Opinion
HHBCV156028513S
06-01-2016
City of Hartford Police Department v. Commission on Human Rights and Opportunities et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Carl J. Schuman, Judge
The plaintiff city of Hartford police department appeals from the decision of the defendant commission on human rights and opportunities (commission) finding that the plaintiff illegally discriminated against defendant Khoa Phan (Phan) based on his Asian and Vietnamese ancestry when it terminated his employment. The plaintiff also challenges the commission's award of damages to Phan. For the following reasons, the court sustains the appeal and orders a new hearing before the commission.
I
The historical facts are undisputed. Phan graduated from the police academy on July 2, 2010 and became, for one year, a probationary police officer with the plaintiff. Phan first participated in the field training program, which involves riding along with a sergeant who serves as a field training officer. Phan completed this program in October 2010 and earned the opportunity to work on his own while still on probation. On June 18, 2011, prior to completion of probation, the plaintiff terminated Phan's employment. The plaintiff claims that it took this action because of Phan's overall pattern of poor performance during his probationary period, including several specific incidents of untruthfulness.
On November 25, 2011, Phan filed an affidavit of illegal discriminatory practice with the commission, alleging discrimination on the basis of his Asian and Vietnamese ancestry. After investigation and attempts at conciliation, the case came on for a public hearing before a human rights referee with the commission in August and September 2014. On March 4, 2015, the referee rendered a thirty-eight-page decision finding in favor of Phan.
The referee found that, prior to January 2011, Phan had received acceptable performance ratings. (Return of Record (ROR), pp. 58, 62.) However, on or about January 23, 2011, Sergeant Steven Kessler reviewed a police report written by Phan, asked him about the nationality of the victim in the report and Phan's own national origin, and made the comment to Phan that " Vietnamese, Cantonese, it's all the same shit, Phan." (ROR, pp. 40-41.) Then, in February, Kessler asked Phan if Hartford citizens had a hard time understanding him because of his accent and told him that " hard core criminals must be laughing" at him when he tells them what to do and that they are probably " goofing on you behind your back, right." (ROR, p. 42.) Phan at one point asked Kessler to stop making offensive comments, but Kessler warned Phan to be careful what he said. (ROR, pp. 43, 59.)
In a memo to a Lieutenant Bergenholtz after these confrontations, Kessler reported that Phan was argumentative and confrontational. (ROR, p. 59.) At a February 25, 2011 meeting with Phan, Bergenholtz stated that he knew that Phan had yelled at Kessler. (ROR, p. 36.) Kessler also spoke to Sergeant Yergeau about Phan's performance. (ROR, p. 43.) Other sergeants who were purportedly friends of Kessler began giving Phan negative reviews. (ROR, pp. 59-60.) According to the referee, " Sergeant Kessler's discriminatory conduct towards [Phan] and his memo about [Phan's] deficiencies spurred the discriminatory action by [the police department] against [Phan] by causing other supervisory officers to complain about [Phan's] attitude, work, performance, and truthfulness." (ROR, p. 62.) The decision to terminate Phan's employment came from the chief of police after receiving a memorandum from Bergenholtz that included input from Yergeau. (Plaintiff's brief, p. 24.) The referee concluded that the plaintiff illegally discriminated against Phan in terminating him from his position as a probationary police officer. (ROR, p. 64.)
The referee ordered the plaintiff to pay back pay in the amount of $210,596 plus prejudgment and postjudgment interest at the rate of 10% per annum. In addition, the referee ordered the plaintiff to pay emotional distress damages in the amount of $25,000. The referee declined to order reinstatement or front pay. On March 26, 2015, the referee denied Phan's petition for reconsideration of the decision not to reinstate him.
The plaintiff now appeals to this court.
II
Under the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., judicial review of an agency decision is " very restricted." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows: " The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
Stated differently, " [r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither [the appellate] court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Okeke v. Commissioner of Public Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012). " It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
III
The plaintiff's principal claim on appeal is that the referee erred in applying a " mixed motive" analysis to the discrimination claim rather than a " pretext" analysis. In Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 671 A.2d 349 (1996), our Supreme Court extensively discussed the differences between these two theories. The Court stated: " A 'mixed-motive' case exists when an employment decision is motivated by both legitimate and illegitimate reasons. See Price Waterhouse v. Hopkins, . . . 490 U.S. . . . 228 . .., 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion). In such instances [under the Price Waterhouse model], a plaintiff must demonstrate that the employer's decision was motivated by one or more prohibited statutory factors. Whether through direct evidence or circumstantial evidence, a plaintiff must submit enough evidence that, if believed, could reasonably allow a [fact finder] to conclude that the adverse employment consequences resulted because of an impermissible factor . . .
The Supreme Court uses " plaintiff" to refer to the employee and " defendant" to refer to the employer. In this administrative appeal, however, the parties are reversed.
" The critical inquiry [in a mixed-motive case] is whether [a] discriminatory motive was a factor in the [employment] decision at the moment it was made . . . Under this model, the plaintiff's prima facie case requires that the plaintiff prove by a preponderance of the evidence that he or she is within a protected class and that an impermissible factor played a 'motivating' or 'substantial' role in the employment decision . . .
