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*********************************************** 
COMMISSION ON HUMAN RIGHTS & OPPORTUNITIES v.

CANTILLON—DISSENT

ECKER, J., dissenting. I agree with the majority that

our decision in Patino v.Birken Mfg. Co., 304 Conn. 679,

708, 41 A.3d 1013 (2012), did not establish a presumptive

benchmark range for damages awards in emotional distress cases before the Commission on Human Rights

and Opportunities (CHRO). ‘‘For more than fifty years,’’

the majority explains, ‘‘this court has rejected the idea

that any specific yardstick can be applied to cabin the

discretion of the trier of fact when calculating a fair

and appropriate award of noneconomic damages.’’ Part

I of the majority opinion. My problem with the majority’s holding is that, in the very next breath, it approves

and endorses the use by the CHRO’s human rights referee (referee) of a valuation method that employs just

such a yardstick to constrain the award of noneconomic

damages in the present case. Specifically, the referee

used a handful of old CHRO awards to arrive at a definitive range of emotional distress damages with a ‘‘high

water mark’’ of $50,000, and a low end of $6000. In

arriving at this range, the referee refused to consider

in her comparative valuation a vast reservoir of awards

made by courts, juries, and other administrative agencies charged with the responsibility of valuing the emotional distress suffered by complainants, like the

complainant in this case, Kelly Howard, who have

endured illegal racial discrimination. The referee’s chosen valuation methodology adopts a self-imposed, artificial, and arbitrary measure of damages for which I can

find no judicial, legislative, or regulatory authority. Reversal is required so that a damages award can be calculated using a proper valuation methodology.

The referee’s use of an unjustifiably restrictive valuation methodology is no accident. My research reveals

that some or all of the current CHRO referees evidently

have reached an informal consensus, with no official

guidance, authorization, or approval, that the emotional

distress damages awarded by courts, juries, and other

administrative agencies in comparable cases are too

high. Their chosen valuation methodology reflects an

unofficial but deliberate policy choice to keep CHRO

awards low. In implementing this policy, the referees

have created a self-contained and self-replicating universe of comparative values that categorically excludes

consideration of any awards other than those produced

in-house at the CHRO. This practice should end, and

this court should end it, because the referees have no

authority to adopt a presumptive valuation range that,

whether by design or in effect, produces emotional distress damages awards far lower than permitted by law.

I likewise find unjustifiable the referee’s failure to

account for inflation when relying on past CHRO awards,
some decades old, to determine the value of the complainant’s emotional distress. The referee awarded $15,000

to the complainant in the present case based on the

referee’s conclusion that the closest comparable awards

were a CHRO award of $20,000 in 2000, an award of

$25,000 in 2006, and—curiously—an award of no damages in 2008 resulting from a finding that there was

no violation of Connecticut’s discriminatory housing

practice statute, General Statutes § 46a-64c.1 See footnote 11 of this opinion. The referee also took into consideration awards to a husband and wife of $12,000 and

$10,000 in 2008, and an award of $6000 in 2000. See id.

The referee did not adjust any of these comparative

values for inflation, despite the obvious and inarguable

fact that the value of a dollar in 2000, 2006, and 2008

was significantly less than the value of a dollar in 2017,

which is when the damages originally were awarded to

the complainant in this case. For example, an award

of $20,000 in 2000, adjusted for inflation, was worth

approximately $29,000 in 2017.2 The failure to account

for inflation caused the referee to substantially undervalue the damages award in this case.

I

It is important to properly frame the precise nature

of the errors committed by the referee in order to ascertain the correct standard of appellate review. To be

clear, I do not quarrel with the referee’s factual findings.

Although I probably would have arrived at materially

different findings than the referee did regarding the

character and degree of the emotional distress suffered

by the complainant, it is not the function of this court

‘‘to retry the case or to substitute its judgment for that of

the administrative agency.’’ (Internal quotation marks

omitted.) Connecticut Judicial Branch v. Gilbert, 343

Conn. 90, 135, 272 A.3d 603 (2022). Although the majority and I seem to agree that the size of the damages

award reflects a distinctly parsimonious sensibility, we

are required to defer to the referee’s wide discretion

in that regard. See, e.g., Stratford Police Dept. v. Board

of Firearms Permit Examiners, 343 Conn. 62, 81, 272

A.3d 639 (2022) (‘‘[a]n agency’s factual and discretionary determinations are to be accorded considerable

weight by the courts’’ (internal quotation marks omitted)); cf. Margolin v. Kleban & Samor, P.C., 275 Conn.

765, 783, 882 A.2d 653 (2005) (‘‘[t]he amount of a damage[s] award is a matter peculiarly within the province

of the trier of fact’’ (internal quotation marks omitted)).

The errors at issue, however, are not factual. Nor

do they involve the nature or extent of the emotional

distress suffered by the complainant as a result of the

discriminatory conduct of the named defendant, Richard Cantillon. The errors are methodological. After the

referee assessed the severity of the complainant’s emotional distress using the framework set forth in Commission on Human Rights & Opportunities ex rel.
Harrison v. Greco, Docket No. 7930433 (C.H.R.O. June

3, 1985) (Harrison),3

the referee then applied a particular methodology to value that emotional distress, i.e.,

to convert the harm into dollars. I will review that valuation methodology in more detail in parts II and III of

this opinion, but the critical point for present purposes

is that the referee arrived at a valuation on the basis

of a range of awards for emotional distress damages

established by prior CHRO awards, to the exclusion of

other relevant comparative data, and without taking

into account the rate of inflation.4

The referee’s selection of a valuation methodology

presents a legal question on appeal because it raises

the issue of whether a proper measure of damages has

been employed to calculate the complainant’s damages.5

It is well established that, ‘‘[a]lthough the amount of

recoverable damages is a question of fact, the measure

of damages [on] which the factual computation is based

is a question of law.’’ (Internal quotation marks omitted.) Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186,

196 (2d Cir. 2003); see Vermont Microsystems, Inc., v.

