Hartford Police Dept. v. Commission on Human Rights & Opportunities

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 HARTFORD POLICE DEPARTMENT v.
COMMISSION ON HUMAN RIGHTS
AND OPPORTUNITIES ET AL.
(SC 20669)
(SC 20674)
Robinson, C. J., and D’Auria, Mullins, Ecker and Alexander, Js.

Syllabus

The defendant P filed a complaint with the named defendant, the Commis-
sion on Human Rights and Opportunities, alleging that P’s former
employer, the plaintiff, the Hartford Police Department, had discrimi-
nated against P on the basis of his ancestry. Upon graduating from the
police academy, P, who is Vietnamese, began a probationary period of
employment, which included a field training program and during which
superior officers were required to complete daily observation reports
evaluating his performance. P received a satisfactory rating upon com-
pletion of the field training program and then continued to receive
generally satisfactory daily evaluations from his superior officers, includ-
ing K, who previously had been disciplined for making discriminatory
and/or racist remarks to other individuals. Subsequently, on two separate
occasions, K made certain remarks to P about his grammar and writing
skills, criticizing P’s accent, inquiring into P’s ethnicity, nationality, edu-
cational background, and whether the Hartford citizens with whom P
interacted could understand him. When P indicated that he would file
a grievance against K if he did not stop making such comments, K stated
that P should ‘‘watch what [he says] or [he] won’t be around [for] long.’’
K told other superior officers about his interactions with P and sent a
memo to the commander of the police academy, calling P argumentative
and confrontational. Thereafter, multiple officers began, for the first
time, to label P as argumentative and confrontational in their daily
observation reports. One officer wrote a memo noting that numerous
daily observation reports were missing from P’s file. In addition, days
after K sent his memo to the commander, P was contacted about an
incident that had occurred seven months earlier during field training,
when P lost a piece of the hat to his uniform. When interviewed by the
commander, P stated that, at the time he lost the hat piece, he had been
ordered by his superior officer to include in his incident report a false
statement about another officer, but the commander did not discuss
the matter with the officer who purportedly gave P the order. In a memo
to the chief of police, the commander of the police academy did not
mention P’s version of events and instead relied on P’s inclusion of the
false statement as evidence that there were issues with P’s truthfulness.
Thereafter, P was involved in an incident during which he responded
to a scene where two officers were entwined on the ground with a
suspect. P pulled out his Taser but did not use it. When questioned
about the incident, P explained that he did not use the Taser because
he did not have a clear shot at the suspect or hear the other officers
order him to use it. The questioning officer accused P of lying and wrote
a memo to the commander of the police academy inaccurately stating
that P’s failure to follow orders resulted in injury to a fellow officer.
Ultimately, the chief of police decided to terminate P’s employment,
relying on the memos about the hat piece and the Taser incident, as
well as P’s lack of truthfulness. Before the human rights referee, the
police department contended that P’s employment was terminated
because of his poor performance, his lying in the incident report about
the hat piece, his untruthfulness about the Taser incident, and his con-
cealment of his daily observation reports. The referee found in P’s favor,
concluding, inter alia, that P had established a prima facie case of
discrimination on the basis of his ancestry, that the purported reasons
for his termination were pretextual, that K had intended to cause the
termination of P’s employment, and that K’s discriminatory animus had
tainted other officers’ reviews of P. The trial court upheld the referee’s
decision, agreeing that P had established a prima facie case of discrimina-
tion, and the police department appealed to the Appellate Court. The
 Appellate Court reversed the trial court’s judgment, determining that P
had failed to establish a prima facie case of discrimination and, alterna-
tively, that substantial evidence did not support the referee’s finding of
intentional discrimination. With respect to the failure to establish a prima
facie case, the Appellate Court reasoned that there was not substantial
evidence to establish a sufficient casual connection between K’s discrim-
inatory animus and the decision to terminate P’s employment. There-
after, on the granting of certification, P and the commission appealed
to this court. Held:

1. The Appellate Court incorrectly determined that P had failed to establish
a prima facie case of discrimination, as the circumstances surrounding
the termination of P’s employment gave rise to an inference of discrimi-
nation:

In the context of determining whether discriminatory remarks give rise
to an inference sufficient to establish a prima facie case of employment
discrimination under Connecticut law, the discriminatory intent of the
person who made the remarks may be transferred to the individual
who made the adverse employment decision, so long as the employee
establishes that discrimination animated the actions of the individual
who made the remarks and that there was a causal connection between
those actions and the adverse employment decision.

Although the federal version of the transferred intent doctrine differed
from the state counterpart, insofar as the federal version includes the
additional requirement that the supervisor with discriminatory animus
must have intended to cause an adverse employment decision, it was
unnecessary for this court to decide whether that additional requirement
was mandated under the law of this state because, even if it was, there
was substantial evidence that K intended to cause the termination of
P’s employment.

The referee could have inferred that K intended for P’s employment to
be terminated on the basis of, inter alia, his comment that P should
‘‘watch’’ what he says or he would not be around for long and his history
of discriminatory behavior, and the fact that there was other evidence
from which another decision maker might have reached a different con-
clusion about K’s intent was of no consequence in light of the deferential
standard of review applicable to the decision of the human rights referee.

With respect to whether there was a causal connection between K’s
discriminatory animus and the decision to terminate P’s employment,
there was evidence from which the referee could have inferred that the
police chief had reviewed K’s memo about his interactions with P, and,
even if the police chief did not read K’s memo, it was of no consequence
because there was substantial evidence from which the referee could
have inferred that the decision to terminate P’s employment was nonethe-
less influenced by K’s discriminatory animus, insofar as K’s memo and
vocal complaints about P led other supervisors to complain about P’s
attitude, which had never previously been an issue, those complaints
about P’s attitude were included in memos that the police chief did
review in deciding to terminate P’s employment, including the memo
from the commander of the police academy about the hat piece incident,
and none of P’s evaluations prior to his interactions with K noted argu-
mentative or confrontational behavior, which evidenced a temporal con-
nection between K’s memo and the various complaints about P.

2. The Appellate Court incorrectly concluded that the referee’s finding of
intentional discrimination was not supported by substantial evidence,
as the record supported the referee’s conclusion that the proffered
reasons for terminating P’s employment were false and, thus, pretextual:

With respect to the police department’s reliance on P’s lying in the
incident report about the hat piece, the referee credited P’s testimony
that the issue reemerged nearly one year after the incident occurred and
that the issue of P’s truthfulness was not raised at the time of that
incident but, rather, only after K and other officers complained about
P’s attitude, the referee noted that the investigation into P’s truthfulness
was one-sided insofar as it did not include an interview of the officer
who purportedly told P to lie in the report, and both of those facts
supported the referee’s finding that the reliance on the hat piece incident
as a reason for terminating P’s employment was pretextual.
 As to the police department’s reliance on P’s alleged untruthfulness about
the Taser incident, the referee found that the officer who interviewed
P about that incident was not credible, that P did not have a clear shot
at the suspect upon an independent review of a video recording of the
incident, and that no independent investigation was done to confirm or
disprove P’s version of events, and those findings supported the referee’s
conclusion that the reliance on the Taser incident as a basis for terminat-
ing P’s employment was pretextual.

With respect to the claim that P had concealed his daily observation
reports, the record supported the referee’s finding that K’s discriminatory
animus influenced other officers to complain about P’s poor attitude
and truthfulness, creating skepticism about the officer’s complaints,
including the complaint about the missing reports.

Moreover, the referee’s finding that the proffered reasons for terminating
P’s employment were false was further supported by various other factors
considered by the referee, including K’s history of discriminatory conduct
toward others, the nexus between K’s discriminatory animus and the
police chief’s termination decision, the increase in negative remarks
about P’s attitude, the temporal proximity between K’s memo to the
commander of the police academy and the reemergence of the hat piece
issue, and inadequate investigations into the hat piece incident, the Taser
incident, and the incidents between P and K.

Furthermore, the referee was justified in concluding that she could not
credit or rely on the police department’s documentation of P’s alleged
dishonesty, unprofessional behavior and unsatisfactory job performance
in light of her findings that K’s discriminatory animus influenced a
majority of the documentation, none of P’s performance reviews prior
to the incidents with K involved allegations of argumentative or confron-
tational behavior, and the police department’s witnesses lacked credibil-
ity as a result of their inconsistent testimony.
Argued February 17—officially released July 18, 2023

Procedural History

Appeal from the decision of the human rights referee
of the named defendant sustaining a complaint of dis-
crimination filed by the defendant Khoa Phan, brought
to the Superior Court in the judicial district of New
Britain and tried to the court, Hon. Henry S. Cohn,
judge trial referee, who, exercising the powers of the
Superior Court, rendered judgment affirming the deci-
sion of the referee, from which the plaintiff appealed
to the Appellate Court, Prescott, Clark and DiPentima,
Js., which reversed the trial court’s judgment and remand-
ed the case with direction to render judgment sustaining
the plaintiff’s appeal, and the defendants, on the grant-
ing of certification, filed separate appeals with this
court; thereafter, the appeals were consolidated.
Reversed; judgment directed.
Megan K. Grant, human rights attorney, with whom
were Michael E. Roberts, human rights attorney, and
James V. Sabatini, for the appellants (defendants).
Daniel J. Krisch, for the appellee (plaintiff).
 Opinion

