Motion-Secondary: COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES v. THE TRAVELERS INDEMNITY COMPANY Et Al

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                                DOCKET NO.: HHB-CV22-6074234-S
                                       SUPERIOR COURT
COMMISSON ON HUMAN RIGHTS          :
AND OPPORTUNTIES                   :   J. D. OF NEW BRITAIN
     Plaintiff                     :   AT NEW BRITAIN
                                   :
     v.                            :
                                   :
THE TRAVELERS INDEMINTY            :
COMPANY, ET AL.                    :   FEBRUARY 13, 2023
     Defendants                    :



               BRIEF OF TRAVELERS INDEMNITY COMPANY
 I.     SUMMARY OF ARGUMENT
       This administrative appeal concerns the meritless attempt by serial litigant, Glenn Liou,

and the CHRO to overturn the decision of CHRO’s own Hearing Referee, in which she reached

the well-reasoned conclusion that use of the phrase “recent college graduate” in one Travelers job

posting does not constitute age discrimination. As set forth more fully below, this administrative

appeal must fail for several factual and legal reasons.

       As an initial matter, the Court has no subject matter jurisdiction over this matter because

CHRO and Complainant Liou lack standing. Neither can prove a direct injury as Complainant

Liou was a “recent college graduate” in his 50s and applied to the Travelers’ posting at issue, thus

throwing a fatal wrench in his project to find yet another lawsuit. As for CHRO, it adduced no

evidence during the public hearing that “individuals” have been discriminated against by virtue of

the challenged advertisement. See Conn. Gen. Stat. § 46a-60(b)(6). At most, CHRO raises interests

on behalf of others who may have not applied to the job because of the posting’s language, without

any evidence that others did not, in fact, apply because of the job posting. This is precisely the

type of remote, indirect, or derivative injury held to be insufficient to establish standing. See Lujan

v. Defenders of Wild Life, 504 U.S. 555, 565-67 (1992).

       Putting aside the jurisdictional deficiencies, this case is moot. Without admitting any

wrongdoing, Travelers agreed long ago to stop using the phrase “recent college graduates” in its

Connecticut job postings. Accordingly, CHRO does not need the cease and desist order that it

requested as the primary relief in the below proceedings.

       Finally, should the Court get to the merits of this appeal despite Travelers’ jurisdictional

and mootness arguments, there is no basis to conclude that the Referee erred in finding that

Travelers’ posting did not operate in such a way that it “discriminate[d] against individuals because

of their . . . age.” See Conn. Gen. Stat. § 46a-60(b)(6); (R15-16.) The Referee correctly applied

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the McDonnell Douglas framework as CHRO pleaded allegations consistent with a disparate

treatment theory and pursuant to the requirements of Conn. Gen. Stat. § 46a-60(b)(6). In any

event, the CHRO’s argument about the applicable framework is a red herring because the Referee

did consider whether the inclusion of “recent college graduate” in a job posting is per se evidence

of age discrimination. The Referee’s conclusions in this regard were not error; rather, they are

supported by the weight of recent authority holding that “recent college graduate” is not

synonymous with age and the CHRO’s own advertising practices and precedent.

           Notably, the CHRO engages in the very same advertising practices that it argues in this

appeal are unlawful. If the Court were to look at the CHRO’s website, it would note that CHRO

seeks “law student interns in its Legal Division and Executive Office” and has “limited openings

for college and motivated high school students.” See Commission on Human Rights and

Opportunities,         Internship     Opportunities,      portal.ct.gov/CHRO/Volunteers/Notice/Internship-

Opportunities (last accessed: Jan. 27, 2023) (emphasis added) (see also R34-36)1 (containing a

similar posting from 2018-2019). These “internship opportunities” are subject to the same anti-

discrimination laws at issue in this appeal, see Conn. Gen. Stat. § 31-40y(b)(2),2 and apparently,

CHRO—“one of the oldest civil rights enforcement agencies in the United States”—sees no issue




1
    Citations to the record are noted as R    .

2
  “No employer or agent of an employer shall: “Advertise any internship opportunity in a manner that would (A)
restrict such internship to; or (B) discriminate against, individuals of a certain race, color, religious creed, age, sex,
gender identity or expression, sexual orientation, marital status, national origin, ancestry, present or past history of
mental disability, intellectual disability, learning disability or physical disability, including, but not limited to,
blindness.” Unlike the statute at issue here, there is no “bona fide occupational qualification” exception to postings
for internship opportunities. Compare Conn. Gen. Stat. § 31-40y(b)(2) with Conn. Gen. Stat. § 46a-60(b)(6). So, any
argument that the CHRO may make that being in law school, college, or high school is a necessary qualification for
the posted internship opportunities is without merit.

Of course, Travelers does not agree that companies and the State cannot advertise internship opportunities to students
but highlights CHRO’s own actions to underscore the fallacy of its claims in this appeal.


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targeting “law student interns” “college” students and “motivated high school students” (who

cannot be of any age)—for them. Id.3

          For these reasons, as further discussed below, the Referee’s decision should be upheld, and

this appeal should be dismissed.