Autodesk, Inc., 138 F.3d 449, 452 (2d Cir. 1998) (‘‘[a]lthough

[the] calculation of the amount of damages is a factual

determination, the formula used in making that calculation is a question of law’’); Carrillo v. Goldberg, 141 Conn.

App. 299, 307, 61 A.3d 1164 (2013) (‘‘[w]e accord plenary

review to the [trial] court’s legal basis for its damages

award’’ (internal quotation marks omitted)).6

The standard of review applied to legal determinations made by an administrative agency depends on a

number of factors. ‘‘Conclusions of law reached by the

administrative agency must stand if the court determines that they resulted from a correct application of

the law to the facts found and could reasonably and

logically follow from such facts. . . . Cases that present pure questions of law, however, invoke a broader

standard of review than is . . . involved in deciding

whether, in light of the evidence, the agency has acted

unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s

determination of a question of law has not previously

been subject to judicial scrutiny . . . the agency is not

entitled to special deference.’’ (Internal quotation marks

omitted.) Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010).

The appropriate valuation methodology for emotional distress damages in discrimination cases has not

previously been subjected to judicial scrutiny, and,

therefore, I consider that narrow issue to present a pure

question of law subject to plenary review.7 See, e.g.,

Commissioner of Public Safety v. Freedom of Information Commission, 312 Conn. 513, 526, 93 A.3d 1142

(2014) (for pure questions of law, plenary review is

applicable unless agency’s interpretation has been subjected to judicial scrutiny or is time-tested and reason-
able); Okeke v. Commissioner of Public Health, 304

Conn. 317, 324, 39 A.3d 1095 (2012) (Under the Uniform

Administrative Procedure Act, General Statutes § 4-166

et seq., ‘‘[a] reviewing court . . . is not required to

defer to an improper application of the law. . . . It is

the function of the courts to expound and apply governing principles of law.’’ (Internal quotation marks omitted.)). Accordingly, we must resolve the legal question

of whether the referee adopted the proper valuation

methodology by limiting herself to a range of comparative cases that included only prior CHRO awards (and

one jury award on remand) and excluded all other damages awarded for emotional distress caused by racial

discrimination by courts, juries, and other administrative agencies, as well as the rate of inflation.

II

CHRO referees evidently have been employing a valuation methodology for discrimination claims that arrives

at a dollar value for emotional distress solely on the

basis of a relatively small number of prior CHRO cases

in which such damages were awarded. Little to no consideration is given to the robust comparative data available from numerous other sources of valuation in the

juridical realm that assigns dollar amounts to this specific form of harm, namely, damages awards made by

courts, juries, and other administrative agencies. In my

view, the referee erred by adopting a methodology that

disregards all valuation data except awards made by

the CHRO itself.

It is well established that a referee charged with remedying a person’s deprivation of civil rights protected by

state and federal fair housing laws may award damages

for emotional distress under General Statutes § 46a-86.

See, e.g., Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 705, 855

A.2d 212 (2004) (emotional distress damages can be

awarded under § 46a-86 (c)); Commission on Human

Rights & Opportunities ex rel. Cortes v. Valentin, 213

Conn. App. 635, 651–52, 278 A.3d 607 (upholding emotional distress damages award under § 46a-64c), cert.

denied, 345 Conn. 962, 285 A.3d 389 (2022). It is equally

well established that the purpose of remedial awards

under our antidiscrimination statutes is to make victims

of discrimination ‘‘whole’’ and to deter ‘‘like discrimination in the future . . . .’’ (Internal quotation marks

omitted.) Connecticut Judicial Branch v. Gilbert,

supra, 343 Conn. 141; accord Commission on Human

Rights & Opportunities v. Board of Education, supra,

694; see General Statutes § 46a-86 (c) (‘‘upon a finding

of a discriminatory practice prohibited by [among other

provisions, General Statutes §§ 46a-58 and 46a-64c], the

presiding officer shall determine the damage suffered

by the complainant . . . as a result of such discriminatory practice’’ (emphasis added)); State v. Commission

on Human Rights & Opportunities, 211 Conn. 464, 478,
559 A.2d 1120 (1989) (‘‘hearing officer[s] [have] not

merely the power but the duty to render a decree which

will, so far as possible, eliminate the discriminatory

effects of the past as well as bar like discrimination in

the future’’ (emphasis added; internal quotation

marks omitted)).

In recent years, it appears that CHRO referees have

been relying almost exclusively on awards from their

own agency when awarding damages for emotional distress, disregarding decisions that assess such damages

from courts, juries, and other administrative agencies,

such as the United States Department of Housing and

Urban Development (HUD). See, e.g., Commission on

Human Rights & Opportunities ex rel. Lauray v. City

Hall Cafe ́, Docket No. 1530333, 2016 WL 1719121, *8

(C.H.R.O. March 31, 2016) (awarding $8000 for racial

discrimination in violation of Connecticut Fair Employment Practices Act after reviewing only prior CHRO

cases); Commission on Human Rights & Opportunities ex rel. Jackson v. Pixbey, Docket Nos. 0950094 and

0950095, 2010 WL 5517184, *7 (C.H.R.O. May 25, 2010)

(awarding $40,000 in neighbor-on-neighbor, hostile

housing environment case after reviewing only two

CHRO cases); Commission on Human Rights &

Opportunities ex rel. Brown v. Jackson, Docket Nos.

0750001 and 075002, 2008 WL 5122193, *24 (C.H.R.O.

