Hartford v. Commission on Human Rights & Opportunities ( 2021 )

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CITY OF HARTFORD POLICE DEPARTMENT v.
COMMISSION ON HUMAN RIGHTS
AND OPPORTUNITIES ET AL.
(AC 43420)
Prescott, Clark and DiPentima, Js.
Syllabus
The plaintiff employer appealed to the trial court from the decision of the
defendant Commission on Human Rights and Opportunities sustaining
a claim of ancestry discrimination brought by the plaintiff’s employee,
the defendant P, who is Vietnamese. P filed an affidavit of illegal discrimi-
natory practice with the commission following the termination of his
employment as a probationary police officer. P claimed that, after two
negative interactions with a sergeant, K, during which K questioned P’s
ancestry and language skills and P stated that he would file a grievance
against K, other sergeants began complaining about his performance,
motivating the plaintiff to terminate his employment. The trial court
rendered judgment affirming the decision of the commission, from which
the plaintiff appealed to this court. Held that the trial court improperly
held that there was substantial evidence in the record that P’s termina-
tion from employment arose under circumstances that gave rise to an
inference of discrimination: although K’s remarks to P were despicable
and K filed a memorandum criticizing P following their negative interac-
tions, there was not substantial evidence in the record to support a
finding of a causal connection between K’s remarks and the plaintiff’s
decision to terminate P from employment or that K played any role in
the decision to terminate P’s employment, as there was no evidence
that the chief of police, who did terminate P’s employment, ever saw
K’s memorandum, K’s memorandum did not recommend that P be termi-
nated, P had received both negative reports before his interactions with
K and positive reports after those interactions, and, contrary to the
findings of the commission’s human rights referee that the sergeants
who gave P negative reports following his interactions with K were
influenced by K’s animus because they were promoted at the same time
and socialized with K, the other sergeants testified that there was no
particular comradery among that group and that K had no influence on
how they viewed P or that they had no contact at all with K regarding
P; moreover, although the referee was not required to credit the testi-
mony of the police officers, she was not permitted to infer the opposite
of their testimony solely from her disbelief of the testimony; furthermore,
the evidence in the record did not support the referee’s conclusion that
the legitimate, nondiscriminatory reasons for P’s discharge set forth by
the plaintiff were pretextual and that the decision was motivated by
illegal discriminatory bias, as issues regarding P’s truthfulness and
unprofessional demeanor were documented in contemporaneous
reports from both before and after P’s interactions with K, P testified
that none of the plaintiff’s employees other than K ever treated him
differently due to his ancestry, and K had no role in the decision to
terminate P.
Argued April 19—officially released November 23, 2021
Procedural History
Appeal from the decision of the human rights referee
of the named defendant sustaining a complaint of ances-
try discrimination filed by the defendant Khoa Phan
against the plaintiff, brought to the Superior Court in
the judicial district of New Britain and tried to the
court, Hon. Henry S. Cohn, judge trial referee; judgment
affirming the decision of the referee, from which the
plaintiff appealed to this court. Reversed; judgment
directed.
Daniel J. Krisch, for the appellant (plaintiff).
Michael E. Roberts, human rights attorney, with
whom, on the brief, was Megan K. Grant, human rights
attorney, for the appellee (named defendant).
James V. Sabatini, for the appellee (defendant Khoa
Phan).
Opinion
PRESCOTT, J. The plaintiff, City of Hartford Police
Department (city), appeals from the judgment of the
trial court affirming a decision of the named defendant,
the Commission on Human Rights and Opportunities
(commission), which concluded that the city had dis-
criminated against the defendant Khoa Phan on the
basis of his Asian and Vietnamese ancestry by terminat-
ing Phan’s employment as a probationary police officer.
The primary issue on appeal is whether the trial court
improperly concluded that substantial evidence sup-
ported the commission’s determination that the city
intentionally had discriminated against Phan. We con-
clude that the substantial evidence in the record does
not support a determination of intentional discrimina-
tion by the city and, accordingly, we reverse the judg-
ment of the trial court.
The following facts, as found by the presiding human
rights referee (referee), are relevant to this appeal.
Phan, who is Vietnamese, was hired as a police officer
for the city on December 14, 2009. He graduated from
the police academy on July 2, 2010, and thereafter
became a probationary police officer. The full proba-
tionary period for new officers lasts one year starting
with the commencement of the field training program,
which lasts for several weeks. The field training pro-
gram has four phases. During each phase Phan worked
with different sergeants who served as field training
officers. Phan’s field training officer for phase one was
Officer Steven Citta. Phan’s field training officer for
phase two was Officer Christian Billings.1 Phan’s field
training officer for phase three was Officer Vincent
Benvenuto. Phan’s field training officer for phase four
was Citta. Phan completed the training and received a
satisfactory rating.
On or about October 29, 2010, Phan received a proba-
tionary employee performance evaluation indicating
that his performance was satisfactory. Although Phan
received a satisfactory evaluation, during phase two of
the training program he lost his hat piece.2 In his report
regarding the missing hat piece, Phan wrote that he
had reported the lost hat piece to Sergeant Gregory
Weston, his supervisor, even though this was not true.
According to Phan, another officer had told him to state
in his report that he had reported it to Weston, and he
did what he was told to do. Weston was angry at Phan
for including untrue information about him in the report
and instructed Phan to correct the report, which Phan
did. Phan received a new hat piece on or about Septem-
ber 20, 2010.
During Phan’s probationary period, the sergeant in
charge of each shift completed daily observation reports
evaluating Phan’s performance in the areas of appear-
ance, overall attitude, interpersonal skills, care of equip-
ment, and performance of certain skills such as patrol,
investigation, phones and radio, conflict, report writing,
and policies and procedures. In these reports, the ser-
geant indicated whether Phan’s work was superior,
acceptable, or unsatisfactory in each area. Phan
received satisfactory reviews for October, 2010, and
November, 2010, with a few mistakes noted on the
reports that were typical of new officers. In December,
2010, Phan received seven unsatisfactory ratings; the
daily observation report dated December 5, 2010, how-
ever, contained a notation that Phan’s performance had
improved. Phan’s ratings in January, 2011, were gener-
ally acceptable, and he passed his first probationary
employee performance evaluation for the period ending
on January 2, 2011.
On January 23, 2011, Phan had the first of two nega-
tive encounters with Steven Kessler, a sergeant. On that
date, Phan asked Kessler to review his report on a motor
vehicle accident. Upon review, Kessler made negative
comments about the report, asked Phan how long he
had been working at the Hartford Police Department
(department), and told Phan that his report ‘‘is probably
the shittiest thing I’ve ever read. How did you come up
with such bullshit with seven months of training, Phan?’’
Kessler criticized Phan’s grammar and threw the report
in the trash. After Phan revised the report, Kessler
approved the report with very few changes. Kessler
then asked Phan if the victim in the report was Chinese,
and Phan responded that he did not know but thought
that the victim spoke Cantonese. Kessler asked Phan,
‘‘What are you?’’ Phan replied that he was Vietnamese.
In response, Kessler said, ‘‘Vietnamese, Cantonese, it’s
all the same shit, Phan.’’ Kessler then refused to sign
Phan’s overtime card, stated that Phan was lucky he
‘‘didn’t wipe [his] ass with [Phan’s] report,’’ and swore
at Phan.
Phan’s next encounter with Kessler was in February,
2011, on the midnight shift, when Phan asked Kessler
to sign a domestic abuse arrest warrant. At that time,
Kessler again criticized Phan’s report writing skills and
grammar and gave Phan a grammar lesson. Kessler
asked Phan if he had gone to college and taken an
English class. He also asked Phan if he had been born
in the United States. After Phan indicated that he came
to the United States when he was eleven years old,
Kessler stated that this ‘‘explains [the problem], you
know. I know English is a tough language to learn
. . . .’’ Kessler laughed at Phan, asked Phan if the citi-
zens of Hartford have a hard time understanding him,
and remarked that hard core criminals must be laughing
at Phan when Phan tells them what to do. When Phan
asked Kessler to stop, Kessler indicated that he was in
charge and would determine when to stop. When Phan
stated that he would file a grievance against him, Kessler
ordered Phan out of his office and warned Phan that
he should be careful about what he said to him or he
would not ‘‘be around long.’’