    II.   FACTUAL BACKGROUND
          Then an Arizona resident, Complainant Liou applied to Travelers in response to a job

posting for an entry-level Information Systems position, which stated that Travelers was “[s]eeking

upcoming and/or recent college graduates with one or less years of experience in this job area for

the IT Early Career area.” (R38:6-14; R52:14-17, R622-26, R627-28.) The posting also stated that

Travelers is an “equal opportunity employer.” (R628, R597:17-23.)

          Complainant Liou noted both the “recent college graduates” and “equal opportunity

employer” language during his review of the posting, and he submitted his application for the

position on or about November 3, 2015, when he was 55 years old. (R582:6-14, R593:17-R594:2,

R595:2-8, R597:17-23; R622-26; R480.) Complainant Liou admits that, in 2015, at age 55, he was

a full-time college student. (R599:11-19; R167.)

          Complainant Liou’s application to Travelers—which he submitted a mere ten days before

starting employment with another company in Arizona—consisted primarily of a list of terse

statements, including “Multitasking.” and “Good at computer….” (R609:10-16; R622-26). The

lone reference to Complainant Liou’s education consisted of a two-word statement: “Bachelor

degree,” and the application made no mention of Complainant Liou’s age, years of experience,




3
  The Record contains other examples of the Department of Administrative Services, a State agency, posting positions
with the following language: “If you anticipate completing a qualifying degree by December 2019 you are encouraged
to apply.” (R40, R47.)

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dates of previous employment, or graduation dates, from which Travelers could even possibly have

inferred his age. (See R622-26.)

        Ultimately, Complainant Liou was not selected for the position. (See R482.) Complainant

Liou has submitted many job applications over time and has filed many complaints of age

discrimination associated with those job applications. (R597:24-R598:6.) He is, essentially, a

career litigant.

 III.    PROCEDURAL POSTURE
        Complainant Liou filed a complaint with the CHRO on or about January 19, 2016, alleging

that Travelers’ failure to hire him for an IT Early Career position was age discrimination. The

complaint was thereafter amended to add the CHRO, in its own name, as a prosecuting party

pursuant to Conn. Agency Regs. § 46a-54-40(a)(2) and to seek relief under Conn. Gen. Stat. § 46a-

60(b)(6) for allegedly discriminatory advertising practices. The amended complaint filed by

CHRO further expanded the scope of allegedly injured parties to unidentified and unnamed

“persons.” (R506 ¶¶ 5-6, 9; R2.)

        Pursuant to the CHRO’s early legal intervention process, the case was transferred to the

Office of Public Hearings on or about September 27, 2017. A public hearing was held on February

13, 2019. Prior to and at the public hearing, Complainant Liou and the CHRO made it clear that

Complainant Liou had abandoned his failure to hire claim and that the sole remaining claim was

for allegedly discriminatory employment advertising under Conn. Gen. Stat. § 46a-60(b)(6). (R2-

3.)

         On June 28, 2022, the Referee issued her decision in favor of Travelers, finding, in

pertinent part:

        [T]here is a complete lack of evidence to support the charge of discriminatory
        practice in violation of § 46a-60(b)(6). The commission, as a complaining party in
        its own name, and the individual complainant Glenn Liou, have proved no set of

                                                4
         facts that would entitle them to relief under the direct or inferential allegations in
         the complaint. There is no evidence, let alone ample evidence, to support a finding
         that inclusion of ‘recent college graduates’ in the respondent’s job notice was
         intended to, and did, have the discriminatory effect of imposing an age restriction
         segregating or separating employees because of their age or expressing a preference
         for a younger class of applicants, erecting a barrier restricting and limiting job
         opportunities of applicants because of their age.

(R15.)

IV.      STANDARD OF REVIEW
         “In challenging an administrative agency action, the plaintiff has the burden of proof . . .”

Papic v. Burke, 113 Conn. App. 198, 219 (2009). Our Supreme Court clearly articulated the

standard of review in an appeal of a decision rendered by one of the CHRO’s Referees in Board

of Education of the City of Norwalk v. CHRO, 266 Conn. 492, 503-04 (2003). Therein, the Court

stated that “review of an agency’s factual determination is constrained by General Statutes § 4-

183(j), which mandates that a court shall not substitute its judgment for that of the agency as to

the weight of the evidence on questions of fact.” Id. Rather, “[t]he court shall affirm the decision

of the agency unless the court finds that substantial rights of the person appealing have been

prejudiced because the administrative findings, inferences, conclusions, or decisions are . . .

clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.”

Id. “This limited standard of review dictates that, 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 . . .” Id. “An agency’s factual determination must be sustained if it is

reasonably supported by substantial evidence in the record taken as a whole . . . Substantial

evidence exists if the administrative record affords a substantial basis of fact from which the fact

in issue can be reasonably inferred . . .” Id. “This substantial evidence standard is highly

deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence

standard of review . . . The burden is on the plaintiffs to demonstrate that the [agency’s] factual

                                                   5
conclusions were not supported by the weight of substantial evidence on the whole record . . .”

Id. “[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.” Id.

       The trial court’s “ultimate duty is to determine, in view of all the evidence, whether the

agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.”

Okeke v. Commissioner of Public Health, 304 Conn. 317, 324 (2012).