November 17, 2008) (‘‘in recognition of the various

awards order[ed] by [the CHRO],’’ awarding $12,000 to

husband and $10,000 to wife as damages for hostile

housing environment); Commission on Human Rights &

Opportunities ex rel. Scott v. Jemison, Docket No.

9950020, 2000 WL 35575662, *1, *6, *9 (C.H.R.O. March

20, 2000) (awarding $6000 for emotional distress caused

by housing discrimination after reviewing range of awards

articulated in two prior CHRO decisions); Commission

on Human Rights & Opportunities ex rel. Little v.

Clark, Docket No. 9810387, 2000 WL 35575648, *13, *16

(C.H.R.O. August 2, 2000) (awarding $20,000 for emotional distress and noting that ‘‘[the requested] award

of $75,000 [was] far out of line with the majority of awards

ordered by [the CHRO]’’).

The referee in the present case followed this model.

As the referee made clear in her memorandum of decision, she employed a valuation methodology limited

solely to other CHRO comparators (and, on remand, one

jury case), and deliberately excluded federal awards

of damages for emotional distress. This unauthorized,

arbitrary, and self-imposed limitation is not founded on

law, logic, or principle, but on an unofficial, subjective

assessment that the federal awards were too high.

Indeed, to ensure that the valuation remained entirely

uninfluenced by non-CHRO comparators, the referee

declined to consider a few early CHRO cases that valued

emotional harm on the basis of federal decisions, explaining that these awards were unreliable outliers because

‘‘[f]ederal awards for emotional distress in cases of
housing discrimination have consistently been much

higher than awards from [the CHRO].’’ (Internal quotation marks omitted.), quoting Commission on Human

Rights & Opportunities ex rel. Hartling v. Carfi,

Docket No. 0550116, 2006 WL 4753467, *8 n.6 (C.H.R.O.

October 26, 2006) (critiquing Commission on Human

Rights & Opportunities ex rel. Planas v. Bierko, Docket

No. 9420599 (C.H.R.O. February 8, 1995), and its reliance on federal decisions, including awards from

courts, juries, and other administrative agencies, such

as HUD, in calculating award of $75,000). The referee,

quoting Commission on Human Rights & Opportunities ex rel. Lawton v. Jansen, Docket No. 0550135, 2007

WL 4623071, *8 n.10 (C.H.R.O. October 18, 2007), noted

that Planas is ‘‘ ‘at the far end of the extreme of awards’ ’’

due, in part, to its reliance on federal cases. The referee

therefore took the $75,000 award in Planas out of the

list of comparator cases and established, as a ‘‘high

water mark,’’ an award of $50,000 on the basis of Commission on Human Rights & Opportunities ex rel.

Maybin v. Berthiaume, Docket No. 9950026 (C.H.R.O.

March 29, 1999) (Maybin).8

Federal awards for emotional distress caused by

housing discrimination were not the only comparators

excluded from the referee’s valuation methodology. The

referee also categorically disregarded jury awards for

emotional distress caused by racial discrimination. It

was not until the trial court ordered the referee on

remand to consider Patino v. Birken Mfg. Co., supra,

304 Conn. 679, that the referee reluctantly included

Patino (and only Patino) in her valuation as the single

non-CHRO damages award comparator.

The referee gave no legitimate reason to explain why

she did not consider jury verdicts as part of her valuation of emotional distress damages. The referee stated

that a comparison of values using jury verdicts is not

possible because jury verdicts are unaccompanied by

any explanation from the jury as to why it arrived at

the amount of the award.9 This assertion misses the

point. The jury awards warranting consideration as

comparators are those awards—and there are many of

them—that are subject to judicial review, typically either

for inadequacy or excessiveness. As in Patino, that review

process results in a published judicial decision containing sufficient factual and contextual information

to allow a judge—and a CHRO referee—to assess the

evidence bearing on the jury’s valuation and to use the

data as a point of comparison, precisely as the referee

in this case used the CHRO’s own awards (and the

Patino case) as comparators.10 The referee’s legal conclusion—that jury awards cannot be used as comparators because the jury does not explain its verdict—

is erroneous.

The refusal to consider emotional distress damages

awarded by courts, juries, and other administrative
agencies as comparators led the referee in the present

case to award the complainant $15,000, an award the

referee fashioned on the basis of a data set consisting

of nothing more than a few relatively dated CHRO decisions11 establishing a presumptive range with a low end

of $6000 and a high end of $50,000. The referee concluded that $15,000 was an appropriate award because

it fell ‘‘well within the realm of compensatory awards

ordered in similar cases decided by [the CHRO].’’ By

plotting the complainant’s emotional harm within a

range of values established by a handful of prior CHRO

awards, the referee operated within an artificially and

arbitrarily limited framework that required her award

to fall within a presumptive range far narrower than

that permitted by law. This constraint on the amount

of damages awarded to the complainant is an error of

law that necessitates reversal.

A number of inexplicable incongruities arise as a

result of this court’s decision today. First, the majority

endorses the referee’s use of an unauthorized, selfimposed constraint on the award of emotional distress

damages by employing a presumptive range of damages

with a low end of $6000 and a high end of $50,000,

while rejecting the higher presumptive range taken from

Patino because it constrains the referee’s discretion.12

Of even more concern, the range of damages used in

the present case is derived solely from prior CHRO

awards, whereas the range of damages described in

Patino is based on federal jury verdicts. See Patino v.

