Oral Care Dental Group II, LLC v. Pallet

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ORAL CARE DENTAL GROUP II, LLC v.
SHANTEEMA PALLET ET AL.
(AC 43877)
Bright, C. J., Elgo and Suarez, Js.

Syllabus

The defendant Commission on Human Rights and Opportunities appealed
from the judgment of the trial court vacating the damages award granted
by its human rights referee to the defendant employee, P, for garden-
variety emotional distress in a sexual harassment complaint against the
plaintiff employer. During a public hearing before the referee, P testified
that the harassing and discriminatory conduct of M, who was her direct
supervisor while she was employed by the plaintiff, made her feel uncom-
fortable, stressed, and nervous and caused her to become depressed.
On direct examination, she was not asked about, and did not testify
regarding, any medical treatment that she received relating to her depres-
sion. On cross-examination, however, the plaintiff’s counsel questioned
P regarding the professional treatment that she sought as a result of
the emotional distress M had caused and asked why she had not pro-
duced any medical records relating to such treatment. The plaintiff’s
counsel continued this line of questioning even after the referee ruled
that P was not required to produce any medical records because she
was claiming only garden-variety emotional distress. With the exception
of her testimony in response to the questions of the plaintiff’s counsel,
P did not offer any evidence regarding her medical treatment. The referee
found in favor of P and awarded her back pay and damages for garden-
variety emotional distress. The plaintiff appealed to the trial court, which
vacated the referee’s damages award, and the commission appealed to
this court. Held that the trial court erred when it vacated the referee’s
damages award because it incorrectly concluded that the plaintiff was
prejudiced by P’s failure to disclose her medical records: the referee
did not abuse her discretion when she awarded P damages for garden-
variety emotional distress because our Supreme Court in Connecticut
Judicial Branch v. Gilbert (343 Conn. 90) made clear that, where a
claimant limits her claim to one for garden-variety emotional distress
damages, her medical records have no relevance, and P’s allegations
in her complaint and her testimony on direct examination, redirect
examination, and in response to the referee’s questions during the hear-
ing were consistent with a claim for garden-variety emotional distress
and the referee’s final decision clearly indicated that her award was
limited to damages for garden-variety emotional distress; moreover, a
new hearing in damages was not required because, unlike in Gilbert,
any prejudice that may have resulted from P’s testimony regarding her
psychiatric treatment and medication was caused solely by the plaintiff’s
counsel, who insisted on questioning P about her treatment even though
the subject was not raised in her direct testimony and he was informed
multiple times that such evidence was not relevant; furthermore, con-
trary to the plaintiff’s claim, our Supreme Court in Gilbert did not state
that a hearing on medical records was a prerequisite to allowing a
complainant to present evidence of garden-variety emotional distress;
accordingly, the plaintiff did not have a right to P’s medical records and
could not have been prejudiced by P’s failure to produce them.
Argued January 6—officially released June 21, 2022

Procedural History

Appeal from the decision of the defendant Commis-
sion on Human Rights and Opportunities awarding the
named defendant back pay and certain damages,
brought to the Superior Court in the judicial district of
New Britain, and tried to the court, Cordani, J.; judg-
ment sustaining in part the appeal and vacating the
damages award, from which the defendant Commission
on Human Rights and Opportunities appealed to this
court. Reversed in part; judgment directed.
Michael E. Roberts, human rights attorney, with
whom, on the brief, was Charles Krich, principal attor-
ney, for the appellant (defendant Commission on
Human Rights and Opportunities).
David L. Gussak, with whom, on the brief, was Gary
Greene, for the appellee (plaintiff).
Opinion

BRIGHT, C. J. The defendant Commission on Human
Rights and Opportunities (commission) appeals from
the judgment of the trial court vacating the human rights
referee’s damages award for garden-variety emotional
distress to the defendant Shanteema Pallet,1 in her sex-
ual harassment complaint against the plaintiff, Oral
Care Dental Group II, LLC. On appeal, the commission
claims that the court erred when it vacated the damages
award after concluding that the plaintiff was prejudiced
by Pallet’s failure to produce certain medical records.2
We agree with the commission and, accordingly, reverse
in part the judgment of the trial court and remand the
case to the trial court with direction to deny the plain-
tiff’s administrative appeal.
The following facts, as found by the referee, and
procedural history are relevant to our analysis of the
commission’s claim. Pallet worked as a marketer for
the plaintiff from April 16 to December 15, 2012. During
that time, Christopher Mertens was Pallet’s direct
supervisor. Shortly after Pallet began working for the
plaintiff, Mertens started to sexually harass her, both
at work and after hours. He regularly commented on
Pallet’s appearance, made sexually explicit comments
to her, ordered her to dress a certain way, invited her
to private lunches and dinners, and repeatedly called
and texted her, often to ask her out on dates. At one
point, after Mertens learned that Pallet was dating
someone else, he punished her by cutting her hours
and taking away her weekly gas cards. This led Pallet
to tell Mertens, falsely, that she no longer had a boy-
friend so that she could get her hours and gas cards
back. After learning that Pallet was still dating her boy-
friend, Mertens fired her in December, 2012.