D’AURIA, J. In this certified appeal, the defendants,
Khoa Phan and the Commission on Human Rights and
Opportunities (commission), appeal from the judgment
of the Appellate Court, reversing the trial court’s judg-
ment upholding the decision of the presiding human
rights referee (referee), who determined that the plain-
tiff, the Hartford Police Department, had discriminated
against Phan on the basis of his Asian and Vietnamese
ancestry by terminating his employment as a probation-
ary police officer. On appeal, the defendants claim that
the Appellate Court incorrectly concluded that there
was not substantial evidence in the record to support
the referee’s determination of intentional discrimina-
tion because Phan had failed to establish either an infer-
ence of discrimination in his prima facie case or, alterna-
tively, that the plaintiff’s proffered reasons for terminating
Phan’s employment were pretextual. Our thorough review
of the voluminous administrative record leads us to agree
with the defendants, and, accordingly, we reverse the
Appellate Court’s judgment.
We note initially that the crux of the error that we
find in this case lies in the Appellate Court’s application
of the appropriate standard of judicial review of a refer-
ee’s factual findings.1 Therefore, before recounting the
referee’s findings—necessarily in some detail—we begin
with a review of those administrative principles.
‘‘Our review of an agency’s factual determination is
constrained by General Statutes § 4-183 (j), which man-
dates that a court shall not substitute its judgment for
that of the agency as to the weight of the evidence on
questions of fact. . . . [I]t is [not] the function of the
trial court [or] of this court to retry the case . . . . An
agency’s factual determination must be sustained if it
is reasonably supported by substantial evidence in the
record taken as a whole. . . . Substantial evidence
exists if the administrative record affords a substantial
basis of fact from which the fact in issue can be reason-
ably inferred. . . . This substantial evidence standard
is highly deferential and permits less judicial scrutiny
than a clearly erroneous or weight of the evidence stan-
dard of review.’’ (Internal quotation marks omitted.)
Board of Education v. Commission on Human Rights
& Opportunities, 266 Conn. 492, 503–504, 832 A.2d 660
(2003).
More specifically, ‘‘in defining substantial evidence
in the directed verdict formulation, [this court] has said
that it is something less than the weight of the evidence,
and the possibility of drawing two inconsistent conclu-
sions from the evidence does not prevent an administra-
tive agency’s finding from being supported by substantial
evidence.’’ (Internal quotation marks omitted.) Strat-
ford Police Dept. v. Board of Firearms Permit Examin-
ers, 343 Conn. 62, 81, 272 A.3d 639 (2022). As a result,
‘‘[i]n determining whether an administrative finding is
supported by substantial evidence, the reviewing court
must defer to the agency’s assessment of the credibility
of witnesses. . . . Ultimately, [t]he question is not
whether the trial court would have reached the same
conclusion but whether the record before the [agency]
supports the action taken.’’ (Citations omitted; internal
quotation marks omitted.) Miko v. Commission on
Human Rights & Opportunities, 220 Conn. 192, 200–
201, 596 A.2d 396 (1991).
In the present case, the Appellate Court reversed the
trial court’s judgment, which had upheld the referee’s
ruling in favor of Phan, because the Appellate Court
determined that substantial evidence did not support
the referee’s finding of intentional discrimination. Hart-
ford Police Dept. v. Commission on Human Rights &
Opportunities, 208 Conn. App. 755, 757, 789, 267 A.3d
883 (2021). We conclude, however, that the Appellate
Court failed to apply properly the standard of review
it had correctly recited. Although it is true that, in
determining if substantial evidence supports the refer-
ee’s factual findings, a reviewing court must consider
the record as a whole, the Appellate Court here improp-
erly substituted its own judgment for that of the referee
as to the weight of the evidence on the dispositive
questions of fact. Our deferential standard of review
allows for the record to contain competing evidence
that would allow a different fact finder to reach a differ-
ent conclusion. Specifically, in assessing the referee’s
factual findings, the Appellate Court relied on evidence
that the referee explicitly found not to be credible.
The following facts, found by the referee, are import-
ant to our review of the defendants’ claims on appeal.
Phan, who is of Vietnamese nationality, was hired as a
police officer for the plaintiff on December 14, 2009.
After graduating from the police academy on July 2,
2010, Phan was classified as a probationary police offi-
cer. This probationary period lasts for one year, starting
with a field training program. Phan participated in this
field training program, which consisted of four phases
over the span of several weeks and involved different
rotations with different field training officers. Phan had
to pass each phase of the field training program to move
to the next phase. To evaluate his performance, Phan’s
field training officers completed daily observation
reports. Officer Steven Citta was Phan’s field training
officer for phase I of the program. For phases II, III
and IV, Phan’s field training officers were, respectively,
Officer Tyrone Boland, Officer Vincent Benvenuto, and
Citta again. Although Phan did not pass phase II with
Boland, and had to repeat that phase with Officer Chris-
tian Billings, this did not result in the automatic termina-
tion of his employment. During phase IV, Citta noted
in his daily observation reports that Phan’s skills had
improved.
 On October 29, 2010, Phan completed the field train-
ing program and received a probationary employee per-
formance evaluation indicating that his performance
was satisfactory. At this point, Phan was considered a
Hartford police officer, but he remained in his proba-
tionary period until July 2, 2011, and, therefore, the
sergeants in charge during his shifts had to complete
daily observation reports for each day that he worked.
These daily observation reports evaluated Phan in the
areas of appearance, attitude, interpersonal skills, care
of equipment, and performance in the following skill
areas: patrol, investigation, phones and radios, conflict,
report writing, and policies and procedures. After Phan
completed the field training program, Sergeants Paul
Cicero, David Marinelli, and Steven Kessler, among oth-
ers, supervised him during his remaining probationary
period and evaluated his performance in daily observa-
tion reports. These three sergeants had been promoted
together and occasionally socialized outside of work.
Between October 29, 2010, and February 1, 2011, Phan
received several unsatisfactory evaluations regarding
specific skills, including some evaluations relating to his
uniform. He did not, however, receive any evaluations
stating that he was confrontational or argumentative.
Then, in January and February, 2011, two incidents
occurred involving Phan and Kessler, who previously
had been disciplined for making discriminatory and/or
racist remarks.2 First, on January 23, 2011, Phan asked
Kessler to review and sign off on a report about a
motor vehicle accident. In addition to other negative
comments Kessler made about the report, he told Phan
that his report was ‘‘probably the shittiest thing I’ve
ever read.’’ Kessler criticized Phan’s grammar and threw
the report in the trash. Ultimately, however, Kessler
approved the report with very few changes. After
reviewing the revised report, Kessler asked Phan if the
victim involved in the motor vehicle accident was Chi-
nese. Phan stated that he did not know but believed
the victim spoke Cantonese. In response, Kessler asked
Phan: ‘‘What are you?’’ Phan responded that he was
Vietnamese, to which Kessler responded: ‘‘Vietnamese,
Cantonese, it’s all the same shit . . . .’’ Phan then asked
Kessler to sign off on an overtime card, as the edits to
the report had caused him to work overtime, but Kessler
refused and stated that Phan was lucky he ‘‘didn’t wipe
[his] ass with the report.’’
Then, on February 4, 2011, Phan asked Kessler to
sign a domestic warrant. Kessler again insulted Phan’s
grammar and report writing skills. Kessler asked Phan
if he had gone to college and taken English classes.
Phan replied that he had, but Kessler then proceeded
to give Phan a fifteen to twenty minute grammar lesson.
Afterward, Kessler asked Phan if he was born in the
United States. Phan responded that he moved to the
United States when he was eleven years old, to which
Kessler replied that this explained the problem and that
English was a hard language. Laughing at Phan, Kessler
asked if the citizens of Hartford had a hard time under-
standing him. Kessler also stated that criminals must
be laughing at Phan behind his back because of his
accent. When Phan asked Kessler to stop making these
kinds of comments, Kessler replied that he had stripes
on his arm so that he was ‘‘ ‘the man’ ’’ and would deter-
mine when their conversation was over. When Phan
stated that he would file a grievance against Kessler if
he did not stop his remarks, Kessler ordered Phan out
of his office, warning him to ‘‘watch what you tell me or
you won’t be around long.’’ Following these incidents,
Kessler told other sergeants about his concerns with
Phan, including that Phan had yelled at him.
Approximately two weeks after that February, 2011
incident, Kessler sent a memo to Lieutenant Peter H.
Bergenholtz, commander of the police academy, regard-
ing Kessler’s interactions with Phan.3 After Kessler’s
memo, Phan’s ratings in his daily observation reports
changed. Before February 4, 2011, none of Phan’s evalu-
ations noted confrontational or argumentative behav-
ior. After the incidents with Kessler, however, multiple
evaluations from different officers labeled Phan as argu-
mentative and confrontational: the same language Kes-
sler had used to describe Phan’s actions. Additionally,
two days after Kessler’s memo to Bergenholtz, Cicero
wrote an interoffice memo to Lieutenant Michael Caci-
oli explaining that Phan’s file, which was supposed to
contain his daily observation reports, contained only
five of his forty reports. This memo led Cacioli to send
an interdepartmental memo to Captain James Bernier,
discussing both the lack of reports in Phan’s folder and
Kessler’s memo regarding the February 4 incident.
Moreover, on February 18, 2011, four days after Kessl-
er’s memo was sent, Phan was contacted by the police
academy about an incident that had occurred on or
about July 19, 2010, during phase II of his field training
program. On that day, Phan had lost his hat piece—
the shield on an officer’s hat that includes his badge
number—while working in the police department’s
report writing room. Phan reported the lost hat piece
to his field training officer, Boland. Boland told Phan to
keep looking for the lost item. In August, 2010, another
superior officer instructed Phan to write a report about
the lost hat piece. In that case incident report, upon
Boland’s instructions, Phan noted that he previously
