Opinion
HHDCV156059334S
12-04-2017
Corinne SALVATORE v. STATE of Connecticut DEPARTMENT OF EMERGENCY SERVICES
UNPUBLISHED OPINION
OPINION
PECK, JTR
This action is brought by the plaintiff, Corinne Salvatore, in two counts, pursuant to the Connecticut Fair Employment Practices Act, General Statutes § 46a-60(a)(4), against the defendant, State of Connecticut Department of Emergency Services and Police Protection (DESPP). The operative complaint is the amended complaint filed on July 5, 2016. Count one alleges that the defendant retaliated against the plaintiff for having previously filed a complaint alleging age and disability discrimination by rejecting her renewed employment application submitted in May 2012, for a position to become a member of the Connecticut State Police. Count two alleges that the defendant, thereafter, again retaliated against her for bringing the present lawsuit by rejecting her subsequent employment application to become a member of the Connecticut State Police submitted in May 2014.
The Connecticut State Police is a division of the DESPP.
The plaintiff acknowledges in her post-trial brief that the State Trooper Trainee position to which she applied in May 2014 never materialized due to " economic considerations." As a consequence, she cannot prove damages as to this count and, therefore, does not seek judgment as to count two. Accordingly, count two is dismissed.
A trial to the court was held on February 22, 2017, February 23, 2017, March 2, 2017, and March 3, 2017. At trial, the plaintiff presented the testimony of Dr. Norman Klein, a clinical and forensic psychologist, and her own testimony. The defendant presented the testimony of Master Sargent William Kittle, Recruitment Supervisor, Connecticut State Police, at the time of the plaintiff’s 2012 application; Dr. George Geysen, a clinical and forensic psychologist; and, Dr. Alan Goldstein, a clinical and forensic psychologist. Thereafter, post-trial briefs were filed. Final argument was held on August 8, 2017. In addition, numerous exhibits were admitted into evidence and will be noted herein, as may become necessary.
For the reason previously noted, the court focuses its discussion on count one of the amended complaint.
I
FINDINGS OF FACT
The entry level position to become a member of the Connecticut State Police is the position of State Trooper Trainee. The position of State Trooper Trainee consists of a one-year program that includes six months of training at the State Police Training Academy and six months of field training. Satisfactory performance of the one-year training program is required before a trooper trainee may be assigned to the position of State Police Trooper. There is a thirty-percent (30%) attrition rate of State Police Trooper Trainees.
The selection process for the State Police Trooper Trainee position consists of the following elements: a written test, a physical fitness assessment, a polygraph examination, a background investigation, a psychological evaluation, a medical evaluation, and, at times, a structured interview. The elements after the background investigation can overlap due to time constraints. To be eligible for appointment as a State Police Trooper Trainee, applicants are required to successfully complete all phases of the selection process. Applicants who re-apply may advance to different phases of the selection process.
The plaintiff applied to DESPP to become a State Trooper Trainee in 2006. She was eliminated from consideration after the background investigation. In December 2007, the plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO) against DESPP, alleging that she had not been selected as a State Trooper Trainee because of her age, sex, and physical disability. After a finding of reasonable cause, a public hearing was held in November 2012. On January 10, 2014, the CHRO " Presiding Human Rights Referee, " issued a final decision dismissing the plaintiff’s complaint. The case had been pending at the CHRO for five years before it was resolved by dismissal. No appeal of the decision was made to the Superior Court. The present law suit was commenced by service of process on April 30, 2015.
Prior to the plaintiff’s 2006 application to the DESPP, or contemporaneously therewith, the plaintiff applied for several other public safety positions, including an earlier application to DESPP in 2002, an application to the Stamford Police Department in 2004, the Newtown Police Department in 2005, the Darien Police Department in 2005, the Bridgeport Police Department in 2006, the Stamford Police Department in 2006, the Norwalk Police Department in 2006, the New Haven Police Department in 2007, the Monroe Police Department in 2007, and the New Britain Police Department in 2008. The selection process for municipal police departments consists of elements similar to that of the selection process for a State Trooper Trainee position. All of the applications were unsuccessful either because the plaintiff did not complete all the components of the application process and was eliminated from consideration or because she did not pass the polygraph (Stamford), did not pass the written examination (Darien), or was eliminated after her background investigation was deemed to be unsatisfactory (New Haven), and, finally, after passing the written and oral examination, she was never again contacted by the New Britain Police Department.
