Opinion
No. CV 094019485 S
October 27, 2010
MEMORANDUM OF DECISION
On December 26, 2008, the Connecticut commission on human rights and opportunities (CHRO), prosecutorial division, brought an administrative appeal from a November 14, 2008 final decision of a CHRO human rights referee (referee) dismissing a complaint filed with the CHRO. The complaint had been filed with the CHRO by a Hartford police officer, Dana Peterson (the plaintiff or complainant), against the City of Hartford (the city or respondent), originally in August 2003, and then as amended in October 2003. Peterson was given permission to join the CHRO suit as a plaintiff on February 25, 2009. An organization, Gay Lesbian Advocates Defenders (GLAD), was given permission to file an amicus curiae brief on September 22, 2009. In a brief filed on January 15, 2010, the CHRO, as an agency, stated that its position was adverse to its own Human Rights Referee's November 14, 2008 decision.
On May 17, 2010, the court remanded the matter to the referee for clarification of three points in the final decision and the referee responded on July 23, 2010. The parties thereafter returned to this court to argue the administrative appeal under the final decision as clarified.
The final decision shows as follows. The plaintiff filed her complaint with the CHRO on August 6, 2003, alleging that, in January to February 2003, the department discriminated against her in the selection process for a position of patrol canine handler. The complaint was based on allegations of sex discrimination and discrimination against disability in violation of §§ 46a-58(a)(1); 46a-60(a)(1). On October 15, 2003, the plaintiff amended her pending complaint to include an allegation that she had not been selected for canine handler despite her passing a required physical agility test. She also added a retaliation claim.
The CHRO investigated the plaintiff's complaints and the department's answer and, pursuant to § 46a-84(a), certified the complaint to a public hearing on February 2, 2007. The hearing was held on various dates between January 15, 2008 and April 2, 2008. The CHRO referee issued the final decision dismissing the plaintiff's complaint. The referee set forth the following relevant findings of fact:
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2. Dana Peterson was born a biological male in 1967.
3. The complainant completed high school in 1985 and immediately enlisted in the United States Army and was discharged four years later.
4. In 1990, the complainant, as a consequence of years of mental turmoil regarding her then anatomical sex and after seeking assistance from mental health professionals and being diagnosed with Gender Identity Disorder, changed his name to Dana Peterson, obtained a replacement birth certificate and drivers license indicating "his" new name, both of which reflected her gender as a female.
5. On about January 1991, the complainant began living fulltime as a woman.
6. In 1993 the complainant applied for a position as a police officer with the HPD.
7. The complainant in the fall of 1993 underwent sex reassignment surgery in Canada.
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15. The complainant completed the Hartford Police Academy training, was sworn in as a police officer with the HPD in 1994, and was promoted to the rank of sergeant on July 31, 2004.
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18. Shortly after commencing work as a police officer, the complainant found her yearbook picture (as a male) enlarged and posted on a bulletin board outside the records division and internal affairs. The complainant removed the picture and did not report the incident.
19. The complainant at some point in 1996 was depicted in a picture found in the HPD men's locker room, half of the picture depicted a naked male the other half depicted the same person but with breasts and no male genitalia and labeled "Dana before and after." Next to this same picture was a drawing of a female engaging in oral sex with a male.
20. In 2002, the complainant discovered on the first floor hallway of the police department a posting regarding co-ed softball where someone had handwritten the comment "where does Dana fit in?"
The referee states that the plaintiff has not made a claim of hostile work environment. (Return of Record, ROR, p. 4.)
21. The complainant in 2001 or 2002 found in her HPD mailbox a pornographic magazine with pictures of postoperative transsexuals.
22. Neville Brooks became a member of the HPD in 1995. In January 2000 he was promoted to the rank of sergeant and then achieved the rank of lieutenant in August of 2007.
23. On or about April or May 2002, Brooks was appointed the supervisor of the HPD Patrol Canine Unit.
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25. As supervisor of the Patrol Canine Unit, Brooks was responsible for the selection of officers to the unit.
26. On May 13, 2002, an inter-departmental memorandum signed by Captain Fallon was posted announcing the department's intention to fill patrol canine handler positions.
27. Brooks created the May 13, 2002 memorandum of the department's intention to fill canine handler positions from prior announcements.
28. The memorandum stated that the selection process would require a letter of recommendation from an immediate supervisor; physical agility assessment based on the "Cooper Standards"; lost time and disciplinary review; interview with family members and inspection of residence; and successful completion of a 16-week training class with the Connecticut State Police (CSP). The announcement further stated that the deadline for requesting this assignment was June 7, 2002 at 1800 hours (6:00 p.m.).
