Hartford Police Dep't v. Comm'n on Human Rights

• Jurisdiction: Connecticut,United States
• Court: Connecticut Supreme Court
• Writing for the Court: D'AURIA, J.
• Citation: Hartford Police Dep't v. Comm'n on Human Rights, 347 Conn. 241, 297 A.3d 167 (Conn. 2023)
• Docket Number: SC 20669, (SC 20674)
• Decision Date: 18 July 2023
• Parties: HARTFORD POLICE DEPARTMENT v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.
• topic: Civil Rights,Employment Law,Public Sector Law

347 Conn. 241

297 A.3d 167

HARTFORD POLICE DEPARTMENT

v.COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.

SC 20669, (SC 20674)

Supreme Court of Connecticut.

Argued February 17, 2023

Officially Released July 18, 2023

Megan K. Grant, human rights attorney, with whom were Michael E. Roberts, human rights attorney, and James V. Sabatini, Newington, for the appellants (defendants).

Daniel J. Krisch, Hartford, for the appellee (plaintiff).

Robinson, C. J., and D'Auria, Mullins, Ecker and Alexander, Js.

D'AURIA, J.

In this certified appeal, the defendants, Khoa Phan and the Commission on Human Rights and Opportunities (commission), appeal from the judgment of the Appellate Court, reversing the trial court's judgment upholding the decision of the presiding human rights referee (referee), who determined that the plaintiff, the Hartford Police Department, had discriminated against Phan on the basis of his Asian and Vietnamese ancestry by terminating his employment as a probationary police officer. On appeal, the defendants claim that the Appellate Court incorrectly concluded that there was not substantial evidence in the record to support the referee's determination of intentional discrimination because Phan had failed to establish either an inference of discrimination in his prima facie case or, alternatively, that the plaintiff's proffered reasons for terminating Phan's employment were pretextual. Our thorough review of the voluminous administrative record leads us to agree with the defendants, and, accordingly, we reverse the Appellate Court's judgment.

We note initially that the crux of the error that we find in this case lies in the Appellate Court's application of the appropriate standard of judicial review of a referee's factual findings.¹ Therefore, before recounting the referee's findings—necessarily in some detail—we begin with a review of those administrative principles.

"Our 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. ... [I]t is [not] the function of the trial court [or] of this court to retry the case .... 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. ... This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review." (Internal quotation marks omitted.) Board of Education v. Commission on Human Rights & Opportunities , 266 Conn. 492, 503–504, 832 A.2d 660 (2003).

More specifically, "in defining substantial evidence in the directed verdict formulation, [this court] has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Stratford Police Dept. v. Board of Firearms Permit Examiners , 343 Conn. 62, 81, 272 A.3d 639 (2022). As a result, "[i]n determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency's assessment of the credibility of witnesses. ... Ultimately, [t]he question is not whether the trial court would have reached the same conclusion but whether the record before the [agency] supports the action taken." (Citations omitted; internal quotation marks omitted.) Miko v. Commission on Human Rights & Opportunities , 220 Conn. 192, 200–201, 596 A.2d 396 (1991).

In the present case, the Appellate Court reversed the trial court's judgment, which had upheld the referee's ruling in favor of Phan, because the Appellate Court determined that substantial evidence did not support the referee's finding of intentional discrimination. Hartford Police Dept. v. Commission on Human Rights & Opportunities , 208 Conn. App. 755, 757, 789, 267 A.3d 883 (2021). We conclude, however, that the Appellate Court failed to apply properly the standard of review it had correctly recited. Although it is true that, in determining if substantial evidence supports the referee's factual findings, a reviewing court must consider the record as a whole, the Appellate Court here improperly substituted its own judgment for that of the referee as to the weight of the evidence on the dispositive questions of fact. Our deferential standard of review allows for the record to contain competing evidence that would allow a different fact finder to reach a different conclusion. Specifically, in assessing the referee's factual findings, the Appellate Court relied on evidence that the referee explicitly found not to be credible.

