City of Hartford Police Dep't v. Comm'n on Human Rights & Opportunities

• Decision Date: 01 June 2016
• Docket Number: HHBCV156028513S
• Court: Connecticut Superior Court
• Parties: City of Hartford Police Department v. Commission on Human Rights and Opportunities et al

City of Hartford Police Department v. Commission on Human Rights and Opportunities et al

No. HHBCV156028513S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

June 1, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Carl J. Schuman, Judge

The plaintiff city of Hartford police department appeals from the decision of the defendant commission on human rights and opportunities (commission) finding that the plaintiff illegally discriminated against defendant Khoa Phan (Phan) based on his Asian and Vietnamese ancestry when it terminated his employment. The plaintiff also challenges the commission's award of damages to Phan. For the following reasons, the court sustains the appeal and orders a new hearing before the commission.

I

The historical facts are undisputed. Phan graduated from the police academy on July 2, 2010 and became, for one year, a probationary police officer with the plaintiff. Phan first participated in the field training program, which involves riding along with a sergeant who serves as a field training officer. Phan completed this program in October 2010 and earned the opportunity to work on his own while still on probation. On June 18, 2011, prior to completion of probation, the plaintiff terminated Phan's employment. The plaintiff claims that it took this action because of Phan's overall pattern of poor performance during his probationary period, including several specific incidents of untruthfulness.

On November 25, 2011, Phan filed an affidavit of illegal discriminatory practice with the commission, alleging discrimination on the basis of his Asian and Vietnamese ancestry. After investigation and attempts at conciliation the case came on for a public hearing before a human rights referee with the commission in August and September 2014. On March 4, 2015, the referee rendered a thirty-eight-page decision finding in favor of Phan.

The referee found that, prior to January 2011, Phan had received acceptable performance ratings. (Return of Record (ROR), pp 58, 62.) However, on or about January 23, 2011, Sergeant Steven Kessler reviewed a police report written by Phan asked him about the nationality of the victim in the report and Phan's own national origin, and made the comment to Phan that " Vietnamese, Cantonese, it's all the same shit, Phan." (ROR, pp. 40-41.) Then, in February Kessler asked Phan if Hartford citizens had a hard time understanding him because of his accent and told him that " hard core criminals must be laughing" at him when he tells them what to do and that they are probably " goofing on you behind your back, right." (ROR, p. 42.) Phan at one point asked Kessler to stop making offensive comments, but Kessler warned Phan to be careful what he said. (ROR, pp. 43, 59.)

In a memo to a Lieutenant Bergenholtz after these confrontations, Kessler reported that Phan was argumentative and confrontational. (ROR, p. 59.) At a February 25, 2011 meeting with Phan, Bergenholtz stated that he knew that Phan had yelled at Kessler. (ROR, p. 36.) Kessler also spoke to Sergeant Yergeau about Phan's performance. (ROR, p. 43.) Other sergeants who were purportedly friends of Kessler began giving Phan negative reviews. (ROR, pp. 59-60.) According to the referee, " Sergeant Kessler's discriminatory conduct towards [Phan] and his memo about [Phan's] deficiencies spurred the discriminatory action by [the police department] against [Phan] by causing other supervisory officers to complain about [Phan's] attitude, work, performance, and truthfulness." (ROR, p. 62.) The decision to terminate Phan's employment came from the chief of police after receiving a memorandum from Bergenholtz that included input from Yergeau. (Plaintiff's brief, p. 24.) The referee concluded that the plaintiff illegally discriminated against Phan in terminating him from his position as a probationary police officer. (ROR, p. 64.)

The referee ordered the plaintiff to pay back pay in the amount of $210, 596 plus prejudgment and postjudgment interest at the rate of 10% per annum. In addition, the referee ordered the plaintiff to pay emotional distress damages in the amount of $25, 000. The referee declined to order reinstatement or front pay. On March 26, 2015, the referee denied Phan's petition for reconsideration of the decision not to reinstate him.

The plaintiff now appeals to this court.

II

Under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., judicial review of an agency decision is " very restricted." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The 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: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

Stated differently, " [r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither [the appellate] court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012). " It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).

III

The plaintiff's principal claim on appeal is that the referee erred in applying a " mixed motive" analysis to the discrimination claim rather than a " pretext" analysis. In Levy v. Commission on Human Rights &amp Opportunities, 236 Conn. 96, 671 A.2d 349 (1996), our Supreme Court extensively discussed the differences between these two theories.^[1] The Court stated: " A 'mixed-motive' case exists when an employment decision is motivated by both legitimate and illegitimate reasons. See Price Waterhouse v. Hopkins, . . . 490 U.S. . . . 228 . .., 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion). In such instances [under the Price Waterhouse model], a plaintiff must demonstrate that the employer's decision was motivated by one or more prohibited statutory factors. Whether through direct evidence or circumstantial evidence, a plaintiff must submit enough evidence that, if believed, could reasonably allow a [fact finder] to conclude that the adverse employment consequences resulted because of an impermissible factor . . .

" The critical inquiry [in a mixed-motive case] is whether [a] discriminatory motive was a factor in the [employment] decision at the moment it was made . . . Under this model the plaintiff's prima facie case requires that the plaintiff prove by a preponderance of the evidence that he or she is within a protected class and that an impermissible factor played a 'motivating' or 'substantial' role in the employment decision . . .

" Once the plaintiff has established his prima facie case, the burden of production and persuasion shifts to the defendant. [T]he defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [the impermissible factor] into account.

" Often, a plaintiff cannot prove directly the reasons that motivated an employment decision. Nevertheless, a plaintiff may establish a prima facie case of discrimination through inference by presenting facts [that are] sufficient to remove the most likely bona fide reasons for an employment action . . . From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons. It is in these instances that the McDonnell Douglas-Burdine [or " pretext" ] model of analysis must be employed . . . [S]ee Texas Dept. of Community Affairs v. Burdine, . . . 450 U.S. . . . 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 [(1981)] . . .; McDonnell Douglas Corp. v. Green, . . . 411 U.S. . . . 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 [(1973)].

" The plaintiff's burden of establishing a prima facie case is not onerous under this model . . . The plaintiff need prove only four elements by a preponderance of the evidence: (1) that he or she belongs to a protected class; (2) that he or she applied and was qualified for the position in question; (3) that despite his or her qualifications, the individual was rejected; and (4) that after the individual was rejected, the position remained open . . . Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created.

" Under the McDonnell Douglas-Burdine model, the burden of...