had reported the lost hat piece to Sergeant Gregory
Weston, even though he had not done so. When Weston
learned about this false portion of the report, he was
angry and ordered Phan to file a corrected report. Phan
did so but also explained to Weston that he had acted
on Boland’s instructions. After receiving a new hat piece
in September, 2010, Phan believed the incident to be
closed until February 18, 2011, when he was contacted
by the police academy with questions about the lost
hat piece. Later, Sergeant Jeffrey Rousseau and Bergen-
holtz interviewed Phan about the hat piece incident.
Phan told these men that Boland had ordered him to
add the false sentence about Weston into the report.
Rousseau and Bergenholtz never interviewed Boland
about this issue, however, and did not mention Phan’s
version of events in their report. Instead, in his memo
to the chief of police, Daryl K. Roberts, Bergenholtz
relied on Phan’s inclusion of the false statement as
evidence that there were issues with Phan’s truthful-
ness.
On February 25, 2011, Phan attended a performance
review meeting with Bergenholtz and Rousseau. During
this meeting, Bergenholtz told Phan that he had heard
that Phan had been yelling at Kessler. Phan denied
this allegation but indicated that he intended to file a
grievance against Kessler. Bergenholtz responded that,
if Phan had threatened him with filing a grievance, he
would have fired Phan immediately. This statement
scared Phan so that he did not further explain his prob-
lems with Kessler during this meeting.
Following this meeting, on March 28, 2011, Cicero
sent a memo to Cacioli about the February, 4, 2011
incident between Phan and Kessler, as well as the miss-
ing daily observation reports. The memo also included
a summary of an incident that allegedly occurred on
February 15, 2011, in which Phan told Cicero that he
had not been trained on how to send a message out
through the police department’s mobile data terminal
system (MDT), despite Citta’s statement that he had
trained Phan about how to do so. However, Phan did
not have a daily observation report documenting the
MDT incident or referencing his training on and/or use
of the MDT system. Cicero then sent another memo to
Cacioli, repeating the issues raised in his prior memos.
Despite these various complaints, Phan continued to
receive acceptable marks in his April and May, 2011
daily observation reports. On June 4, 2011, however,
another incident involving Phan occurred that was
video-recorded from a police cruiser’s camera but with-
out audio. Phan arrived at the scene of an incident after
Officer Jeffrey Hopkins and Officer Luis Ruiz already
were present and standing near the suspect. As Phan
approached, lowering his radio, an altercation ensued
when the suspect struck Hopkins, causing Ruiz to strug-
gle with the suspect on the ground. Phan pulled out his
Taser but did not use it because the other officers and
the suspect were entwined on the ground; the referee
found, based on her review of the video, that Phan did
not have a clear shot at the suspect. Phan put away his
Taser, after which the suspect was physically subdued.
After this incident, Sergeant Edward Yergeau ques-
tioned Phan about why he did not use his Taser. Phan
responded that he did not have a clear shot.4 Yergeau
then asked why Phan did not use his Taser when Ruiz
and Hopkins ordered him to do so. Phan responded
that he did not hear those orders. Believing Ruiz’ and
Hopkins’ version of the events, however, Yergeau
accused Phan of lying because the officers had told
Yergeau that they had ordered Phan to use his Taser.
Yergeau also disagreed that Phan did not have a clear
shot at the suspect. After this discussion, Yergeau wrote
a memo to Bergenholtz stating that Phan had been
instructed to use his Taser before the suspect struck
Hopkins and that Phan’s failure to do so resulted in
Hopkins being injured. This memo was inaccurate, how-
ever, because, in Ruiz’ testimony regarding the Taser
incident, he stated that he allegedly had ordered Phan
to use his Taser after the suspect struck Hopkins,
not before.
The plaintiff terminated Phan’s employment on June
18, 2011, weeks before his probationary period was
scheduled to end on July 2, 2011. Roberts made the
decision to terminate Phan’s employment, with the
approval of the director of human resources, Santiago
Malave. Roberts and Malave relied on Bergenholtz’
memo about the lost hat piece, even though this memo
failed to include Phan’s allegation that Boland had
ordered him to put the false statement into his report.
They also received Yergeau’s memo regarding the Taser
incident. When Roberts fired Phan, he gave Phan a copy
of this memo and told Phan that his lack of truthfulness
was one of the main reasons he was being dismissed.
Despite Phan’s request that he watch a video recording
of the Taser incident, Roberts refused.
Phan filed an Affidavit of Illegal Discriminatory Prac-
tice with the commission, alleging that the termination
of his employment was a result of his Asian/Vietnamese
ancestry. After a hearing and the filing of posthearing
briefs, the referee found in Phan’s favor, concluding
that the plaintiff illegally had discriminated against Phan
when it fired him from his position as a probationary
police officer. Among other things, the referee ordered
the plaintiff to pay Phan $210,596 in back pay, plus $25,000
in emotional distress damages. Hartford Police Dept. v.
Commission on Human Rights & Opportunities, supra,
208 Conn. App. 769.
The plaintiff appealed from the referee’s order, and
the trial court, Schuman, J., sustained the appeal, ‘‘con-
cluding that the referee improperly had applied [a]
‘mixed motive’ analysis to the discrimination claim
rather than a ‘pretext’ analysis.’’ Id. The trial court remand-
ed the case for a new hearing before the agency. Id.
On remand, the referee again found in Phan’s favor,
concluding that, under either the mixed motive or pre-
text analysis, the plaintiff had discriminated against
him. In her decision, the referee found that ‘‘[Phan’s]
overall performance had been satisfactory until his
meetings with [Kessler]. [Phan’s daily observation
reports] actually improved steadily after March [2011]
until his completion of the probationary period. He was
not terminated at the actual time of the lost hat piece,
for failing a section of the field training, despite being
a probationary employee who could be terminated for
almost any reason. The untimely investigation into
[Phan’s] hat piece, followed by the one-sided investiga-
tion into [Phan’s] decision not to use his Taser, and
the completely discredited testimony of several of [the
plaintiff’s] witnesses attempting to illustrate [Phan’s]
untruthfulness regarding the Taser incident, are more
than sufficient evidence to prove pretext. There are too
many contradictions and inconsistencies to believe that
[the plaintiff’s] termination of [Phan’s employment] was
legitimate.’’ (Internal quotation marks omitted.) Id.
The plaintiff appealed from the referee’s second deci-
sion, and the trial court, Hon. Henry S. Cohn, judge
trial referee, affirmed the referee’s decision but remand-
ed the case to the referee for a new order on damages
because the prior order regarding damages was more
than four years old. Id., 770 and n.15. The plaintiff
appealed to the Appellate Court, claiming that the trial
court had improperly held that substantial evidence
supported the referee’s finding of intentional discrimi-
nation. Id., 770. The Appellate Court held that Phan had
failed to satisfy his burden of establishing a prima facie
case of discrimination and, alternatively, that the record
did not support the referee’s conclusion that the plain-
tiff’s reasons for terminating Phan’s employment were
pretextual. Id.
Phan and the commission filed separate petitions
with this court for certification to appeal, which we
granted, limited to the following issue: ‘‘Did the Appel-
late Court properly reverse the trial court’s judgment
upholding the decision of the . . . referee on the basis
that the evidence was insufficient to support a determi-
nation of intentional discrimination?’’ Hartford Police
Dept. v. Commission on Human Rights & Opportuni-
ties, 340 Conn. 919, 267 A.3d 195 (2022); accord Hart-
ford Police Dept. v. Commission on Human Rights &
Opportunities, 340 Conn. 920, 267 A.3d 196 (2022). We
will detail additional facts and procedural history as
required.
I
The following well settled general legal principles
govern both the question of whether Phan established
his prima facie case of employment discrimination and
whether he established that the plaintiff’s proffered rea-
sons for the termination of his employment were pre-
textual, both of which were necessary for him to have
established intentional discrimination. ‘‘The framework
this court employs in [such cases] . . . under Connect-
icut law was adapted from the United States Supreme
Court’s decision in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)
(McDonnell Douglas), and its progeny. . . . Under this
analysis . . . for the employee to first make a prima
facie case of discrimination, the plaintiff must show:
(1) the plaintiff is a member of a protected class; (2) the
plaintiff was qualified for the position; (3) the plaintiff
suffered an adverse employment action; and (4) the
adverse employment action occurred under circum-
stances that give rise to an inference of discrimination.
. . . The employer may then rebut the prima facie case
by stating a legitimate, nondiscriminatory justification
for the employment decision in question. . . . This bur-
den is one of production, not persuasion; it can involve
no credibility assessment. . . . The employee then
must demonstrate that the reason proffered by the
employer is merely a pretext and that the decision actu-
ally was motivated by illegal discriminatory bias.’’ (Cita-
tions omitted; internal quotation marks omitted.) Felici-
ano v. Autozone, Inc., 316 Conn. 65, 73–74, 111 A.3d
453 (2015).
II
The defendants claim that the Appellate Court incor-
rectly determined that Phan had failed to establish his
prima facie case. Specifically, they argue that there was
substantial evidence to support the referee’s finding
that a causal connection existed between Kessler’s dis-
criminatory animosity and the termination of Phan’s
employment, creating an inference of discrimination.
We agree.
The following additional facts and procedural history
are relevant to this claim. After the trial court concluded
in the plaintiff’s first administrative appeal that the ref-
eree had applied the wrong test to the facts she found
regarding Phan’s discrimination claim, the referee and
the parties on remand agreed that no additional hearing
or evidence was required. The referee allowed the par-
ties additional opportunity for oral argument and then,
relying on her original findings of fact, determined that
Phan had satisfied his prima facie burden under the
pretext analysis adopted by the McDonnell Douglas-
Burdine5 line of cases. As to the fourth prong of the
prima facie case—the only prong at issue on appeal—
the referee found an inference of discrimination based
on Kessler’s discriminatory animus, which she found
tainted the reviews of other supervisors, culminating
in the termination of Phan’s employment. In support