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40. Brooks selected Officers Nichols, Washington and O'Connor and did not select the complainant, Mooney, Baidy and Ragio.
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42. The HPD does not train canine handlers. Training for the HPD canine handlers is provided by CSP. Once an officer becomes a canine handler there are once a month training sessions conducted by the HPD.
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46. All three officers selected by Brooks who attended the CSP physical agility assessment conducted on December 30, 2002, failed. Brooks was notified of these results at some point after the test.
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51. On the morning of January 26, 2003, prior to commencing the physical agility assessment, Brooks addressed the candidates taking the assessment and informed the candidates of what was expected.
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58. When Brooks contacted the CSP to determine what was the physical agility they employed for canine officers he never mentioned a woman or a trans-gendered woman was taking the test he anticipated giving.
59. Brooks was provided with the events and standards (scores) necessary to pass the events that made up the CSP physical agility identified in a memorandum dated December 10, 2002 from Sergeant Rodino of the CSP.
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63. The physical agility assessment test conducted by the CSP consisted of the following six events: sit and reach; one-minute push-up; one-minute sit-up; 300 meter run; and 1/5 mile run and simulated canine carry. In order to pass a particular event the participant had to score in the 40 percentile based on the "Cooper Standards."
64. The Cooper Standard utilized for assessing the 300 meter run did not differentiate between males and females or for the age of the candidate. It provided a single set of scores broken down by time, percentile and category; superior, excellent, good, average, fair and poor.
65. As a consequence of Officers Nichols, O'Connor and Washington failing the physical agility assessment on December 30, 2002, Brooks decided to administer a physical agility test to any HPD officers wishing to be considered for an HPD patrol canine officer opening. Brooks implemented a process of the candidates having to take an HPD physical agility test to determine who could pass the agility test conducted by the CSP. This would avoid the embarrassment of officers being unable to pass that assessment along with losing assigned slots to the HPD in the 16-week training class for canine handlers.
66. Brooks by interdepartmental memorandum dated January 6, 2003 announced the department's intention to fill canine handler positions. This memorandum reflected that the selection process would include two physical agility assessments. One conducted by the HPD and the other by the CSP.
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70. The HPD conducted the physical agility assessment that was referenced in the January 6, 2003 memorandum on January26, 2003.
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75. The complainant's score (time) for the 300-meter run was one minute thirteen seconds which was higher than the minimum time required of one minute nine and one tenth seconds.
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78. The standard provided to Brooks for the 300-meter run was a single norm standard that made no distinction for gender or age.
79. Brooks confirmed with Sergeant Kevin Rodino (the commanding officer of the CSP Canine Unit) that the standard utilized for the 300-meter run provided earlier to Brooks was the correct standard to use.
At the hearing, according to the referee, CSP Trooper Wyler testified that "he wasn't aware of the gender and age standard for the 300 meter run until 2005 . . . [but] that there were results [prior to 2005] also consistent with the single norm standard." (ROR, p. 47).
80. By memorandum dated February 11, 2003, the complainant was notified that she did not successfully complete the physical agility assessment conducted on January 26, 2003. The memorandum stated that she completed the 300-meter run in a time of 73 seconds which did not meet the established minimum time of 69.1 seconds.
82. Of all the candidates who participated in the physical agility assessment conducted by the HPD on January 26, 2003, Officers Lawlor and O'Connor were the only candidates who passed.
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86. Lawlor as a result of his assigned dog attacking his daughter and being found unsuitable resigned from the canine training academy.
87. Brooks promised Lawlor he would get the next training slot given to the HPD at the canine training academy provided he passed the physical agility test assessment.
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108. Brooks had no preference as to what standard was utilized for the 300-meter event other than to use what the CSP used so that the HPD physical assessment "mirrored" exactly what CSP did.
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120. Brooks having requested and was being given one opening in the next state police canine training class and announced by interdepartmental memorandum dated August 28, 2003 that HPD was seeking qualified officers for the position of "patrol k-9 handler."
121. The complainant in response to the August 28, 2003, announcement submitted a request for reassignment dated September 3, 2003.
122. On September 7, 2003 pursuant to the August 28, 2003 announcement the HPD conducted a physical agility test.
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124. The HPD physical agility assessment of September 7, 2003, relating to running took place at Bulkeley High School in Hartford.