       The CHRO incorrectly argues that the de novo standard of review applies to its argument

that the Referee improperly analyzed this case under the McDonnell Douglas framework. (CHRO

Br. pp. 3-4.) The two cases cited by the CHRO in support of this argument that it is entitled to de

novo review were not, as is the case here, administrative appeals pursuant to Conn. Gen. Stat. §

4-183(j). (See CHRO Br., pp. 3-4) (citing Smith v. Muellner, 283 Conn. 510, 536 (2007); Wallace

v. Caring Sols., LLC, 213 Conn. App. 605, 627 (2022)).

        In City of Hartford Police Dept v. CHRO, which was an administrative appeal pursuant

to Conn. Gen. Stat. § 4-183, the court considered whether the Referee erred in applying the mixed

motive model when the case was tried as a pretext model. See City of Hartford,

HHBCV156028513S, 2016 Conn. Super. LEXIS 1233, at *5 (Conn. Super. Ct. June 1, 2016). In

analyzing this very similar question to the one presented in this administrative appeal, the court

characterized its “ultimate duty” as determining whether the Referee acted “unreasonably,

arbitrarily, illegally or in abuse of discretion”. See id. at *4-5 (citing Okeke v. Commissioner of

Public Health, 304 Conn. 317, 324 (2012)).

V.      LAW AND ARGUMENT
       This administrative appeal should be dismissed because: (1) the Court lacks subject matter

jurisdiction over this case as the CHRO and Complainant do not have standing; (2) the case is

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moot because Travelers long ago agreed to stop using the language “recent college graduate” in

its Connecticut job postings; (3) the Referee did not err in applying a disparate treatment theory of

liability; and (4) even if the Referee erred in applying a disparate treatment theory of liability, the

use of “recent college graduate” language under the circumstances presented here was not

discrimination per se.

         A. The Court Lacks Subject Matter Jurisdiction Over This Case Because CHRO and
            Complainant Liou Have No Direct Injury, and Therefore, Lack Standing
       The CHRO and Complainant Liou must establish that, as a result of Travelers’ job posting,

there was some direct injury for which the parties seek redress. Because they have not done so,

the Court lacks subject matter jurisdiction over this case.

       It is well established that “[a] party must have standing to assert a claim in order for the

court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set

judicial machinery in motion.” Johnson v. Rell, 119 Conn. App. 730, 735-36 (2010) (citing Lewis

v. Slack, 110 Conn. App. 641, 643-44 (2008), cert. denied, 289 Conn. 953 (2008)). “One cannot

rightfully invoke the jurisdiction of the court unless he has, in an individual or representative

capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in

the subject matter of the controversy. . . . Where a party is found to lack standing, the court is

consequently without subject matter jurisdiction to determine the cause …” Id.

       This requirement “is no mere procedural technicality,” and this case highlights the need for

a jurisdictional prerequisite, given Complainant Liou’s scattershot approach of filing multiple

actions in multiple jurisdictions at the same time with nearly identical allegations. See id.;

(R598:3-6.). “As the United States Supreme Court has explained, ‘[t]he power to declare the rights

of individuals and to measure the authority of governments . . . is legitimate only in the last resort,

and as a necessity in the determination of real, earnest and vital controversy” and is appropriately


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“restricted to litigants who can show [an injury] resulting from the action which they seek to have

the court adjudicate.” Id. (citing Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 471-473 (1982) (internal quotation marks

omitted)). “An allegation of injury is both fundamental and essential to a demonstration of

standing.” Id. at 737.

        Here, no justiciable injury is even alleged. Standing cannot be established where neither

Complainant nor the CHRO has alleged, much less proven, any direct injury capable of redress.

        1. Complainant Liou Lacks Standing Because the Posting Did Not Deter Him from
           Applying for Employment with Travelers and He Was Not Qualified for the Position
           at Issue.

        As to Complainant Liou, he cannot claim that he suffered an injury when he admits that

the language “recent college graduates” in the job posting did not in fact prevent him from applying

and when he admits having been a full-time college student just six months prior to the posting.

        A recent Second Circuit decision makes clear that “as a recent graduate himself,”

Complainant Liou lacks standing to bring this allegedly discriminatory advertising claim. See

Neary v. Gruenberg, 730 Fed. Appx. 7, 12 (2d Cir. 2018). In Neary v. Gruenberg, the plaintiff

challenged an initiative that encouraged federal agencies to give preference in hiring to recent

college graduates; the plaintiff had been denied employment after applying to the Federal Deposit

Insurance Corporation. Id. at 9.4 The Second Circuit dismissed the plaintiff’s disparate impact

claim, in part, because “as a recent graduate himself,” the plaintiff lacked standing to challenge

the “recent graduation requirement.” Id. at 12 (“Accordingly, Neary lacks standing to challenge

the implementation of the EO.”). Here, too, Complainant Liou lacks standing as he claims to be a

part of the group to which Travelers’ posting referred and he, in fact, applied for the position. See


4
 “[S]tanding under federal law often informs our discussion of standing under Connecticut law.” Burton v. Freedom
of Info. Comm’n, 161 Conn. App. 654, 660 (2015).

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also Moeller v. District of Columbia, 253 A.3d 165, 170 (D.D.C. July 1, 2021) (standing to sue

over an advertisement that sought “recent law school graduate” was dependent upon a factual

showing that the plaintiff had “a real, present interest” in the job posting and “was actually deterred

from applying because of the ‘recent law school graduate’ language”).