of this finding, the referee relied on the following facts.
First, until his confrontations with Kessler, who pre-
viously had been disciplined for making discriminatory
and/or racist remarks, Phan’s performance reviews and
daily observation reports were mostly satisfactory con-
cerning his general attitude. After the two incidents
between Phan and Kessler, Kessler complained to other
sergeants that Phan was argumentative and confronta-
tional, including in a memo to Bergenholtz. As a result
of Kessler’s complaints, other sergeants for the first
time began making negative comments about Phan’s
attitude. For example, only after Kessler’s complaints
did Cicero give Phan negative marks in attitude in his
daily observation reports and then write a memo to
Cacioli about Phan’s maintenance of his reports file.
Only after Kessler’s complaints did Marinelli give Phan
negative marks in attitude in his daily observation reports
and then write a memo about his performance deficien-
cies, including his attitude, which none of his daily
observation reports supported. Kessler socialized with,
was friends with, and complained about Phan to Cicero
and Marinelli.
From this evidence, coupled with Phan’s testimony
regarding what Kessler had said to him, which the ref-
eree credited, the referee determined that Kessler bore
a discriminatory animus against Phan based on his
nationality. Additionally, the referee found that there
was a causal connection between Kessler’s discrimina-
tory animus and the termination of Phan’s employ-
ment—specifically, that Kessler’s discriminatory ani-
mosity motivated other supervising officers to complain
about Phan’s attitude. The referee determined that a
causal connection could be inferred from the temporal
proximity between the incidents with Kessler and the
complaints of poor attitude, and the temporal proximity
between the incidents with Kessler and the reraising
of the lost hat piece issue, which was not sufficiently
investigated to determine Phan’s truthfulness.
Upon the plaintiff’s appeal after remand, the trial
court agreed with the referee that Phan had established
a prima facie case of discrimination, determining that
substantial evidence existed to create a sufficient nexus
between Kessler’s discriminatory animus and Roberts’
decision to terminate Phan’s employment. The Appel-
late Court disagreed with the trial court and the referee,
determining that there was not substantial evidence to
establish this causal connection because the referee
never made a specific factual finding that Kessler’s
memo was included in the memorandum package Roberts
had reviewed. See Hartford Police Dept. v. Commission
on Human Rights & Opportunities, supra,208 Conn.
App. 778. Rather, the referee found that Roberts had access
to only two memos, neither of which mentioned Kessl-
er’s memo. Id. Additionally, reviewing the record as a
whole, the Appellate Court determined that there was
no causal connection between Kessler’s discriminatory
animus and the determination to terminate Phan’s
employment. Id., 778–85.
The only disputed prong of the prima facie case at
issue in this appeal is whether the circumstances of
this case gave rise to an inference of discrimination. In
determining whether substantial evidence supports the
referee’s finding that the adverse employment action
occurred under circumstances that give rise to an infer-
ence of discrimination, mere ‘‘speculation of discrimi-
nation’’ is insufficient. Craine v. Trinity College, 259
Conn. 625, 644, 791 A.2d 518 (2002). Nevertheless, ‘‘[t]he
level of proof required to establish a prima facie case
is minimal and need not reach the level required to
support a jury verdict in the plaintiff’s favor.’’ Id., 638.
‘‘Circumstances contributing to a permissible inference
of discriminatory intent may include . . . the employ-
er’s criticism of the plaintiff’s performance in ethnically
degrading terms . . . or the sequence of events leading
to the plaintiff’s discharge . . . or the timing of the
discharge . . . .’’ (Citations omitted.) Chambers v.
TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Discriminatory remarks by themselves may give rise
to an inference sufficient to establish the fourth prong
of a prima facie case. Although ‘‘stray remarks, even if
made by a [decision maker],’’ ‘‘are not sufficient to
give rise to an inference of discrimination’’; (internal
quotation marks omitted) Fletcher v. ABM Building
Value, 775 Fed. Appx. 8, 13 (2d Cir. 2019); discrimina-
tory statements may show that discrimination resulted
in an employee’s termination when ‘‘a nexus exists
between these allegedly discriminatory statements and
the [employer’s] decision to terminate . . . .’’ (Internal
quotation marks omitted.) Feliciano v. Autozone, Inc.,
supra, 316 Conn. 76. It is not necessary for the decision
maker to have made the discriminatory statements him-
self, but, rather, under certain circumstances, the speak-
er’s discriminatory intent may be transferred to the
decision maker. See United Technologies Corp. v. Com-
mission on Human Rights & Opportunities, 72 Conn.
App. 212, 234, 804 A.2d 1033, cert. denied, 262 Conn.
920, 812 A.2d 863 (2002).
This transferred intent theory for establishing an
inference of discrimination has been the subject of sev-
eral cases in the last two decades, which warrants
examination. The seminal case in Connecticut for this
theory is United Technologies Corp. v. Commission on
Human Rights & Opportunities, supra, 72 Conn. App.
212, which involved a claim of gender discrimination.
The hearing officer for the defendant commission6
found in favor of the defendant employee, Gale Nestor,
because, in deciding to terminate Nestor’s employment,
the decision maker, Martin R. Berr, relied on a letter
written by her supervisor, Joseph E. Burns, Jr., who
had a discriminatory motive in sending the letter to
Berr.7 Id., 214–16, 220. The employer, Pratt & Whitney
Aircraft Division (Pratt & Whitney), appealed from the
hearing officer’s decision, but the trial court dismissed
the appeal. Id., 214. Pratt & Whitney then appealed
from that dismissal to the Appellate Court, claiming that
substantial evidence did not support the commission’s
finding that gender discrimination had occurred
because there was no ‘‘finding of discriminatory intent
or motive on the part of Pratt & Whitney or any of its
employees.’’ Id., 233. In rejecting this claim, the court
in United Technologies Corp. summarized the relevant
law on the transferred intent doctrine: ‘‘Our law allows
for the transfer of intent to discriminate . . . . It is
true that [w]ithout some proof of an improper motive,
[a plaintiff’s] case must fail. . . . Nevertheless, compa-
nies may be held liable for discrimination even where
the decision-making official did not intentionally dis-
criminate if the information used by that official in
deciding to terminate a worker’s employment was fil-
tered through another employee who had a discrimina-
tory motive.’’ (Citation omitted; internal quotation
marks omitted.) Id., 234–35. The Appellate Court held
that, because the information Berr used to decide to
terminate Nestor’s employment came from Burns, who
had a discriminatory motive, ‘‘the commission’s conclu-
sion that Pratt & Whitney improperly terminated Nes-
tor’s employment on the basis of gender was permissi-
ble.’’ Id., 235.
Since United Technologies Corp., the United States
Supreme Court has recognized a version of the trans-
ferred intent doctrine, which it labeled the ‘‘cat’s paw’’
theory, in Staub v. Proctor Hospital, 562 U.S. 411, 415–
16, 131 S. Ct. 1186, 179 L. Ed. 2d 144 (2011). In Staub,
the court ‘‘consider[ed] the circumstances under which
an employer may be held liable for employment discrim-
ination based on the discriminatory animus of an
employee who influenced, but did not make, the ulti-
mate employment decision.’’8 Id., 413. The court noted
that it was possible that ‘‘the discriminatory motive of
one of the employer’s agents . . . can be aggregated
with the act of another agent . . . to impose liability
on [the employer].’’ Id., 418. Specifically, the court artic-
ulated the following standard:9 ‘‘[I]f a supervisor per-
forms an act motivated by [unlawful] animus that is
intended by the supervisor to cause an adverse employ-
ment action, and if that act is a proximate cause10 of
the ultimate employment action, then the employer is
liable . . . .’’ (Emphasis omitted; footnote omitted;
footnote added.) Id., 422. The court explained that,
‘‘[w]hen a decision to fire is made with no unlawful
animus on the part of the firing agent, but partly on the
basis of a report prompted (unbeknownst to that agent)
by discrimination, discrimination might perhaps be called
a ‘factor’ or a ‘causal factor’ in the decision . . . .’’ Id.,
418–19. ‘‘[I]f the employer’s investigation results in an
adverse action for reasons unrelated to the supervisor’s
original biased action . . . then the employer will not
be liable. But the supervisor’s biased report may remain
a causal factor if the independent investigation takes
it into account without determining that the adverse
action was, apart from the supervisor’s recommenda-
tion, entirely justified.’’ Id., 421. In other words, ‘‘if the
independent investigation relies on facts provided by
the biased supervisor . . . then the employer (either
directly or through the ultimate decision maker) will
have effectively delegated the [fact-finding] portion of
the investigation to the biased supervisor.’’ (Internal
quotation marks omitted.) Rajaravivarma v. Board of
Trustees for the Connecticut State University System,
862 F. Supp. 2d 127, 149 (D. Conn. 2012).
This court did not address the transferred intent doc-
trine until approximately four years after the decision
in Staub. In Feliciano v. Autozone, Inc., supra, 316
Conn. 67–68, the plaintiff, Doris Feliciano, appealed
from the Appellate Court’s affirmance of the trial court’s
judgment rendered in favor of the defendant, her employ-
er, Autozone, Inc., on, among other things, a claim that
the defendant unlawfully had terminated her employ-
ment based on her national origin, religion and race, in
violation of the Connecticut Fair Employment Practices
Act, General Statutes § 46a-51 et seq. Specifically, the
plaintiff argued that the trial court and the Appellate
Court incorrectly determined that she had failed to
establish the fourth prong of her prima facie case: that
the circumstances surrounding her termination gave
rise to an inference of discrimination based on her
national origin, religion or race. Id., 77–78. The plaintiff
relied on evidence of the discriminatory animus of
Michael Balboni, who was a manager at Autozone, Inc.
Id., 68, 75, 77–78. In particular, the plaintiff contended
that this animus should have been imputed to the defen-
dant. See id., 75, 78.
In deciding this issue, this court in Feliciano cited to
Staub, noting that a supervisor’s discriminatory animus
may be attributed to the employer if there is a nexus
between the allegedly discriminatory statements and
the employer’s adverse employment action, which, in
that case, was its decision to terminate the plaintiff’s
employment. Id., 75. In Feliciano, however, we deter-
mined that there was not substantial evidence of a