Kessler told the other sergeants about his concerns
regarding Phan, including the fact that Phan had raised
his voice when speaking with Kessler and that their
interaction became heated. Kessler also spoke to
Edward Yergeau, a sergeant and Phan’s immediate
supervisor, about Phan’s performance.3 Sergeants Paul
Cicero, David Marinelli and Kessler were promoted to
sergeant together and occasionally socialized outside of
work. All sergeants are supervisors who communicate
with one another.
On February 14, 2011, Kessler sent an interoffice
memorandum to Peter Bergenholtz, a lieutenant and
commander of the police academy, regarding deficienc-
ies in Phan’s work performance.4 In the memorandum,
Kessler noted that he had followed up with other ser-
geants who had more frequent contact with Phan and
learned that Phan was struggling with his job compe-
tency. Kessler also stated that, while he was reviewing
the arrest warrant with Phan, Phan was confrontational
and argumentative and raised his voice throughout their
meeting. Kessler concluded by recommending, in con-
junction with Lieutenant Edwin Dailey, the headquar-
ters lieutenant, that Phan be ‘‘unplugged’’ from his cur-
rent assignment and afforded the opportunity to be
retrained on the noted deficiencies as well as supervi-
sor/subordinate relationships.5
After the incidents with Kessler, Phan’s favorable
ratings decreased because numerous supervisors
described Phan as argumentative and confrontational.
He received an unsatisfactory rating in February, 2011.
The summary report for February, signed by Bergen-
holtz, also indicated that Phan was argumentative with
two supervisors on separate occasions.6 Cicero pre-
pared the daily observation report regarding Phan dated
February 4, 2011. In this report, Cicero made negative
comments regarding Phan’s work performance and
indicated that Phan ‘‘has a problem comprehending
supervisory orders and becomes confrontational and
argumentative. [He] [h]as [a] hard time in decision mak-
ing and understanding complex situations. When
unsure of an answer, he has the habit of blaming his
[field training officers] for not showing him the proper
manner.’’ On February 8, 2011, Marinelli also provided
an unfavorable report regarding Phan.
On February 16, 2011, Cicero sent an interdepartmen-
tal memorandum to Lieutenant Michael Cacioli describ-
ing an incident in which Phan only had five daily obser-
vation reports in his folder while the other probationary
police officers had approximately forty daily observa-
tion reports in their folders. According to the memoran-
dum, Lieutenant Emory Hightower, Cicero, and
Marinelli met with Phan about the missing reports. In
his memorandum, Cicero concluded that it was appar-
ent that Phan purposely had failed to retrieve all of the
reports regarding him when asked to do so.7 Kessler
was not involved in the incident regarding the missing
daily observation reports.
On February 18, 2011, Cacioli sent an interdepartmen-
tal memorandum to Captain James Bernier expressing
concern that Phan lacked the character necessary to
continue as a probationary police officer. The memo-
randum listed the following categories in which Phan’s
performance was unsatisfactory based on a review of
Phan’s daily observation reports: appearance—out of
uniform, failure to adhere to policies and procedures,
ability to solve problems and decision making, report
writing, and overall attitude. Cacioli’s memorandum ref-
erenced Kessler’s memorandum of February 14, 2011,
and concluded by stating: ‘‘My main concern is not
necessarily Officer Phan’s appearance or minor report
writing corrections. I believe these can be addressed
through counseling and retraining. The unsatisfactory
marks, as it relates to poor attitude and being confronta-
tional with supervisors, calls into question Officer
Phan’s integrity and overall attitude to be a police offi-
cer. There is no retraining or teachable protocol that
can rectify this character flaw and potential liability if
Officer Phan is allowed to remain as a Hartford Police
Officer.’’
Also on February 18, 2011, the police academy con-
tacted Phan regarding the hat piece that Phan lost dur-
ing phase two of his training program. Specifically, Phan
was asked whether he still had his hat and hat piece
that were issued to him upon his graduation from the
Hartford Police Academy. In response to questioning,
Phan indicated that he had reported his lost hat to
Officer Tyrone Boland, and that Boland had instructed
Phan to continue to look for it. Phan later testified that
he told Bergenholtz and Jeffrey Rousseau, a sergeant,
that Boland had instructed him to write that he had
reported his lost hat piece to Sergeant Weston. The
referee found that Boland was never interviewed
regarding the missing hat piece and the investigation
report regarding the missing hat piece did not mention
Boland. Kessler was not involved in the investigation
regarding Phan’s lost hat piece.
On February 25, 2011, Phan met with Bergenholtz
and Rousseau to discuss his performance for the period
ending on January 2, 2011. At this time, Bergenholtz
told Phan that he had heard that Phan had been yelling
at Kessler. Although Phan denied yelling at Kessler,
Phan stated that he was going to file a grievance against
Kessler. In response, Bergenholtz told Phan that he,
unlike Kessler, would have fired him immediately for
making that remark.
The daily observation summary report regarding
Phan for March, 2011, signed by Bergenholtz, indicated
that Phan’s performance was unsatisfactory.8 This sum-
mary report contained a note that Phan continued to
receive unsatisfactory ratings in overall attitude and
that he was involved in an incident in which he demon-
strated a dismissive attitude toward a senior officer who
was coaching him through an officer safety deficiency.9
Kessler was not involved in the incident noted in this
summary report. On March 28, 2011, Cicero sent
another interdepartmental memorandum to Cacioli,
summarizing the issues with Phan as set forth in Kessl-
er’s memorandum of February 14, 2011, Cicero’s memo-
randum of February 16, 2011, and Cacioli’s memoran-
dum of February 18, 2011. This memorandum also
described an incident involving Phan’s deficient perfor-
mance in the use of the mobile data terminal (MDT)
system.10 Kessler was not involved in the incident
regarding Phan’s inability to use the MDT system.
According to Cicero’s March 28, 2021 memorandum,
Phan was interviewed by the Internal Affairs Division
regarding the daily observation reports that were miss-
ing from his file folder, as recounted in the February
16, 2011 memorandum. When asked why he did not
answer the questions directed to him on February 16,
2011, Phan indicated that he was ‘‘slacking, embar-
rassed, and was ‘having a bad day.’ ’’ Cicero concluded
this memorandum by finding clear and evident viola-
tions of two provisions of the department’s Code of
Conduct.11
The summary reports regarding Phan in April and
May, 2011, indicated that Phan’s performance was
acceptable. He received an unfavorable report on June
10, 2011, however, based on an incident that occurred
on June 4, 2011. In particular, on that date, Phan assisted
Detective Luis Ruiz and Officer Jeffrey Hopkins while
in the field in subduing a person who was under the
influence of phencyclidine (PCP). Phan was the only
Taser certified officer on the scene. During this incident,
the person struck Hopkins in the jaw. After Hopkins
and Ruiz expressed concern over Phan’s failure to use
his Taser during the incident, Yergeau, Phan’s shift ser-
geant, met with Phan. On inquiry, Phan explained that
he did not hear the instruction to use the Taser and he
did not think he had a clear shot.
On June 10, 2011, Yergeau wrote a memorandum to
Bergenholtz regarding the incident. According to the
memorandum, ‘‘Phan initially denied hearing Officer
Hopkins telling him to use his Taser weapon. Officer
Phan acknowledged he did hear Officer Hopkins tell
him to deploy his Taser only after I told him both offi-
cers on scene heard the directive and I did not doubt
their recall of the incident. Officer Phan then told me
he did not use the Taser because he felt he did not have
a clear shot at the suspect without the possibility of
hitting Officer Hopkins or Detective Ruiz.’’ Yergeau fur-
ther stated that ‘‘Officer Phan’s failure to deploy his
weapon and his lack of truthfulness with this supervisor
leaves this supervisor to question his ability to properly
serve and protect the citizens of Hartford and officers
in this department. Officer [Phan] failed to act and he
then failed to admit . . . a crucial error in [judgment].