Birken Mfg. Co., supra, 304 Conn. 708. Jury verdicts

are a more reliable indicator of the value to ascribe to

emotional distress damages because each verdict is

arrived at independently and, thus, provides a separate

and distinct data point for comparison. By contrast, the

range of awards for comparative purposes under the

referee’s methodology is strictly limited to a small number of awards previously made by the CHRO, and no

one else. Moreover, a range established by prior CHRO

decisions exists as a closed system—there is no fresh

data to update or modify the referee’s pool of comparative data because any ‘‘new’’ agency awards are themselves derived from prior valuations, and the system is

therefore self-replicating. The valuation range derived

from jury awards, by contrast, is subject to constant

revision as the data set of comparators expands because

these awards are made without consideration of other

jury awards.13

Second, this is not a context in which the administrative agency can claim that deference is due because

the agency possesses particular, technical expertise in

the subject matter; there is no reason to think that

CHRO referees are any better than juries or federal

agencies at valuing emotional distress caused by racial

discrimination. Given the inherent difficulty of assessing

emotional distress damages, it seems obvious to me

that the more valuation data utilized, the more accurate,
just, and fair the assessment of damages will be. As the

majority acknowledges, damages for intangible harms,

such as pain, suffering, and emotional distress, ‘‘lie in

an extremely uncertain area . . . in which it is quite

impossible to assign values with any precision . . . .

[N]o formulaic process of review [for excessiveness or

inadequacy] applies . . . .’’ (Internal quotation marks

omitted.) Part I of the majority opinion; see Commission on Human Rights & Opportunities ex rel. Arnold

v. Forvil, 302 Conn. 263, 287, 25 A.3d 632 (2011) (recognizing that ‘‘[the] limits of fair and reasonable compensation in [a] particular case’’ are ‘‘necessarily uncertain’’

(internal quotation marks omitted)); see also Stampf

v. Long Island Railroad Co., 761 F.3d 192, 205 (2d Cir.

2014) (‘‘Awards for mental and emotional distress are

inherently speculative. There is no objective way to

assign any particular dollar value to distress.’’). The

availability of data about what other decision makers

have done under comparable circumstances provides

a very useful reference point for those charged with

the responsibility of navigating this uncertain landscape. One would think that CHRO referees assigned

with the responsibility of awarding money damages for

emotional distress would see a great benefit in consulting all relevant data—including damages awarded

by courts, juries, and other administrative agencies in

comparable cases—before undertaking the humbling

task of telling the victim of discrimination the value of

his or her suffering in the eyes of the law.

Such guidance is particularly important when a decision maker is trying to fix a monetary value to the unique

kind of emotional harm caused by racial discrimination.

Many other forms of emotional distress are assessed

on a strictly individual basis because the effects tend

to be idiosyncratic to the individual victim. Group based

racial discrimination is different. The wrongful act of

discrimination itself, as well as the harm caused to the

victim, inherently contains a shared, collective dimension, as one would expect of illegal conduct that achieves

its goal through the weaponization of the deeply embedded history of racism in our country. The harm that

each individual suffers will be different, of course, and

must be assessed on an individual basis, but we cannot

ignore the reality that racial discrimination has very

powerful social and cultural dimensions that necessarily impact the nature and extent of the resulting psychic

harm. There is substantial evidence, for example, that

racial discrimination in America has such a deep, pervasive, and persistent place in our history that the harm

it causes is especially profound.14

Given the unique nature of the harm caused by racial

discrimination, and in light of the fact that the valuation

of emotional distress is not a matter of science, there

is particular benefit in consulting jury awards for comparative purposes. The jury system has its flaws, but

there are certain contexts in which jurors have an espe-
cially important role in our system of justice as representatives of the conscience of the community. See

Carter v. Jury Commission of Greene County, 396 U.S.

320, 330, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970) (‘‘the very

idea of a jury . . . [is of] a body truly representative

of the community’’ (internal quotation marks omitted));

United States v. Gilliam, 994 F.2d 97, 101 (2d Cir.)

(jurors are ‘‘representatives of the people’’), cert. denied,

510 U.S. 927, 114 S. Ct. 335, 126 L. Ed. 2d 280 (1993);

United States ex rel. McCann v. Adams, 126 F.2d 774,

776 (2d Cir. 1942) (jury ‘‘introduces a slack into the

enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions’’), rev’d

on other grounds, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed.

268 (1942); McKirdy v. Cascio, 142 Conn. 80, 84, 111

A.2d 555 (1955) (amount of award in wrongful death actions

was within province of jury given inherently speculative

nature of harm). Our juries’ assessment of the harm

caused by racial discrimination strikes me as one such

situation, and such awards should not be excluded from

a CHRO referee’s valuation unless the law requires otherwise.

Jury awards are not the only relevant data that was

categorically excluded from consideration by the CHRO

referee. Other administrative agencies, such as HUD,

are also charged with the responsibility of awarding damages for emotional distress caused by unlawful racial

discrimination. See, e.g., 42 U.S.C. § 3612 (g) (3) (2018)

(‘‘[i]f the administrative law judge finds that a respondent has engaged or is about to engage in a discriminatory housing practice, such administrative law judge

shall promptly issue an order for such relief as may be

appropriate, which may include actual damages suffered by the aggrieved person and injunctive or other

equitable relief’’); 24 C.F.R. § 180.670 (b) (3) (i) (2022)

(‘‘If the [administrative law judge] finds that a respondent has engaged, or is about to engage, in a discriminatory housing practice, the [administrative law judge]

shall issue an initial decision against the respondent

and order such relief as may be appropriate. Relief

may include, but is not limited to . . . [o]rdering the

respondent to pay damages to the aggrieved person

(including damages caused by humiliation and

embarrassment).’’ (Emphasis added.)). These awards

likewise provide valuable data points for CHRO referees

to consider. Looking at this data would be especially

useful in cases like the present one, in which a victim

of discrimination has alleged harm under the federal

Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., and

our state equivalent, § 46a-64c. In fact, we consistently

have recognized that the § 46a-64c is intended to be

applied in a manner consistent with its federal equivalent, with any deviation typically providing only greater

protections to citizens of this state than under the federal counterpart. See, e.g., Commission on Human