Thereafter, ‘‘[o]n June 13, 2013, [Pallet] filed a com-
plaint with the [commission] alleging employment
based sexual harassment and discrimination in viola-
tion of General Statutes §§ 46a-603 and 46a-58 (a)4 with
a deprivation of rights secured by Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2 (Title VII),5 as its
factual predicate.’’ (Footnotes added.) In her complaint,
Pallet specifically alleged that Mertens had sexually
harassed her by commenting on her appearance and
her body, regularly asking her out on dates, and calling
and texting her during nonwork hours. Pallet further
alleged that Mertens had discriminated against her after
she rebuffed his repeated advances, first by reducing
her hours and taking away her gas cards, then by firing
her, and that ‘‘the [plaintiff’s] actions have caused me
to suffer monetary damages and emotional distress.’’
The plaintiff summarily denied the allegations of sexual
harassment and discrimination in Pallet’s complaint.
The commission scheduled a public hearing, which
was held before a referee on March 28, 29 and 30, 2017,
and on June 30, 2017. At the hearing, Pallet first testified
as to Mertens’ harassing and discriminatory conduct.6
As to the effects Mertens’ conduct had on her, Pallet
testified on direct examination that Mertens’ conduct
made her uncomfortable and stressed her out. Specifi-
cally, she testified: ‘‘The way he wanted me to dress is
not usually how I would dress. The shorter outfits when
it was cold [were] uncomfortable, extremely uncom-
fortable. When he just gawked at me when I wore them
was demeaning, like I felt less than, like, I felt . . . like
a piece of meat, like, I felt dirty.’’ She also testified that
her communications with Mertens made her nervous
and made her feel like her job was not secure unless
she did what he wanted her to do. Pallet further testified
that when Mertens fired her after learning that she was
still dating her boyfriend: ‘‘[I]t just made me question
. . . my ability to work around men and be comfortable
doing it. It made me feel disgusted with myself and
depressed.’’ When asked to describe how the firing
affected her life, Pallet testified that she ‘‘got really
depressed’’ and felt ‘‘worthless . . . .’’ She testified that
her depression caused her to lose interest in things,
including engaging in activities with her son, and
affected her ability to raise him. She further testified
that what happened to her while working for the plain-
tiff caused her to look for work in just ‘‘the medical
field with elderly people that . . . maybe don’t have
any sexual wants or needs.’’
During her direct examination, Pallet was not asked
about and did not testify about any medical treatment
that she received to treat her depression. On cross-
examination, however, the plaintiff’s counsel asked Pal-
let whether she had ever sought professional help for
the emotional distress Mertens had caused, and Pallet
admitted that she had seen a psychiatrist. The plaintiff’s
counsel then asked Pallet why she had not produced
medical records related to that treatment despite the
plaintiff requesting such documents.7 Pallet’s counsel
objected, and the referee ruled that, because Pallet was
claiming garden-variety emotional distress only, she
was not required to produce any medical records.
Despite this ruling, the plaintiff’s counsel continued to
cross-examine Pallet about her psychiatric treatment,
and Pallet testified in response to a question by the
plaintiff’s counsel that the psychiatrist had prescribed
her Zoloft. The plaintiff’s counsel then commented,
apparently directed at Pallet’s counsel, ‘‘[s]omething
else you didn’t produce my friend,’’ which led the ref-
eree to again state that Pallet was not required to dis-
close her medical records. On redirect examination,
Pallet was not asked any further questions and did not
provide any further testimony regarding any medical
treatment she received for her depression. Further-
more, although the referee asked Pallet a few questions
about payments she received from the plaintiff during
her employment, she did not ask questions about the
emotional distress the plaintiff claimed or any issues of
treatment brought out by the plaintiff’s counsel during
cross-examination. Pallet did not offer any other evi-
dence regarding any treatment she received for her
depression.
In a memorandum of decision dated May 16, 2018,
the referee found in favor of Pallet, concluding that she
had demonstrated ‘‘by a preponderance of the evidence
[that she] suffered illegal sexual harassment . . . .’’
The referee awarded Pallet $40,398 in back pay and
$25,000 in damages for garden-variety emotional dis-
tress. The referee’s award made no reference to any
medical treatment Pallet received for her depression.
Thereafter, the plaintiff appealed to the trial court. On
appeal, the plaintiff challenged the referee’s damages
award for garden-variety emotional distress, claiming
that (1) Connecticut does not recognize a claim for
garden-variety emotional distress and Pallet did not
allege such distress, (2) emotional distress and the asso-
ciated damages were not proven, and (3) the plaintiff
was prejudiced by Pallet’s failure to produce her medi-
cal records.8 In their briefs to the trial court, Pallet
and the commission argued that the referee’s award of
garden-variety emotional distress damages was proper
because (1) a claim for garden-variety emotional dis-
tress damages has long been recognized and (2) proving
such damages does not require medical records or
expert testimony.