" Once the plaintiff has established his prima facie case, the burden of production and persuasion shifts to the defendant. [T]he defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [the impermissible factor] into account.
" Often, a plaintiff cannot prove directly the reasons that motivated an employment decision. Nevertheless, a plaintiff may establish a prima facie case of discrimination through inference by presenting facts [that are] sufficient to remove the most likely bona fide reasons for an employment action . . . From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons. It is in these instances that the McDonnell Douglas-Burdine [or " pretext" ] model of analysis must be employed . . . [S]ee Texas Dept. of Community Affairs v. Burdine, . . . 450 U.S. . . . 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 [(1981)] . . .; McDonnell Douglas Corp. v. Green, . . . 411 U.S. . . . 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 [(1973)].
" The plaintiff's burden of establishing a prima facie case is not onerous under this model . . . The plaintiff need prove only four elements by a preponderance of the evidence: (1) that he or she belongs to a protected class; (2) that he or she applied and was qualified for the position in question; (3) that despite his or her qualifications, the individual was rejected; and (4) that after the individual was rejected, the position remained open . . . Once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination is created.
" Under the McDonnell Douglas-Burdine model, the burden of persuasion remains with the plaintiff . . . Once the plaintiff establishes a prima facie case, however, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating (not proving) some legitimate, nondiscriminatory reason for the plaintiff's rejection . . . Because the plaintiff's initial prima facie case does not require proof of discriminatory intent, the McDonnell Douglas-Burdine model does not shift the burden of persuasion to the defendant. Therefore, [t]he defendant need not persuade the court that it was actually motivated by the proffered reasons . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff . . . Once the defendant offers a legitimate, nondiscriminatory reason, the plaintiff then has an opportunity to prove by a preponderance of the evidence that the proffered reason is pretextual . . .
" The McDonnell Douglas-Burdine analysis keeps the doors of the courts open for persons who are unable initially to establish a discriminatory motive. If a plaintiff, however, establishes a Price Waterhouse prima facie case, thereby proving that an impermissible reason motivated a defendant's employment decision, then the McDonnell Douglas-Burdine model does not apply, and the plaintiff should receive the benefit of the defendant bearing the burden of persuasion." (Citations, footnotes, internal quotation marks omitted.) Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 105-09.
In this case, the plaintiff (here the employer City of Hartford) initially claims error because the commission and Phan approached this case before the referee using the pretext model but the referee applied the mixed motive model. Cf. Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 228 n.14, 939 A.2d 541 (2008) (declining to address the question of whether trial court improperly used mixed motive rather than pretext analysis because the employer did not raise the issue). It is true, as the commission argues, that the proper burden of proof in a case is a question of law; see Stuart v. Stuart, 297 Conn. 26, 36, 996 A.2d 259 (2010); and that the referee is not bound by the parties' legal analysis. However, it is equally important that the employer receive fair notice of the commission's claims and that the referee resolve the burden of proof issue correctly.
Although the " pretext theory and the mixed motives theory bear substantial similarities to each other, making it difficult to distinguish between the two . . ."; Commission on Human Rights & Opportunities v. Sullivan, supra, 285 Conn. 226; there are two key differences between the two models. First, " the pretext theory applies in cases involving a single motive for the disparate treatment, whereas the mixed motives theory applies in multiple motive cases, in which there is at least one improper motive and one proper motive." Id., 226-27. One Court of Appeals has described the threshold question for application of the mixed motive test as whether " the evidence could support a finding that discrimination is one of two or more reasons for the challenged decision, at least one of which may be legitimate . . ." Costa v. Desert Palace, Inc., 299 F.3d 838, 856 (9th Cir. 2002) (en banc), aff'd on other grounds, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). See also Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997) (plaintiff entitled to mixed motive instruction " when the evidence is sufficient to allow a trier to find both forbidden and permissible motives") [internal quotation marks omitted].
Second, the burden of proof differs. Under the mixed motives analysis, once the employee has shown as part of his or her prima facie case that " an impermissible factor motivated the [employer] in making the adverse decision . . . the burden then shifts to the [employer] to show, by a preponderance of the evidence, that it would have made the same decision even in the absence of the impermissible factor." Commission on Human Rights & Opportunities v. Sullivan, supra, 285 Conn. 228. " Unlike [an employer's] burden in a pretext case, it is not sufficient for the [employer] to show that a legitimate, nondiscriminatory reason would have justified the decision . . . A[n employer] may prevail in a mixed motives case only if it can show that it actually was motivated, at the time that the decision was made, by a legitimate reason and that its legitimate reason, standing alone, would have induced it to make the same decision." (Citations, internal quotation marks omitted.) Id.