The following facts, found by the referee, are important to our review of the defendants’ claims on appeal. Phan, who is of Vietnamese nationality, was hired as a police officer for the plaintiff on December 14, 2009. After graduating from the police academy on July 2, 2010, Phan was classified as a probationary police officer. This probationary period lasts for one year, starting with a field training program. Phan participated in this field training program, which consisted of four phases over the span of several weeks and involved different rotations with different field training officers. Phan had to pass each phase of the field training program to move to the next phase. To evaluate his performance, Phan's field training officers completed daily observation reports. Officer Steven Citta was Phan's field training officer for phase I of the program. For phases II, III and IV, Phan's field training officers were, respectively, Officer Tyrone Boland, Officer Vincent Benvenuto, and Citta again. Although Phan did not pass phase II with Boland, and had to repeat that phase with Officer Christian Billings, this did not result in the automatic termination of his employment. During phase IV, Citta noted in his daily observation reports that Phan's skills had improved.

On October 29, 2010, Phan completed the field training program and received a probationary employee performance evaluation indicating that his performance was satisfactory. At this point, Phan was considered a Hartford police officer, but he remained in his probationary period until July 2, 2011, and, therefore, the sergeants in charge during his shifts had to complete daily observation reports for each day that he worked. These daily observation reports evaluated Phan in the areas of appearance, attitude, interpersonal skills, care of equipment, and performance in the following skill areas: patrol, investigation, phones and radios, conflict, report writing, and policies and procedures. After Phan completed the field training program, Sergeants Paul Cicero, David Marinelli, and Steven Kessler, among others, supervised him during his remaining probationary period and evaluated his performance in daily observation reports. These three sergeants had been promoted together and occasionally socialized outside of work. Between October 29, 2010, and February 1, 2011, Phan received several unsatisfactory evaluations regarding specific skills, including some evaluations relating to his uniform. He did not, however, receive any evaluations stating that he was confrontational or argumentative.

Then, in January and February, 2011, two incidents occurred involving Phan and Kessler, who previously had been disciplined for making discriminatory and/or racist remarks.² First, on January 23, 2011, Phan asked Kessler to review and sign off on a report about a motor vehicle accident. In addition to other negative comments Kessler made about the report, he told Phan that his report was "probably the shittiest thing I've ever read." Kessler criticized Phan's grammar and threw the report in the trash. Ultimately, however, Kessler approved the report with very few changes. After reviewing the revised report, Kessler asked Phan if the victim involved in the motor vehicle accident was Chinese. Phan stated that he did not know but believed the victim spoke Cantonese. In response, Kessler asked Phan: "What are you?" Phan responded that he was Vietnamese, to which Kessler responded: "Vietnamese, Cantonese, it's all the same shit ...." Phan then asked Kessler to sign off on an overtime card, as the edits to the report had caused him to work overtime, but Kessler refused and stated that Phan was lucky he "didn't wipe [his] ass with the report."

Then, on February 4, 2011, Phan asked Kessler to sign a domestic warrant. Kessler again insulted Phan's grammar and report writing skills. Kessler asked Phan if he had gone to college and taken English classes. Phan replied that he had, but Kessler then proceeded to give Phan a fifteen to twenty minute grammar lesson. Afterward, Kessler asked Phan if he was born in the United States. Phan responded that he moved to the United States when he was eleven years old, to which Kessler replied that this explained the problem and that English was a hard language. Laughing at Phan, Kessler asked if the citizens of Hartford had a hard time under-standing him. Kessler also stated that criminals must be laughing at Phan behind his back because of his accent. When Phan asked Kessler to stop making these kinds of comments, Kessler replied that he had stripes on his arm so that he was " ‘the man’ " and would determine when their conversation was over. When Phan stated that he would file a grievance against Kessler if he did not stop his remarks, Kessler ordered Phan out of his office, warning him to "watch what you tell me or you won't be around long." Following these incidents, Kessler told other sergeants about his concerns with Phan, including that Phan had...