Rights & Opportunities v. Savin Rock Condominium
Assn., Inc., 273 Conn. 373, 385, 870 A.2d 457 (2005)

(§ 46a-64c was adopted with ‘‘the intent of creating a

state antidiscrimination housing statute [that is] consistent with its federal counterpart’’); id., 386 n.11 (‘‘[our

courts] have interpreted our statutes even more broadly

than their federal counterparts, to provide greater protections to our citizens, especially in the area of civil

rights’’ (emphasis in original)); see also Commission on

Human Rights & Opportunities v. Housing Authority,

117 Conn. App. 30, 46, 978 A.2d 136 (2009) (‘‘[o]ne of

the purposes of [Connecticut’s fair housing] scheme

is to render it substantially equivalent to the federal

scheme, in terms of protecting the policy against housing discrimination and the rights of persons subject to

such discrimination’’), appeal dismissed, 302 Conn. 158,

24 A.3d 596 (2011). Given the intent and purpose animating § 46a-64c, I see no reason for the CHRO to ignore

these federal administrative agency awards.

Lest I be misunderstood, I do not intend to suggest

that the ultimate focus of the valuation analysis should

shift away from the particular facts of each individual

case. CHRO referees ‘‘must rely primarily on [case specific] facts relating to the severity of the discriminatory

behavior and [the] duration of the resulting emotional

damage.’’ Broome v. Biondi, 17 F. Supp. 2d 211, 225

(S.D.N.Y. 1997). A victim’s individual experience is paramount, and awards made in other cases are merely

instructive, not dispositive or presumptive. But CHRO

referees who utilize a comparative valuation methodology are not properly discharging their statutory responsibilities by adopting a comparative methodology that,

by design, excludes a large universe of damages awarded

by courts, juries, and other administrative agencies in

racial discrimination cases.15 Expanding the universe

of comparators that referees utilize can help to ensure

that the damages award in each individual case is fair.

The more data, the better. See Zakre v. Norddeutsche

Landesbank Girozentrale, 541 F. Supp. 2d 555, 568

(S.D.N.Y. 2008) (‘‘[r]eference to other awards in similar

cases is appropriate . . . but courts must take care not

to limit their review too narrowly’’ (citation omitted;

internal quotation marks omitted)), aff’d, 344 Fed. Appx.

628 (2d Cir. 2009); cf. Broome v. Biondi, supra, 225 (comparing emotional distress damages between employment

and housing discrimination claims is not improper). Of

course, if a referee finds that a case is a bad data point

because of factual differences, the referee has the discretion to reject the purported comparator.

A more robust comparative award approach than the

one employed by the referee in this case reveals that

there is a general trend within the United States Court

of Appeals for the Second Circuit to award damages

greater than the ‘‘high water mark’’ of $50,000, with

awards often sitting closer to or well into the six figures

for ‘‘garden variety’’16 emotional distress in civil rights

cases. See, e.g., Lewis v. American Sugar Refining,
Inc., 325 F. Supp. 3d 321, 364 (S.D.N.Y. 2018) (‘‘[a]wards

[for] garden-variety emotional distress or mental anguish

in the Second Circuit range from $30,000 to $125,000’’);

Olsen v. Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009)

(same); Watson v. E.S. Sutton, Inc., Docket No. 02 Civ.

2739 (KMW), 2005 WL 2170659, *16 (S.D.N.Y. September

6, 2005) (same), aff’d, 225 Fed. Appx. 3 (2006); see also

Lore v. Syracuse, 670 F.3d 127, 176–80 (2d Cir. 2012)

($150,000 award for emotional distress); Parris v. Pappas, 844 F. Supp. 2d 271, 277–79 (D. Conn. 2012)

($100,000 award in compensatory damages for FHA violation).17

The majority cites to Manson v. Friedberg, Docket

No. 08 Civ. 3890 (RO), 2013 WL 2896971, *7 (S.D.N.Y.

June 13, 2013), which posits that there is a much lower

range of damages, between $5000 and $35,000, for garden-variety emotional distress damages. See part I of

the majority opinion. The majority cites Manson for

the proposition that the higher range in Olsen ‘‘is hardly

a rule.’’ Id. I agree that none of these ranges should

serve as a rule, but it is important to note that the range

cited in Manson is generally viewed as outdated and

that cases that award damages within that lower range

are typically seen as outliers. See, e.g., Equal Employment Opportunity Commission v. United Health Programs of America, Inc., Docket No. 14-CV-3673 (KAM)

(JO), 2020 WL 1083771, *13 (E.D.N.Y. March 6, 2020)

(‘‘[t]he court will not cap [garden-variety] emotional

distress damages at $35,000 on the basis of Moore [v.

Houlihan’s Restaurant, Inc., Docket No. 07-CV-3129

(ENV) (RER), 2011 WL 2470023, *6 (E.D.N.Y. May 10,

2011)], an outlier among recent cases in this circuit,

and which cites to Rainone [v. Potter, 388 F. Supp. 2d

120, 122 (E.D.N.Y. 2005)] for its damages range [of $5000

to $35,000], a case that courts have acknowledged is

quite outdated and is now considered a [lower than

normal] damages range’’); Olsen v. Nassau, supra, 615

F. Supp. 2d 46 n.4 (rejecting defendants’ reliance on

Rainone for damages range of $5000 to $35,000 and

noting that ‘‘[m]ore recent cases find this range to be

significantly higher’’); see also, e.g., Watson v. E.S. Sutton, Inc., supra, 2005 WL 2170659, *15 (range of $5000

to $30,000 was ‘‘at the low end of the range of damages

generally awarded under New York law’’); A. Merjian,

‘‘Nothing ‘Garden Variety’ About It: Manifest Error and

Gross Devaluation in the Assessment of Emotional Distress Damages,’’ 70 Syracuse L. Rev. 689, 699 (2020)

($5000 to $35,000 range was derived from outdated 1999

law review article, which omitted many Second Circuit

cases in which awards were well above $35,000).