The court disagreed with the plaintiff’s first and sec-
ond claims but agreed that the plaintiff had been sub-
stantially prejudiced by Pallet’s failure to produce her
medical records. More specifically, the court held that
the plaintiff was prejudiced because the lack of those
records prevented it from fully understanding the treat-
ment Pallet received and inhibited the plaintiff’s ability
to ‘‘effectively cross-examine [Pallet] and offer counter
evidence.’’ The court also held that ‘‘[l]imiting [Pallet’s]
claim to garden-variety emotional distress damages did
not undo the prejudice’’ because, ‘‘[a]lthough emotional
distress damages may be proven without the need for
expert medical evidence, unjustifiably withholding dis-
coverable evidence relevant to the claim and the related
damages is a separate issue, and may still impact the
ability to defend that claim.’’ On the basis of that preju-
dice, the court vacated the referee’s damages award
for garden-variety emotional distress. The commission
then appealed to this court.
We begin by setting forth the applicable standard of
review and principles of law that guide our analysis.
‘‘It is well established that [j]udicial review of [an admin-
istrative agency’s] action is governed by the Uniform
Administrative Procedure Act [(UAPA) General Stat-
utes § 4-166 et seq.] . . . and the scope of that review
is very restricted. . . . With regard to questions of fact,
it is neither the function of the trial court nor of this
court to retry the case or to substitute its judgment for
that of the administrative agency. . . . [F]or conclu-
sions of law, [t]he court’s ultimate duty is only to decide
whether, in light of the evidence, the [agency] has acted
unreasonably, arbitrarily, illegally, or in abuse of its
discretion. . . . [Thus] [c]onclusions 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.’’ (Citation omitted;
internal quotation marks omitted.) Commission on
Human Rights & Opportunities v. Cantillon, 207 Conn.
App. 668, 672, 263 A.3d 887, cert. granted, 340 Conn.
909, 264 A.3d 94 (2021).9
Claims for garden-variety emotional distress ‘‘are cog-
nizable under Connecticut law.’’ Connecticut Judicial
Branch v. Gilbert, 343 Conn. 90, 127 n.25, 272 A.3d 603
(2022). Such claims ‘‘refer to claims for compensation
for nothing more than the distress that any healthy,
well-adjusted person would likely feel as a result of
being so victimized . . . .’’ (Internal quotation marks
omitted.) Equal Employment Opportunity Commis-
sion v. Nichols Gas & Oil, Inc., 256 F.R.D. 114, 121
(W.D.N.Y. 2009); see also Ruhlmann v. Ulster County
Dept. of Social Services, 194 F.R.D. 445, 449 n.6
(N.D.N.Y. 2000) (‘‘[g]arden-variety emotional distress is
that which [is] simple or usual’’). A plaintiff’s recovery
for garden-variety emotional distress ‘‘is not precondi-
tioned on whether [the plaintiff] underwent treatment,
psychiatric or otherwise.’’ (Internal quotation marks
omitted.) Olsen v. County of Nassau, 615 F. Supp. 2d
35, 46 (E.D.N.Y. 2009). Instead, ‘‘the evidence of mental
suffering is generally limited to the testimony of the
plaintiff, who describes his or her injury in vague or
conclusory terms, without relating either the severity
or consequences of the injury. . . . Such claims typi-
cally [lack] extraordinary circumstances and are not
supported by any medical corroboration.’’ (Citations
omitted; internal quotation marks omitted.) Id.; see also
Patino v. Birken Mfg. Co., 304 Conn. 679, 706–707, 41
A.3d 1013 (2012) (plaintiff’s testimony about mental
suffering was sufficient on its own to support claim for
garden-variety emotional distress).
On appeal, the commission claims that the court
erred when it found that the plaintiff was substantially
prejudiced by Pallet’s failure to disclose her medical
records because Pallet was not required to disclose
those records, given that she was asserting a claim only
for garden-variety emotional distress. We agree.
Our Supreme Court’s recently released decision in
Connecticut Judicial Branch v. Gilbert, supra, 343
Conn. 90, is instructive. In Gilbert, the complainant, a
judicial marshal who was employed by the Connecticut
Judicial Branch, ‘‘brought a claim with the commission
alleging that another judicial marshal, Gordon Marco,
subjected her to severe and pervasive sexual harass-
ment and unwanted sexual contact, potentially rising
to the level of sexual assault, at various times between
2006 and 2012, while she was stationed primarily at the
Danielson courthouse. The complainant alleged that the
branch discriminated against her on the basis of her
gender by, among other things, subjecting her to a hos-
tile work environment, failing to adequately investigate
her allegations, and failing to take adequate remedial
steps to protect her. The complainant also claimed that
the branch had retaliated by altering the conditions of
her employment in response to her complaint . . . [by
relocating her to courthouses that were] significantly
farther from her residence.’’ Id., 97–98.
After the public hearing before the commission, the
referee found that the complainant’s allegations were
substantiated. Id., 98. The referee awarded the com-
plainant back pay with prejudgment and postjudgment
interest, $47,637 in attorney’s fees, and $50,000 in dam-
ages for emotional distress. Id. The referee also granted
the complainant injunctive relief in the form of an order
that ‘‘ ‘[t]he [branch] shall give the complainant the
option of returning to the Danielson courthouse.’ ’’ Id.
Thereafter, the branch appealed to the trial court
claiming, inter alia, that ‘‘the referee’s award of emo-
tional distress damages . . . was improper because
the complainant refused to provide the branch with her
psychological and medical records, allegedly in viola-
tion of the referee’s discovery orders . . . .’’ Id., 99.