       Further, Complainant Liou was not qualified for the position at issue. “[A] person who fails

to satisfy lawful, nondiscriminatory requirements or qualifications for the benefit lacks standing

to raise claims of discrimination in the denial of the benefit.” Wilson v. Glenwood Intermountain

Props., 98 F.3d 590, 592 (10th Cir. 1996) (citing several cases supporting this proposition);

Bradley v. T-Mobile US, Inc., No. 17-CV-07232-BLF, 2020 U.S. Dist. LEXIS 44102, at *30-33

(N.D. Cal. Mar. 13, 2020) (concluding that plaintiffs challenging Facebook advertising practices

that allowed companies to restrict job applications based on age had to “show they were qualified

for and interested in the particular jobs subject to Defendants’ allegedly discriminatory practices”

to establish injury in fact). In other words, “[d]iscrimination cannot be the cause of injury to an

applicant who could not have obtained the benefit even in the absence of the discrimination.”

Wilson, 98 F.3d at 594.

       Here, Travelers’ posting sought “[B]asic knowledge of one or more of the following

technical skills: Foundational IT Infrastructure Operating Systems, Software and basic knowledge

of process discipline and IDLC methodology.” (R627.) Nothing in Complainant Liou’s application

demonstrated that he met these legitimate non-discriminatory criteria. (See R622-26.) In fact,

during the public hearing, Complainant questioned what IDLC is, and he abandoned his failure to

hire claim. (R579:17-23; R3.)

       At best, Complainant’s claim of aged-based discrimination is “the product of a project to

obtain a lawsuit” rather than a position at Travelers. See Moeller, 253 A.3d at 172 (directing the



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district court to consider as part of its standing analysis whether the plaintiff, who had filed a

number of similar age-discrimination lawsuits, actually had an interest in the position at issue and

was truly deterred from applying because of allegedly discriminatory language on the posting)

(citing Hailes v. Equitable Life Assurance Soc’y, 729 F.2d 1037, 1037 (5th Cir. 1984) (dismissing

case because “Hailes’ claim of sex-based discrimination in employment of secretaries is, as the

transcript shows, the product of a project to obtain a lawsuit—not a secretarial position.”). At the

time Complainant Liou applied to Travelers for a Connecticut-based position, he was living in

Arizona, was set to start an Arizona-based job in 10 days and had filed “many” other cases of age-

based discrimination in connection with other job applications. (R597:24-R598:6, R609:10-16;

R622-26.) So, in addition to the fact that Complainant Liou submitted his application and was part

of the “recent college graduate” group, there is no applicable “restrict[ion]” of employment

opportunities in this case because Complainant clearly had no genuine interest in being employed

by Travelers. Rather, his interest was “obtain[ing] a lawsuit.” See Moeller, 253 A.3d at 170.

       2. The CHRO Cannot Demonstrate Standing with Assertions That It Acts on Behalf of
          the General Public.

       As to the CHRO, its broadly stated position of acting generally on behalf of the public

interest does not obviate the need to establish standing. See, e.g., Fair Hous. Council v. Main Line

Times, 141 F.3d 439, 444 (3d Cir. 1998) (citing Lujan v. Defenders of Wild Life, 540 U.S. 555,

572-73 (1992) (“The fact that a housing organization is able to show that a particular advertisement

violates the Act is not sufficient to satisfy the requirements of Article III; a violation of the Act

does not automatically confer standing on any plaintiff, even one who holds the status of a private

attorney general. An organization acting as a private attorney general is relieved only of prudential

limitations on standing and may bring suit to enforce the rights of others only where the

organization itself is able to demonstrate that it has suffered injury in fact.”) (emphasis added).

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“The most impassioned public policy arguments cannot eliminate the case or controversy

requirement from the Constitution. If anything, the appeal to public policy should highlight . . . the

separation of powers rationale from which the case or controversy doctrine flows. Adjudicating

actual controversies, not legislating social policy, is the province of the judiciary.” Id.

       The CHRO has failed to establish standing in this case as there is no demonstrated injury

to the public merely because Travelers posted the job position in question (and where the CHRO’s

claim is based on a complaint filed by a Complainant Liou who suffered no injury). CHRO’s

general invocation of the public interest is no substitute for evidence of a demonstrated alleged

injury to the public.

       Moreover, the statutory language itself demonstrates that CHRO has no standing here.

Conn. Gen. Stat. § 46a-60(a)(6) uses the plural term “individuals,” whereas other portions of the

statute use the singular form. For example, Conn. Gen. Stat. § 46a-60(a)(1) provides: “It shall be

a discriminatory practice … [f]or an employer … to discriminate against such individual in

compensation or in terms, conditions or privileges of employment because of the individual’s …

age….” (emphasis added). Courts have held that when the legislature uses “both the singular and

plural forms of a term in a statute,” as is the case within Conn. Gen. Stat. § 46a-60(a), such usage

is likely intentional. State v. Brown, 310 Conn. 693, 704 (2013). The CHRO must, therefore, show

that “individuals,” plural, have been discriminated against by virtue of the challenged

advertisement to demonstrate its standing to bring this claim. The CHRO recognized this

requirement in its own Amended Complaint, in which it alleged that “[t]he actions of the

Respondent described in this complaint adversely affect the legal rights of persons other than and

in addition to Glenn Liou.” (R507 ¶ 7; see also R507 ¶ 9) (“The actions of the Respondent

described in this complaint constitute discrimination against individuals on the basis of age in



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violation of Conn. Gen. Stat. § 46a-58(a), based on a deprivation of rights under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and Conn. Gen. Stat. § 46a-

60(a)(6).”) (emphasis supplied).