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130. Of the candidates who participated in the HPD physical agility assessment on September 7, 2003 the following achieved passing scores in all events: the complainant, Officer Lawlor, Officer Nichols, Officer Rivera and Officer Baidy.
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132. To determine who would be chosen from the pool of successful candidates Brooks ranked the candidates based on the results of the individual events of the physical agility assessment after throwing out each candidate's lowest score. Of the remaining scores Brooks assessed first, second, third, fourth and fifth place for each event. This resulted in Officer Nichols events showing 1, 2, 2, 2; Officer Rivera 1, 3, 3, 3; Officer Baidy 1, 2, 1, 1; and the complainant receiving 1, 3, 4, 4. After averaging the event scores the complainant placed fifth and Officer Baidy first, Officer Nichols second, Officer Rivera third and Officer Lawlor, fourth.
133. Brooks selected Officers Baidy and Lawlor to attend the CSP physical agility assessment on September 18, 2003.
(ROR, pp. 10-30.)
The referee made the following conclusions:
The court summarizes the referee's conclusions in the order he set them forth in the final decision.
First, regarding the plaintiff's allegation of sex discrimination, the referee concluded (ROR, p. 41) that Brooks, the decision maker, made no discriminatory statements, nor did Officer Besse overhear Brooks make any "clearly bigoted remarks." (ROR, p. 41.) Therefore, "the proper mode of analysis" of the plaintiff's claim of sex discrimination was the "McDonnell-Douglas pretext model." (ROR, p. 42.)
Since the referee does not fully set forth the "McDonnell Douglas" test at this point in his final decision, the court quotes from Board of Education v. CHRO, 266 Conn. 492, 504-07, 832 A.2d 660 (2003), a case relying on Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
" McDonnell Douglas and subsequent decisions have established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory-treatment cases . . . First, the [complainant] must establish a prima facie case of discrimination." In order to establish a prima facie case, the complainant must prove that: (1) he is in the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination.
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"Once the complainant establishes a prima facie case, the employer then must produce legitimate, nondiscriminatory reasons for its adverse employment action . . . This burden is one of production, not persuasion; it can involve no credibility assessment.
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"Once the employer produces legitimate, nondiscriminatory reasons for its adverse employment action, the complainant then must prove, by a preponderance of the evidence, that the employer intentionally discriminated against him . . . 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 [complainant] . . . [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 legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination." (Citations omitted; internal quotation marks omitted.)
The Board of Education opinion concludes at 510:
" Reeves stands for the proposition that an employment discrimination claim will not necessarily fail, as a matter of law, when the only evidence of discrimination is the evidence necessary to establish a prima facie case and evidence that the employer's legitimate, nondiscriminatory reasons are false. The court in Reeves acknowledged that evidence demonstrating that the legitimate, nondiscriminatory reasons advanced by the employer are false may be, in and of itself, sufficient to establish intentional discrimination." (Citations omitted; internal quotation marks omitted.)
Under McDonnell-Douglas, the referee, as he must, began his analysis with the plaintiff's prima facie case. He found the plaintiff "a member of a protected class by virtue of her gender (female); that she suffered an adverse employment action; and that the decision not to pass the [plaintiff] on the January 2003 HPD physical agility test (300 meter run) gives rise to an inference of discrimination." (ROR, p. 43.)
The referee found, however, that the plaintiff did not satisfy the requirement of qualifying for the position. She did not pass the 300-meter run. While the plaintiff claimed that the 300-meter run was not scored correctly, the exact same scoring was utilized by Brooks as was used by the state police. Thus, the plaintiff failed to establish a prima facie case.
The referee then held alternatively that even if the plaintiff had met all the prima facie requirements, "the burden of producing a legitimate business reason for the decision has been met." (ROR, p. 46.) Brooks merely "mirror[ed] the assessment given by the [state police training academy], so as to avoid the embarrassment of sending officers to the CSP and having them fail." ( Id.)
Although not denominated as the "pretext" analysis, the referee's next paragraphs apparently are related to plaintiff's proof regarding pretext. He finds that Brooks did not have to do more than place the call to the state police and did not have to investigate why the 300-meter run, alone of all the tests, was scored without considering gender and age. No showing of animus was made or that Brook's contact at the state police would lie. There was a legitimate business goal and . . . the complainant had failed to prove it to be a pretext for discrimination." (ROR, p. 64.)