I am very concerned not only that the referee in the

present case applied a presumptive range for awarding

emotional distress damages in CHRO proceedings, but

deliberately selected a range drawn exclusively from a

small group of prior CHRO awards for the purpose of

keeping CHRO awards low. This unofficial and unautho-
rized methodology now serves as a self-replicating and

self-contained precedential source for future administrative adjudications in Connecticut. Its purpose and

effect are to constrain the referees to award damages

lower than those authorized by law. Under current law,

if CHRO referees apply a comparative value methodology, they must look beyond the narrow confines of

prior CHRO awards to consider comparable awards

made in like cases by other decision makers, including

courts, juries, and other relevant administrative agencies. A larger and more representative pool of comparators will ensure that awards for emotional distress are

fair, just, and reasonable.

III

The referee’s valuation methodology also was flawed

because she failed to account for inflation when she

used prior awards to arrive at a damages award in the

present case. As I discussed previously, the referee

established a range of $6000 to $50,000 for emotional

distress damages on the basis of CHRO awards made

between 1998 and 2010. Of those awards, the referee

found three decisions particularly instructive in valuing

the complainant’s harm: Commission on Human

Rights & Opportunities ex rel. Hartling v. Carfi, supra,

2006 WL 4753467, *10 (awarding $25,000 for emotional

distress), Commission on Human Rights & Opportunities ex rel. Little v. Clark, supra, 2000 WL 35575648,

*16 (awarding $20,000 for emotional distress), andCommission on Human Rights & Opportunities ex rel.

McIntosh-Waller v. Vahistrom, Docket No. 0750080,

2008 WL 2683291, *8–9 (C.H.R.O. June 6, 2008) (no damages were awarded because no liability was found).18

The referee’s valuation methodology was erroneous as a

matter of law because she used these historical awards

without adjusting for inflation.

It is crystal clear that an adjustment for inflation

is necessary under these circumstances.19 The Second

Circuit has emphasized the importance of considering

the passage of time and inflation when utilizing a comparative award approach to review jury damages awards

for excessiveness. See, e.g., Meacham v. Knolls Atomic

Power Laboratory, 381 F.3d 56, 78 (2d Cir. 2004) (‘‘the

passage of time since [those] cases were decided could

reasonably support higher verdicts’’), vacated on other

grounds sub nom. KAPL, Inc. v. Meacham, 544 U.S.

957, 125 S. Ct. 1731, 161 L. Ed. 2d 596 (2005); DiSorbo

v. Hoy, 343 F.3d 172, 185 (2d Cir. 2003) (‘‘when considering the sizes of the awards in earlier cases, we must

take into account inflation, as the reasonable range for

[the plaintiff’s] injuries today is higher than what it

would have been ten years ago’’); Luciano v. Olsten

Corp., 912 F. Supp. 663, 673 (E.D.N.Y. 1996) (‘‘an amount

that may have been excessive five to ten years ago . . .

may be reasonable today simply by virtue of inflation’’),

aff’d, 110 F.3d 210 (1997). A dollar in 1998 was worth
considerably less than a dollar in 2017. To achieve equivalency, the referee in 2017 would need to award approximately $1.50 for every dollar awarded nineteen years

earlier. See Bureau of Labor Statistics, United States

Department of Labor, CPI Inflation Calculator, available

at https://www.bls.gov/data/inflation_calculator.htm (last

visited June 23, 2023). The referee failed to account for

inflation when she relied on past awards to calculate the

amount of the complainant’s emotional distress damages,

and, therefore, her valuation methodology was fundamentally flawed.

IV

Our legislature has placed the responsibility of compensating victims of racial discrimination on the CHRO.

The CHRO has a duty to ensure that victims of racial

discrimination are properly compensated in accordance

with the law. See, e.g., State v. Commission on Human

Rights & Opportunities, supra, 211 Conn. 478. In order

to fulfill this duty using a comparative valuation methodology, CHRO referees may not limit their analysis of

comparative data to prior CHRO cases only. Nor may

they fail to adjust past awards to account for the rate

of inflation. Because the referee in the present case

used a flawed valuation methodology to calculate the

complainant’s award of damages, the Appellate Court’s

judgment must be reversed. Accordingly, I respectfully dissent.

1

It was manifestly erroneous for the referee to value the complainant’s

emotional distress using a comparator case in which no liability for unlawful

discrimination was found, and thus no compensable damages were awarded

as a matter of law. See Commission on Human Rights & Opportunities

ex rel. McIntosh-Waller v. Vahistrom, Docket No. 0750080, 2008 WL 2683291,

*8–9 (C.H.R.O. June 6, 2008).

2 Likewise, an award of $6000 in 2000 is the equivalent of approximately

$8600 in 2017 dollars. See Bureau of Labor Statistics, United States Department of Labor, CPI Inflation Calculator, available at https://www.bls.gov/

data/inflation_calculator.htm (last visited June 23, 2023).

3 Harrison instructs CHRO referees to consider the following factors

when awarding emotional distress damages caused by discrimination: (1)

the subjective internal emotional reaction of the complainant; (2) whether

the discrimination occurred in front of other people; and (3) the degree of

offensiveness of the discrimination and its impact on the complainant. See

Commission on Human Rights & Opportunities ex rel. Harrison v. Greco,

supra, Docket No. 7930433. Like the majority, I am not entirely convinced that

the Harrison factors represent a proper framework for assessing emotional

distress damages, especially in cases like the one before us. See part II of

the majority opinion. The parties, however, have not challenged the legal

validity of the Harrison factors, and, therefore, I do not address the issue.