The court agreed with the branch’s discovery claim and,
accordingly, vacated the referee’s damages award for
emotional distress. Id.
On appeal, our Supreme Court reversed the trial
court’s judgment with respect to, inter alia, its decision
to vacate the damages award.10 Id., 97. The court first
provided some additional facts and procedural history
relevant to this issue, which we summarize at length.
During the proceedings before the commission, the
branch issued the following discovery request to the
complainant and the commission: ‘‘ ‘Please produce all
medical records, counseling records, office notes, or
other documents, if any, identifying any and all medical
professionals who[m] the complainant consulted with
or was treated by for emotional damages and/or physi-
cal damages that the complainant contends are related
to [her] claims of discrimination.’ ’’ Id., 128. No records
were ever produced in response to this request. Id. The
complainant’s initial witness lists, however, included a
therapist and a psychologist who had provided mental
health treatment to the complainant and whom she
intended to call in support of her claim for emotional
distress damages. Id. The branch objected to this pro-
posed testimony because the complainant had failed to
provide any records related to either witness. Id.
The referee in Gilbert ruled on the branch’s objection
off the record and, according to the branch’s character-
ization of that ruling, ordered that ‘‘ ‘if the complainant
intended on pursuing anything other than garden-
variety emotional distress [damages], she needed to
provide copies of her psychological or mental health
records.’ ’’ (Emphasis in original.) Id., 129. Despite this
order, the complainant still did not produce her com-
plete medical records and, instead, ultimately produced
a single record, which she alleged was her psycholo-
gist’s original treatment notes. Id., 129–30. Accordingly,
prior to the hearing, the referee ruled that the complain-
ant could ‘‘put on evidence in support of her claim for
garden-variety emotional distress but could not intro-
duce medical records or other treatment related evi-
dence of emotional distress damages [unless the com-
plainant first produced her entire medical records].’’
Id., 131.
‘‘At the hearing, the branch repeatedly objected to the
admission of the complainant’s evidence [as to garden-
variety emotional distress] on two grounds. First . . .
the branch argued that the complainant should be
barred from introducing evidence even of garden-vari-
ety emotional distress. It contended that, without
access to the complainant’s medical records, it could
not adequately cross-examine her regarding those
claimed damages. The referee overruled those objec-
tions, stating that, in her view, the branch had an ade-
quate opportunity for cross-examination without the
records. Accordingly, the complainant was permitted
to testify that she felt ‘dirty,’ victimized, embarrassed,
ashamed, and fearful as a result of Marco’s conduct
and the branch’s inadequate response. She [also] testi-
fied that, following the incidents, she had ceased to be
a happy person; she suffered anxiety and nervousness,
and would wake in the night crying. . . .
‘‘Second, the branch contended that some of the testi-
mony by the complainant and her lay witnesses crossed
the threshold from garden-variety to treatment related
emotional distress damages because the testimony
occasionally alluded to or directly referenced the com-
plainant’s use of mental health counseling and pharma-
ceuticals to treat her emotional distress. The referee’s
response to this second category of objections was not
a model of clarity or consistency. When the branch
objected to the complainant’s testimony that her physi-
cian had prescribed daily Lexapro for depression and
anxiety, the referee allowed her to testify as to the
medication but not the amount. When the branch
objected to testimony that the complainant saw [a thera-
pist], the referee allowed the complainant . . . to tes-
tify that she went to [a therapist] but not about the
‘particulars’ as to what occurred at the therapist’s office.
When the branch objected to testimony that the com-
plainant was taking Tylenol PM and prescription sleep
aids, the referee responded: ‘We really can’t get into
too much medical information, because we’re not doing
this based on her treatment. . . . [L]et’s rephrase; just
the over-the-counter [medications] that you know of
. . . which does not have anything to do with records.’
Finally, when the branch objected to testimony regard-
ing the complainant’s use of Xanax, the referee ruled:
‘I think we’re not getting into physician visits. I outlined
in the beginning what garden-variety emotional distress
is and how it’s analyzed. I really don’t think [that] taking
a medic[ation] necessitates a review of medical records,
but I don’t want to get into more treatment or anything
that happened with a doctor. . . . I really don’t under-
stand [the branch’s] objection because . . . I’m not let-
ting in any evidence that pertains to [the complainant’s]
treatment. I know [that her husband] mentioned a pre-
scription. We can strike that prescription . . . from the
record . . . .’’ Id., 131–33.
In her memorandum of decision, the referee in Gil-
bert largely avoided any mention of the complainant’s
use of medication or counseling services. Id., 133. Her
factual findings, however, did include ‘‘three references
to the complainant’s use of ‘a prescription drug’ or
‘medication’ to treat insomnia, anxiety, and chest pains
arising from the alleged abuse.’’ Id., 133–34. ‘‘Ultimately,
the referee found that the complainant had suffered
emotional distress as a result of the branch’s discrimina-
tory treatment . . . [and] awarded the complainant
$50,000 in emotional distress damages.’’ Id., 134.