The referee next discusses a claim for "gender stereotyping" arising from the January 26, 2003 300-meter run. The referee rejected this claim for three reasons. First, as he found in the sex discrimination discussion, there was no proof of Brooks making discriminatory comments about the plaintiff. Further, employing " McDonnell-Douglas," the plaintiff failed to establish a prima facie case on the first "prong," that the plaintiff must be a member of a protected class. (ROR, p. 49.)
"I would also point out that while gender stereotyping is a recognized claim, it is unclear as to what gender stereotyping the complainant is alleging. Is the complainant arguing that Brooks thought the complainant was too masculine for her female gender or was the complainant too feminine for her biological birth gender?" Finally, she had failed on the qualification prong as well. ( Id.)
The referee next considered the plaintiff's claim of physical disability. This claim was rejected because "physical disability (transsexual) [was not] a cognizable claim under Connecticut law." (ROR, p. 50.) In reaching this conclusion, the referee relied on the case of Conway v. Hartford, Superior Court, judicial district of Hartford/New Britain, Docket No. 95 0553003 (February 4, 1997, Hale, J.) [ 19 Conn. L. Rptr. 109].
The plaintiff had also "failed to plead [or prove] sufficient facts to demonstrate that this condition falls within the Connecticut definition of physical disability" under § 46a-51(15). ( Id.) The referee concluded: "Nor was it my perception of the complainant throughout the public hearing that she exhibited any signs of any physical disability." (ROR, p. 52.)
On mental disability, the referee found that "the complainant belongs to a protected class by virtue of her mental disability." ( Id.) This ground of discrimination was rejected as "failing to meet the `McDonnell-Douglas' test." The referee cited his previous finding on the "qualification prong" as well as the failure to prove the legitimate business reason as a pretext. (ROR, p. 53.)
Up to this point, the referee addressed alleged discrimination arising from the January-February 2003 period. He next turned his attention to the September 2003 allegations. These facts involved the plaintiff's rejection for selection after she had passed the 300-meter run. The referee considered discrimination grounded on sex, gender stereotyping and disability. He found that the plaintiff had made out a prima facie case. He concluded however, that the non-discriminatory reason — a ranking of candidates by passing scores — was not pretextual.
Finally, the referee turned to the retaliation claim. He delineated this claim as due to "her filing a complaint with the [CHRO], she was retaliated against by being denied a training opportunity and a position of patrol canine handler in violation of General Statutes § 46a-60(a)(4)." (ROR, p. 57.)
The referee concluded that the plaintiff met her prima facie case as to this claim, which related to the September 2003 incident. He ultimately rejected the claim, however, because he found that no one was challenging Brooks' decision to select Lawlor. As to the decision to select Baidy as an alternate: "What Brooks did was simply send the better candidate based on the scores of the candidates who passed." This was a legitimate reason, and not a mere pretext for retaliation. (ROR, p. 61.)
A prima facie case consists of showing (1) that she was engaged in statutory protected activity, (2) that the respondent was aware of the plaintiff complainant's activity, (3) that she suffered an adverse employment action; and (4) that causal connections existed between the protected activity and the adverse action. (ROR, p. 57.)
The referee also rejected on factual grounds a claim that Officer Besse had been retaliated against by Brooks because Besse had testified favorably for the plaintiff.
The referee disallowed any claim for retaliation arising from her filing a grievance on February 21, 2003 (and for any other action taken by her in January or February 2003). "The problem in using any complaints surrounding the January HPD assessment including her grievance are that, unlike the issues discussed earlier where the complainant's own pleadings cause a question as to what statute she is proceeding under, the issue of what protected activity forms the basis for her retaliation requires no analysis. In the complainant's amended complaint filed on October 15, 2003 she specifically states her claim of retaliation is based on her August 2003 CHRO filing. The complainant having been so specific in her identification of the protected activity that in expanding what could be protected activity would be prejudicial to the respondent." (ROR, p. 58.)
On May 17, 2010, the court remanded the plaintiff's matter to the referee to clarify certain statements made in his final decision. One area of clarification concerned the referee's position on retaliation for the plaintiff's actions in January and February 2003. On July 23, 2010, the referee replied to the court that the plaintiff had alleged in her October amendment that a complaint had been filed on August 6, 2003, that after this filing, she had applied to be a K-9 handler, and that "I believe I was denied the training opportunities and the position of Patrol K-9 handler because I have opposed discriminatory employment practices and because I have filed a complaint with the CHRO." According to the referee, the amended complaint only referred to retaliation arising from the filing of the CHRO complaint in August 2003.
Based on this analysis, the referee dismissed the plaintiff's complaint. This appeal followed.