         The CHRO has failed to prove its allegations. At best, the CHRO has raised symbolic

interests on behalf of others who may have not applied to the job because of the posting’s language

(again, without any evidence that others did not, in fact, apply because of the job posting).5 These

facts are precisely the type of remote, indirect, or derivative injuries held to be insufficient to

establish standing.          See, e.g., Wilson, 98 F.3d at 596 (“[I]f the stigmatic effect of

a discriminatory advertisement were a sufficient injury, members of the discriminated-against

group who read a discriminatory advertisement in the New York Times for example would

have standing regardless of whether they lived in New York City or on the West Coast, whether

they had any interest in living in the advertised housing, and whether they met legitimate,

nondiscriminatory          qualifications       for      the     housing.       Persons       who       merely       see

a discriminatory advertisement are concerned bystanders who are not personally subjected

to discrimination.”); Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 955 (9th Cir. 2011) (no

standing in public accommodations case where a disabled plaintiff’s complaint amounted only to

a “wholesale audit of the defendant’s premises” as it did not contain any allegations of the

plaintiff’s personal encounters with the claimed barriers on the defendant’s premises); Citizens

Council on Human Relations v. Buffalo Yacht Club, 438 F. Supp. 316, 320 (W.D.N.Y. Oct. 7,

1977) (no standing where the plaintiffs, including an organization, who complained about the



5
  In response to the Referee’s questions during the public hearing, CHRO articulated its injury as merely its
“institutional interest in eliminating discrimination.” (R558:5-19.) This is of course such a broad and generalized
statement of injury that it would constitute an end-run around the entire requirement of injury that underlies the concept
of a justiciable controversy. See, e.g., Trieber v. Aspen Dental Mgmt, Inc., 94 F. Supp. 3d 352, 363 (N.D.N.Y. 2015),
aff’d, 635 F. App’x 1 (2d Cir. 2016) (simply alleging that “these are inevitable consequences of [defendant’s] business
model” is the type of injury that is “too abstract” to establish a justiciable controversy).

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discriminatory practices of a yacht club never actually attempted to join the club and holding that

“[a] mere passing interest in a problem without the necessary factual allegations of concrete,

particularized injury does not establish standing”).

         CHRO relies primarily on Evening Sentinel, 168 Conn. 26 (1975) for its argument that

“evidence of a specific discriminatory injury to an individual as a result of the advertisement” is

not required. (CHRO Br., p. 9.)6 First, as stated above, the statute at issue requires CHRO to

demonstrate that “individuals” have been harmed, so on this basis alone, CHRO’s argument

misstates the law. But second, there is nothing in Evening Sentinel that definitively indicates the

Court ever considered the subject matter jurisdiction arguments raised herein. “The fact that a suit

was allowed to go forward against” an entity where a legal issue “was uncontested” is indicative

of nothing. See Holt v. Town of Stonington, Civil Action No. 3:09-cv-2069 (JCH), 2011 U.S. Dist.

LEXIS 133138, at *11-12 (D. Conn. Nov. 17, 2011).7

         Because neither Complainant Liou nor the CHRO has standing to pursue this claim, the

Court has no subject matter jurisdiction over this appeal, and it must be dismissed.

          B. This Case Is Moot Because Travelers Has Already Implemented the Relief Requested.
         As represented by Travelers’ counsel at the public hearing, Travelers long ago agreed to

stop the complained-of practice. For that reason, Travelers has been unable to understand for years

why this case has been pursued. Because Travelers has already implemented the primary relief

requested by CHRO, this case is moot and should be dismissed, even aside from the fact that no

violation of CFEPA has been established.


6
  Presumably, CHRO would not agree that the undersigned—who is not a “law student” “college” student or
“motivated high school student”— has a claim against the State merely because she saw the advertisement for
internship opportunities on the CHRO’s website.
7
  If anything, there was some focus in Evening Sentinel on whether an injury had been established as the Court stated
“[t]he restrictive effects of such advertising are amply demonstrated in the defendant’s appendix . . .” 168 Conn. at 35
(emphasis added).

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       “The law recognizes that the actions of parties themselves, by settling their differences, can

cause a case to become moot.” Waterbury Hosp. v. Conn. Health Care Assocs., 186 Conn. 247,

251 (1982) (citing Heitmuller v. Stokes, 256 U.S. 359, 362-63 (1921); Nader v. Altermatt, 166

Conn. 43, 56 (1974)). “A case becomes moot when due to intervening circumstances a controversy

between the parties no longer exists.” Id. at 252 (internal citations and quotations omitted). A

court will not proceed “‘to a determination when its judgment would be wholly ineffectual for

want of a subject matter on which it could operate.’” Id. (quoting Brownlow v. Schwartz, 261 U.S.