One treatise has stated that " the key to determining whether a case is a mixed-motive case is whether, and only whether, there were both legitimate and illegitimate motives for the decision, not whether the evidence of illegitimate motive is direct or circumstantial." B.T. Lindemann & P. Grossman, Employment Discrimination Law, p. 100 (4th ed., 2007). The latter part of this quote refers to the rule that circumstantial evidence of the improper motive may trigger a mixed-motives analysis when such circumstantial evidence is " sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that [membership in a protected group] was a motivating factor" for the decision. (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Sullivan, supra, 285 Conn. 227 (quoting Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)). Thus, the evidence of the motivating factor does not have to be " direct." As our Supreme Court has explained: " This analytical framework has on occasion been referred to as the 'direct evidence' theory of discrimination. The designation of this analysis as 'direct evidence' is misleading. For example, in applying New York's employment discrimination law, which is similar to General Statutes § 46a-60, the Second Circuit Court of Appeals concluded that, under the Price Waterhouse model, a plaintiff may utilize both 'direct evidence' and circumstantial evidence to prove that an employment decision was made 'because of' or motivated by impermissible factors. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir. 1992)." Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 105.
The problem in the present case is that neither Phan, the commission, nor the referee acknowledged that there were legitimate motives for termination, and yet the referee adopted the mixed-motives analysis and placed the burden of proof on the plaintiff. Phan's affidavit of illegal discriminatory conduct filed at the beginning of the case alleged, in the following terms, a case of pretext: " the Respondent's proffered reason for my termination, that I was less than truthful with several other supervisors during my probationary period . . . is false and is a pretext for illegal discrimination based on my ancestry." (ROR, p. 593.) The commission refiled this complaint at the public hearing stage. (ROR, p. 364.) During opening statements at the beginning of the hearing, the commission did not recognize or even mention any legitimate motives that the plaintiff may have had. (ROR, pp. 1226-27.) The commission employed only the McDonnell Douglas pretext framework in its post-hearing brief. (ROR, pp. 385-86.) The commission never acknowledged any valid, legitimate reason for the termination but instead argued that the plaintiff's " legitimate non-discriminatory reason is clearly pretextual." (ROR, p. 387.) At no point did the adverse parties give the plaintiff any notice that the mixed-motives analysis should apply or that it must bear the burden of proof. Cf. Commission on Human Rights & Opportunities v. Sullivan, supra, 285 Conn. 228 (the plaintiffs, the commission and a tenant, " elected to proceed" under a mixed-motives analysis.)
The present case is different for at least three reasons. First, the employee and the commission affirmatively characterized the matter as a pretext case, thus misleading the plaintiff. Second, the present case was not a jury trial and the employer in this case did not have the benefit of receiving notice at a charge conference or similar proceeding that the employee was seeking to shift the burden of proof to the employer. Third, the referee never found that the evidence could support a finding that there was a legitimate reason for Phan's firing. In fact, as stated below, the referee found to the contrary. These factors put the plaintiff at a distinct disadvantage when compared to the usual case. " As the Supreme Court has observed, a case need not be characterized or labeled at the outset. Rather, the shape will often emerge after discovery or even at trial. Similarly, the complaint itself need not contain more than the allegation that the adverse employment action was taken because of a protected characteristic. See Price Waterhouse, 490 U.S. at 247 n.12, 109 S.Ct. 1775 (plurality opinion)." Costa v. Desert Palace, Inc., supra, 299 F.3d 867. Rather, in jury cases, the issue of properly characterizing the case as single motive or mixed motives will normally arise at the jury instruction stage. Id., 856-57. In many cases, the employee will alert the employer to the claim that the employer should bear the burden of proof by requesting a burden-shifting jury instruction. See Ostrowski v. Atlantic Mutual Insurance Co., 968 F.2d 171, 181 (2d Cir. 1992).
Similarly, the referee never stated any valid basis for applying the mixed motive analysis. Although the referee did recite the case law concerning the differences between the pretext theory and the mixed-motive theory (ROR, pp. 54-55), the referee simply concluded that " [t]his case lends itself to the mixed-motive analysis" (ROR, p. 55) without adding any reasoning. At no point did the referee recognize any legitimate reasons for the termination. Instead, the referee concluded by commenting that " it is difficult to discern if there were any real, let alone motivating, non-discriminatory reasons for terminating the complainant." (ROR, p. 64.) Essentially, the referee determined that the evidence did not meet the threshold for application of the mixed-motive test; see Costa v. Desert Palace, Inc., supra, 299 F.3d 856; Lightfoot v. Union Carbide Corp., supra, 110 F.3d 913; and that any motive advanced by the plaintiff to justify Phan's termination was a pretext. Given that point, she should have applied the pretext model. Accordingly, because neither the commission nor the referee ever acknowledged any proper motive for Phan's firing, or stated any other valid basis for using the mixed-motive analysis, the referee erred in employing the mixed-motive framework. Cf. Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 109-10 (facts found by hearing officer revealed a legitimate reason for employment action and thus mixed-motive analysis rather than pretext model should have applied, but error was harmless).