It is my recommendation that Officer Phan be retrained
on the use of force and Taser training. His failure to
admit an error in judgment or to immediately tell the
truth is an issue that goes well beyond the Hartford
Police Academy.’’12 Kessler was not involved in the June
4, 2011 incident regarding the Taser.
On June 7, 2011, Phan met with Bergenholtz to dis-
cuss his April and May performance evaluations. Phan’s
probationary employee performance evaluation dated
June 6, 2011, signed by Rousseau as Phan’s immediate
supervisor and Bergenholtz as the reviewing authority,
indicated a need for improvement for the period ending
April 2, 2011.
On June 18, 2011, Chief of Police Daryl K. Roberts
dismissed Phan from his position as a probationary
police officer. At the time of his dismissal, Roberts gave
Phan a copy of Yergeau’s June 10, 2011 memorandum
regarding the Taser incident and told him that his lack
of truthfulness was one of the main reasons he was
being dismissed. At the time of Phan’s dismissal, Roberts
also had a memorandum dated June 16, 2011, from
Bergenholtz evaluating Phan’s performance. This per-
formance evaluation noted that Phan ‘‘demonstrated a
need for improvement in the area of Job Knowledge
and Skills and the area of Human Relations.’’13
On November 25, 2011, Phan filed an Affidavit of
Illegal Discriminatory Practice with the commission
alleging that the city terminated his employment as a
result of his Asian/Vietnamese ancestry. On March 4,
2015, following a hearing and the filing of posthearing
briefs, the referee found in favor of Phan, concluding
that the city illegally had discriminated against Phan
when it terminated him from his position as a probation-
ary police officer. The referee ordered, inter alia, that
the city pay Phan back pay in the amount of $210,596
plus $25,000 as damages for emotional distress.
On June 1, 2016, the trial court, Schuman, J., sus-
tained the city’s appeal from the referee’s decision and
remanded the matter for a new hearing after concluding
that the referee improperly had applied the ‘‘mixed
motive’’ analysis to the discrimination claim rather than
a ‘‘pretext’’ analysis.
By decision dated October 24, 2017, the referee, on
remand, again found in favor of Phan, concluding that,
under either analysis, the city had discriminated against
him. In her decision, the referee stated that ‘‘[Phan’s]
overall performance had been satisfactory until his
meetings with Sergeant Kessler. [Phan’s] [daily observa-
tion reports] actually improved steadily after March
until his completion of the probationary period. He was
not terminated at the actual time of the lost hat piece,
for failing a section of the field training, despite being
a probationary employee who could be terminated for
almost any reason. The untimely investigation into
[Phan’s] hat piece, followed by the one-sided investiga-
tion into [Phan’s] decision not to use his Taser, and
the completely discredited testimony of several of [the
city’s] witnesses attempting to illustrate [Phan’s]
untruthfulness regarding the Taser incident, is more
than sufficient evidence to prove pretext. There are too
many contradictions and inconsistencies to believe that
[the city’s] termination of [Phan] was legitimate.’’14
The city appealed the referee’s second decision to
the trial court. On September 4, 2019, the trial court,
Hon. Henry S. Cohn, judge trial referee, affirmed the
decision of the referee.15 The city then filed the present
appeal in which it argues that the trial court improperly
held that substantial evidence supports the commis-
sion’s finding of intentional discrimination. According
to the city, the trial court improperly affirmed the com-
mission’s decision despite two ‘‘gaping holes’’ in the
evidence. Specifically, the city contends that Kessler’s
‘‘ ‘stray remarks’ ’’ do not permit an inference of discrim-
ination, as Kessler played no part in the decision to
terminate Phan. The city further argues that Phan’s acts
of dishonesty and unprofessional behavior were not
pretexts for discrimination, as some incidents occurred
before Phan’s encounters with Kessler and the incident
involving the Taser involved a supervisor with no con-
nection to Kessler. We conclude that Phan failed to
satisfy his burden of establishing a prima facie case of
discrimination. Moreover, even if Phan had established
a prima facie case of discrimination, the record does
not support the referee’s conclusion that the city’s rea-
sons for terminating Phan from employment were pre-
textual.
‘‘Our review of an agency’s factual determination is
constrained by General Statutes § 4-183 (j), which man-
dates that a 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, conclu-
sions, or decisions are . . . clearly erroneous in view
of the reliable, probative, and substantial evidence on
the whole record . . . . This limited standard of
review dictates that, [w]ith 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. . . . An agency’s fac-
tual 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 defer-
ential and permits less judicial scrutiny than a clearly
erroneous or weight of the evidence standard of review.
. . . The burden is on the [plaintiff] to demonstrate
that the [agency’s] factual conclusions were not sup-
ported by the weight of substantial evidence on the
whole record. . . . With respect to questions of law,
[w]e have said that [c]onclusions of law reached by the
administrative agency must stand if the court deter-
mines 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.) Board of Education
v. Commission on Human Rights & Opportunities,
266 Conn. 492, 503–504, 832 A.2d 660 (2003).
‘‘We look to federal law for guidance on interpreting
state employment discrimination law, and the analysis
is the same under both. . . . Under this analysis, the
employee must first make a prima facie case of discrimi-
nation. . . . In order for the employee to first make a
prima facie case of discrimination, the [employee] must
show: (1) the [employee] is a member of a protected
class; (2) the [employee] was qualified for the position;
(3) the [employee] suffered an adverse employment
action; and (4) the adverse employment action occurred
under circumstances that give rise to an inference of
discrimination.’’ (Citations omitted; internal quotation
marks omitted.) Feliciano v. Autozone, Inc., 316 Conn.
65, 73, 111 A.3d 453 (2015), citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973). ‘‘The employer may then rebut the
prima facie case by stating a legitimate, nondiscrimina-
tory justification for the employment decision in ques-
tion. . . . This burden is one of production, not persua-
sion; it can involve no credibility assessment. . . . The
employee then must demonstrate that the reason prof-
fered by the employer is merely a pretext and that the
decision actually was motivated by illegal discrimina-
tory bias.’’ (Citations omitted; internal quotation marks
omitted.) Feliciano v. Autozone, Inc., supra, 74.
‘‘Although intermediate evidentiary burdens shift
back and forth under this framework, [t]he ultimate
burden of persuading the trier of fact that the
[employer] intentionally discriminated against the
[complainant] remains at all times with the [complain-
ant]. . . . [I]n attempting to satisfy this burden, the
complainant—once the employer produces sufficient
evidence to support a nondiscriminatory explanation
for its decision—must be afforded the opportunity to
prove by a preponderance of the evidence that the legiti-
mate reasons offered by the [employer] were not its
true reasons, but were a pretext for discrimination.’’
(Internal quotation marks omitted.) Board of Education
v. Commission on Human Rights & Opportunities,
supra, 266 Conn. 506–507.
Phan’s theory of liability before the commission was
that Kessler’s discriminatory animus infected or influ-
enced the other sergeants to complain about his perfor-
mance, motivating the city to terminate his employ-
ment. In order to succeed on this claim, Phan had to
establish a causal connection between Kessler’s
remarks and Roberts’ decision to terminate Phan’s
employment. In finding in favor of Phan, the referee
concluded that Kessler had ‘‘poisoned the well for
[Phan]’’ and that the city was liable for the discrimina-
tory animus of Kessler. The city’s appeal challenges the
referee’s conclusion that Phan had satisfied the fourth
prong of the prima facie case, namely, that the adverse
action occurred under circumstances giving rise to an
inference of discrimination. According to the city, there
was no evidentiary basis to find a causal connection
between Kessler’s offensive remarks and Roberts’ deci-
sion to terminate Phan’s employment. We agree.
