of the named defendant sustaining a complaint of disability discrimination filed by the defendant Cynthia

Leonard against the plaintiff and awarding certain damages, brought to the Superior Court in the judicial district of New Britain, where the court, Klau, J., rendered

judgment dismissing the appeal and affirming the decision of the referee, from which the plaintiff appealed

to this court. Affirmed.

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

Michael E. Roberts, human rights attorney, for the

appellee (named defendant).
Opinion

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. § 2000e2 (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 discretion.’’ State

v. Commission on Human Rights & Opportunities,

211 Conn. 464, 477, 559 A.2d 1120 (1989). ‘‘[E]vidence

is sufficient to sustain an agency finding if it affords a

substantial basis of fact from which the fact in issue can

be reasonably inferred. . . . In determining whether

an administrative finding is supported by substantial

evidence, the reviewing court must defer to the agency’s

assessment of the credibility of the witnesses and to

the agency’s right to believe or disbelieve the evidence

presented by any witness . . . .’’ (Citation omitted;

internal quotation marks omitted.) Slootskin v. Commission on Human Rights & Opportunities, 72 Conn.

App. 452, 458, 806 A.2d 87, cert. denied, 262 Conn. 910,

810 A.2d 275 (2002). ‘‘As with any administrative appeal,

our role is not to reexamine the evidence presented to

the [commission] or to substitute our judgment for the

agency’s expertise, but, rather, to determine whether

there was substantial evidence to support its conclusions.’’ (Internal quotation marks omitted.) Lawrence

v. Dept. of Energy & Environmental Protection, 178

Conn. App. 615, 638, 176 A.3d 608 (2017). ‘‘If the decision

of the agency is reasonably supported by the evidence

in the record, it must be sustained.’’ (Internal quotation

marks omitted.) Slootskin v. Commission on Human

Rights & Opportunities, supra, 459.

When a discriminatory employment practice has been

established, the commission’s referee must ‘‘construct

a remedy for discrimination that will, so far as possible,

eliminate the discriminatory effects of the past as well

as bar like discrimination in the future.’’ (Internal quotation marks omitted.) Commission on Human Rights &

Opportunities v. Board of Education, 270 Conn. 665,

694, 855 A.2d 212 (2004). The referee is vested with
‘‘broad discretion to award . . . back pay or other

appropriate remedies specifically tailored to the particular discriminatory practices at issue.’’ (Internal quotation marks omitted.) Thames Talent, Ltd. v. Commission on Human Rights & Opportunities, 265 Conn.

127, 136, 827 A.2d 659 (2003). This is so because the

overriding remedial purpose of our antidiscrimination

statutes is ‘‘to restore those wronged to their rightful

economic status absent the effects of the unlawful discrimination.’’ (Internal quotation marks omitted.) Id.

As an initial matter, we address the plaintiff’s contention that the back pay award must be vacated because

the referee never made explicit findings that Leonard

would have been selected for the position if she had

been granted an interview. The referee, however, determined that ‘‘Morgan’s failure to interview and hire [Leonard] was motivated by discriminatory animus.’’ (Emphasis added.) The referee noted in her decision that there

was ‘‘persuasive evidence that [Leonard] was qualified

for the . . . position’’ and found that the two employees who were ultimately hired did not have the bachelor’s degrees preferred under the original job posting

nor a human resources certificate. Moreover, the referee found that Leonard not only had performed all of

the functions of the position but she also was the interim

human resources assistant for nearly three months after

Murray retired. Thus, the referee’s decision makes clear

that the back pay award was predicated on a finding

that Leonard would have been promoted if not for the

discriminatory act.

After thoroughly reviewing the record, we agree with

the court that the referee’s conclusion that, in the absence

of the unlawful discrimination, Leonard would have been

interviewed for and promoted to the human resources

assistant position is supported by substantial evidence,

and, therefore, the back pay award was appropriate.

The referee reasonably concluded that, had Morgan not

revised the minimum job qualifications for the position,

Leonard likely would have been one of the two candidates selected to replace Murray. The referee found

that Leonard had worked for the plaintiff for more than

three years under the supervision and guidance of Murray, whose position was being filled. Murray encouraged Leonard to apply for his position, began training

her on any duties she did not already perform, and

participated in the candidate interviews. Both Murray

and Tucker felt that Leonard was more than qualified

for the position because she already had experience

performing the precise duties required. Moreover, Leonard holds one of the preferred undergraduate degrees

specified in the original job posting and had established

relationships with personnel throughout the school district.

The plaintiff contends that the referee improperly

marshaled the evidence in favor of finding that Leonard
was the obvious choice for the position because Leonard placed only seventh on the civil service examination list. The referee, however, found that being placed

on the civil service examination list meant that the

candidate was qualified for the position. The evidence

supports this finding. Furthermore, there was substantial evidence in the record from which the referee could

have concluded that, in the absence of the plaintiff’s

unlawful discrimination against her, Leonard would

have been interviewed and hired for the position, notwithstanding her performance on the civil service examination. Although it is possible that Leonard may not

have been selected if she had been granted an interview,

the referee’s decision to award back pay was not unduly

speculative. See, e.g., National Labor Relations Board

v. Ferguson Electric Co., 242 F.3d 426, 431 (2d Cir. 2001)

(‘‘[m]ere [u]ncertainty . . . does not render a back pay

award speculative, since [a] back pay award is only an

approximation, necessitated by the employer’s wrongful conduct’’ (internal quotation marks omitted)). In

light of the remedial aims underlying our antidiscrimination laws and the substantial evidence in the record

to support the referee’s conclusion that Leonard would

have been promoted in the absence of the discriminatory employment practice, the referee properly resolved

any uncertainty in the present appeal in favor of Leonard. See, e.g., Equal Employment Opportunity Commission v. Joint Apprenticeship Committee, 164 F.3d

89, 100 (2d Cir. 1998).