The commission argues that " [t]he referee reasonably determined that the Plaintiff acted with many motives for the adverse employment action, some of which were legitimate." (Commission brief, p. 5.) But, although some of the 206 factual findings made by the referee addressed Phan's shortcomings, the referee never found that the plaintiff had any legitimate motives for firing him. For example, the commission cites the fact that the referee found that Phan had multiple unsatisfactory performance evaluations before January 2011, when Phan had his first confrontation with Kessler. (ROR, p. 35.) However, in the analysis portion of the opinion, the referee attached no significance to this finding and instead reached the opposite conclusion that Phan's " performance had been satisfactory until his meetings with Sergeant Kessler . . ." (ROR, p. 62; see also ROR, p. 58.) The referee added that " [a]s a result of Sergeant Kessler's comments and report that [Phan] was argumentative and confrontational, [Phan] began receiving DORs [Daily Operation Reports] with negative comments about his attitude." (ROR, p. 59.) Similarly, the commission points to the fact that Phan had an issue with properly wearing his uniform. While the referee did make such a finding concerning December 2010 (ROR, p. 35), the referee hardly viewed that issue as a basis for termination. On the contrary, the referee cited the fact that, in February 2011, the plaintiff improperly revived a controversy concerning Phan's loss of a hat piece in September 2010. (ROR, p. 60.) The referee also found that the plaintiff conducted an incomplete investigation into Phan's allegedly false reporting about the hat piece and saw that aspect of the uniform incident as evidence of an improper motive--rather than a proper one--for its employment action. (ROR, p. 60.) Thus, with regard to the principal matters that the referee purportedly saw as legitimate motives for the termination action, the referee actually found that " [t]he shift in [Phan's] DORs, the return of the hat piece incident, and the one-sided investigation into [Phan's] truthfulness further evidences [the plaintiff's] discriminatory animus as a motivating reason for [Phan's] termination." (ROR, p. 60.) Thus, the commission's attempts to justify the referee's decision to use the mixed-motives theory do not withstand analysis.
The question then becomes whether the error is harmful because " substantial rights of the person appealing have been prejudiced . . ." General Statutes § 4-183(j). The commission initially observes that the employee's burden of establishing a prima facie case is greater under the mixed motive approach than under the pretext analysis. See Kucharski v. Cort Furniture Rental, 594 F.Supp.2d 207, 210 (D.Conn. 2008). That point is true because the burden on the employee of making a prima facie case using the pretext analysis is " de minimus." Crane v. Trinity College, 259 Conn. 625, 642-43, 791 A.2d 518 (2002). See also Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 107 (plaintiff's burden " not onerous") But the burden on the employer under the mixed-motive analysis is also greater. Under the pretext model, the employer has only a " burden of production, and the [employer] merely needs to state a nondiscriminatory reason. The [employer] does not have to prove the absence of discrimination." Crane v. Trinity College, supra, 259 Conn. 643. In contrast, under the mixed-motives theory, once the plaintiff has made a prima facie case, " the burden then shifts to the defendant to show, by a preponderance of the evidence, that it would have made the same decision even in the absence of the impermissible factor . . . Unlike a defendant's burden in a pretext case, it is not sufficient for the defendant to show that a legitimate, nondiscriminatory reason would have justified the decision . . . A defendant may prevail in a mixed motives case only if it can show that it actually was motivated, at the time that the decision was made, by a legitimate reason and that " its legitimate reason, standing alone, would have induced it to make the same decision." (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Sullivan, supra, 285 Conn. 228. See also Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 109 (under the mixed-motives model, the " [employee should receive the benefit of the [employer] bearing the burden of persuasion." (Citations, footnotes, internal quotation marks omitted.)
Here the greater burden imposed on the employer under mixed motives had real consequences because, although the referee was not always explicit, she clearly held that the employer--here the plaintiff--had not met its burden of proof. The referee quoted Levy and other cases to the effect that " [t]he [employer] may avoid a finding of liability [under state law] only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [the impermissible factor] into account." (ROR, p. 55 (quoting Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 106.)) Then, after discussing the plaintiff's claim that it terminated Phan for lack of truthfulness with regard to a taser incident and other matters, the referee stated " [b]ased on the preponderance of the evidence the 'lack of truthfulness component' is not a credible factor in [Phan's] termination." (ROR, pp. 62-63.) The referee added: " Rather than convincing the tribunal that [Phan] was untruthful, it was [plaintiff's] truthfulness that came into question given their adamant refusal to change their testimony, even when confronted with video evidence that rebutted their testimony." (ROR, p. 63.) These passages, while inartfully written, can only mean that the plaintiff did not meet its burden of proof. If any doubt remains that the referee faulted the plaintiff for not meeting its burden of proof, the referee dispelled that doubt in the damages section of her opinion in stating: " While the [plaintiff] did not prove by a preponderance of the evidence that the decision to terminate the complainant would have been made absent discriminatory animus, it is possible that complainant had areas that needed improvement." (ROR, p. 67.)