In order to establish that an employment action was
discriminatory on the basis of a coworker’s discrimina-
tory statements, an employee must demonstrate that
a nexus exists between the allegedly discriminatory
statements and the employer’s decision to terminate
the employee. See Feliciano v. Autozone, Inc., supra,
316 Conn. 76. ‘‘[S]tray remarks, even if made by a deci-
sion maker, do not constitute sufficient evidence [to
support] a case of employment discrimination.’’ (Inter-
nal quotation marks omitted.) Rajaravivarma v. Board
of Trustees for Connecticut State University System,
862 F. Supp. 2d 127, 152 (D. Conn. 2012). ‘‘Verbal com-
ments constitute evidence of discriminatory motivation
when [an employee] demonstrates that a nexus exists
between the allegedly discriminatory statements and
[an employer’s] decision to discharge [the employee].
. . . Often, however, an employer will argue that a pur-
portedly discriminatory comment is a mere stray
remark that does not constitute evidence of discrimina-
tion. . . . Although courts have often used the term
stray remark to refer to comments that do not evince
a discriminatory motive, the Second Circuit has found
that the term stray remark represented an attempt—
perhaps by oversimplified generalization—to explain
that the more remote and oblique the remarks are in
relation to the employer’s adverse action, the less they
prove that the action was motivated by discrimina-
tion. . . .
‘‘Accordingly, the task is not to categorize remarks
either as stray or not stray, and disregard [remarks] if
they fall into the stray category, but rather to assess
the remarks’ tendency to show that the [decision maker]
was motivated by assumptions or attitudes relating to
the protected class. . . . Courts have found the follow-
ing factors relevant to such a determination: (1) who
made the remark, i.e., a [decision maker], a supervisor,
or a low-level coworker; (2) when the remark was made
in relation to the employment decision at issue; (3) the
content of the remark, i.e., whether [the finder of fact]
could view the remark as discriminatory; and (4) the
context in which the remark was made, i.e., whether
it was related to the [decision-making] process.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id. In
Jones v. Dept. of Children & Families, 172 Conn. App.
14, 28–31, 158 A.3d 356 (2017), this court rejected an
employee’s claim that the employer’s decision to termi-
nate the employee from employment was tainted by
the impermissible bias of the employee’s supervisor
when ‘‘the final termination decision was made after
an independent review of the [employee’s] performance
based on concrete, objective factors . . . .’’
Phan and the commission rely on United Technolo-
gies Corp. v. Commission on Human Rights & Oppor-
tunities, 72 Conn. App. 212, 804 A.2d 1033, cert. denied,
262 Conn. 920, 812 A.2d 863 (2002), in support of their
argument that, under the theory of transferred intent,
the city is liable for Kessler’s unlawful discrimination.
In that case, this court stated that ‘‘[o]ur law allows for
the transfer of intent to discriminate . . . . It is true
that [w]ithout some proof of an improper motive, [a
plaintiff’s] case must fail. . . . Nevertheless, compa-
nies may be held liable for discrimination even where
the decision-making official did not intentionally dis-
criminate if the information used by that official in
deciding to terminate a worker’s employment was fil-
tered through another employee who had a discrimina-
tory motive.’’ (Citation omitted; internal quotation
marks omitted.) Id., 234–35.
The defendants’ reliance on United Technologies
Corp. v. Commission on Human Rights & Opportuni-
ties, supra, 72 Conn. App. 212, is misplaced because, as
we later noted in Jones v. Dept. of Children & Families,
supra, 172 Conn. App. 29–30, this court utilized the
transferred intent theory prior to the United States
Supreme Court’s decision in Staub v. Proctor Hospital,
562 U.S. 411, 131 S. Ct. 1186, 179 L. Ed. 2d 144 (2011),
which articulated the ‘‘ ‘cat’s paw’ ’’ theory of liability.
The ‘‘cat’s paw’’ theory applies when ‘‘an employee is
fired or subjected to some other adverse employment
action by a supervisor who himself has no discrimina-
tory motive, but who has been manipulated by a subor-
dinate who does have such a motive and intended to
bring about the adverse employment action.’’ (Internal
quotation marks omitted.) Zuro v. Darien, 432 F. Supp.
3d 116, 129 (D. Conn. 2020). We stated in Jones that,
‘‘[p]rior to the United States Supreme Court’s decision
in Staub, this court embraced a transferred intent the-
ory that was loosely analogous to the cat’s paw theory
of liability articulated in Staub.’’ Jones v. Dept. of Chil-
dren & Families, supra, 30, citing United Technologies
Corp. v. Commission on Human Rights & Opportuni-
ties, supra, 234–35.16
In Feliciano v. Autozone, Inc., supra, 316 Conn. 65,
our Supreme Court made clear that transferred intent
was not a sufficient legal basis to hold an employer
liable for the discriminatory animus of one of its
employees. In Feliciano, an employee of a company
was accused by the company of improperly using a
customer loyalty reward card for her own use. Id., 69.
The employee was a black female who was born in
the U.S. Virgin Islands and practiced the Rastafarian
religion. Id., 68. As part of her religion, she wore her
hair in dreadlocks. Id. Following her termination from
employment, she commenced an action against the
company contending, inter alia, that the company
unlawfully had terminated her employment on the basis
of her national origin, religion and race. Id., 70. The
trial court granted the company’s motion for summary
judgment in which it claimed that the employee had
failed to make out a prima facie case of discrimination.
Id., 68. This court affirmed the judgment of the trial
court and, following the granting of certification, the
plaintiff appealed to the Supreme Court. Id.
On appeal to the Supreme Court, the plaintiff argued
that ‘‘she presented ample evidence of [a store manag-
er’s] discriminatory animus toward her, and that this
animus may be imputed to the defendant.’’ Id., 75. Spe-
cifically, there was evidence that the plaintiff’s supervi-
sor ‘‘repeatedly referred to the plaintiff as an ‘f’ing
Jamaican’; suggested that Jamaicans live in grass huts,
wear grass skirts, drink out of coconut shells, and eat
cats and dogs; ridiculed the plaintiff’s dreadlocks and
suggested that her hair was dirty; told the plaintiff that
there is no God and that she just had ‘false hopes’;
suggested that all Rastafarians steal; and mocked the
plaintiff by wearing a dreadlocks wig and saying, ‘I’m
. . . a Rastafarian. Watch me because I steal.’ ’’ Id., 76.
In rejecting this claim, the Supreme Court concluded
that, ‘‘although there was ample evidence that [the store
manager] had treated the [employee] in a despicable
manner because of her perceived national origin, reli-
gion or race, [this court] properly concluded that there
was no evidence of a causal connection between [the
manager’s] discriminatory animus and the [company’s]
termination of the [employee’s] employment.’’ Id., 78.
The court further stated that, ‘‘[a]lthough disbelief of
an employer’s explanation for an adverse employment
action, in combination with the plaintiff’s prima facie
case of discrimination, may, under some circum-
stances, be sufficient to meet the [employee’s] ultimate
burden of proving intentional discrimination . . . dis-
belief of the employer’s evidence is not sufficient to
establish a prima facie case of discrimination in the
first instance. . . . In the absence of any affirmative
evidence of a causal connection between [the manag-
er’s] discriminatory animus toward the [employee] and
the [company’s] termination of her employment, no
inference of the defendant’s discriminatory intent can
be made.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Id., 79–80.
These cases, read together, establish that an
employer is not strictly liable for the discriminatory
animus of one employee against another employee.
Instead, for the employer to be found liable for discrimi-
nation, there must be a causal connection between the
discriminatory animus of one employee and the adverse
employment action suffered by the other employee. As
in Feliciano, we conclude that Phan has failed to pre-
sent affirmative evidence of a causal connection
between Kessler’s remarks and Roberts’ decision to
terminate Phan’s employment. In reaching this conclu-
sion, we in no way condone Kessler’s despicable
remarks. The legal issue before us, however, is whether,
under the facts and circumstances of this case, the city
can be held liable for the despicable remarks of its
rogue employee. We conclude that it cannot.