On appeal to the trial court, the court concluded that
the referee’s damages award was an abuse of discretion
and, accordingly, vacated the award, stating: ‘‘ ‘[The
complainant] withheld clearly discoverable, nonprivi-
leged information without justification and despite the
referee’s order otherwise. . . . [T]he court cannot
allow such unilateral, unjustified and fundamentally
unfair action to go without consequence, particularly
when it prejudices the other side. . . . The referee
should have precluded all evidence concerning emo-
tional and physical distress unless the proper discovery
was provided. The referee’s decision to allow garden-
variety emotional distress evidence was made pursuant
to improper procedure [and] was a clear error of law
. . . .’ ’’ Id.11
The Supreme Court in Gilbert disagreed, concluding
that ‘‘the trial court’s judgment rests on a flawed analy-
sis.’’ Id., 134. According to the court, the complainant’s
testimony on garden-variety emotional distress was
proper despite her failure to disclose the majority of
her medical records because when complainants are
seeking damages only for garden-variety emotional dis-
tress, they are not required to disclose their medical
records. Id., 136–38 (complainant was permissibly
‘‘given a choice by the referee that allowed her to refuse
production of [her] medical records without violating
the [referee’s] order [which limited the complainant to
garden-variety emotional distress damages]’’).12 Thus,
a complainant claiming only garden-variety emotional
distress who fails to disclose his or her medical records
properly is allowed to testify about ‘‘the sorts of every-
day emotional and physical reactions to trauma that a
jury reasonably could be expected to assess without
the assistance of expert testimony . . . [as long as that
testimony] does not involve a claim . . . that the emo-
tional distress required professional medical/psycho-
logical diagnosis, treatment, or medication.’’ Id., 127
n.25, 136–38. Testimony regarding a complainant’s use
of medications, counseling, or other medical treatment,
however, ‘‘crosses the line into treatment related emo-
tional distress and, thus, places [the complainant’s]
medical history at issue.’’ Id., 138. In such cases, a com-
plainant is required to disclose his or her medical
records in order to obtain a damages award for that
treatment related emotional distress. See id.
Accordingly, in Gilbert, the complainant’s testimony
that she felt ‘‘ ‘dirty,’ victimized, embarrassed, ashamed,
and fearful,’’ suffered ‘‘anxiety and nervousness,’’ and
‘‘ceased to be a happy person,’’ all because of the harass-
ment; id., 132; was properly admitted and could form the
basis for the referee’s garden-variety emotional distress
damages award, even though the complainant produced
almost none of her medical records, because such testi-
mony was limited to garden-variety emotional distress.
See id., 136–38; see also Equal Employment Opportu-
nity Commission v. Nichols Gas & Oil, Inc., supra, 256
F.R.D. 121 (garden-variety emotional distress is distress
that ‘‘ ‘any healthy, well-adjusted person would likely
feel as a result of being . . . victimized’ ’’). The com-
plainant’s testimony about ‘‘her use of various over-
the-counter and prescription medications to treat her
insomnia and anxiety,’’ however, crossed the line from
garden-variety emotional distress into treatment related
emotional distress. See Connecticut Judicial Branch
v. Gilbert, supra, 343 Conn. 138–39. Consequently, the
court held that, given the lack of medical records,
allowing the complainant to testify about medications
she had taken was an abuse of discretion because such
testimony was not limited to garden-variety emotional
distress. Id. The court further held that, although it was
a close call, the erroneous admission of this testimony
was not harmless because the referee had made several
factual findings regarding the complainant’s need for
medication and the court was unable to conclude ‘‘that
the improperly admitted evidence did not factor into
her damages calculation.’’ Id., 139–40. Therefore, the
court remanded the matter for a new hearing in dam-
ages where the complainant would be allowed to pres-
ent evidence only of garden-variety emotional distress
and the referee would be limited to awarding damages
for such emotional distress. Id., 140.
On April 27, 2022, following the release of our
Supreme Court’s opinion in Gilbert, we ordered the
parties in the present case to submit supplemental
briefs addressing the impact, if any, of Gilbert on the
commission’s claim on appeal. The parties thereafter
filed supplemental briefs in accordance with this court’s
order. In the supplemental brief filed by the commis-
sion, the commission argues that Gilbert supports its
claim that the trial court erred in vacating Pallet’s dam-
ages award because the result in Gilbert makes clear
that, when a complainant seeks only garden-variety
emotional distress damages—as Pallet did here—the
complainant is not required to disclose his or her medi-
cal records. The commission also argues that a new
damages hearing is not required in the present case
because here, unlike in Gilbert, (1) it was only opposing
counsel who solicited testimony about Pallet’s medical
history and (2) the referee did not reference that medi-
cal history in either her findings or her decision. Con-
versely, the supplemental brief filed by the plaintiff
claims that the present case is distinguishable from
Gilbert and that Gilbert ‘‘does not impact the decision
rendered by the court below which is the subject of
[the present] appeal.’’ More specifically, the plaintiff
contends that the court’s decision to vacate Pallet’s
damages award was proper, even in light of Gilbert,
because the court ‘‘found that discoverable documents
were inappropriately withheld . . . [which] clearly
prejudiced the [plaintiff]’’ and the referee in the underly-
ing proceedings never held a hearing on Pallet’s medical
records. We agree with the commission.