The commission and the plaintiff cite cases holding that, once the parties have fully tried a case on the merits, the only issue to be decided is whether the employee has actually proved discrimination. See Bazemore v. Friday, 478 U.S. 385, 398, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986); United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-16, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Lavin-McEleney v. Marist College, 239 F.3d 476, 479 (2d Cir. 2001); Ottaviani v. State University of New York, 875 F.2d 365, 373 (2d Cir. 1989), cert. denied, 493 U.S. 1021, 110 S.Ct. 721, 107 L.Ed.2d 740 (1990). In none of these cases, however, was there an issue of whether the trial judge incorrectly assigned the burden of proof to the employer, as there is here.
Further, as discussed, the plaintiff--which was the respondent in the administrative proceedings--had no notice that it had to bear the burden of proof prior to or during the hearing. After the hearing, there was also no reason to address the mixed-motives theory and the plaintiff accordingly briefed the case before the commission under the McDonnell Douglas pretext theory. (ROR, pp. 104-22.) The referee's decision to employ the mixed-motives framework and place the burden of proof on the plaintiff came without any warning or notice. The referee's action put the plaintiff in the difficult and unfair position of learning for the first time after trial and briefing of a case that it had the burden of proof.
In sum, the referee's post-hearing decision to use the mixed-motives analysis and place the burden of proof on the plaintiff had no valid basis under the applicable facts and law, it affected the outcome of the case, and it came with no notice to the plaintiff. Under these circumstances, the court concludes that substantial rights of the plaintiff have been prejudiced. Because the court cannot possibly determine the outcome of the case under the proper allocation of the burden of proof, the court remands the matter for a new hearing. See Mokonnen v. Pro Park, Inc., 96 Conn.App. 625, 631, 901 A.2d 725, cert. denied, 280 Conn. 924, 908 A.2d 1088 (2006) (instruction improperly placing burden of proof on employer warranted a new trial).
In Levy, the Court held that the hearing officer incorrectly relied on the pretext model rather than the mixed-motives model but that the error was harmless because the employer would have prevailed under either model. Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 109-12. In the present case, both the plaintiff and the defendants similarly ask the court to conclude, in the event that it reaches the issue, that they would have prevailed under the pretext model. To go that far, however, the court would have to engage improperly in finding sharply contested facts, such as whether Phan lied in a report he submitted on the lost uniform part. Without seeing or hearing the witnesses, the court would also have to make factual conclusions such as whether the plaintiff articulated " some legitimate, nondiscriminatory reason for the [employee]'s rejection" and whether the commission has proven by " a preponderance of the evidence that the proffered reason is pretextual . . ." (Internal quotation marks omitted.) Id., 108. The court instead holds only that the plaintiff was substantially prejudiced by the referee's error in assigning it a burden of proof and that the plaintiff is entitled to a new hearing as a result.
V
The court discusses the remaining claims in the event that they arise on remand or on appeal. The plaintiff next contends that the referee erred in admitting evidence of Kessler's prior bad acts in making derogatory statements about, or discriminating against, African-Americans. The plaintiff claims that this evidence was irrelevant to Phan's claim of discrimination against him based on his Asian ancestry. The court rejects this claim. " [A]dministrative tribunals are not strictly bound by the rules of evidence and . . . they may consider evidence which would normally be incompetent in a judicial proceeding, as long as the evidence is reliable and probative . . . General Statutes § 4-178(1)." (Internal quotation marks omitted.) Gonzalez v. State Elections Enforcement Commission, 145 Conn.App. 458, 483-84, 77 A.3d 790, cert. denied, 310 Conn. 954, 81 A.3d 1181 (2013). The referee could reasonably and logically have concluded that, if Kessler harbored discriminatory attitudes towards African-Americans, he had similar views towards other minority groups or races, such as Asian-Americans. Therefore, the referee did not abuse her discretion in admitting the challenged evidence. See United Technologies Corp. v. Commission on Human Rights & Opportunities, 72 Conn.App. 212, 230-31, 804 A.2d 1033, cert. denied, 262 Conn. 920, 812 A.2d 863 (2002) (commission properly admitted evidence of past discriminatory conduct that was no longer actionable).
VI
For its next issue, the plaintiff presents its disagreement with the referee's decision to exclude evidence of Phan's prior inconsistent statements. On direct exam, Phan testified about two occasions during which Kessler made derogatory statements about Asians. As mentioned, the first instance arose when Kessler compared Phan's nationality to the nationality of a victim in one of his cases and stated: " Vietnamese, Cantonese, it's all the same shit Phan." (ROR, p. 1268-69.) The second instance occurred during the course of a conversation with Kessler about Phan's report-writing skills. Kessler remarked: " you know, the hard core criminal has got to be laughing at you when you command them like, you know, tell them what to do because they're probably like goofing on you behind your back right?" (ROR, pp. 1274-75.) The plaintiff claims that, on cross examination, the referee precluded it from introducing Phan's CHRO Intake Questionnaire, his CHRO Affidavit of Illegal Discriminatory Practice, and his testimony during the CHRO fact-finding conference. In these three prior statements, Phan was asked to state the acts of unfair treatment by the employer, identify the type of discrimination he suffered, or tell why he connected Kessler's conduct to discrimination against Asians. In none of these prior statements did Phan ever mention the two derogatory comments stated above or report that Kessler said anything about Phan's Asian ancestry. The plaintiff thus sought to introduce these pleadings or transcripts as prior inconsistent statements or omissions. (ROR, pp. 1370-83.)