We first note that the trial court, in affirming the
decision of the referee, stated that a ‘‘sufficient nexus’’
existed to establish a prima facie case because Bergen-
holtz’ ‘‘memorandum to [Roberts] included, in addition
to other information, Kessler’s memorandum to the lieu-
tenant.’’ The referee, however, did not find that Kessl-
er’s memorandum was included in the materials that
were provided to Roberts; rather, the referee found
that, ‘‘[w]hen [Phan] met with [Roberts] on June 18,
2011, he was given a copy of . . . Yergeau’s memo and
was told that his lack of truthfulness was one of the
main reasons he was being dismissed.’’ The referee
stated that Roberts ‘‘also had the June 16, 2011 memo
from . . . Bergenholtz evaluating [Phan’s] perfor-
mance’’ and that ‘‘Bergenholtz attached . . . Yergeau’s
memo to [Phan’s] final performance review, which was
sent to [Roberts].’’ Roberts did not testify at the hearing,
and there is no evidence in the record indicating that
Roberts ever saw Kessler’s memorandum. Kessler’s
memorandum, therefore, does not provide the causal
connection necessary to establish a prima facie case.17
The referee also relied on her finding that Phan’s
performance reviews and daily observation reports
were satisfactory until the incidents with Kessler and
that, ‘‘[a]s a result of . . . Kessler’s comments and
report that [Phan] was argumentative and confronta-
tional, [Phan] began receiving [daily observation
reports] with negative comments about his attitude.’’
According to the city, the referee’s reliance on the fact
that Phan’s evaluations worsened after the Kessler inci-
dents is an example of the post hoc ergo propter hoc
fallacy, i.e., ‘‘the fallacy of saying that because effect A
happened at some point after alleged cause B, the
alleged cause was the actual cause.’’ (Internal quotation
marks omitted.) Higgins v. Koch Development Corp.,
794 F.3d 697, 703 (7th Cir. 2015). In this regard, we note
that ‘‘[a] causal connection can be established indirectly
by showing that the protected activity was followed
close in time by adverse action . . . but the inquiry
into whether temporal proximity establishes causation
is factual in nature. There is no bright line to define
the outer limits beyond which a temporal relationship
is too attenuated to establish a causal relationship
between [protected activity] and an allegedly retaliatory
action. . . . The trier of fact, using the evidence at its
disposal and considering the unique circumstances of
each case, is in the best position to make an individual-
ized determination of whether the temporal relationship
between an employee’s protected activity and an
adverse action is causally significant.’’ (Citations omit-
ted; internal quotation marks omitted.) Ayantola v.
Board of Trustees of Technical Colleges, 116 Conn. App.
531, 539, 976 A.2d 784 (2009). ‘‘Timing may be an
important clue to causation . . . but does not elimi-
nate the need to show causation . . . .’’ (Citation omit-
ted.) Bermudez v. TRC Holdings, Inc., 138 F.3d 1176,
1179 (7th Cir. 1998). Furthermore, an inference of dis-
crimination ‘‘may not be based on mere conjecture or
surmise.’’ (Internal quotation marks omitted.) Feliciano
v. Autozone, Inc., supra, 316 Conn. App. 80.18
On the basis of our review of the record, we agree
with the city that the evidence in the record does not
support the referee’s conclusion that the incidents with
Kessler resulted in Phan’s subsequent negative evalua-
tions and eventual termination. Kessler was not one of
Phan’s field training officers, and he had no role in the
decision to terminate Phan. Of the 130 daily observation
reports pertaining to Phan that are included in the
record, only 7 were prepared by Kessler. These reports,
which postdate the incidents in question, reveal that
Kessler gave Phan sixty-two acceptable ratings and only
two negative ratings.19 Further, Kessler’s memorandum
of February 14, 2011, did not recommend that Phan be
terminated. Rather, the memorandum ‘‘recommend[ed]
that . . . [Phan] be ‘unplugged’ from his current
assignment and afforded the opportunity to be retrained
on the [noted] deficiencies via [the] Police Academy.
Additionally . . . [Phan] should be afforded retraining
in supervisor/subordinate relationships.’’
The testimony also does not support the referee’s
conclusion that Kessler’s discriminatory animosity
toward Phan motivated or influenced the other officers
to complain about Phan’s performance.20 The referee
found it significant that Cicero and Marinelli, who gave
negative reports to Phan in February, 2011, were friends
of Kessler. In reaching her conclusion, the referee relied
on the testimony from Marinelli that he, Kessler and
Cicero were all promoted to sergeant at the same time
and that they socialized out of work once in a while.
Although it is true that Marinelli testified that the ser-
geants socialized every once in a while, he also testified
that he did not ‘‘go out much with officers after work’’
and ‘‘kind of keep[s] to [himself].’’ Marinelli further
indicated that there was ‘‘not really’’ a comradery by
virtue of having been promoted to sergeant together.21
Similarly, Cicero testified that he and Kessler are
coworkers and do not socialize outside of work.22 Thus,
although the evidence establishes that the sergeants
were promoted at the same time and communicated
with one another, it does not support the referee’s find-
ing that Kessler’s discriminatory comments motivated
the other sergeants to complain about Phan, resulting
in his termination from employment.
In considering whether Kessler’s discriminatory ani-
mus motivated Marinelli and Cicero to complain about
Phan’s attitude, it is also important to note that,
according to Phan’s own testimony, nobody else in the
department or the city of Hartford treated him differ-
ently because of his Asian ancestry. Brian Heavren,
assistant chief of police, testified that, throughout
Phan’s probationary period, Phan made no complaints
that he was being treated unfairly because of his Asian
ancestry. Although Phan received negative reports in
February and March, 2011, following his encounters
with Kessler, his performance improved and his summa-
ries for April, 2011, and May, 2011, indicated that his
performance was acceptable. Furthermore, although
Phan received overall acceptable ratings in November,
2010, and December, 2010, prior to his encounters with
Kessler, his November, 2010 summary included eight
unsatisfactory ratings, including one in the ‘‘overall atti-
tude’’ category and his December, 2010 summary
included seven unsatisfactory ratings, including one in
the ‘‘overall attitude’’ category.
Kessler testified that he had discussed his concerns
regarding Phan with the other sergeants, specifically,
that Phan’s developmental progress on the job was not
reflective of the length of time that he had been on the
job. Kessler also testified that he told the other ser-
geants that he and Phan had raised their voices when
speaking with one another and that ‘‘things got heated.’’
Kessler also discussed the situation with Yergeau, who
was Phan’s immediate supervisor at the time. See foot-
note 3 of this opinion. Although Kessler may have spo-
ken to Yergeau about Phan at some point, Yergeau
testified that he did not recall any specific conversa-
tions. Yergeau further testified that Kessler did not
encourage him to judge Phan more harshly because of
the incidents with Kessler and stated that Kessler ‘‘has
no influence on how I read people’’ and that he could
‘‘make up his own mind.’’ Rousseau, who was involved
in the investigation of the missing hat piece, testified
that he had no contact with Kessler regarding Phan.
Marinelli, who gave Phan unsatisfactory ratings in Feb-
ruary, 2011, testified that he did not recall a disagree-
ment between Kessler and Phan over a warrant report.
He further testified that the unsatisfactory ratings that
he gave to Phan were based on his own observations
and that Kessler never made disparaging remarks about
Phan in an effort to terminate Phan.
Cicero, Phan’s immediate patrol supervisor, made
negative comments regarding Phan’s performance in
his February 4, 2011 daily observation report. Cicero
testified that he prepared this report based on his own
observations of Phan and that it had nothing to do with
Kessler. He testified that he did not have any discussions
with Kessler about conversations between Kessler and
Phan. Cicero further testified that Kessler did not tell
him that he did not want Phan working for the depart-
ment, nor did he indicate that he had any type of animos-
ity toward Phan. Cacioli, who wrote the memorandum
to Bernier based on his review of Phan’s daily observa-
tion reports, testified that Kessler did not influence his
view regarding Phan and that there were no concerns
that any of the sergeants were conspiring together to
falsify documents or daily observation reports against
Phan. Ruiz, the detective involved in the Taser incident
on June 4, 2011, testified that, prior to that date, he had
no knowledge that Phan had a prior incident involving
Kessler. Ruiz further testified that Kessler never talked
to him prior to June 4, 2011, regarding Phan and that
no one talked to him prior to that date about Phan’s
performance or a desire not to have him in the depart-
ment.