The CHRO and the plaintiff are aggrieved by the dismissal of the plaintiff's CHRO complaints.
The CHRO and Peterson have raised several grounds of appeal from the final decision. The court must review the grounds under the standard set forth in the Uniform Administrative Procedure Act (UAPA), § 4-183. "Our review of an agency's factual determination is constrained by General Statutes § 4-183(j), which mandates that a court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because of the administrative findings, inferences, conclusions, 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 factual determination must be sustained if it is supported by substantial evidence in the record taken as a whole . . . Substantial evidence exists if the administrative record affords a substantial basis in fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the plaintiffs to demonstrate that the [agency's] factual conclusions were not supported 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 determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Citations omitted; internal quotation marks omitted.) Board of Education v. Commission on Human Rights Opportunities, supra, 266 Conn. 503-04 (2003).
The court must also consider, in reviewing the referee's factual and legal conclusions, that "[e]ffective judicial review of administrative decisions requires that such decisions be based on substantial evidence and proper reasons . . . A court reviewing an administrative determination cannot engage in surmise and conjecture to determine whether the decision was lawfully reached." Lee v. Board of Education, 181 Conn. 69, 81-82, 434 A.2d 333 (1980). See also Bartlett v. Krause, 209 Conn. 352, 551 A.2d 710 (1988) (opportunity for hearing requires hearing officer to set forth modest statement of reasons for decision).
In the context of an administrative appeal, Carlin Contracting Co. v. Dept. of Consumer Protection, Superior Court, judicial district of Hartford/New Britain, Docket No. CV 94 0705229 (October 6, 1995, Maloney, J.) recognizes that "[i]f the court is to conduct a meaningful review of an agency's decision in order to determine if it is erroneous in view of the evidence `on the whole record' or if it is the result of an abuse of discretion, as required by 4-183, the court must be able to ascertain what factual findings the agency made and what conclusions of law the agency drew. Very often, even in cases where the agency's decision inadequately states its findings and conclusions, the court can make the necessary determination based on its own examination of the record. In some cases, however, the nature of the evidence in the record or of the principles of law involved, or both, are such that it is incumbent upon the agency to state its findings and conclusions with some extra degree of specificity. Otherwise the court cannot perform its statutory review function."
The court has reviewed the contentions of the CHRO and the plaintiff-complainant and, for the reasons stated below, concludes that there are three issues that call for further action by the CHRO under its statutory proceedings. As will be seen, the court's result follows either from an improper application of the law to the facts (see Board of Education, supra) or an insufficient statement of findings (see Lee, supra) by the referee The three issues are discussed in detail below; they are specifically that the referee erred due to his inadequate discussion of pretext, in his conclusion that the plaintiff-complainant may not bring a complaint for physical disability discrimination, and finally in ruling that the plaintiff-complainant's retaliation claim was limited to the filing of the August 2003 CHRO complaint.
The CHRO and the plaintiff may also seek clarification on remand on their gender stereotyping claim. As indicated at record page 49, the referee was unclear as to the nature of this claim. To the court, it appears that the CHRO and the plaintiff contend that the plaintiff as a post-operative transsexual was entitled to be free from discrimination due to her past gender. See Schroer v. Billington, 577 F.Sup.2d 293, 305 (D.D.C. 2008).
First, the referee applied the McDonnell Douglas pretext model to Peterson's January and September discrimination claims. The referee found that Peterson was a member of a protected class on the basis of her gender. Moreover, the referee found that Peterson suffered an adverse employment action and that the circumstances surrounding the adverse action gave rise to an inference of discrimination. However, the referee's findings deviated as to Peterson's qualifications.
The referee determined that a mixed-motive model was inapplicable to the present facts based upon his assessment of the credibility of evidence concerning discriminatory comments allegedly made by Brooks. "The credibility of witnesses . . . [is a matter] within the province of the administrative agency." Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003). Thus, the referee's decision to analyze Peterson's claims solely under the pretext model will not be disturbed.
As discussed, infra, the referee found Peterson to be in a protected class on the basis of her mental disability and this court finds that Peterson's condition satisfies the statutory requirements for a physical disability under the Connecticut Fair Employment Practices Act.
With regard to Peterson's claims arising from the January test, the referee found that she had failed to establish her prima facie case as she was unqualified for the position in question. The referee based this finding on the fact that Peterson failed the 300-meter run at the Hartford police department physical assessment administered in January. Nonetheless, the referee proceeded with the burden shifting analysis in the alternative. With regard to Peterson's claims arising from the September test, the referee found that Peterson, having passed the 300-meter run on that occasion, had established a prima facie case of gender discrimination.