4 On remand, the referee also applied Patino as a comparator, but only

because she was ordered to do so by the trial court.

5 This presents an issue of law because the valuation methodology itself

was formulated on the basis of generally applicable principles regarding

the range of damages recoverable for emotional distress caused by racial

discrimination, without regard to the underlying facts of this particular case.

See Lysenko v. Sawaya, 7 P.3d 783, 787 (Utah 2000) (‘‘Questions of fact are

generally regarded as entailing the empirical, such as things, events, actions,

or conditions happening, existing, or taking place, as well as the subjective,

such as state of mind. . . . Legal questions, in contrast, are defined as those

[that] are not of fact but are essentially of rules or principles uniformly

applied to persons of similar qualities and status in similar circumstances.

. . . Thus, to determine whether the measure of damages . . . presented

the trial court with a legal question . . . [the court] must determine whether

there is a [rule] or [principle] governing the measure of damages that can
be uniformly applied to persons of similar qualities and status in similar

circumstances.’’ (Citations omitted; internal quotation marks omitted.)). The

application of that damages model to the particular facts of the case—e.g.,

whether the complainant’s emotional distress fits within the selected range

of damages—is a mixed question of law and fact that is entitled to deference.

See General Statutes § 4-183 (j). This latter issue is not contested in the

present case.

6 Damages assessed after the entry of default are no different. After default

is entered, establishing the appropriate amount of damages involves two

steps: (1) ‘‘determining the proper rule for calculating damages on . . . a

claim,’’ and (2) ‘‘assessing [the] plaintiff’s evidence supporting [the] damages

to be determined under this rule.’’ (Internal quotation marks omitted.) Pelgrift v. 335 W. 41st Tavern, Inc., Docket No. 14-CV-8934 (AJN), 2018 WL

4735705, *3 (S.D.N.Y. September 30, 2018), appeal dismissed, United States

Court of Appeals, Docket No. 18-3283 (2d Cir. February 12, 2019); see Steiger

v. J. S. Builders, Inc., 39 Conn. App. 32, 33, 35, 663 A.2d 432 (1995) (‘‘the

trial court applied the wrong standard in calculating the award of attorney’s

fees’’ after default judgment was entered against defendants).

7 Even if the referee’s valuation methodology were entitled to deference,

I would conclude, for the reasons explained in parts II and III of this opinion,

that the referee’s exclusion of emotional distress damages awarded by

courts, juries, and other administrative agencies to ascertain the value of

the complainant’s harm, as well as her failure to account for the passage

of time and rate of inflation, was arbitrary, capricious, and an abuse of discretion.

8 Although the referee set the top of the range for emotional distress

damages at $50,000 on the basis of the CHRO’s prior damages award in

Maybin, she also treated Maybin as an outlier, in part because ‘‘[t]he basis

for the $50,000 emotional distress award rest[ed] primarily on the aggressive

monetary award in Planas, on a trend in certain appellate decisions [that]

have encouraged hearing officers to be aggressive in the award of [compensatory] damages . . . and on awards in other jurisdictions.’’ (Citation omitted;

internal quotation marks omitted.)

9 The referee also explained that ‘‘Connecticut courts have yet to issue an

award of compensatory damages in a case involving a housing discrimination

claim based on hostile environment harassment . . . .’’ (Footnote omitted.)

This does not, however, explain the referee’s failure to consider state jury

awards for emotional distress in other contexts, such as employment discrimination.

10 Indeed, when the trial court remanded the present case to the referee

with instruction to reconsider the award of emotional distress damages in

light of Patino, the referee had no difficulty comparing the underlying facts

with those presented in Patino and concluding, as was her prerogative, that

the harm was worse in Patino than it was in this case.

11 The referee relied on the following comparators, from high to low, in

creating this presumptive range: (1) Commission on Human Rights &

Opportunities ex rel. Maybin v. Berthiaume, supra, Docket No. 9950026

($50,000 emotional distress damages award in hostile housing environment

case), (2) Commission on Human Rights & Opportunities ex rel. Jackson

v. Pixbey, supra, 2010 WL 5517184, *8–9 ($40,000 emotional distress damages

award in hostile housing environment case), (3) Commission on Human

Rights & Opportunities ex rel. Jackson v. Lutkowski, Docket Nos. 0950094

and 0950095 (C.H.R.O. May 25, 2010) ($40,000 emotional distress damages

award in hostile housing environment case), (4) Commission on Human

Rights & Opportunities ex rel. Lawton v. Jansen, supra, 2007 WL 4623071,

*1, *9 ($40,000 emotional distress damages award in hostile housing environment case), (5) Commission on Human Rights & Opportunities ex rel.

Hartling v. Carfi, supra, 2006 WL 4753467, *10 ($25,000 emotional distress

damages award in hostile housing environment case), (6) Commission on

Human Rights & Opportunities ex rel. Thomas v. Mills, Docket No. 9510408

(C.H.R.O. August 5, 1998) ($25,000 emotional distress damages award in

public accommodations case), (7) Commission on Human Rights & Opportunities ex rel. Brown v. Jackson, supra, 2008 WL 5122193, *24 ($22,000

emotional distress damages award in hostile housing environment case),

(8) Commission on Human Rights & Opportunities ex rel. Little v. Clark,

supra, 2000 WL 35575648, *1, *16 ($20,000 emotional distress damages award

in hostile environment discrimination case), (9) Commission on Human

Rights & Opportunities ex rel. Scott v. Jemison, supra, 2000 WL 35575662,

*1 ($6000 emotional distress damages award in hostile housing environment

case); (10) Commission on Human Rights & Opportunities ex rel. McIn-
tosh-Waller v. Vahistrom, Docket No. 0750080, 2008 WL 2683291, *8–9

(C.H.R.O. June 6, 2008) (no damages were awarded because no liability was

found in hostile housing environment case).