There is simply no evidence in the record, therefore,
to support the referee’s conclusion that Kessler influ-
enced the city’s decision to terminate Phan. To the
contrary, the testimony of the officers was consistent
regarding the fact that Kessler had not influenced them.
Furthermore, although we certainly agree that Kessler’s
comments were despicable, neither Kessler nor the
other officers referenced in this opinion were decision
makers with regard to the decision to terminate Phan.
Bergenholtz testified that he prepared the report that
was used for the decision to terminate Phan. Bergen-
holtz also testified that he and Kessler are not friends
and that Kessler never told him that he wanted disciplin-
ary action taken against Phan. Bergenholtz testified that
his memorandum was given to the chief of police, but
he did not make a recommendation regarding whether
to terminate Phan. Heavren testified that the chief of
police makes the decision to terminate an employee on
behalf of the department, but the director of human
resources must concur with that action. Once a decision
is made by the chief of police, it is sent to the director
of human resources for his final concurrence and, once
those signatures are obtained, an employee can be sepa-
rated from their probationary period. Roberts, the chief
of police, did not testify at the hearing.
As stated earlier in this opinion, ‘‘[a]lthough disbelief
of an employer’s explanation for an adverse employ-
ment action, in combination with the plaintiff’s prima
facie case of discrimination, may, under some circum-
stances, be sufficient to meet the plaintiff’s ultimate
burden of proving intentional discrimination . . . dis-
belief of the employer’s evidence is not sufficient to
establish a prima facie case of discrimination in the
first instance. . . . In the absence of any affirmative
evidence of a causal connection between [the supervi-
sor’s] discriminatory animus toward the plaintiff and
the defendant’s termination of her employment, no
inference of the defendant’s discriminatory intent can
be made.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Feliciano v. Auto-
zone, Inc., supra, 316 Conn. 79–80. The referee in this
case was certainly free to disbelieve the testimony of
the police officers; she could not, however, infer the
opposite of the officers’ testimony solely from her disbe-
lief of that testimony. See id., 80.
On the basis of our review of the record, we agree
with the city that there was not substantial evidence
in the record to support a finding of a causal connection
between Kessler’s remarks and the city’s decision to
terminate Phan from employment. The trial court, there-
fore, improperly held that there was substantial evi-
dence that Phan’s termination from employment arose
under circumstances that give rise to an inference of
discrimination; a requirement for establishing a prima
facie case of discrimination. See id., 73.
Moreover, even if Phan had established a prima facie
case of discrimination, the evidence in the record does
not support the referee’s conclusion, as affirmed by
the trial court, that the legitimate, nondiscriminatory
reasons for Phan’s termination set forth by the city were
pretextual. Bergenholtz’ June 16, 2011 memorandum to
Roberts indicates that Phan ‘‘was found to have been
less than truthful’’ with several supervisors and had
‘‘demonstrated a poor attitude and an unprofessional
demeanor’’ when dealing with supervisors. In the city’s
brief to the commission following remand, it ‘‘set forth
its reason for terminating . . . Phan: his overall pattern
of poor performance, as well as three incidents: (1)
lying in an official police report about having his lost
hat and hat piece; (2) concealing [d]aily [o]bservation
[r]eports; and (3) being untruthful when questioned
about a Taser incident.’’
‘‘Once the employer produces legitimate, nondiscrim-
inatory reasons for its adverse employment action, the
[employee] then must prove, by a preponderance of the
evidence, that the employer intentionally discriminated
against him.’’ Board of Education v. Commission on
Human Rights & Opportunities, supra, 266 Conn. 506.
‘‘The employee . . . must demonstrate that the reason
proffered by the employer is merely a pretext and that
the decision actually was motivated by illegal discrimi-
natory bias.’’ (Internal quotation marks omitted.) Alva-
rez v. Middletown, 192 Conn. App. 606, 613, 218 A.3d
124, cert. denied, 333 Conn. 936, 218 A.3d 594 (2019).
‘‘Upon the [employer’s] articulation of . . . a non-dis-
criminatory reason for the employment action, the pre-
sumption of discrimination arising with the establish-
ment of the prima facie case drops from the picture.’’
(Internal quotation marks omitted.) Id.The record in the present case does not support the
conclusion that the reasons given for Phan’s termina-
tion were a pretext and that the decision was motivated
by illegal discriminatory bias. As stated earlier in this
opinion, Phan testified that, other than Kessler, nobody
else in the department or the city of Hartford treated
him differently because of his Asian ancestry. Kessler
was not one of Phan’s field training officers, and he
had no role in the decision to terminate Phan. Further,
Kessler’s February 14, 2011 memorandum regarding
Phan did not recommend that Phan be terminated from
employment; the memorandum, rather, ‘‘recom-
mend[ed] that . . . [Phan] be ‘unplugged’ from his cur-
rent assignment and afforded the opportunity to be
retrained on the [noted] deficiencies via [the] Police
Academy. Additionally . . . [Phan] should be afforded
retraining in supervisor/subordinate relationships.’’
The issues regarding Phan’s truthfulness and unpro-
fessional demeanor were documented in contempora-
neous daily observation reports and memoranda, some
of which occurred before Kessler made his discrimina-
tory remarks and some of which occurred after Kessler
uttered those remarks. In particular, the issue involving
Phan’s missing hat piece occurred in July, 2010, during
phase two of his field training program. Although Phan
testified that he believed the incident was not investi-
gated until February, 2011, because of his encounters
with Kessler, there is no evidence in the record to sup-
port Phan’s belief. On the contrary, Rousseau, who
investigated the missing hat piece, testified that the
delay in investigating the missing hat piece was due
to Phan’s deceptive behavior.23 Furthermore, as stated
earlier in this opinion, although Phan received negative
reports in February and March, 2011, following his
encounters with Kessler, his performance improved and
his summaries for April, 2011, and May, 2011, were
acceptable. Even though Phan received overall accept-
able ratings in November, 2010, and December, 2010,
prior to his encounters with Kessler, his November,
2010 summary included eight unsatisfactory ratings,
including one in the ‘‘overall attitude’’ category, and his
December, 2010 summary included seven unsatisfac-
tory ratings, including one in the ‘‘overall attitude’’ cate-
gory.
Finally, the referee and the trial court noted the con-
flicting testimony regarding whether Phan could have
used his Taser during the incident on June 4, 2011,
and the fact that the video footage of the incident was
consistent with Phan’s version of the event. See foot-
note 12 of this opinion. As pointed out by the city,
however, Phan was not terminated from employment
for failing to fire his Taser; he was terminated because
he was dishonest and lied about whether he heard the
order to fire the Taser. Yergeau’s memorandum regard-
ing this incident emphasizes this point: ‘‘Officer Phan’s
failure to deploy his weapon and his lack of truthfulness
with this supervisor leaves this supervisor to question
his ability to properly serve and protect the citizens of
Hartford and officers in this department. Officer [Phan]
failed to act and he then failed to admit a crucial error
in [judgment]. It is my recommendation that Officer
Phan be retrained on the use of force and Taser training.
His failure to admit an error in judgment or to immedi-
ately tell the truth is an issue that goes well beyond the
Hartford Police Academy.’’
‘‘In assessing pretext, a court’s focus must be on the
perception of the [decision maker], that is, whether the
employer believed its stated reason to be credible
. . . . Although an employer’s good faith belief is not
automatically conclusive . . . [i]t is not enough for [an
employee] merely to impugn the veracity of the employ-
er’s justification; he must elucidate specific facts which
would enable a [finder of fact] to find that the reason
given is not only a sham, but a sham intended to cover
up the employer’s real [and unlawful] motive of discrim-
ination . . . .’’ (Citations omitted; internal quotation
marks omitted.) Azimi v. Jordan’s Meats, Inc., 456 F.3d
228, 246 (1st Cir. 2006), cert. denied, 549 U.S. 1279, 127
S. Ct. 1831, 167 L. Ed. 2d 319 (2007). In the present
case, we disagree with the trial court that there was
substantial evidence in the record to establish that the
city’s reasons for terminating Phan from his employ-
ment were pretextual and that the decision was moti-
vated by illegal discriminatory bias.24
The judgment is reversed and the case is remanded
with direction to render judgment sustaining the
city’s appeal.