The court notes, without deciding, that Peterson may have established a prima facie case if one were to consider the qualifications listed in the May 2002 job posting. As the prima facie case requirement is necessarily low, Peterson's score under an age and gender controlled Cooper standard would have served to qualify her for the k-9 handler position under the language of the job posting, which merely indicated a physical assessment based on Cooper standards. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ("The burden of establishing a prima facie case of disparate treatment is not onerous").
Section 46a-54-94a(a) of the Regulations of Connecticut State Agencies provides in relevant part: "Final decisions and orders [of the CHRO] shall contain . . . findings of fact, conclusions of law, the analysis by the presiding officer and an appropriate order." The referee's subsequent findings with regard to business justification and pretext are unclear and require further elaboration. Although not binding upon this court, federal procedural analysis of Title VII decisions provides an instructive analog. There, if a reviewing body "believes the employer's explanation of its motivation, the court may not merely state, in conclusory terms, that the plaintiff has failed to prove the employers' suggested reason to be a pretext for invidious discrimination or that there is no evidence of discriminatory treatment. It must at least refer to the evidence tending to prove and disprove the merits of the proffered explanation and state why the [reviewing body] reached the conclusion that the explanation has not been discredited." Ratliff v. Governor's Highway Safety Program, 791 F.2d 394, 400-01 (5th Cir. 1986) (analyzing trial court decision under the specific finding requirements of Fed.R.Civ.P. 52(a)).
This is an occasion, therefore, requiring the hearing officer to elaborate on his conclusions. In particular, the referee notes that Hartford produced a legitimate, non-discriminatory reason for its actions, namely a desire to send only those candidates who would be able to pass the Connecticut state police agility test on to the state training program. Thus, the referee found that Brooks, in utilizing the single norm Cooper standard, was merely attempting to mirror the physical assessment that would be administered at the Connecticut state police training academy.
Moreover, as to the subsequent ranking of physical agility scores utilized during the September assessment, the referee found that a legitimate, non-discriminatory reason existed for Brooks' use of his own ranking protocol. The referee determined that Brooks' ranking system was a clear, understandable and objective means of determining an alternate candidate to send to the academy. The referee then summarily rejected Peterson's arguments that the Cooper standards were improperly employed as they are designed for use in pass/fail scenarios and that the use of Lawlor in the ranking was improper.
The referee's analysis of pretext is insufficient in light of the evidentiary record presented. The referee's written decision consistently intertwines his findings related to business justification with those related to pretext and he fails to address additional evidence of discrimination presented in the record. Nowhere does the referee's decision adequately discuss the subjectivity of the testing criteria utilized, Brooks' consistent deviation from the May 2002 job posting requirements, the evidence of a discriminatory environment or the failure to uniformly apply age and gender controlled Cooper testing standards to physical agility scores. Rather, the referee's analysis of pretext appears to conflate with his business justification analysis, and rely primarily on his assessment of Trooper Wyler's testimony, his rejection of Peterson's argument that Brooks failed to investigate the proper standard to apply to the 300-meter run and his refutation of Peterson's arguments concerning the propriety of the ranking system employed by Brooks.
For example, the referee found that Peterson was the victim of discriminatory treatment on numerous occasions while employed by the defendant. In particular, the referee found: (1) that Peterson was continually referred to as "he" by a Hartford police department training academy officer, (2) that she experienced difficultly in being assigned to a field training officer after leaving the academy, (3) that she suffered the humiliation of having a pre-operative high school yearbook photograph posted on a department bulletin board and (4) that pornographic pictures were placed in a department locker room, labeling individuals depicted in the photos as Peterson.
"Circumstantial evidence establishing the existence of a discriminatory atmosphere at [a] defendant's workplace in turn may serve as circumstantial evidence of individualized discrimination directed at [a] plaintiff. While evidence of a discriminatory atmosphere may not be conclusive proof of discrimination against an individual plaintiff, such evidence does tend to add color to the employer's decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff." (Citations omitted; internal quotation marks omitted.) Risch v. Royal Oak Police Department, 581 F.3d 383, 393 (6th Cir. 2009). After finding that Peterson was the victim of discriminatory treatment, the referee relegated his analysis of such evidence to an ambiguous footnote, stating: "While the complainant testified to these unpleasant instances the pending complaint does not include these. It is important to note that the complainant has not made a claim of a hostile work environment which could have made these experiences relevant." (ROR, p. 4, n. 2.)