causal connection between the employer’s decision to
terminate the plaintiff’s employment and Balboni’s dis-
criminatory comments because ‘‘there [was] no evi-
dence that Balboni ever . . . influenced the investiga-
tion that resulted in the plaintiff’s termination in any
way.’’ Id., 78. More specifically, there was no evidence
that Balboni’s discriminatory animus influenced the
defendant’s decision to terminate the plaintiff’s employ-
ment. In reaching this determination, we clarified that
an inference of the defendant’s discriminatory intent
can be made from another employee’s discriminatory
animus only if there is ‘‘affirmative evidence of a causal
connection between [the employee’s] discriminatory
animus toward the plaintiff and the defendant’s termina-
tion of her employment . . . .’’ Id., 80.
The plaintiff in Feliciano responded that ‘‘the jury
reasonably could have disbelieved the defendant’s evi-
dence that Balboni was not involved in any way in
the decision to terminate her employment, and such
disbelief would be sufficient to raise a genuine issue
of material fact as to Balboni’s involvement.’’ (Emphasis
omitted.) Id., 78–79. We rejected this argument, explain-
ing that disbelief of an employer’s explanation for an
adverse employment action is not sufficient to raise an
inference of discrimination under the plaintiff’s prima
facie case, but, rather, such disbelief ‘‘in combination
with the plaintiff’s prima facie case of discrimination,
may, under some circumstances, be sufficient to meet
the plaintiff’s ultimate burden of proving intentional
discrimination . . . .’’ (Citations omitted; emphasis
omitted.) Id., 79.
Since Feliciano, this court has not addressed the
‘‘cat’s paw’’ theory again, but the Appellate Court did
so in Jones v. Dept. of Children & Families, 172 Conn.
App. 14, 16–17, 158 A.3d 356 (2017). In Jones, the plain-
tiff appealed from the trial court’s judgment rendered
in favor of the defendant. Id., 16. The trial court deter-
mined that the plaintiff had not satisfied his burden of
showing intentional discrimination because he did not
produce sufficient evidence for the cat’s paw theory to
apply. Id. The Appellate Court upheld the trial court’s
judgment, noting that, prior to Staub, the Appellate
Court had recognized ‘‘a transferred intent theory that
was loosely analogous to the cat’s paw theory of liability
articulated in Staub.’’ Id., 30. In applying the Staub cat’s
paw theory, the court determined that there was no
causal connection or nexus between the discriminatory
animus of the employee’s supervisor and the adverse
employment action, making the cat’s paw theory inap-
plicable. Id., 31.
Based on this case law, the Appellate Court in the
present case stated that any reliance on the transferred
intent theory of liability, as stated in United Technologies
Corp., was ‘‘misplaced’’ because it had been replaced
by the standard used in Staub. Hartford Police Dept.
v. Commission on Human Rights & Opportunities,
supra, 208 Conn. App. 775. Although it is true that,
in Feliciano, this court followed the standard used in
Staub, we have never held that this standard differed
from or replaced the transferred intent standard from
United Technologies Corp. First, although we may use
federal case law as guidance in developing our own
discrimination law, we are not bound by federal law.
See, e.g., State v. Commission on Human Rights &
Opportunities, 211 Conn. 464, 470, 559 A.2d 1120 (1989).
Second, the two standards are more than ‘‘loosely analo-
gous . . . .’’ Jones v. Dept. of Children & Families,
supra, 172 Conn. App. 30. Both the United Technologies
Corp. transferred intent theory and the Staub cat’s paw
theory require the employee to establish that discrimi-
nation animated the supervisor’s actions and to show
a causal connection between those actions and the
adverse employment decision. The only difference
between the two standards is that Staub requires that
the supervisor with the discriminatory animus must
have intended to cause an adverse employment deci-
sion. We need not decide today, however, whether this
additional requirement is mandated under our state’s
law because, even if we assume that it is, there was
substantial evidence that Kessler intended to cause the
termination of Phan’s employment.
The plaintiff does not dispute the referee’s finding
that Kessler had discriminatory animus against Phan
based on his Vietnamese nationality. Rather, the plain-
tiff contends that there is no evidence that Kessler
intended for Phan’s employment to be terminated, or,
assuming he did, that there was a causal connection
between Kessler’s discriminatory animus and the deci-
sion to terminate Phan’s employment.
As to Kessler’s intent, although the plaintiff and the
Appellate Court are correct that, in his memo, Kessler
did not recommend termination of employment but only
retraining, even if we assume that Kessler had to specifi-
cally intend for Phan’s employment to be terminated
and not only that some adverse employment decision
take place, this is not the only evidence in the record
from which the referee could have inferred Kessler’s
intent. Phan testified that Kessler warned him during
one of their altercations that Phan ‘‘better watch what
you tell me or you won’t be around long.’’ The referee
credited this testimony. There also was testimony that
Kessler had discussed the February, 4, 2011 incident,
including the fact that Phan yelled at him, with other
sergeants and members of the police department. Addi-
tionally, the referee relied on Kessler’s history of dis-
criminatory behavior. See footnote 2 of this opinion;
see also Elston v. Talladega County Board of Educa-
tion, 997 F.2d 1394, 1406 (11th Cir. 1993) (holding that
discriminatory intent may be established by, among
other things, history of discriminatory official actions);
United Technologies Corp. v. Commission on Human
Rights & Opportunities, supra, 72 Conn. App. 230 (‘‘the
evidence related to [the coworkers’] prior acts made
it more probable that Pratt & Whitney’s decision to
terminate Nestor’s employment was discriminatory in
nature’’). Given both that the level of proof required to
establish a prima facie case is minimal, and that a court’s
review of the referee’s decision is limited and highly
deferential, the referee reasonably inferred from this
evidence that Kessler intended for Phan’s employment
to be terminated. See Board of Education v. Commis-
sion on Human Rights & Opportunities, supra, 266
Conn. 503–504; Craine v. Trinity College, supra, 259
Conn. 638. The fact that there was also other evidence
from which another decision maker, including this
court, might have reached a different conclusion about
Kessler’s intent, does not change our determination that
substantial evidence supports the referee’s finding
under our deferential standard of review.
As to the causal connection between Kessler’s dis-
criminatory animus and the decision to terminate Phan’s
employment, the parties’ dispute centers on whether
substantial evidence supported a finding that Roberts
received Kessler’s memo, creating the required causal
connection to raise an inference of discrimination. The
referee made no specific factual finding as to whether
Roberts received and reviewed Kessler’s memo, but, as
explained, our review is not limited to those findings.
Reviewing the record as a whole, we agree with the trial
court that substantial evidence supported the referee’s
finding of a causal connection. In particular, there was
evidence in the record from which the referee could
have inferred that Roberts had reviewed Kessler’s memo.
Specifically, the referee admitted into evidence a report
of disciplinary infraction that Cicero had prepared.
Attached to this report were a number of documents,
one of which showed that Roberts, Bernier, and Cacioli
had signed off on the report, noting that they agreed
with Cicero’s findings. Cicero’s findings, which were
stated in a memo to Cacioli, were also attached to the
report. Cicero’s findings included a detailed discussion
of Kessler’s memo, the daily observation reports miss-
ing from Phan’s file, and Phan’s various unsatisfactory
marks. Also attached to the report was Kessler’s memo.
Based on the attachments to the report and Roberts’
sign-off on the report, the referee reasonably could have
inferred that Roberts had reviewed Kessler’s memo in
making his decision to terminate Phan’s employment.
Additionally, to raise an inference of discrimination
based on the transferred intent theory, federal case law,
which we find persuasive on this issue, does not require
Roberts to have read Kessler’s memo for it to have
nonetheless influenced his decision. Rather, it is neces-
sary only that the decision maker relied on information
that was tainted by the supervising employee’s discrimi-
natory animosity.11 See Gusman v. Unisys Corp., 986
F.2d 1146, 1147 (7th Cir. 1993) (‘‘[a]n employer cannot
escape responsibility for wilful discrimination by multi-
ple layers of paper review, when the facts on which the
reviewers rely have been filtered by a manager [with
a discriminatory animus]’’); see also Kientzy v. McDon-
nell Douglas Corp., 990 F.2d 1051, 1057 (8th Cir. 1993)
(same); Stoller v. Marsh, 682 F.2d 971, 977 (D.C. Cir.
1982) (‘‘When a supervisor . . . deliberately places an
inaccurate, discriminatory evaluation into an employee’s
file, he intends to cause harm to the employee. . . .
[T]he employer . . . cannot escape Title VII12 liability
simply because the final [decision maker] was not per-
sonally motivated by discrimination.’’ (Citation omitted;
footnote added.)), cert. denied, 460 U.S. 1037, 103 S.
Ct. 1427, 75 L. Ed. 2d 787 (1983). The referee reasonably
could have inferred from substantial evidence in the
record that Kessler’s memo and complaints influenced
other sergeants to complain about Phan’s attitude,
which never had been an issue, and that these com-
plaints were included in the memos that Roberts
reviewed in making his decision to terminate Phan’s
employment. Importantly, as to which documents
Roberts reviewed in making his decision to terminate
Phan’s employment, the referee specifically found that
Roberts received Bergenholtz’ June 16, 2011 memo,13
which stated that ‘‘Phan was found to have been less
than truthful with several other supervisors during his
probationary review period . . . . Phan previously
demonstrated a poor attitude and an unprofessional
demeanor when dealing with supervisors . . . .’’ Ber-
genholtz testified that his findings were based in part
on ‘‘input from the supervisors who directly interacted
with . . . Phan’’ and that he obtained input via ‘‘phone
calls, emails, [and] through memos’’ such as Kessler’s.
From this evidence, the referee reasonably inferred that
references in Bergenholtz’ June 16, 2011 memo about
multiple instances of a poor attitude with supervisors
referred to the complaints from Kessler and other super-
visors.
There was also substantial record evidence to sup-
port the referee’s finding that the complaints from other
supervisors referenced in Bergenholtz’ memo were
influenced by Kessler’s memo and vocal complaints,
and thus Kessler’s animus tainted Roberts’ decision. In
particular, there was evidence from which the referee
determined that Kessler, Cicero, and Marinelli were