In this opinion the other judges concurred.
1
Phan’s first field training officer for phase two was Officer Tyrone Boland.
Phan did not pass phase two of the field training program with Boland.
Phan repeated phase two of the training program with Billings and passed
on his second attempt. The fact that Phan had to repeat a phase of the
program was not an automatic ground for termination.
2
The hat piece is the shield on top of the hat. At the hearing, Phan
acknowledged that losing a hat piece is significant because the person who
finds the hat piece could use it to impersonate a police officer.
3
Although the hearing officer did not explicitly find that Yergeau was
Phan’s immediate supervisor, Kessler testified that he believed Yergeau was
Phan’s immediate supervisor.
4
The memorandum provides: ‘‘On or around [February 14, 2011], I had
the opportunity to provide report review for Probationary Officer Phan.
Through this review it has come to my attention that . . . Phan is not at
the level of competency and knowledge that can be expected of a probation-
ary police officer with . . . seven months worth of experience. I am trou-
bled by the deficiencies that were exposed during review of a simple domes-
tic arrest warrant. These deficiencies include but are not limited to:
(1) Inability to explain the importance of completely and adequately com-
pleting all of the identifying boxes for the [a]ccused on the face sheet of
the arrest warrant.
(2) Not having knowledge of the different databases contained within the
in-house system and what information those databases hold.
(3) Inability to log on to the in-house system.
(4) Failing to document investigative steps that provide for the state
mandated safety of a domestic violence victim, i.e., inquiring whether
accused has access to the residence and offering temporary housing/shelter
for the victim, ensuring a quality canvass for the accused is undertaken,
attempting to contact the accused.
(5) Noting and documenting observations of injuries and utilizing others
such as doctors to provide nature and extent of injuries.
(6) Checking for the presence of [p]rotective/[r]estraining orders.’’
5
Kessler testified that being ‘‘unplugged’’ means that the officer is removed
from the field pending additional training and that it was not uncommon
for officers to be unplugged. He further testified that he did not recommend
that Phan be disciplined even though he ‘‘probably could initiate [that] him-
self.’’
6
The summary report for February indicated that Phan had received
unsatisfactory marks in overall attitude throughout the probationary period.
Phan received no unsatisfactory ratings in overall attitude in January, 2011,
one unsatisfactory rating in overall attitude in December, 2010, and one
unsatisfactory rating in overall attitude in November, 2010.
7
The memorandum provides: ‘‘On [February 6, 2011], while conducting
routine maintenance and review of probationary officers [daily observation
reports], it was observed that Officer Phan only had five . . . [daily observa-
tion reports] in his file folder. A review of his classmates’ folders yielded
everything filed appropriately and accordingly, with each having roughly
forty completed [daily observation reports]. Lieutenant Hightower was made
aware of the incident at which time Officer Phan was called into the [l]ieuten-
ant’s office after roll call. When asked as to the location of his [daily observa-
tion reports], Officer Phan left the office, only to return minutes later with
thirteen . . . completed [daily observation reports], still far less than his
expected tally. Officer Phan stated that he kept them in his department
issued mailbox.
‘‘When asked . . . why they were not in the appropriate file folder and
cabinet, Officer Phan would not answer. When asked . . . whether . . .
he knew they were supposed to be filed in the cabinet designated particularly
for [daily observation reports], he would not answer. It was soon thereafter
determined that the five completed [daily observation reports] that were
in his folder were placed there by Sergeant [Mark] Vilcinskas, [who] had
completed them.
‘‘That while counseled by Lieutenant Hightower and Sergeant Marinelli,
I took it upon myself to visually inspect Officer Phan’s department issued
open mailbox in the roll call room. Fourteen . . . more [daily observation
reports] were located, some of which were rated unsatisfactory with addi-
tional commentary. When retrieved and brought to Officer Phan’s attention,
he looked surprised and stated, ‘Where did you find those?’ It is uncertain
as to whether or not Officer Phan had recently pulled his completed [daily
observation reports] from his file folder prior to the meeting with him. It
is, although, apparent that Officer Phan had purposely failed to retrieve all
of the [daily observation reports] from his mailbox as originally asked.’’
8
The referee found that Phan’s daily observation summary report for
March, 2011, indicated one unsatisfactory rating, one superior rating and the
remainder satisfactory ratings in the area of overall attitude. The summary
reveals, however, that Phan received unsatisfactory ratings in the area of
interpersonal skills, performance of patrol, investigative or assigned tasks,
ability to perform duties in a safe manner, report writing, and ability to
adhere to policies and procedures.
9
In the daily observation report regarding Phan dated March 3, 2011,
prepared by Sergeant Fernando Rodriguez, Jr., Phan received unsatisfactory
ratings in the areas of overall attitude and interpersonal skills. Rodriguez
explained the unsatisfactory rating as follows: ‘‘As for interpersonal skills,
it concerns a senior officer, Officer Ward. There was an incident the previous
day that involved a deficiency in officer safety . . . . Officer Ward, who
was involved in the incident, was attempting to give Officer Phan some
sound advice in officer safety. While Officer Ward was in mid-sentence,
Officer Phan turned away from Officer Ward, looked at me and apologized
for his mistake. He totally disregarded Officer Ward as if he wasn’t there.
In my opinion, Officer Ward was giving advice to Officer Phan that could
very well save his life. I advised Officer Phan that he should pay attention
to the advice and criticism given by Officer Ward, a senior officer as well
as [a field training officer], as if it was coming from a supervisor. The
incident made me feel as if Officer Phan’s interpersonal skills, as well as
his overall attitude with senior officers, was lacking on this date. He was
counseled on all deficiencies.’’
10
The memorandum provided: ‘‘On or about February 15, 2011, I asked
Officer Phan to send out a message on his MDT to surrounding towns in
regards to an attempt to locate on a case that he was working on. Officer
Phan stated that he did not know how that function existed on the MDT.
I then asked Officer Phan to meet me in the rear of headquarters so that I
may show him the proper method. Officer Phan sat in the passenger seat
of Unit 420, and was then instructed as to how to send MDT messages to
not only Hartford, but surrounding towns as well. When asked as to why
he did not know how to properly utilize the system, Officer Phan stated
that his field training officers never showed him. I advised Officer Phan
that it was also his responsibility to ask his [field training officers], seeing
that they may have been under the assumption that the prior [field training
officer] had covered that particular area of training.
‘‘Later that evening, I contacted one of his [field training officers], Officer
Steve Citta. When asked as to whether or not he trained Officer Phan in
regards to the MDT, Officer Citta stated that he had shown Officer Phan
all functions of the MDT, and that he had shown proficiency in its usage,
as evidenced on his field training [daily observation reports]. It is unclear
as to why Officer Phan blamed his [field training officers] for not showing
him the proper functions, when it is evident that he was properly trained
in the system. I was not Officer Phan’s supervisor that evening, therefore
[I] did not complete a [daily observation report] in regards to training docu-
mentation.’’
11
The memorandum provided:
‘‘In regards to the incident . . . which occurred on February 16, 2011, I
find clear and evident violations of the two following Code of Conduct
Violations.
‘‘Article VI, Section 6.09 For the intentional and willful failure to comply
with any lawful order, procedure, directive, or regulation, oral or written.
‘‘-Failing to follow directive and procedure in regards to the proper mainte-
nance and record keeping of completed [daily observation reports].
‘‘Article VI, Section 6.17 Refusal to obey a lawful order of a supervisor.
‘‘-Failing to retrieve all [of] the missing [daily observation reports] when
clearly ordered to do so.’’