Although the court will not invade upon the referee's findings of fact, it is apparent from the footnote that the referee felt such instances were relevant to the establishment of a generally discriminatory environment. As Risch indicates, the referee was not precluded from considering such evidence as probative of pretext. Nonetheless, the footnote indicates that the referee did not consider the relevance of such averments in his analysis of Peterson's claims. Moreover, the footnote enmeshes its factual conclusion with its legal analysis of the issue. It is thus unclear whether the referee erroneously determined that there was no legal basis for consideration of the statements or whether he felt that the statements were irrelevant in consideration of the totality of evidence presented. Therefore, remand is necessary to establish and clarify the applicability of such evidence, if any, to the issues at hand.
The reasoning applicable to the need for a more robust analysis of the discriminatory environment evidence is likewise applicable to the evidence in the administrative record regarding Brooks' deviation from the posted job requirements, the sequence of events leading up to Brooks' decision to employ the single norm Cooper standard and, subsequently, a ranking system of his own devise and the failure to apply the age and gender stratified Cooper standards to the 300-meter run. See Verdell v. Wilson, 602 F.Sup. 1427, 1439 (E.D.N.Y. 1985) (sequence of events relevant to determination of decisionmaker's purpose); Board of Education v. Commission on Human Rights and Opportunities, supra, 266 Conn. 513 ("[D]epartures from procedural regularity . . . can raise a question as to the good faith of the process where the departure may reasonably affect the decision").
As Board of Education teaches, a plaintiff " must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the [employer] . . . were a pretext for discrimination." (Emphasis added.) Board of Education v. Commission on Human Rights and Opportunities, supra, 266 Conn. 507. While the aforementioned evidence may not be dispositive with regard to the commission's ultimate decision on remand, such evidence is relevant and should be appropriately analyzed in evaluating Peterson's offerings in support of pretext.
The second basis for the court's action is the referee's conclusion that discrimination "based on [the plaintiff's] physical disability (transsexual)" is not a "cognizable claim under Connecticut law." (ROR, p. 50.) As seen above, the referee relies for this statement in part on Conway v. City of Hartford, Superior Court, judicial district of Hartford, Docket No. CV 95 0553003 (February 4, 1997, Hale, J.) [ 19 Conn. L. Rptr. 109]. However valid the Conway case was fifteen years ago, it is not applicable today.
The Conway case relied on federal law under Title VII expressly excluding transsexuals and concluded that Connecticut would find such federal law "highly persuasive." The court also referred to an Iowa Supreme Court and a federal court opinion relying on Pennsylvania law, that interpreted their statutes to exclude transsexuals.
Attitudes change and the law reflects this. See Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 236, 957 A.2d 407 (2008), noting, in a related area, "a sea change in United States Supreme Court jurisprudence concerning the rights of gay persons." The CHRO itself has issued, since Conway, a sweeping declaratory ruling holding that a complaint alleging discrimination on the basis of sex may be brought by transsexual persons. Declaratory Ruling On Behalf of John/Jane Doe (November 9, 2000). In the course of that decision the CHRO noted that it was not prepared to follow federal law "as a useful guide." Rather the CHRO was "persuaded that Doe's proposed expansion of the definition to sex discrimination [beyond federal law] to include transsexual persons is congenial with Connecticut's history of advancing civil rights."
Cf. I, Z. Swift, A System of Laws of the State of Connecticut (1795), p. 183.
The declaratory ruling chose not to consider discrimination against transsexuals based on physical disability. It did conclude, however, that "Connecticut's antidiscrimination laws, as a critical component of social legislation designed to rid this state of the scourge of discrimination, must be construed fairly and wisely to eradicate all traces of unlawful discrimination, wherever they are found to exist. Remedial statutes are liberally construed." This language from the CHRO is equally applicable to the consideration of a claim of physical disability by the plaintiff.
More recent opinions in other states also undercut Conway. See, e.g., Enriquez v. West Jersey Health Systems, 777 A.2d 365 (N.J.App. 2001). The Enriquez court found it "incomprehensible" that its state's anti-discrimination laws could be read to protect heterosexual men and women, homosexual men and women, bisexual men and women, men and women who were perceived as not conforming to stereotypical notions of how men and women behave, but would condone discrimination against men or women who suffer from gender identity disorder. Id. at 373. A similar conclusion must be drawn in construing "physical disability" under §§ 46a-58, 46a-60.