friends—specifically, testimony that they were pro-
moted to sergeant together and socialized outside of
work.14 There also was evidence that Kessler com-
plained to other supervisors about Phan’s attitude. For
example, there was evidence that Cicero saw Kessler’s
memo to Bergenholtz because Cicero’s March 28, 2011
memo specifically summarizes Kessler’s memo. There
also was evidence that Rousseau, who revived the inves-
tigation into Phan’s missing hat piece after the Kessler
incidents, was present during the meeting with Phan
and Bergenholtz when Bergenholtz addressed Kessler’s
allegation that Phan had yelled at him. As to Yergeau,
who wrote the incorrect and discredited memo about
the Taser incident without investigating Phan’s side of
the story, there was evidence that Kessler had talked
to him about Phan.
Finally, there was evidence of a temporal connection15
between Kessler’s memo and the complaints about Phan,
and Phan’s having been given negative marks in overall
attitude from other supervisors.16 Specifically, prior to
February 4, 2011, none of Phan’s evaluations noted con-
frontational or argumentative behavior. Then, in Phan’s
daily observation report for February 4, 2011, Cicero
noted that Phan had been ‘‘confrontational [and] argu-
mentative.’’ Similarly, on February 8, 2011, Marinelli
gave Phan an unsatisfactory evaluation, noting that
Phan had been ‘‘resistant, challenging’’ Marinelli’s orders.
Later, in Phan’s February, 2011 summary evaluation, Ber-
genholtz inaccurately noted that Phan had received
unsatisfactory remarks in overall attitude throughout
his probationary period, having been ‘‘argumentative’’
with two supervisors.17
From these findings of fact, the referee reasonably
inferred that the ‘‘two supervisors’’ referenced in Ber-
genholtz’ memo included either Kessler or two supervi-
sors who were tainted by Kessler’s memo and vocal
complaints about Phan. Thus, substantial evidence sup-
ports the referee’s finding that Kessler’s discriminatory
animus influenced the reviews and complaints of other
supervisors. This, in turn, provides substantial evidence
for the referee’s finding that Bergenholtz’ reliance on
Kessler’s memo and the memos of the other supervisors
tainted by Kessler’s discriminatory animosity allowed
for Kessler’s discriminatory animus to influence Ber-
genholtz’ memo, which, in turn, influenced the decision
of Roberts, who indisputably considered Bergenholtz’
memo in making his decision to terminate Phan’s
employment without conducting any additional, inde-
pendent investigation.
Nevertheless, the plaintiff argues that the Appellate
Court correctly determined that no record evidence
supports the referee’s finding that Kessler influenced
other supervisors to negatively review Phan’s attitude.18
In so arguing, the plaintiff, like the Appellate Court,
relies on the fact that there was no direct evidence
that Kessler’s comments and memo motivated the other
sergeants because they all testified that they were not
so motivated, and, thus, Kessler played no part in the
decision to terminate Phan’s employment, as he did
not influence the actual decision maker. This argument
ignores the fact that the referee found the testimony
that they were friends credible over the testimony that
the sergeants were not friends, that they did not discuss
Phan with Kessler, and that they were not influenced
by Kessler. Additionally, this argument ignores the evi-
dence already discussed, which supported the referee’s
finding that Kessler’s comments and memo in fact influ-
enced the reviews of Phan by other supervisors.19
Accordingly, substantial record evidence supported
the referee’s finding of a causal connection between
Kessler’s discriminatory animus and the decision to
terminate Phan’s employment, raising an inference of
discrimination.
III
Because we conclude that the referee correctly deter-
mined that Phan had established his prima facie case,
we must address the Appellate Court’s alternative hold-
ing that substantial evidence did not support the refer-
ee’s finding of intentional discrimination. We conclude
to the contrary that substantial record evidence sup-
ports the referee’s finding of intentional discrimination.
An employee may satisfy his burden of establishing
intentional discrimination, ‘‘either directly, with evi-
dence that the employer was motivated by a discrimina-
tory reason, or indirectly, by proving that the reason
given by the employer was pretextual. . . . [E]vidence
establishing the falsity of the legitimate, nondiscrimina-
tory reasons advanced by the employer may be, in and
of itself, enough to support the trier of fact’s ultimate
finding of intentional discrimination.’’ (Citations omit-
ted; internal quotation marks omitted.) Jacobs v. Gen-
eral Electric Co., 275 Conn. 395, 401, 880 A.2d 151
(2005).
In applying this standard, we previously have address-
ed some confusion over the scope of the plaintiff’s
burden—specifically, whether the plaintiff must estab-
lish both that the employer’s proffered nondiscrimina-
tory reason was false and that a discriminatory reason
motivated the employer’s adverse employment actions.
See id., 402–403. On two prior occasions, however, this
court has resolved this issue in line with case law from
the United States Court of Appeals for the Second Cir-
cuit. See id., 403, citing Gordon v. Board of Education,
232 F.3d 111, 117 (2d Cir. 2000); Board of Education v.
Commission on Human Rights & Opportunities, supra,
266 Conn. 511–12. For example, in Board of Education
v. Commission on Human Rights & Opportunities,
supra, 492, the plaintiff employer argued that, to estab-
lish pretext, the defendant employee must establish
‘‘both that the [employer’s stated] reason was false, and
that discrimination was the real reason.’’ (Emphasis
omitted; internal quotation marks omitted.) Id., 511.
We rejected this argument, explaining that the United
States Supreme Court specifically has held ‘‘that evi-
dence establishing the falsity of the legitimate, nondis-
criminatory reasons advanced by the employer may be,
in and of itself, enough to support the trier of fact’s
ultimate finding of intentional discrimination.’’ Id.; see
also Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 147–48, 120 S. Ct. 2097, 147 L. Ed. 2d 105
(2000). Thus, in the present case, Phan was not required
to establish both that the plaintiff’s proffered reasons
were false and that discrimination was the real reason
for the termination of his employment.
‘‘In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that
the employer is dissembling to cover up a discrimina-
tory purpose. Such an inference is consistent with the
general principle of evidence law that the [fact finder]
is entitled to consider a party’s dishonesty about a mate-
rial fact as affirmative evidence of guilt. . . . More-
over, once the employer’s justification has been elimi-
nated, discrimination may well be the most likely
alternative explanation, especially since the employer
is in the best position to put forth the actual reason for
its decision. . . . Thus, a [complainant’s] prima facie
case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the
trier of fact to conclude that the employer unlawfully
discriminated.’’ (Internal quotation marks omitted.)
Board of Education v. Commission on Human Rights
& Opportunities, supra, 266 Conn. 508–509. For falsity
to establish pretext, the plaintiff ‘‘must demonstrate
such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s prof-
fered legitimate reasons for its action that a reasonable
[fact finder] could rationally find them unworthy of
credence, and hence infer that the employer did not act
for [the asserted nondiscriminatory] reasons.’’ (Internal
quotation marks omitted.) Tomasso v. Boeing Co., 445
F.3d 702, 706 (3d Cir. 2006).
‘‘This is not to say that such a showing by the [com-
plainant] will always be adequate to sustain a [fact
finder’s] finding of liability. Certainly, there will be
instances [in which], although the [complainant] has
established a prima facie case and set forth sufficient
evidence to reject the [employer’s] explanation, no
rational [fact finder] could conclude that the action was
discriminatory.’’ (Internal quotation marks omitted.)
Board of Education v. Commission on Human Rights
& Opportunities, supra, 266 Conn. 509. ‘‘For instance,
an employer would be entitled to judgment as a matter
of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision,
or if the [complainant] created only a weak issue of
fact as to whether the employer’s reason was untrue and
there was abundant and uncontroverted independent
evidence that no discrimination had occurred.’’ (Inter-
nal quotation marks omitted.) Perez-Dickson v. Bridge-
port, 304 Conn. 483, 516, 43 A.3d 69 (2012). In determin-
ing pretext—specifically, in determining whether the
record conclusively reveals some other nondiscrimina-
tory reason for the employer’s decision—we caution
courts reviewing administrative decisions of a referee
that this determination must be made while applying
our highly deferential standard of review, which
requires that a reviewing court abide by a referee’s
credibility findings and requires a relatively low level
of proof, i.e., ‘‘something less than the weight of the
evidence . . . .’’ (Internal quotation marks omitted.)
Stratford Police Dept. v. Board of Firearms Permit
Examiners, supra, 343 Conn. 81. We emphasize that
this standard is more deferential than the standard of
review applied to findings of fact made by trial courts
or juries. See Board of Education v. Commission on
Human Rights & Opportunities, supra, 503–504. In Gener-
al Statutes §§ 46a-57 (b) and 46a-84 (b) (1), the legisla-
ture explicitly created a forum and a procedure for
addressing workplace discrimination claims, and that
procedure is accompanied by specific ‘‘limitation[s] on
the power of the courts to overturn a decision of [the]
administrative agency . . . .’’ (Internal quotation
marks omitted.) Dufraine v. Commission on Human
Rights & Opportunities, 236 Conn. 250, 260, 673 A.2d
101 (1996).
Besides falsity of the proffered reasons, other circum-
stances from which a fact finder may find pretext
include ‘‘prior treatment of [the] plaintiff; the employ-
er’s policy and practice regarding minority employment
(including statistical data); disturbing procedural irreg-
ularities (e.g., falsifying or manipulating . . . criteria);
and the use of subjective criteria.’’ (Internal quotation
marks omitted.) Jaramillo v. Colorado Judicial Dept.,
427 F.3d 1303, 1308 (10th Cir. 2005). ‘‘[L]ow evaluation
scores may be a pretext for discrimination, especially
[when] . . . an employer uses subjective criteria such
as ‘attitude’ and ‘teamwork’ to rate its employees.’’
Tomasso v. Boeing Co., supra, 445 F.3d 706.
To establish pretext when an employer proffers more
than one reason for terminating an employee’s employ-
ment, the employee generally must submit evidence
showing that ‘‘each of the employer’s justifications is
pretextual. . . . However, we recognize that when the
plaintiff casts substantial doubt on many of the employ-
er’s multiple reasons, the [fact finder] could reasonably
find the employer lacks credibility. Under those circum-
stances, the [fact finder] need not believe the employ-
er’s remaining reasons.’’ (Citation omitted; internal quo-