216, 217-18 (1923)). “Courts will not knowingly determine moot questions, however much both

parties desire such determination.” Id. (internal citations and quotations omitted.)

       Here, the case became moot when CHRO made clear, in its post-hearing brief filed in the

below proceeding, that the primary relief it is requesting is that which Travelers has already

implemented. More specifically, CHRO requests that Travelers be ordered to “cease and desist

from publishing, or causing to be published, job postings with language indicating a preference

directed to upcoming recent college graduates.” (R135-36.) Travelers has already done so. As

counsel for Travelers stated on the record during the hearing, Travelers has been willing to not use

“recent college graduates” language in its Connecticut job postings. (R550 6:5-9; R554:13-19.)

(“So we frankly, for a couple of years, have not understood what this case is all about given that

Travelers has been willing to and has agreed not to use the subject language anymore and that’s

all that was at issue in Evening Sentinel.”). “If a defendant voluntarily ceases the behavior that is

complained of, the case can be rendered moot ‘if subsequent events [make] it absolutely clear that

the allegedly wrongful behavior could not reasonably be expected to recur.’” Ovadal v. City of

Madison, 469 F.3d 625, 628 (7th Cir. 2006) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).



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       In response to this argument, in the below proceedings, CHRO identified two documents

that it contends contradict Travelers’ representation. One is a Twitter post from December 2017

(well before the public hearing in this case) that asks “are you a college student or recent grad ….”

and, if so, please come to a career fair. (R65.) The other is an Indeed.com posting from March

2019 for an Accounting Analyst position at Travelers, specifying that the “Minimum

Qualifications” are an “Associates Degree or 2 years related work experience required” and, in the

“Education, Work, Experience & Knowledge” category, that a “BA/BS in Accounting or Finance

or equivalent work experience preferred.”        (R67-69) (emphases added.)       Additionally, the

Indeed.com posting states the company is looking for “Recent college graduate or up to a

maximum of three years of accounting or finance experience. (R67) (emphasis added). The

posting further states “Travelers is an equal opportunity employer.” (R68.) It is evident from the

face of these documents that neither the 2017 tweet nor the 2019 posting requires that applicants

be recent college graduates, nor do they even state a preference for recent college graduates. In

fact, the Indeed.com posting expressly states that work experience is a suitable alternative to a

college degree. The position is nonetheless entry-level, designed for those with up to three years

of accounting or finance experience. All that the tweet does is to invite current or recent college

students to a career fair. Even Hodgson v. Approved Personnel Service, Inc., 529 F.2d 760, 766

(4th Cir. 1975)—a case heavily relied on by CHRO—approved of using such language “when

simply appealing generally to all such persons to avail themselves of defendant’s services.” See

id. (“An extremely large number of graduates from various institutions enter the job market each

year. They are usually inexperienced in job hunting. Defendant did not violate the Act by offering

these people its services in finding employment.”). CHRO has not identified any other Travelers’




                                                 15
job postings using the phrase “recent college graduates”, and four years have passed since this case

was heard by the Referee.

        To the extent CHRO also requests an order requiring Travelers to enact new policies

regarding recruitment and to provide training regarding the “statutory prohibitions on

discrimination in employment-related advertising, recruiting, and hiring,” such forms of relief

were not within the scope of the Referee’s jurisdiction because they are not even arguably required

to make CHRO whole, even if a violation were found. (R136.) First, as noted above, Travelers

agreed to stop the complained of practice. Accordingly, there is no plausible factual predicate for

an order regarding new policies or training to remedy or redress an ongoing, persistent, or

widespread problem.

        Moreover, the one case cited by CHRO in support of its exceptionally broad request for

policy and training relief stands in remarkably stark contrast with this case. In Cosme v. Sunrise

Estates, 2007 WL 2619062 (OPH) (R136, R101-13), the Referee found for complainant after a

public hearing for which the respondent did not appear; the respondent also had been sanctioned

for failing to comply with a discovery order and failed to file a post-hearing brief. After the

hearing, the Referee found discrimination on the basis of mental disability (major depression,

PTSD), noting complainant could not read or write, and citing examples of egregious conduct such

as complainant’s supervisor calling him “retarded,” “crazy,” and “slow,” and throwing garbage on

the ground for complainant to pick up. The Referee further found the respondent had required

complainant to work a schedule that caused him to miss therapy appointments and other important

medical treatments. The Referee noted that the respondent had no anti-discrimination policies

whatsoever, nor any procedure for an employee to make complaints. It was truly an egregious

case. (See id.)



                                                16
       By contrast, here, the public hearing revealed no evidence whatsoever that would support

the need for Travelers to be ordered to revise its anti-discrimination policies or to provide specific

recruiting-related training to comply with CFEPA going forward. In fact, the hearing evidence

was just the opposite: it established that Travelers had voluntarily determined years ago that it

would not use the challenged language in its job postings.

       In any event, Travelers is mandated by law to post in its workplace the poster published by

the CHRO entitled “Discrimination is Illegal,” and the poster published by the Equal Employment

Opportunity Commission entitled “EEO is the Law.” These posters make clear that the law

prohibits discrimination in “recruiting, hiring, referring . . . advertising,” etc. (See R98-100.)