The court in Conway also grounded its decision on "the plaintiff's failure to plead sufficient facts to demonstrate that his condition falls within the Connecticut definition of physical disability." The referee, as seen above, concluded similarly. The definition of physical disability under the CHRO statutes, § 46a-51(15), is as follows: "`Physically disabled' refers to any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." In addition, a "chronic physical handicap" is, by universal dictionary definition, one which is "marked by long duration . . . not acute."
Our Supreme Court has indicated that if a term is not sufficiently defined, it is "appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 201 (2010)
Here, in contradiction to the referee's statements, the record supports that the plaintiff was prescribed medication prior to her surgery and continued to take the medications post-surgery. The names of the medications are set forth in the record for the pre-surgery period, so it is logical to conclude that she would continue to take the same or similar drugs post-surgery. (ROR, p. 612.) She is also under the care of a physician post-surgery and this will continue for the rest of her life. Id. Thus the record in fact establishes that the plaintiff has a "chronic physical handicap" and is physically disabled under § 46a-51(15).
The fact that the referee could not detect a physical disability by observing the plaintiff is irrelevant. Indeed the reference in the definition to epilepsy and hearing impairment shows that such disability need not be visible. As the CHRO points out, there are numerous chronic medical illnesses that are not observable. The court concludes, after reviewing the statute "to ascertain and give effect to the apparent intent of the legislature," Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 8-9, 976 A.2d 668 (2009), that the referee erred in holding that the plaintiff's claim for discrimination due to physical disability was not "cognizable."
The city argues that even if he had considered the physical disability claim, the referee would have found against the plaintiff because of his finding on sex discrimination that she was not qualified or alternatively that the city had a non-discriminatory reason for its actions. It relies on the referee's discussion on these points at record pages 46-47. However, as indicated above, the " McDonnell-Douglas" discussion is incomplete in the sex discrimination context. In addition, the court concludes that a fresh review of the physical disability claim is warranted without Conway controlling the ultimate decision.
The final issue for the court is the scope of the retaliation complaint. The referee viewed the plaintiff's claim of retaliation as stemming from her filing of the August 6, 2003 CHRO complaint. In the November 14, 2008 final decision and in his subsequent explanation of July 23, 2010, the referee gave two reasons for this approach: First the plaintiff's October 15, 2003 amended complaint directly linked retaliation with the August 6 complaint, and secondly any claimed retaliation relating to the plaintiff's assertion of grievances in January-February 2003 was time-barred.
The October amended complaint is not as focused as the referee would find. It is true that the plaintiff alleges that she filed a CHRO complaint in August. In a subsequent paragraph, however, she claims retaliation arising from this August filing and for opposing discriminatory employment practices. (ROR, p. 171.) The general rule on specificity in civil rights pleadings authorizes an exception for "loose pleading." See Butts v. Dept. of Housing, 990 F.2d 1397, 1402 (2d Cir. 1993). Under this standard, the court disagrees with the referee that the amended complaint was specifically related to the August CHRO complaint.
On the second point, while the CHRO lacks jurisdiction over complaints filed more than 180 days after the alleged act of discrimination, § 46a-82(f), the CHRO regulations recognize an exception for amended complaints "reasonably related" to the initial complaint. CHRO regulations § 46a-54-38a. The court has concluded that the plaintiff's pleading, liberally read, included retaliation for her actions in both January-February and September 2003. Thus, her claims of retaliation relate back and are not time-barred. See Williams v. Housing Authority, 458 F.3d 67 (2d Cir. 2006).
The court finds that the final decision of the referee was affected by errors of law and prejudicial to the CHRO and the plaintiff-complainant. § 4-183(j). The CHRO argues that the court should provide the plaintiff relief in this opinion. The court is reluctant to do so; a remand to the CHRO may produce more than one outcome. If the court were to grant relief, it would "exceed its limited scope of review of an administrative decision." Dufraine v. Commission on Human Rights Opportunities, 236 Conn. 250, 264, 673 A.2d 101 (1996) (relying on subsection (j), and not (k)).
By the express language of subsection (j), a remand under this section is a "final judgment." See also Hogan v. Dept. of Children Families, 290 Conn. 545, 559 (2009).
The matter is, therefore, ordered remanded to the CHRO for further proceedings on the basis of the existing record.
The court holds in this opinion that the plaintiff was entitled to show that she was retaliated against in the January-February period. She states at 22 of her brief that the record contains facts regarding this additional claim of retaliation, so there is no need to take additional evidence.