tation marks omitted.) Bryant v. Farmers Ins. Exchange,
432 F.3d 1114, 1126 (10th Cir. 2005); see also Tomasso
v. Boeing Co., supra, 445 F.3d 707; Jaramillo v. Colorado
Judicial Dept., supra, 427 F.3d 1308.
In the present case, the plaintiff asserted that its
reasons for terminating Phan’s employment were ‘‘his
overall pattern of poor performance, as well as three
incidents: (1) lying in an official police report about
having lost his hat and hat piece; (2) concealing [his]
[d]aily [o]bservation [r]eports; and (3) being untruthful
when questioned about a Taser incident.’’ (Internal quo-
tation marks omitted.) Hartford Police Dept. v. Com-
mission on Human Rights & Opportunities, supra,
208 Conn. App. 785–86. The referee did not believe
these reasons, finding: ‘‘The untimely investigation into
[Phan’s] hat piece, followed by the one-sided investiga-
tion into [Phan’s] decision not to use his Taser, and
the completely discredited testimony of several of [the
plaintiff’s] witnesses attempting to illustrate [Phan’s]
untruthfulness regarding the Taser incident, are more
than sufficient evidence to prove pretext. There are too
many contradictions and inconsistencies to believe that
[the plaintiff’s] termination of [Phan’s employment] was
legitimate.’’
The referee did not find the plaintiff’s reliance on
Phan’s lying in the police report about the lost hat piece
to be a credible reason because the referee credited
Phan’s testimony that this issue reemerged only after
Kessler and then other sergeants complained about
Phan’s attitude, nearly one year after the event. In addi-
tion to this temporal proximity, the referee determined
that this reason was false because there was a one-
sided investigation into Phan’s truthfulness. The refer-
ee’s credibility determination is supported by evidence
showing that, although Phan told his supervisors that
Boland had ordered him to include the false information
in his police report, the investigation into the missing
hat piece incident did not include interviewing Boland,
and the final investigation report did not mention Phan’s
allegations that Boland had told him to add the false
information. The referee also credited Phan’s testimony
that Rousseau and Bergenholtz did not raise any issues
about his truthfulness with him at the time of the hat
piece incident but instead that Phan had learned about
these issues after his employment was terminated when
he reviewed the relevant documents he had received
during the discovery phase of this case. These facts
support the referee’s finding that the hat piece incident
was pretextual, masking discriminatory purposes embed-
ded in the termination of Phan’s employment.
As to the plaintiff’s reliance on Phan’s alleged
untruthfulness when questioned about the Taser inci-
dent, the referee did not find this to be a credible reason
for the termination of Phan’s employment either. Rous-
seau testified that his review of the video of the Taser
incident contributed to his belief that Phan had lied
about not hearing Ruiz and Hopkins order him to use
his Taser and about not having had a clear shot at the
suspect. The referee specifically found Rousseau not
credible, however, because, despite his adamant con-
tention that Phan had a clear shot at the suspect during
the tussle, Rousseau could not correctly identify the
suspect in the video. Further, after her independent
review of the video, the referee agreed with Phan that
he did not have a clear shot at the suspect. Because of
the flaws in Rousseau’s testimony and the report about
the Taser incident, the referee explicitly found Phan’s
version of events more credible than the plaintiff’s. Spe-
cifically, although the referee did not explicitly find that
Phan told the truth about not hearing an order to use
his Taser, she credited Phan’s testimony that, despite
Yergeau’s writing in a report that Phan ultimately admit-
ted to having heard the order to use his Taser, Phan
never said that and maintained that he never heard any
order to use his Taser. Additionally, the referee found
that no independent investigation was done to confirm
or disprove Phan’s version of events. Accordingly, the
record supports the referee’s underlying factual find-
ings that support her conclusion that this reason was
pretextual, and we also must defer to the referee’s credi-
bility determinations.
The trial court did not specifically address the defen-
dant’s third proffered reason for Phan’s termination:
concealing his daily observation reports. However, in
support of her finding of pretext, the referee relied
on the changes in Phan’s performance evaluations, in
particular, in the area of attitude. As we already explain-
ed, the referee found, and the record supports, that
Kessler’s discriminatory animus influenced other super-
visors to complain about Phan’s poor attitude and truth-
fulness, creating skepticism about any of the supervi-
sor’s complaints, including the issue with the missing
daily observation reports. See Jaramillo v. Colorado
Judicial Dept., supra, 427 F.3d 1308. Additionally, the
referee questioned Cicero’s credibility, calling into
question the veracity of his memo regarding the missing
daily observation reports, because Phan’s reports did
not support the allegations in Cicero’s memos about
Phan’s alleged conduct. Thus, the record supports the
referee’s finding that all three of the plaintiff’s proffered
reasons were false.
Under governing case law, the referee’s finding of
falsity, coupled with Phan’s prima facie case, is suffi-
cient to establish pretext. See Board of Education v.
Commission on Human Rights & Opportunities, supra,
266 Conn. 508–509. This finding of falsity, however, was
not the only factor the referee considered in determin-
ing that Phan had established his claim of intentional
discrimination. In addition to not believing the plain-
tiff’s proffered reasons, the referee relied on the follow-
ing evidence in making a finding of pretext: the nexus
between Kessler’s discriminatory animus and Roberts’
decision to terminate Phan’s employment; Kessler’s
past history of discriminatory conduct; the increase in
negative marks regarding Phan’s attitude, a subjective
criterion by nature; the temporal proximity of raising
the hat piece issue again soon after Kessler’s memo;
and the inadequate investigation into Phan’s allegations
about the two incidents with Kessler, the Taser incident,
and the incident with Boland and Weston regarding the
report of the lost hat piece. These factors, in combina-
tion with Phan’s prima facie case and the referee’s dis-
belief of the plaintiff’s proffered reasons, further sup-
port the referee’s finding of pretext.
Nevertheless, the plaintiff argues that ‘‘a claim of
pretext falters in the face of ‘contemporaneous evi-
dence’ of poor performance,’’ including documentation
of dishonesty, unprofessional behavior, and unsatisfac-
tory job performance from both before and after the
incidents with Kessler. As we explained, this argument
fails because the referee was justified in finding that
Kessler’s discriminatory animus influenced a majority
of this documentation. As to the unsatisfactory job per-
formance reviews before the incidents with Kessler, as
explained, none involved allegations of argumentative
or confrontational behavior. The referee found this sud-
den change in a highly subjective criterion to be pre-
textual. See Tomasso v. Boeing Co., supra, 445 F.3d
706; see also Williams v. Daiichi Sankayo, Inc., 947 F.
Supp. 2d 1234, 1251 (N.D. Ala. 2013) (‘‘in some instances
when a factual dispute exists over a particular evalua-
tion of an employee, a sudden change in evaluation can
be evidence of pretext’’). Based on that and the referee’s
determination that the plaintiff’s witnesses lacked cred-
ibility as a result of their inconsistent testimony, the
referee reasonably determined that she could not credit
or rely on these documents. As a result of these credibil-
ity determinations, coupled with our well established
administrative law principles—including those con-
cerning review of decisions of an agency that the legisla-
ture established to adjudicate workplace discrimination
claims—we will not disturb a referee’s factual findings
when supported by substantial evidence, as they are
here.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion the other justices concurred.
1
‘‘[T]he scope of the trial court’s review of the [referee’s] decision and
the scope of our review of that decision are the same. . . . In other words,
the trial court’s [and/or the Appellate Court’s] decision in this administrative
appeal is entitled to no deference from this court.’’ (Citation omitted.))
Commissioner of Correction v. Freedom of Information Commission, 307
Conn. 53, 63–64 n.15, 52 A.3d 636 (2012).
2
In particular, there was evidence of three discrimination complaints filed
against Kessler—one by another police officer, another sent anonymously,
and a third regarding discriminatory comments about citizens of Hartford.
Both the complaint by the other officer and the complaint regarding discrimi-
natory comments about citizens of Hartford were substantiated. Kessler
was suspended for six days for his comments to another officer. As to the
discriminatory comments about citizens of Hartford, although then Police
Chief James C. Rovella initially proposed a thirty day suspension, after
negotiations with Kessler’s union representative, Kessler was suspended
ten days.
3
In the memo, Kessler noted that he had followed up with other sergeants
who had more frequent contact with Phan and learned that Phan was strug-
gling with his job competency. Kessler also wrote that Phan had been
confrontational and argumentative with him, including yelling at him. Kessler
recommended in the memo that Phan be ‘‘ ‘unplugged’ ’’ from his current
assignment and be retrained on the supervisor/subordinate relationship.
4
Although the plaintiff challenged the referee’s determination, after her
review of the video, that Phan did not have a clear shot at the suspect
during the altercation, the plaintiff does not continue to press this challenge
before this court.
5
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct.
1089, 67 L. Ed. 2d 207 (1981).
6
Prior to July 1, 1998, General Statutes § 46a-57 referred to the commis-
sion’s fact finders as ‘‘hearing officers.’’ Public Acts 1998, No. 98-245, § 1,
replaced the term ‘‘hearing officers’’ with ‘‘human rights referees.’’
7
The hearing officer found that Nestor’s supervisor, Burns, had discrimina-
tory animus against her, leading Burns to send a letter to his manager,
Berr, regarding an alleged physical altercation involving Nestor. United
Technologies Corp. v. Commission on Human Rights & Opportunities,
supra, 72 Conn. App. 216–17, 220. This letter resulted in an investigation
that the commission’s hearing officer found defective. Id., 232. Although the
report produced as a result of this investigation did not state who started
the altercation at issue, both Burns and Berr decided that Nestor was at
fault. Id. Burns recommended Nestor’s termination from employment, and
Berr agreed. Id. Based on these facts, the Appellate Court held that Burns’
discriminatory intent could be transferred to Pratt & Whitney under the
transfer of intent doctrine because Pratt & Whitney had ‘‘allowed Burns’