Upon careful review, the court finds that the referee abused her discretion in some respects but that, on the whole, the plaintiff was not substantially prejudiced. Initially, the referee abused her discretion in ruling that these prior statements were inadmissible because they were beyond the scope of direct examination, because they were not inconsistent, or because she was conducting a de novo review.
In order to understand this point, the court must set out rather lengthy excerpts from the transcript. The issue arose with the following colloquy on cross examination of Phan by counsel for the plaintiff:
" Q. " [W]hen you filled out an intake questionnaire with CHRO you were asked to describe what it was that you felt was done to you that was discriminatory right? " A. Yes. " Q. Okay and in that intake you would think--wouldn't it be that if somebody is making comments about your Asian ancestry, speaking with an accent and criminals goofing on you because of being Asian, that you would include that in that intake form wouldn't you? " A. I don't have a lawyer, I just did everything on my own and I just filled out--I thought that I would just summarize everything, you know? " Q. Okay, well you didn't include any of that right? " A. No."(ROR, p. 1370.)
Plaintiff's counsel then essentially read to Phan what he had stated on the intake form. At that point, the referee interrupted: " Let me caution you a little bit here because you're going beyond the scope of direct with regard to intake forms. This is a De Novo process. The only thing I'm concerned about is the complaint that was filed here. You can only use anything from an investigation to impeach what was said here . . ." (ROR, p. 1371.)
A lengthy dialogue ensued between the referee and plaintiff's counsel. The referee insisted that the prior statement was not inconsistent because it was an omission, that it was not admissible because she was conducting a de novo proceeding, and that the matter was beyond the scope of the cross examination. Plaintiff's counsel repeated several times that she was not attempting to introduce the prior statements as substantive proof but rather was attempting to impeach Phan with a prior inconsistent statement or omission.
" Right but you're saying he didn't say something and he said it here, so it's not inconsistent it just wasn't mentioned in the other complaint." (ROR, p. 1374.) " The absence of such remarks on a proceeding that happened below does not prove he said or did not say anything." (ROR, p. 1372.)
" But at this point unless--just because specifics were offered in one place and not another, it's--you can't use that complaint from the investigative phase here. You'll need to use the complaint in this proceeding because again, it's a De Novo process." (ROR, p. 1373.)
" [The Referee]: But you can't go beyond the scope of the direct. " [Plaintiff's Counsel]: It's cross exam, I can ask anything on cross exam. " [The Referee]: No, you can't. You can't go beyond the scope of the direct. You can recall him as your witness, but you cannot in cross examination go beyond the scope of the direct." (ROR, p. 1382.) " [Plaintiff's Counsel]: Right, I'm using it as cross examination to try to impeach him on what he is saying today.
" I'm not admitting it as evidence though, I'm just countering him with what he wrote to see if he's admitting to what he said." (ROR, p. 1372.)
" What I'm trying to show is that he's inconsistent and I think any time you have any document that goes to inconsistency, that that's something that can be showed for impeachment purposes." (ROR, pp. 1373-74.)
It is true that " [h]earings before administrative agencies . . . are informal and are not governed by the strict and technical rules of evidence." Santiago v. Commissioner of Motor Vehicles, 134 Conn.App. 668, 673, 39 A.3d 1224 (2012). However, under the UAPA, in contested cases such as this one, " a party . . . may conduct cross examinations required for a full and true disclosure of the facts . . ." General Statutes § 4-178(5). Further, while the court must afford an administrative officer discretion to make evidentiary rulings; General Statutes § 4-183(j)(6); an administrative officer surely does not have discretion to make rulings premised on an incorrect understanding of the law.
Yet, to some extent, that sort of abuse of discretion happened here. First, it is well settled that prior inconsistent statements " may be shown not only by contradictory statements but also by omissions." (Internal quotation marks omitted.) State v. Eaton, 59 Conn.App. 252, 263, 755 A.2d 973, cert. denied, 254 Conn. 937, 761 A.2d 763 (2000). Thus, the fact that Phan did not mention the two derogatory comments by Kessler in his prior statements fully qualified these prior statements as inconsistent when compared to his hearing testimony about Kessler's comments. Second, impeachment as to any noncollateral matter, including impeachment by prior inconsistent statement, is never beyond the scope of direct examination but rather constitutes fully permissible cross examination. See Conn. Code Evid. § 6-8 (" Cross examination and subsequent examinations shall be limited to the subject matter of the preceding examination and matters affecting the credibility of the witness, except in the discretion of the court"); State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985) (" our rule restricts cross-examination to matters covered in the direct examination, except as they involve credibility alone . . . A question is within the scope of the direct examination if it is designed to rebut, impeach, modify, or explain any of the defendant's direct testimony . . .") [Citation omitted; internal quotation marks omitted.] See also State v. West, 274 Conn. 605, 640, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S.Ct. 775, 163 L.Ed.2d 601 (2005) (" [a] witness may not be impeached by contradicting . . . her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case") [internal quotation marks omitted]. Given that Kessler's prior comments were central to the referee's decision, this issue was hardly collateral and Phan's credibility on this issue was a critical matter. Third, the referee misconstrued the import of de novo review. De novo review means essentially " plenary review" and refers to a standard of review for questions of law. See Ammirata v. Zoning Board of Appeals, 264 Conn. 737, 746 n.13, 826 A.2d 170 (2003). There is no authority for the referee's view that the concept of de novo review bars admission of a prior inconsistent statement from a preliminary proceeding in the case.