Additionally, Complainant Liou acknowledged during the hearing that he knew Travelers was an

equal opportunity employer, based on the language of its job posting. (R597:14-23; R627-28.) As

for training, Travelers is already required by law to present anti-harassment training to all

employees. Travelers reserved its right in the proceedings below to supplement the record further

on its training offerings, but the Referee never reached this argument because she found that

Travelers had not engaged in a discriminatory practice. (See R78.)

       Because Travelers has already implemented the primary relief requested by CHRO, this

case is moot and should be dismissed, even aside from the fact that no violation of CFEPA has

been established.

        C. The Referee Did Not Err in Applying a Disparate Treatment Theory of Liability
           Because CHRO Alleged Disparate Treatment in Its Amended Complaint.

       The CHRO argues that the Referee erred because she applied the disparate treatment theory

of liability, using the McDonnell Douglas framework, rather than CHRO’s preferred per se theory

of discrimination. (CHRO’s Br., pp. 11-16.) The CHRO’s argument ignores its own pleading in

this case, which “frame[s] the issues to be decided by the hearing tribunal.” See West Hartford v.

                                                 17
CHRO, 176 Conn. 291, 297 (1978) (“This court has repeatedly held that it is the charges contained

in the complaints filed pursuant to the Fair Employment Practices Act that . . . ‘frame the issues to

be decided by the hearing tribunal.’”) (quoting Groton v. CHRO, 169 Conn. 89, 99 (1975) and

citing Veeder-Root Co. v. CHRO, 165 Conn. 318, 329 (1973); Schaller v. Roadside Inn, Inc., 154

Conn. 61 (1966); Buol Machine Co. v. Buckens, 146 Conn. 639 (1959)). The CHRO further

ignores the plain language of Conn. Gen. Stat. § 46a-60(b)(6).

        1. The CHRO’s Pleading Framed this Case As One of Disparate Treatment, and
           Accordingly, CHRO Had Notice of the Requisite Standard of Liability.

        As our Supreme Court stated in White v. Mazda Motor of America Inc., 313 Conn. 610,

621 (2014), “[t]he pleadings determine which facts are relevant and frame the issues for summary

judgment proceedings or for trial.” “The principle that a plaintiff may rely only [on] what he has

alleged is basic. . . . It is fundamental in our law that the right of a plaintiff to recover is limited to

the allegations [in] his complaint.” Id. (internal citations and quotations omitted). “A complaint

must fairly put the defendant on notice of the claims . . . against him. . . . The purpose of the

complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent

surprise. . . . Only those issues raised by the [plaintiff] in the latest complaint can be tried before

the jury.” Id. at 621, 628 (internal citations and quotations omitted) (concluding that the plaintiff

could not rely on an alternative theory of liability because it was not pleaded in the complaint)

(internal citations and quotations omitted).

        In White, the court considered whether the plaintiff preserved for appellate review a claim

under the malfunction theory of products liability, which allows a party to rely on circumstantial

evidence rather than direct proof of a specific manufacturing or design defect. See id. at 612, 622.

The Court concluded that the plaintiff had not preserved his alternate theory of liability because

“our rules of practice required him to either raise it in his complaint or to obtain consent or leave

                                                    18
to raise it in a further amended complaint,” and “[t]he plaintiff did neither.” Id. at 628.

         Here, too, as the Referee properly concluded, CHRO raised a disparate treatment theory of

liability in its Amended Complaint. The Amended Complaint alleges as follows:

         6. Upon information and belief, the advertisements published by the Respondent were
         written in such a manner as to have the purpose or effect of indicating a preference or
         specification so as to discriminate against individuals on the basis of age.

         7. The actions of the Respondent described in this complaint adversely affect the legal
         rights of persons other than and in addition to Glenn Liou.

         8. The actions of the Respondent described in this complaint constitute discrimination
         against individuals on the basis of age in violation of Conn. Gen. Stat. § 46a-58(a),8 based
         on a deprivation of rights under the Age Discrimination in Employment Act (ADEA), 29
         U.S.C. §§ 621-634, and Conn. Gen. Stat. § 46a-60(a)(6).

(R506.) “Purpose” means “an objective, goal, or end.” Black’s Law Dictionary (11th ed. 2019.)

“Effect” means “something produced by an agent of cause; a result, outcome or consequence.”

(Id.)    Accordingly, the CHRO alleged in its pleadings that when Travelers published the job

posting at issue it had the “objective” or “goal” of achieving a discriminatory “outcome.” See id.

         Those allegations plainly incorporate a disparate treatment theory, and accordingly CHRO

cannot credibly assert that it did not have notice of the requisite standard of liability.

         2. The Plain Language of Conn. Gen. Stat. § 46a-60(b)(6) Requires Intent to Discriminate.

         Putting CHRO’s own pleading aside, at the very least, CHRO knew prior to the hearing

that Travelers intended to argue that proof of intentional age discrimination is required under §

46a-60(b)(6) and that the Referee was willing to entertain that argument. Travelers filed a pre-

hearing brief, which incorporated its argument that the “because of” language in the statute



8
  It is unclear why CHRO cited this statute in its Amended Complaint as it is not one which prohibits age
discrimination: “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 religion, national origin, alienage, color, race,
sex, gender identity or expression, sexual orientation, blindness, mental disability, physical disability, status as a
veteran or status as a victim of domestic violence.”