On the basis of our Supreme Court’s decision in Gil-
bert, we conclude that the court in the present case
erred when it held that the plaintiff was prejudiced by
Pallet’s failure to produce her medical records because
Pallet’s allegations and her direct testimony at the pub-
lic hearing were limited to garden-variety emotional
distress, and the referee’s decision and damages award
were also so limited. We further hold that, unlike in
Gilbert, a new damages hearing is not required because
the plaintiff is in no position to complain about Pallet’s
testimony regarding medical treatment when its coun-
sel, after being instructed that such evidence was not
relevant, insisted on asking questions that resulted in
that testimony, and there is nothing in the record that
establishes that the referee relied on such evidence
when awarding Pallet damages for garden-variety emo-
tional distress.
Specifically, in the present case, unlike in Gilbert,
Pallet never gave any indication throughout the entire
proceedings before the commission that she was seek-
ing anything other than garden-variety emotional dis-
tress damages. In her complaint, Pallet stated that she
suffered emotional distress as a result of Mertens’
harassment. The complaint did not assert an indepen-
dent cause of action for emotional distress or any claims
for a specific mental disorder or condition. Further,
Pallet did not allege that Mertens’ conduct had a signifi-
cant impact on her physical health. Accordingly, the
allegations in her complaint were consistent with a
claim for garden-variety emotional distress. See Con-
necticut Judicial Branch v. Gilbert, supra, 343 Conn.
132, 136–39 (testimony that sexual harassment caused
anxiety and sadness was consistent with claim for gar-
den-variety emotional distress); see also Safeco Ins. Co.
of America v. Vecsey, 259 F.R.D. 23, 30 (D. Conn. 2009)
(complainant’s allegation of mental distress, ‘‘which
[was] unaccompanied by any independent cause of
action for mental distress . . . or claim for a specific
mental disorder or condition,’’ was claim for garden-
variety emotional distress); Olsen v. County of Nassau,
supra, 615 F. Supp. 2d 47 (treatment related emotional
distress claims generally involve ‘‘outrageous or shock-
ing discriminatory conduct or a significant impact on
the [complainant’s] physical health’’ (internal quotation
marks omitted)).
Pallet’s testimony during the hearing, specifically that
Mertens’ harassment caused her to feel nervous, dirty,
‘‘like a piece of meat,’’ worthless and disgusted with
herself, and caused her to be depressed and to lose
interest in things, also was consistent with a claim for
garden-variety emotional distress. See Connecticut
Judicial Branch v. Gilbert, supra, 343 Conn. 132,
136–39; see also Equal Employment Opportunity Com-
mission v. Nichols Gas & Oil, Inc., supra, 256 F.R.D.
121 (garden-variety emotional distress refers to distress
that ‘‘ ‘any healthy, well-adjusted person would likely
feel as result of being . . . victimized’ ’’). Unlike the
complainant in Gilbert, who erroneously was allowed
to testify, over the branch’s objection, that she had
taken medication to manage her anxiety and depres-
sion; Connecticut Judicial Branch v. Gilbert, supra,
138–39; Pallet did not testify on direct examination at
all about any medical or psychiatric treatment. The
topic was never raised by her, her counsel, or the ref-
eree. Instead, Pallet merely testified about how Mertens’
harassment made her feel. Such testimony, in the
absence of any mention of medical intervention, is not
enough to cross the line into testimony about treatment
related emotional distress. See id., 132, 136–39 (com-
plainant’s testimony that ‘‘she had ceased to be a happy
person’’ constituted garden-variety emotional distress).
Instead, such testimony is consistent with a claim for
garden-variety emotional distress. See id.; see also In
re Sims, 534 F.3d 117, 133–34 (2d Cir. 2008) (complain-
ant who states that he or she suffers from depression
makes claim only for garden-variety emotional dis-
tress). Pallet did not offer any other evidence regarding
her medical treatment.
The plaintiff is correct that, at one point during the
proceedings, Pallet testified that she had seen a psychia-
trist and had been prescribed Zoloft. This testimony,
however, occurred during cross-examination and was
in response to questions that the plaintiff’s counsel
asked, despite being repeatedly cautioned by the ref-
eree that the proceeding was limited to garden-variety
emotional distress. The fact that Pallet’s testimony
about medical treatment occurred during cross-exami-
nation distinguishes it from the testimony that our
Supreme Court found improper in Gilbert. In Gilbert, it
was the complainant and her witnesses who introduced
inadmissible evidence about her use of medication
through their testimony on direct examination, over the
branch’s objections. Connecticut Judicial Branch v.
Gilbert, supra, 343 Conn. 138–39. In the present case,
however, any prejudice that might have resulted from
Pallet’s testimony about psychiatric treatment and med-
ication was caused solely by the plaintiff because its
counsel inquired into Pallet’s medical treatment and
elicited testimony about that treatment even though the
subject was never raised in Pallet’s direct testimony
and the referee repeatedly told the plaintiff’s counsel
that such evidence and records were not relevant. We
simply are unpersuaded by the plaintiff’s claim of harm
that was self-inflicted.
Furthermore, on redirect examination, Pallet was not
asked any questions about the treatment the plaintiff’s
counsel brought out on cross-examination. Moreover,
although the referee asked Pallet questions on another
topic, she did not ask her questions about any medical
treatment she received.