On the whole, however, the court cannot find that " substantial rights of the person appealing have been prejudiced" by the referee's rulings. General Statutes § 4-183(j). First, although the referee attempted primarily to prohibit the plaintiff from inquiring into the " investigatory" phase--apparently referring to the intake form and the fact-finding hearing--the referee appeared to allow the plaintiff to inquire into omissions in the post-investigatory complaint or affidavit of discriminatory practice. The plaintiff, however, failed to do so. Further, on several occasions, despite the referee's rulings, the plaintiff was able to elicit the critical point from Phan that he had not disclosed Kessler's derogatory comments in Phan's intake form and fact-finding interview. Second, given Phan's admissions to prior inconsistent omissions, it was properly within the referee's discretion to exclude the actual intake form, complaint, or transcript of the fact-finding when offered by the plaintiff, as these documents were extrinsic evidence of an admitted prior inconsistent statement. See Conn. Code Evid. § 6-10(c) (" If a prior inconsistent statement made by a witness is shown to or if the contents of the statement are disclosed to the witness at the time the witness testifies, and if the witness admits to making the statement, extrinsic evidence of the statement is inadmissible, except in the discretion of the court"). Third, it was clear, based on the plaintiff's questions and Phan's admissions, as quoted above, that the referee understood the plaintiff's central point that Phan had made prior inconsistent omissions. The referee nonetheless felt to a certain extent that " [t]he complainant is allowed to expand on his allegations." (ROR, p. 1373.) Thus, it is unlikely that additional evidence of the same nature would have caused the referee to attach greater weight to the prior inconsistency. Finally, the plaintiff otherwise enjoyed free-ranging cross examination of the plaintiff, which consumes approximately eighty-four pages of transcript. (ROR, pp. 1326-410.) For these reasons, the referee's rulings did not amount to harmful error that would warrant reversal. See Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 110.
" [I]f you would like to refer to the complaint that was made under OPH, that's acceptable.
" But at this point unless--just because specifics were offered in one place and not another, it's--you can't use that complaint from the investigative phase here. You'll need to use the complaint in this proceeding because again, it's a De Novo process. " I would like to move off the complaint from the investigative phase and you can refer to the complaint that was filed for this proceeding because evidence from the investigation, unless it's directly countered to what it said, it doesn't have any weight for impeachment purposes."(ROR, pp. 1373-74.)
As quoted above, during cross examination the following colloquy occurred between plaintiff's counsel and Phan:
Q. Okay and in that intake you would think--wouldn't it be that if somebody is making comments about your Asian ancestry, speaking with an accent and criminals goofing on you because of being Asian, that you would include that in that intake form wouldn't you? A. I don't have a lawyer, I just did everything on my own and I just filled out--I thought that I would just summarize everything, you know? Q. Okay, well you didn't include any of that right? A. No.(ROR, p. 1370.) In addition, the following exchange took place:
Q. When you testified back in 2012 under oath in front of the fact-finding Hearing Officer--the fact-finding Officer, you never mentioned any of those comments correct? A. Like I told you earlier, I just summarized what happened. I didn't know how the process works. Q. Okay, well she specifically asked you if there was anything referred to you about being Asian, if Kessler said anything to you about being Asian and you said no correct? A . . . I just summarized what happened and maybe I should have said everything, but--you know, I have the opportunity to say it today so I'm saying it now.(ROR, pp. 1376-77.)
VII
The plaintiff next challenges the referee's decision to award $25,000 in damages for emotional distress. The plaintiff notes that Phan attempted to bring claims of ancestry discrimination under both § 46a-58(a) and § 46a-60(a)(1). The plaintiff acknowledges that emotional distress damages are available under § 46a-58(a). See Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 696-706, 855 A.2d 212 (2004). But the plaintiff observes that, in Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 653 A.2d 782 (1995), our Supreme Court stated that " [i]n [§ 46a-58(a)], the legislature has provided protections for all classes of persons enumerated in the Connecticut constitution article first, § 20, as amended, with the exception of ancestry and mental disability." (Emphasis added.) Id., 114. Therefore, according to the plaintiff, Phan's claim rests solely on § 46a-60(a)(1). However, in Bridgeport Hospital, the Court also held that emotional distress damages are not available under § 46a-60. Id., 92-93. Thus, under the plaintiff's theory, emotional distress damages are not available in this case or for ancestry claims in general.
