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

208 Conn.App. 755

267 A.3d 883

CITY OF HARTFORD POLICE DEPARTMENT

v.COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES et al.

AC 43420

Appellate Court of Connecticut.

Argued April 19, 2021

Officially released November 23, 2021

Daniel J. Krisch, Hartford, 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, Newington, for the appellee (defendant Khoa Phan).

Prescott, Clark and DiPentima, Js.

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 discriminated against the defendant Khoa Phan on the basis of his Asian and Vietnamese ancestry by terminating Phan's employment as a probationary police officer. The primary issue on appeal is whether the trial court improperly concluded that substantial evidence supported the commission's determination that the city intentionally had discriminated against Phan. We conclude that the substantial evidence in the record does not support a determination of intentional discrimination by the city and, accordingly, we reverse the judgment 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 probationary period for new officers lasts one year starting with the commencement of the field training program, which lasts for several weeks. The field training program 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 probationary 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 September 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 appearance, overall attitude, interpersonal skills, care of equipment, and performance of certain skills such as patrol, investigation, phones and radio, conflict, report writing, and policies and procedures. In these reports, the sergeant 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, however, contained a notation that Phan's performance had improved. Phan's ratings in January, 2011, were generally 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 negative 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 citizens 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 deficiencies in Phan's work performance.⁴ In the memorandum, Kessler noted that he had followed up with other sergeants who had more frequent contact with Phan and learned that Phan was struggling with his job competency. 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 conjunction with Lieutenant Edwin Dailey, the headquarters lieutenant, that Phan be "unplugged" from his current assignment and afforded the opportunity to be retrained on the noted deficiencies as well as supervisor/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 Bergenholtz, also indicated that Phan was argumentative with two supervisors on separate occasions.⁶ Cicero prepared 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 making 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 interdepartmental memorandum to Lieutenant Michael Cacioli describing an incident in which Phan only had five daily observation reports in his folder while the other probationary police officers had approximately forty daily observation reports in their folders. According to the memorandum, Lieutenant Emory Hightower, Cicero, and Marinelli met with Phan about the missing reports. In his memorandum, Cicero concluded that it was apparent 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 interdepartmental memorandum to Captain James Bernier expressing concern that Phan lacked the character necessary to continue as a probationary police officer. The memorandum 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 referenced 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 confrontational with supervisors,...