12 In my view, neither the jury awards nor the CHRO awards should create

a presumptive range; the referee should consider as comparators administrative and judicial awards (including jury awards) for emotional distress

caused by similar acts of illegal racial discrimination, and either accept or

reject the comparison based on the similarity or dissimilarity or the underlying facts, not the identity of the decision maker.

13 The majority relies on our case law regarding additur and remittitur to

conclude that ‘‘benchmarking a challenged award against awards in other

cases is not required or even, necessarily, appropriate’’ because ‘‘comparisons with amounts in other verdicts serve little purpose.’’ (Internal quotation

marks omitted.) Part I of the majority opinion. I agree with the majority

that a comparison to other jury awards normally is unhelpful to determine

whether a jury award in any particular case is inadequate or excessive,

because ‘‘[j]uries may differ widely in the conclusions [that] they reach in

what may be apparently similar cases, and, in fact, in any given case one

jury may arrive at a result substantially different from that of another jury.’’

(Internal quotation marks omitted.) Munn v. Hotchkiss School, 326 Conn.

540, 579, 165 A.3d 1167 (2017). As we previously have observed, ‘‘[t]his

flexibility, though it may lead to uncertainty, is a necessary concomitant of

the jury system as it operates in cases of this nature.’’ Birgel v. Heintz, 163

Conn. 23, 34, 301 A.2d 249 (1972). Indeed, jurors are not allowed to learn

about awards in other cases. But CHRO referees are not jurors; they are

administrative decision makers who arrive at a fair and just valuation of

emotional distress damages by reference to damages awards for emotional

distress in other cases involving comparable facts. For comparative purposes, it is irrelevant whether the other awards are made by courts, juries,

or other administrative agency adjudicators, so long as they represent a

fair and fitting valuation of emotional distress damages under factually

comparable circumstances.

14 The United States Supreme Court, lower federal courts, this court, and

legal scholars all have remarked on the severe, pervasive, and often irreversible harm caused by racial discrimination. See, e.g., Brown v. Board of

Education, 347 U.S. 483, 494, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (‘‘[t]o separate

[children] from others of similar age and qualifications solely because of

their race generates a feeling of inferiority as to their status in the community

that may affect their hearts and minds in a way unlikely ever to be undone’’);

Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072, 1074 (3d Cir. 1995) (‘‘[a]

victim of discrimination suffers a dehumanizing injury as real as, and often

of far more severe and lasting harm than, a blow to the jaw’’ (internal

quotation marks omitted)); State v. Liebenguth, 336 Conn. 685, 703–704, 250

A.3d 1 (2020) (‘‘[I]t is beyond question that the use of the [N] word . . . is

highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination. . . . [I]t is probably the single most offensive word

in the English language.’’ (Citations omitted; internal quotation marks omitted.)); see also V. Goode & C. Johnson, ‘‘Emotional Harm in Housing Discrimination Cases: A New Look at a Lingering Problem,’’ 30 Fordham Urban L.J.

1143, 1148 (2003) (‘‘Emotional harm claims in housing discrimination cases

tend to subtly reflect the shadow of racism in this country. It is the persistence of segregated housing patterns that contributes to a lack of understanding of the impact of racism and a diminished sense of empathy that is so

essential in compensating the full nature of the dignitary harm that flows

from housing discrimination.’’ (Footnote omitted.)).

15 For purposes of this appeal, I need not venture an opinion on the

particular number of cases, or the ratio of CHRO cases to non-CHRO cases,

that should be considered by the referee to provide a sufficiently representative pool of data. I would be loathe to encourage judicial micromanagement

at that level of detail. It is enough in the present case to say that the

categorical exclusion of all comparators except CHRO awards (and one

jury award on remand) was improper.

16 As the majority recognizes, the ‘‘term ‘garden-variety’ ’’ refers to emotional distress that is established primarily through a plaintiff’s own testimony, rather than through medical or psychological evidence. Footnote 3

of the majority opinion. I agree with the majority that the term ‘‘is a bit of

a misnomer’’ in that it appears to trivialize an individual’s experience with

emotional distress. Id.; see A. Merjian, ‘‘Nothing ‘Garden Variety’ About It:

Manifest Error and Gross Devaluation in the Assessment of Emotional Distress Damages,’’ 70 Syracuse L. Rev. 689, 693 (2020) (‘‘There is nothing
‘[garden-variety]’ about the experience of discrimination. Discrimination is

never ‘commonplace’ or ‘forgettable,’ common synonyms for this phrase.’’).

17 The $30,000 to $125,000 range derives primarily from cases decided in

the mid-2000s. This range would be much higher today after adjusting to

account for inflation. As I explain in part III of this opinion, when conducting

a comparative methodological approach to assess emotional distress damages, it is vital to account for the passage of time.

18 See footnote 1 of this opinion.

19 In Moore v. Moore, 173 Conn. 120, 376 A.2d 1085 (1977), this court held

that our courts may take judicial notice of the ‘‘fact of inflation . . . without

affording [the parties] an opportunity to be heard . . . .’’ Id., 123. To the

extent that the rate of inflation may be subject to reasonable factual dispute;

see id.; the parties are free to proffer evidence regarding the rate of inflation.

In the absence of evidence, the rate of inflation, as reflected by governmental

statistics, such as those provided by the United States Department of Labor,

should be presumed. See Bureau of Labor Statistics, United States Department of Labor, CPI Inflation Calculator, available at https://www.bls.gov/

data/inflation_calculator.htm (last visited June 23, 2023).