defective summation of the incident and his discriminatory motive to taint
Berr and, therefore, to taint Pratt & Whitney’s decision to terminate Nestor’s
employment.’’ Id., 234.
8
In Staub, Linda Buck, the hospital’s vice president of human resources,
had terminated the plaintiff’s employment at the hospital. Staub v. Proctor
Hospital, supra, 562 U.S. 414–15. Buck’s decision to terminate the plaintiff’s
employment had been based on his personnel file, which included allegedly
false complaints from Michael Korenchuk, a supervisor, who previously
had made comments hostile to the plaintiff’s military obligations. Id. Buck,
however, did not adequately investigate Korenchuk’s complaint. Id., 415.
The plaintiff argued that Korenchuk had fabricated his complaints based
on his hostility to the plaintiff’s obligations as a military reservist. Id. A jury
ultimately found that the plaintiff’s military status was a motivating factor
in the hospital’s decision to discharge him and awarded him $57,640 in
damages. Id.
We note that, although Staub was decided under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C.
§ 4301 et seq. (2006), the United States Supreme Court expressly indicated
in Staub that USERRA was similar to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. See Staub v. Proctor Hospital, supra, 562
U.S. 417. Because of this, since Staub, federal courts of appeals have applied
the holding in Staub to Title VII cases. See Vasquez v. Empress Ambulance
Service, Inc., 835 F.3d 267, 272 (2d Cir. 2016) (‘‘[O]ur sister circuits have
overwhelmingly adopted the [cat’s paw] theory [from Staub] in Title VII
retaliation cases. See, e.g., Zamora v. [Houston], 798 F.3d 326, 332–34 (5th
Cir. 2015) [cert. denied, 578 U.S. 975, 136 S. Ct. 2009, 195 L. Ed. 2d 215 (2016)];
[Equal Employment Opportunity Commission] v. New Breed Logistics,
783 F.3d 1057, 1069–70 (6th Cir. 2015); Bennett v. Riceland Foods, Inc., 721
F.3d 546, 551–52 (8th Cir. 2013); Hicks v. [Forest Preserve District], 677
F.3d 781, 789–90 (7th Cir. 2012); McKenna v. [Philadelphia], 649 F.3d 171,
180 (3d Cir. 2011) [cert. denied, 566 U.S. 938, 132 S. Ct. 1918, 182 L. Ed. 2d
773 (2012)].’’).
9
The United States Supreme Court explicitly rejected the standard used
by the United States Court of Appeals for the Seventh Circuit: ‘‘[U]nder
Seventh Circuit precedent, a cat’s paw case could not succeed unless the
[nondecision maker] exercised such singular influence over the [decision
maker] that the decision to terminate was the product of blind reliance.
. . . [T]he singular influence rule does not require the [decision maker] to
be a paragon of independence: It is enough that the [decision maker] is not
wholly dependent on a single source of information and conducts her own
investigation into the facts relevant to the decision.’’ (Citations omitted;
internal quotation marks omitted.) Staub v. Proctor Hospital, supra, 562
U.S. 416.
10
The United States Supreme Court defined ‘‘proximate cause’’ under this
cat’s paw theory as requiring ‘‘only some direct relation between the injury
asserted and the injurious conduct alleged, and excludes only those link[s]
that [are] too remote, purely contingent, or indirect. . . . We do not think
that the ultimate [decision maker’s] exercise of judgment automatically
renders the link to the supervisor’s bias remote or purely contingent. The
[decision maker’s] exercise of judgment is also a proximate cause of the
employment decision, but it is common for injuries to have multiple proxi-
mate causes. . . . Nor can the ultimate [decision maker’s] judgment be
deemed a superseding cause of the harm. A cause can be thought superseding
only if it is a cause of independent origin that was not foreseeable.’’ (Citations
omitted; footnote omitted; internal quotation marks omitted.) Staub v. Proc-
tor Hospital, supra, 562 U.S. 419–20.
11
The plaintiff argues that the Appellate Court correctly determined that
there was no evidence in the record to support the referee’s finding that
Kessler’s discriminatory animus influenced Roberts’ decision to terminate
Phan’s employment. In particular, the plaintiff argues that ‘‘[a] nexus
between bias and termination is especially implausible if ‘the final termina-
tion decision was made after an independent review of the [employee’s]
performance based on concrete, objective factors’ . . . . Jones v. Dept. of
Children & Families, [supra, 172 Conn. App. 31].’’ (Footnote omitted.) The
plaintiff contends that such an independent review occurred here because
Roberts based his decision on his review of a package of documents regard-
ing Phan’s deficiencies.
This argument fails, however, because Roberts did not conduct any review
of Phan’s alleged conduct—either independently or through others not
tainted by Kessler’s discriminatory animus. Rather, he relied solely on the
memos, complaints, and evaluations by Phan’s supervisors. Reliance on
these documents does not constitute an independent review or investigation
in the present case because, as explained, there was evidence that Kessler’s
discriminatory animus influenced the creation of these documents. Notably,
for example, neither Roberts nor any other untainted supervisor reviewed
the video footage of the Taser incident, despite Phan’s request that Roberts
do so to verify Phan’s recollection of events.
12
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2018).
13
Although not disputed, this finding is supported by Bergenholtz’ testi-
mony that he sent this memo with his findings to Roberts and the director of
human resources, who, together, decided to terminate Phan’s employment.
14
The plaintiff disputes this finding because there was competing testi-
mony in the record showing that these men rarely socialized and were not
friends. The referee explicitly did not credit Kessler’s competing testimony
that these men were not friends but, rather, explicitly credited the testimony
that these men socialized outside of work and had been promoted together,
from which the referee reasonably inferred their friendship. In reviewing
whether substantial evidence supports a factual finding, we cannot rely on
uncredited testimony. Moreover, the fact that there was evidence going both
ways does not lead us to conclude that substantial evidence did not support
the referee’s finding of friendship among the three men. Additionally, the
plaintiff argues, even if the finding of friendship is not error, this finding
cannot raise an inference of discrimination because it improperly presumes
that friends will lie for each other. The plaintiff misunderstands the relevance
of this evidence. The fact that these men were friends, coupled with Kessler’s
having complained to them about Phan and the timing of their complaints
about Phan’s attitude, together raised an inference that Kessler’s discrimina-
tory animus influenced their reviews of Phan’s performance.
15
The plaintiff contends that the referee placed too strong of an emphasis
on the temporal proximity of these acts. It argues that Kessler’s discrimina-
tory remarks were too remote relative to the termination of Phan’s employ-
ment because several layers of review preceded Phan’s termination after
Kessler’s memo. This argument, however, assumes that Kessler’s memo and
comments did not influence the other layers of review. As discussed, there
was substantial evidence from which the referee could infer that Kessler’s
memo and comments in fact influenced the other layers of review. See
Rossova v. Charter Communications, LLC, 211 Conn. App. 676, 701–702,
273 A.3d 697 (2022) (‘‘[T]he [employer] mistakenly conflates the concept of
temporal proximity evidence with evidence establishing a sequence of events
that transpired following the [supervisor’s discriminatory comments]. . . .
[T]he broader sequence of events leading up to and including an adverse
employment decision provides important context that may establish whether
there exists a nexus between those two events.’’).
16
The plaintiff argues that ‘‘the referee’s reliance on the fact that Phan’s
evaluations worsened after the Kessler incidents . . . is ‘a textbook illustra-
tion of the post hoc ergo propter hoc fallacy.’ . . . [Although] ‘temporal
proximity’ can be a piece of the causation puzzle . . . that the Kessler
incidents and some of Phan’s poor evaluations ‘occurred in sequence . . .
is insufficient to establish the requisite causal connection.’ ’’ (Citations omit-
ted.) But it is not only the fact that Phan received poor evaluations after the
incidents with Kessler that allowed the referee to infer a causal connection
between Kessler’s discriminatory animus and the termination of Phan’s
employment; rather, the connection is also based on the fact that Phan
received multiple, negative reviews regarding his attitude, specifically for
being argumentative and confrontational, after the incidents with Kessler,
when he never had received similar reviews before the incidents with Kes-
sler. This shows a sequence of events from which the referee could infer
a causal connection. See Rossova v. Charter Communications, LLC, 211
Conn. App. 676, 701–702, 273 A.3d 697 (2002).
17
Although Phan had received two prior unsatisfactory marks in attitude,
neither evaluation contained any note about confrontational and/or argu-
mentative behavior. The first unsatisfactory mark in overall attitude occurred
on November 20, 2010, but the note accompanying this mark did not state
that Phan was argumentative or confrontational but only that he lacked
initiative and had to be told what to do multiple times. The second unsatisfac-
tory mark occurred on December 21, 2010, but the note accompanying this
mark merely stated that Phan had been absent and unavailable when needed.
18
The plaintiff and the Appellate Court improperly relied on Jones in
asserting that there was not substantial evidence in the present case to raise
an inference of discrimination because, as in Jones, there was no evidence
of a causal connection. This reading of Jones ignores our standard of review.
In Jones, the court was reviewing a trial court’s failure to employ the cat’s
paw theory to find liability. Examining the evidence, the Appellate Court
held that substantial evidence supported the trial court’s finding of no nexus
between the supervisor’s discriminatory animus and the termination of the
plaintiff’s employment. As we explained, the relevant evidentiary standard
for making out a prima facie case in combination with the more deferential
standard of review of an administrative agency decision allow for the possi-
bility that one fact finder might come to a conclusion different from another
fact finder on the same evidence and neither would be reversible. Thus, in
Jones, the Appellate Court determined that the evidence at issue was suffi-
cient to support the trial court’s finding. But that does not mean that the
same evidence would not also sufficiently support the opposite finding of
a causal connection.
 19
Like the Appellate Court, the plaintiff contends that disbelief of these
supervisors’ testimony is not enough to establish a causal connection. But,
as we explained, the referee did not merely rely on her disbelief of their
testimony to find a causal connection but also on other circumstantial evi-
dence.