                                                           19
requires proof of intentional age discrimination and that this case should be analyzed under the

McDonnell Douglas framework. (R194-95.) The Referee heard argument on Travelers’ pre-

hearing brief but reserved her decision until the conclusion of evidence. That CHRO then decided

to present evidence in accordance with a “per se” theory of liability does not render it prejudiced.

No one forced CHRO to take that route. No one limited CHRO’s presentation of evidence.

Notably, CHRO makes no mention in its brief about what it would have done differently during

the hearing, or the case, had it definitively known that the Referee was going to apply the

McDonnell Douglas framework.

        The use of the phrases “because of” and “to discriminate against” demand a “finding of

intent to discriminate” consistent with the Connecticut Supreme Court’s holding in West Hartford

v. CHRO, 176 Conn. 291, 294, 298 (1978). In that case, which was decided after Evening Sentinel,

the Court considered whether a town’s decision to hire only women to staff a communications

center including through “‘Female Help Wanted’ columns” violated the CFEPA. See id. at 298.

In its analysis, the Court focused on whether there existed “substantial evidence to support a

finding of intent to discriminate” as the relevant portion of the statute stated: “It shall be an unfair

employment practice… [f]or an employer … because of the sex … of any individual … to

discriminate against him in compensation or in terms, conditions or privileges of employment.”

See id. at 294-98 (citing C.G.S. § 31-126.)

        The Referee reached the same conclusion, finding that “[t]he statutory provision of the

CFEPA at issue here . . . includes the elements ‘because of’ and ‘to discriminate against’,

signifying that in order to prevail, the complainants must present sufficient evidence in this case

to support a ‘finding of intent to discriminate.’” (R7.) The Referee’s interpretation of Conn. Gen.

Stat. § 46a-60(b)(6) is entitled to deference. See Starr v. Commissioner of Environmental



                                                  20
Protection, 226 Conn. 358, 372 (1993) (“[I]it is a well established practice of [the] court to accord

great deference to the construction given [a] statute by the agency charges with its enforcement.”).

       Nothing in Evening Sentinel supports a contrary holding. Evening Sentinel concerned

whether a newspaper could be held liable for aiding and abetting discrimination by expressly

segregating help-wanted advertisements by sex – literally listing some jobs available to women

only and some jobs available to men only. 168 Conn. at 28, 31. The decision largely concerned

the contours of aiding and abetting liability in the context of a publisher (the newspaper) of third-

parties’ (the employers’) job postings. The Court rejected the newspaper’s argument that its good

faith was a complete defense, holding that “specific intent” (meaning, per the prior paragraphs,

criminal intent or “knowledge of the illegal purpose and intent”) was not required. “Specific intent”

is a term typically used in the criminal law context. See, e.g., State v. Pond, 315 Conn. 451, 453

(2015) (discussing specific intent in the context of conspiracy); State v. Bitting, 162 Conn. 1, 3, 5–

6 (1971) (determining whether “specific intent is a necessary element of the crime of assault”).

The Court in Evening Sentinel never held that “intent” was not required to make out the claim of

discrimination, nor could it so hold consistent with the statutory language of Conn. Gen. Stat. §

46a-60(b)(6), which prohibits advertising “in such a manner as to restrict such employment so as

to discriminate against individuals because of their … sex.” The “so as to discriminate” phrase

clearly requires intent, or else it would be superfluous.

       Notably, CHRO does not challenge the Referee’s decision that it failed to prove disparate

treatment or intentional discrimination against Complainant Liou or unidentified “others”, rather,

CHRO’s appeal is premised on the convenient notion that it did not have to. But as argued above,

that argument stands in direct contrast with CHRO’s own pleading and the plain language of Conn.

Gen. Stat. § 46a-60(b)(6). Accordingly, this Court should uphold the Referee’s conclusion that



                                                 21
“[n]either the complainant Glenn Liou, nor the commission, has presented any evidence, whether

direct, circumstantial, or statistical, to support a finding that the subject job posting contained an

age restriction; that the complainant Liou and others were qualified for the position; th[at]

complainant Liou and others were adversely affected by the inclusion of recent college graduate

language in the advertisement; or that age actually played a motivating role in the respondent’s

deliberative process.” (R9.)

        D. The CHRO’s Argument About the Applicable Framework is a Red Herring Because
           the Referee Did Consider Whether the Inclusion of “Recent College Graduate” is
           Direct or “Per Se” Evidence of Age Discrimination. The Referee’s Holding In This
           Regard Should be Upheld.

       The CHRO’s appeal should be dismissed for the additional reason that nothing about the

application of the disparate treatment framework precluded the Referee from considering whether

the phrase “recent college graduate”, standing alone, is enough to prove age discrimination, and

the Referee did, in fact, consider whether that is the case. The Referee’s conclusion that use of

“recent college graduate” is not per se age discrimination should be upheld because unlike the

“help wanted men” and “help wanted female” advertisements at issue in Evening Sentinel, “recent

college graduate” is not synonymous with any protected characteristic.

       As the Referee noted in her decision, C