Finally, the referee in the present case took great
pains to ensure that the hearing and her eventual deci-
sion and damages award were limited to garden-variety
emotional distress. During the hearing, the referee
repeatedly characterized Pallet’s complaint as alleging
only garden-variety emotional distress, a characteriza-
tion that neither Pallet nor her counsel ever disputed.
Moreover, and again unlike in Gilbert, the referee in
the present case did not make any factual findings about
the complainant receiving psychiatric treatment or tak-
ing medication to manage her emotional distress. In
fact, a review of the referee’s final decision makes clear
that the referee’s damages award was limited to dam-
ages for garden-variety emotional distress and that the
award was exclusively based on Pallet’s testimony
about the depression and other distress she had experi-
enced because of Mertens’ harassment.
Accordingly, because it is clear from the record that
Pallet was making a claim only for garden-variety emo-
tional distress, she was not required to disclose her
medical records and the plaintiff, thus, was not entitled
to receive those records. See id., 136–38 (complainant
is limited to garden-variety emotional distress damages
when he or she declines to provide his or her full medi-
cal records); see also Olsen v. County of Nassau, supra,
615 F. Supp. 2d 46 (‘‘[i]n garden-variety emotional dis-
tress claims, the evidence of mental suffering is gener-
ally limited to the testimony of the plaintiff’’ (internal
quotation marks omitted)). Therefore, because the
plaintiff did not have a right to Pallet’s medical records,
the plaintiff could not have been prejudiced by Pallet’s
failure to produce those records.13
We are equally unpersuaded by the plaintiff’s claim,
made in its supplemental brief, that Pallet should not
have been allowed to present evidence on garden-vari-
ety emotional distress at all because the referee never
held a hearing to determine which medical records Pal-
let was or was not required to produce. According to
the plaintiff, such a hearing was held in Gilbert and it
was only because of that hearing that the complainant
was allowed to present evidence on garden-variety emo-
tional distress. Thus, the plaintiff contends that,
because no such hearing was held in the present case,
Pallet was barred from testifying about garden-variety
emotional distress. We disagree. Nowhere in Gilbert
did our Supreme Court state that a hearing on medical
records is a prerequisite to a complainant being allowed
to present evidence of garden-variety emotional dis-
tress. See Connecticut Judicial Branch v. Gilbert,
supra, 343 Conn. 136–40. To the contrary, the court’s
holding in Gilbert is clear that when a claimant limits
her claim to one for garden-variety emotional distress
damages, her medical records have no relevance. See
id. Hence, there is no need for such a hearing.
In sum, the referee did not abuse her discretion when
she awarded Pallet damages for garden-variety emo-
tional distress because, as explained in Gilbert, Pallet
was permitted to testify about her depression without
first disclosing her medical records, given that such
testimony went to garden-variety, and not treatment
related, emotional distress. See id., 136–38. In addition,
the plaintiff was not prejudiced by Pallet’s failure to
disclose her medical records because Pallet confined
her claim and evidence to garden-variety emotional dis-
tress and the referee confined the hearing, her decision,
and her damages award to garden-variety emotional
distress, which the referee had every right to do. See
id. (referees can properly limit proceeding to claim for
garden-variety emotional damages). Furthermore, any
prejudice that the plaintiff may have experienced was
caused solely by its counsel’s actions and cannot prop-
erly be attributed to either Pallet or the referee. Last,
a new hearing in damages is not required in the present
case, even though one was required in Gilbert, because
the record here makes clear that the referee did not rely
on any testimony about treatment related emotional
distress in reaching her decision. Thus, the court erred
when it vacated the referee’s damages award because
it incorrectly concluded that the plaintiff was preju-
diced by Pallet’s failure to disclose her medical
records.14
The judgment is reversed with respect to the decision
vacating the damages award, and the case is remanded
to the trial court with direction to deny the plaintiff’s
administrative appeal.
In this opinion the other judges concurred.
1
Following her marriage, Pallet took the surname Graham but she did
not amend her complaint to reflect that change. We thus refer to her as
Pallet throughout this opinion.
2
The plaintiff and Pallet both originally filed cross appeals in this action
but those cross appeals were later withdrawn.
3
General Statutes § 46a-60 (b) provides in relevant part: ‘‘It shall be a
discriminatory practice in violation of this section . . . (1) [f]or an employer
. . . except in the case of a bona fide occupational qualification or need
. . . to discharge from employment any individual or to discriminate against
any individual in compensation or in terms, conditions or privileges of
employment because of the individual’s . . . sex . . . .’’
Although the legislature has amended § 46a-60 since the events underlying
this appeal; see Public Acts 2017, No. 17-118, § 1; Public Acts 2017, No. 17-
127, § 4; Public Acts 2019, No. 19-16, § 4; Public Acts 2019, No. 19-93, § 8;
Public Acts 2021, No. 21-69, § 1; those amendments have no bearing on the
outcome of this appeal. All references herein to § 46a-60 are to the current
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 . . . sex . . . .’’