We conclude that the referee’s findings were supported by substantial evidence and the commission

therefore did not abuse its discretion in awarding Leonard back pay. Consequently, the trial court properly

dismissed the plaintiff’s administrative appeal and

affirmed the commission’s decision with respect to this

claim.

II

We next turn to the plaintiff’s second claim. On appeal

to the trial court, the plaintiff asserted that the commission’s award of emotional distress damages was excessive when compared to the commission’s prior decisions and under the facts of the present case. On appeal

to this court, however, the plaintiff has abandoned that

claim and, instead, argues that the award of emotional

distress damages was improper because the commission is not statutorily authorized to award compensatory damages pursuant to § 46a-58 in employment discrimination cases that fall within the scope of § 46a-60.

We decline to address the merits of this claim because

it is unpreserved.

As a general matter, ‘‘[t]his court will not review

issues of law that are raised for the first time on appeal.’’

(Internal quotation marks omitted.) Matto v. Dermatopathology Associates of New York, 55 Conn. App. 592,

596, 739 A.2d 1284 (1999); see also Practice Book § 60-
5 (reviewing court not bound to consider claim unless

it was distinctly raised at trial). ‘‘Our rules of practice

concerning unraised claims also apply to appeals from

administrative proceedings. . . . A party to an administrative proceeding cannot be allowed to participate

fully at hearings and then, on appeal, raise claims that

were not asserted before the [agency].’’ (Citations omitted; internal quotation marks omitted.) Bristol Board

of Education v. State Board of Labor Relations, 166

Conn. App. 287, 300, 142 A.3d 304 (2016). The failure

to raise a claim at the time of the administrative hearing

ordinarily precludes our review of that issue on appeal.

See Berka v. Middletown, 205 Conn. App. 213, 218, 257

A.3d 384, cert. denied, 337 Conn. 910, 253 A.3d 44, cert.

denied, U.S. , 142 S. Ct. 351, 211 L. Ed. 2d 186

(2021). But see Burnham v. Administrator, Unemployment Compensation Act, 184 Conn. 317, 322–23, 439

A.2d 1008 (1981).

Although the plaintiff participated fully in the administrative hearing and the commission requested that

Leonard be awarded emotional distress damages, it did

not claim in its posthearing brief that the commission

exceeded its authority in awarding Leonard compensatory damages. The plaintiff similarly did not raise this

claim on appeal to the trial court.7 As a result, neither

the referee nor the trial court addressed this claim.

On appeal to this court, the plaintiff acknowledges that

this claim was not preserved. Nevertheless, it invites us

to review its claim pursuant to our supervisory authority

over the administration of justice; see, e.g., Blumberg

Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 150–52, 84 A.3d 840 (2014);

if a similar legal issue is resolved in an appeal from

Connecticut Judicial Branch v. Gilbert, Superior Court,

judicial district of New Britain, Docket No. CV-18-

6048927-S (October 15, 2019), which was pending in

our Supreme Court at the time the instant appeal was

briefed and argued in this court. Our Supreme Court has

since issued its decision in that case. See Connecticut

Judicial Branch v. Gilbert, 343 Conn. 90, A.3d

(2022). We have reviewed that decision and are not

persuaded that it warrants an exercise of our supervisory authority over the plaintiff’s unpreserved claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The city of Waterbury has two separate and distinct human resources

departments. The education personnel department supports the administrators and teachers within the city’s school district. The civil service personnel

department supports all of the city’s civil service employees.

2

In the fall of 2015, the education personnel department was restructured

to implement the recommendations of a consulting firm that had conducted a

staffing review of the department. As a result of that analysis, the department

sought to reduce its administrative staff and also to increase the number of

human resources professionals by hiring two individuals to replace Murray.

3 General Statutes (Rev. to 2015) § 46a-60 (a) provides in relevant part:

‘‘It shall be a discriminatory practice in violation of this section . . . (1)

For an employer, by the employer or employer’s agent . . . to refuse to
hire or employ . . . any individual or to discriminate against such individual

in compensation or in terms, conditions or privileges of employment because

of the individual’s . . . physical disability . . . .’’

Hereinafter, all references to § 46a-60 in this opinion are to the 2015

revision of the statute.

4 General Statutes § 46a-58 (a) provides in relevant part: ‘‘It shall be a

discriminatory practice in violation of this section for any person to subject,

or cause to be subjected, any other person to the deprivation of any rights,

privileges or immunities, secured or protected by the Constitution or laws

of this state or of the United States, on account of . . . physical disability . . . .’’

Section 46a-58 (a) was the subject of amendment after the filing of Leonard’s complaint. See Public Acts 2017, No. 17-127, § 2. Because none of

the changes is relevant to this appeal, for simplicity, we refer to the current

revision of the statute.

5 Leonard also alleged that the plaintiff violated § 46a-60 (a) (4), which

provides that it is a discriminatory practice for an employer to discriminate

against an employee for filing a complaint. It appears from the record that

the commission and Leonard abandoned this claim.

6 The plaintiff also challenged the referee’s factual findings and conclusion

that the plaintiff intentionally had discriminated against Leonard on the

basis of her physical disability. Those issues were not raised on appeal to

this court.

7

In its appeal to the trial court from the commission’s decision, the plaintiff

summarily alleged as a ground for sustaining its appeal that the commission

erroneously awarded emotional distress damages because that award is not

authorized by statute. Nonetheless, the plaintiff did not address this claim

in its brief or at oral argument before the trial court.