Section 46a-58(a) provides: " (a) It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the Constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, gender identity or expression, sexual orientation, blindness, mental disability or physical disability."
Section 46a-60(a)(1) provides: " (a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability, including, but not limited to, blindness . . ."
The difficulty with this claim is that the plaintiff did not raise it in the administrative proceedings. That failure precludes review here. See Pet v. Dept. of Health Services, 228 Conn. 651, 674, 638 A.2d 6 (1994) (court " will not set aside an agency's determination upon a ground not theretofore fairly presented for its consideration, " quoting Finkenstein v. Administrator, 192 Conn. 104, 114, 470 A.2d 1196 (1984)); Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992) (" A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the board"); Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 862, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005) (" If the plaintiff failed to raise issues before the panel or the defendant, he may not do so for the first time on appeal").
The contemporaneous objection rule serves an important purpose here. The plaintiff's pro se " affidavit of illegal discriminatory practice, " which initiated the case, alleged that he was terminated " due to my ancestry, " but also checked boxes indicating that his claim arose under both § 46a-58(a) and § 46a-60(a)(1). (ROR, pp. 592-94.) Had the plaintiff raised the point that an ancestry claim was not available under § 46a-58(a), either Phan or the commission could have attempted to amend the pleadings to allege a claim under § 46a-58(a) of discrimination by " national origin" which, according to the United States Supreme Court, has been deemed " synonymous" with ancestry under the federal civil rights laws. See Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 89, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973).
Such an amendment would presumably have been readily allowed. Phan had already checked the box for a § 46a-58(a) claim and thus would have been seeking only to make his affidavit more specific. Further, a complaint to the commission is " not like a complaint in a civil action filed in court. A complaint to the commission simply triggers the commission's evaluative, investigative and adjudicative functions. Thus, the formal requirements of pleading in civil actions filed in court do not apply to complaints filed with the commission. Indeed, as [our Supreme Court has] noted, the complainant need not have, and often will not have, an attorney, as was the case here. Once the complaint is filed, it is the primary responsibility of the commission to evaluate it for sufficiency, investigate it, and, if mediation fails and probable cause is found, prosecute it." Commission on Human Rights & Opportunities v. Board of Education, supra, 270 Conn. 705-06. Thus, had the plaintiff seasonably raised the pleading problem that it now asserts, Phan would likely have remedied it. Hence, there is every reason to enforce the rule that the plaintiff's failure to present its claim to the administrative agency bars its presentation on administrative appeal. The court presumes that this matter will not become a contested issue in the event of a retrial.
VIII
The plaintiff's final issue is that the referee erred in awarding prejudgment interest at the rate of 10% per annum. The plaintiff claims that the court should reduce the rate to reflect prevailing interest rates at the time. The plaintiff also relies on the fact that under General Statutes § 37-3a, which is the general civil prejudgment interest statute, 10% is the rate ceiling or maximum allowable interest rate. See Sears Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 764-66, 699 A.2d 81 (1997).
Section 37-3a provides, in relevant part, that " interest at a rate of ten per cent, and no more, may be recovered and allowed in civil action . . ."
Our Supreme Court has held that, in a discriminatory employment practice case, prejudgment interest is a proper component of an award of back pay. See Thames Talent, Ltd. v. Commission on Human Rights and Opportunities, 265 Conn. 127, 143-44, 827 A.2d 659 (2003). The Court has not addressed the maximum allowable rate. The applicable statute is silent but, by analogy to § 37-3a, 10% is a permissible, if not maximum, rate. See id.; General Statutes § 46a-86(b).
Section 46a-86(b) provides: " In addition to any other action taken hereunder, upon a finding of a discriminatory employment practice, the presiding officer may order the hiring or reinstatement of employees, with or without back pay, or restoration to membership in any respondent labor organization, provided, liability for back pay shall not accrue from a date more than two years prior to the filing or issuance of the complaint and, provided further, interim earnings, including unemployment compensation and welfare assistance or amounts which could have been earned with reasonable diligence on the part of the person to whom back pay is awarded shall be deducted from the amount of back pay to which such person is otherwise entitled. The amount of any such deduction for interim unemployment compensation or welfare assistance shall be paid by the respondent to the commission which shall transfer such amount to the appropriate state or local agency."
The referee did not express her reasons for awarding interest at the rate of 10%. Although it is perhaps common knowledge that interest rates were low at the time of the decision in 2015, there is no actual evidence on this point. Ultimately, the burden is on the plaintiff in an administrative appeal to present an adequate record for review by the court. See United Cable Television Services, Corp. v. Dept. of Public Utility Control, 235 Conn. 334, 356, 663 A.2d 1011 (1995). Given the silent record, the plaintiff cannot prevail in establishing that the referee abused her discretion in awarding interest at the rate of 10%.
IX
The court sustains the appeal and remands the matter for a new hearing. It is so ordered.