Although the legislature has amended § 46a-58 since the events underlying
this appeal; see Public Acts, Spec. Sess., June, 2015, No. 15-5, § 73; Public
Acts 2017, No. 17-111, § 1; Public Acts 2017, No. 17-127, § 2; those amend-
ments have no bearing on the outcome of this appeal. All references herein
to § 46a-58 are to the current revision of the statute.
5
Title 42 of the United States Code, § 2000e-2 (a), provides in relevant
part: ‘‘It shall be an unlawful employment practice for an employer- (1) . . .
to discharge any individual, or otherwise to discriminate against any individ-
ual with respect to his [or her] compensation, terms, conditions, or privileges
of employment, because of such individual’s . . . sex . . . .’’
6
Despite the issuance of two subpoenas, Mertens failed to appear at
the hearing.
7
During discovery, the plaintiff made a request for production of ‘‘copies
of all medical reports or medical bills received by you for treatment, consulta-
tion, or diagnosis of injuries or conditions, which you claim are, or may be
related to any claim for injuries you claim you were caused by the actions
of the [plaintiff].’’ Pallet responded: ‘‘None.’’
8
In its appeal to the trial court, the plaintiff also challenged several other
aspects of the referee’s final decision, claiming that the referee (1) erred
in awarding back pay despite the lack of evidence supporting such an award,
(2) improperly made an adverse inference based on Mertens’ failure to
appear at the hearing, and (3) made numerous erroneous evidentiary rulings.
The court rejected these additional claims, and the plaintiff does not chal-
lenge on appeal the court’s decisions as to those claims.
9
The Supreme Court granted certification limited to the following issue:
‘‘Did the Appellate Court correctly conclude that the trial court had properly
determined that the human rights referee adjudicating the underlying hous-
ing discrimination claim applied the proper legal principles in awarding the
claimant ‘garden-variety’ damages for emotional distress in the amount of
$15,000 against the named defendant, a neighbor who repeatedly subjected
the claimant to racially motivated verbal and physical harassment?’’ Com-
mission on Human Rights & Opportunities v. Cantillon, 340 Conn. 909,
909–10, 264 A.3d 94 (2021).
10
In the branch’s appeal to the trial court, the branch made the following
additional claims of error: ‘‘(1) . . . prior to 2019, the commission was not
authorized to award attorney’s fees and emotional distress damages to
victims of employment discrimination under either § 46a-58 (a) or § 46a-60,
(2) the award of prejudgment and postjudgment interest against the state
under [General Statutes] § 46a-86 (b) is barred by the state’s sovereign
immunity . . . and (4) the referee exceeded her legal authority in ordering
the branch to reinstate the complainant to her position at the Danielson
courthouse.’’ (Footnote omitted.) Connecticut Judicial Branch v. Gilbert,
supra, 343 Conn. 99.
The trial court disagreed with the branch’s first claim, concluding that,
although ‘‘emotional damages and attorney’s fees are unavailable for viola-
tions of § 46a-60 that occurred before 2019,’’ such remedies are available
to victims of employment discrimination when those victims also allege
violations of federal employment discrimination laws, as was the case in
Gilbert. Id., 99–100. With respect to the second claim, the court again dis-
agreed with the branch, finding that ‘‘the state ha[d] waived its sovereign
immunity as to prejudgment and postjudgment interest for civil rights viola-
tions.’’ Id., 100. As to the branch’s fourth claim, the court agreed with the
branch and, accordingly, also vacated the referee’s injunction. Id., 99.
Our Supreme Court then affirmed the trial court’s holding on the first
claim, reversed the trial court’s holding on the second claim, and remanded
for further proceedings on the fourth claim. Id., 97. Because none of these
holdings is central to the issues implicated in the present case, we do not
discuss them in detail in this opinion.
11
We note that the same trial court, Cordani, J., decided the administrative
appeals in both Gilbert and the present case. We further note that the quoted
language of the trial court’s order in Gilbert is strikingly similar to the court’s
order in the present case: ‘‘Complainant withheld clearly discoverable, non-
privileged information without justification. The court cannot allow such
unilateral, unjustified and fundamentally unfair action to go without conse-
quence, particularly when it prejudices the other side.’’ These similarities
make our Supreme Court’s analysis and decision in Gilbert all the more
relevant in the present case.
12
We note that this holding in Gilbert is consistent with the holding of
the United States Court of Appeals for the Second Circuit on the same issue.
See In re Sims, 534 F.3d 117, 134, 141 (2d Cir. 2008) (when complainant
makes claim only for garden-variety emotional distress, complainant is not
required to disclose, and opposing party does not have legal right to, com-
plainant’s medical or psychiatric records); see also Curry v. Allan S. Good-
man, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008) (Connecticut’s appellate
courts ‘‘review federal precedent concerning employment discrimination
for guidance in enforcing our own antidiscrimination statutes’’).
13
We also note that, at oral argument before this court, the plaintiff con-
ceded that it would have no right to Pallet’s medical records if all that Pallet
was claiming was garden-variety emotional distress.
14
In light of our conclusion that the court erred in vacating the referee’s
damages award because the plaintiff was not prejudiced by Pallet’s failure to
disclose her medical records, we do not address the commission’s alternative
argument that the plaintiff did not adequately brief its claim of prejudice
before the trial court.