12
The referee found that most of what happened during the incident
with the Taser occurred behind a tree, next to a parked ambulance, which
sometimes obscured the view from the dash camera recording. The referee
found, however, that the video footage of the incident was consistent with
Phan’s version of the event. The referee further found that ‘‘[w]itnesses
testified that the undersigned was wrong even when the recording clearly
rebutted the witness’ testimony of what [had] occurred’’ and that ‘‘[t]his
recording and the refusal of the witnesses to acknowledge they remembered
incorrectly seriously damaged the [city’s] credibility.’’ Although the referee
questioned the credibility of the city’s witnesses regarding whether Phan
could have used his Taser during the incident in question, the referee did
not question the fact, as stated in Yergeau’s memorandum, that Phan had
not been truthful when initially asked why he did not use his Taser.
13
The performance evaluation provided:
‘‘Job Knowledge and Skills: Officer Phan demonstrated poor tactics when
dealing with a person who was allegedly under the influence of an intoxicat-
ing substance. Officer Phan was less than truthful when questioned about
the incident by a supervisor.
‘‘Officer Phan was found to have been less than truthful with several
other supervisors during his probationary review period, the circumstances
of which were documented in the previous Interim Probationary Employee
Performance Evaluation.
‘‘Human Relations: Officer Phan demonstrated poor interpersonal skills
by displaying a discourteous attitude and an unprofessional demeanor when
dealing with a supervisor.
‘‘Officer Phan previously demonstrated a poor attitude and an unprofes-
sional demeanor when dealing with supervisors, the circumstances of which
were documented in the previous Interim Probationary Employee Perfor-
mance Evaluation.’’
14
The referee also noted that Kessler ‘‘had previously been disciplined
for making discriminatory and/or racist remarks. In the past, other officers
filed complaints about disparaging statements . . . Kessler made. . . .
Kessler had to attend sensitivity training as a result of the past complaints
and was suspended for ten days. . . . Kessler’s history supports the argu-
ment that [the city’s] reasons for terminating [Phan] were grounded in
discriminatory animus and that [Phan’s] poor performance was pretextual.’’
With regard to the prior complaints, the record reflects that an anonymous
complaint of racism against Kessler was made on April 4, 2011. Following
an investigation, the Internal Affairs Division determined that this complaint
should be closed as unfounded. The other complaints concern Kessler’s
conduct on September 25 and October 2, 2012, and May 7, 2013, after Phan
had been terminated from his position as a probationary police officer.
15
The trial court also remanded the matter to the commission to issue a
new order regarding damages because the referee’s original order was more
than four years old. Despite this remand, the trial court’s decision on the
merits of the city’s appeal was an appealable final judgment. See General
Statutes § 4-183 (j); Commission on Human Rights & Opportunities v.
Board of Education, 270 Conn. 665, 674–75, 855 A.2d 212 (2004).
16
In Jones v. Dept. of Children & Families, supra, 172 Conn. App. 28–29,
an employee claimed that, under the ‘‘cat’s paw’’ theory of liability, the
employer was responsible for intentional discrimination because its decision
to terminate the employee’s employment was tainted by the impermissible
bias of his supervisor. This court held that the cat’s paw theory of liability
had not been satisfied because the final termination decision was made
after an independent review of concrete, objective factors. Id., 31.
17
In its brief, the commission tacitly acknowledges this error but states
that the trial court’s finding ‘‘is of little consequence given the substantial
other evidence in the record linking Kessler to the decision to terminate
Phan.’’
18
We note that in Gibilisco v. Tilcon Connecticut, Inc., 203 Conn. App.
845, 846–47, 251 A.3d 994, cert. denied, 336 Conn. 947, 251 A.3d 77 (2021),
which was on appeal following the granting of a motion for summary judg-
ment rather than following a trial, an employee asserted that his former
employer wrongfully terminated his employment because he had filed for
workers’ compensation benefits. After the trial court granted summary judg-
ment in favor of the employer, the employee appealed and argued, in part,
that the close temporal proximity of approximately two weeks between his
final work injury and the employer’s decision to terminate his employment
was, on its own, enough to satisfy his minimal burden of raising a genuine
issue of material fact regarding setting forth a prima facie case. Id., 861–62.
In response, the employer contended that temporal proximity does not, on
its own, give rise to an inference of discrimination where no other evidence
is offered to support a claim of retaliation. Id., 862–63. Because the employee
in Gibilisco had produced evidence of a close temporal proximity between
the exercise of his rights and the employer’s adverse action, as well as
additional evidence sufficient to raise a disputed issue of fact as to whether
the employer’s adverse action took place under circumstances permitting
an inference of discrimination, we reversed the judgment of the trial court
and did not need to address the merits of the employer’s contention. Id.,863 n.15.
19
Kessler prepared daily observation reports for Phan on March 24, March
25, March 26, May 16, May 17, May 23 and May 25, 2011. In the report dated
March 25, 2011, Kessler gave Phan an unsatisfactory rating for his adherence
to policies and procedures. In the report dated March 26, 2011, Kessler gave
Phan an unsatisfactory rating in the performance of patrol, investigative or
assigned tasks. We note that Kessler’s signature does not appear on the
bottom of the March 25, 2011 report included in the record; Kessler, however,
testified that he gave the unsatisfactory rating in that report.
20
The referee stated that ‘‘[e]xhibits illustrate the changes in [Phan’s]
performance evaluations, and testimony from the public hearing about the
camaraderie and socializing of . . . Kessler with other sergeants demon-
strate that . . . Kessler’s discriminatory animosity towards [Phan] moti-
vated or influenced other officers to complain about [Phan’s] performance.’’
21
Marinelli testified:
‘‘Q. And you said you were promoted to a sergeant about four years
ago, correct?
‘‘A. Yes, November of 2010.
‘‘Q. And that was around the same time as Sergeant Kessler and Ser-
geant Cicero?
‘‘A. Yes, we were all promoted together.
‘‘Q. The same time, so you guys are kind of colleagues, classmates?
‘‘A. Okay.
‘‘Q. Do you socialize outside of work?
‘‘A. Every once in a while, very—you know, I don’t go out much with
officers after work. I kind of keep to myself.
‘‘Q. Okay but for the sergeants that—you know, you kind of got promoted
together, you kind of—are you kind of in a—was there a comradery between
getting promoted?
‘‘A. In our group?
‘‘Q. Yeah.
‘‘A. Not really.
‘‘Q. You’re like, you know, a class of sergeants or—
‘‘A. Well, we’re that group that got promoted at the same time, but—you
know, it’s not like we go to dinner once a week or anything like that.’’
22
Cicero testified:
‘‘Q. Did you and Sergeant Kessler graduate from the academy at the
same time?
‘‘A. No, we were not classmates.
‘‘Q. You’re not classmates, are you friends?
‘‘A. We’re coworkers.
‘‘Q. Okay, were you promoted to sergeant at the same time?
‘‘A. Yes, we were.
‘‘Q. Do you socialize outside of work together?
‘‘A. I do not, no ma’am.’’
23
Rousseau testified that any time an issued item is lost or stolen there
must be an investigation. When asked about the delay between when Phan
lost his hat piece on July 19, 2010, and the investigation into the matter in
February, 2011, Rousseau testified:
‘‘Q. Okay, but it looks like Officer Phan lost his hat back in July and he
reported it to them in August—
‘‘A. Correct.
‘‘Q. —based on this. So shouldn’t that—this investigation have been done
back in July and August?
‘‘A. You know, I’m confident that [it] would have been done back in July
and August—you know, I think a lot of the blame needs to be on his shoulders
because he [misled] supervisors in the department throughout. And, you
know, there was an assumption that an investigation was going, there was
an assumption that he had found his hat piece and the case was closed.
‘‘So yeah, it probably should have been done way back when he lost it.
Unfortunately, you know, he took measures and steps to deceive a lot of
people and if he hadn’t taken those steps and measures the investigation,
I’m confident, would have been done way back then. It wasn’t brought to
my attention until February when the sergeant was doing inspection at roll
call and he noticed he had a spare hat piece. And if I had known about it
within those months it took place, I would have conducted the investigation
myself. Unfortunately, I wasn’t notified, I was under the assumption that
he’d found his hat and hat piece.’’
24
In light of this conclusion, it is unnecessary to address the city’s
remaining claim that the court improperly held that the commission correctly
had applied the law on remand.