In May 2012, the plaintiff again applied to be a State Police Trooper Trainee as a member of the 124th Training Troop. There were over 5, 000 applicants who took the written examination administered by the State of Connecticut Department of Administrative Services (DAS). The plaintiff advanced to the psychological evaluation phase of the selection process. The psychological evaluation consists of a series of written tests and an in-person interview administered by a psychologist under contract with DESPP. Applicants are rated A-F. Those scoring a D or an F are eliminated from the selection process but have the ability to appeal the results. The appeal process requires the applicant to retain an independent licensed psychologist at his/her own expense. If the applicant’s psychologist reaches a different conclusion as to the applicant’s psychological suitability, DESPP may elect to send the applicant to a third psychologist, who acts as a tiebreaker. Although the psychologists provide an opinion as to the applicant’s psychological suitability, DESPP makes the ultimate hiring decision. There is no indication that DESPP did not follow standard practice in connection with the plaintiff’s psychological evaluation.
Dr. George Geysen, a clinical and forensic psychologist who has been under contract with DESPP for several years, conducted the psychological evaluation of the plaintiff and the other applicants for the 124th Training Troop. As of the date of his testimony, Dr. Geysen had conducted about seven hundred (700) psychological evaluations for DESPP. He testified that approximately two (2) percent of applicants per training troop are found to be psychologically unsuitable. Dr. Geysen is also under contract to perform evaluations for other state agencies and also maintains a private clinical practice. Before interviewing the plaintiff, he was provided with the plaintiff’s background investigation report, employment application, and at least one polygraph examination report. Following the interview, he found the plaintiff to be psychologically unsuitable, rating her with an F. He based his decision on the information he received, the tests he administered, the behaviors he observed, and statements made by the plaintiff during the interview. Dr. Geysen found the results of the Minnesota Multiphasic Personality Inventory-2 Law Enforcement Adjustment Rating Report (MMPI-2), to be particularly problematic. The MMPI-2 allows a comparison of an applicant’s MMPI-2 responses with an existing base of law enforcement personnel. The plaintiff’s responses were deemed to be " uninterpretable" because of an " extremely high level of defensiveness." Dr. Geysen reported that this type of result may suggest that the plaintiff was either " unwilling or disinclined" to disclose personal information or chose to respond in " a manner which would not reveal social or emotional difficulties she may have that could bear on decision making relating to her employment." The interview and evaluation left him with questions concerning the plaintiff’s emotional stability, stress tolerance, dependability, and veracity. Further, another factor that weighed findings was the plaintiff’s previous job applications with law enforcement agencies and their outcomes. Dr. Geysen was also aware of the 2007 CHRO complaint that the plaintiff had filed against the defendant because the plaintiff told him about it. He was also troubled by a statement she made that she could no longer be polygraphed and the fact that she openly questioned the competency of a particular polygraph examiner.
The plaintiff was notified in writing by Connecticut State Police Major Dale P. Hourigan that the results of her psychological assessment were not high enough for the 124th Training Troop and that she had the right to appeal by selecting an independent licensed psychologist of her own choosing to conduct an evaluation. She selected Dr. Norman Klein, a clinical and forensic psychologist since 1980, who is board certified by the American Board of Forensic Psychology. Dr. Klein does not profess to have expertise in pre-employment psychological evaluations for law enforcement positions. In preparation for the evaluation of the plaintiff, he was initially provided with Dr. Geysen’s report and, subsequently, the job specifications for a Connecticut State Trooper Trainee by Master Sargeant William Kittle, Recruitment Supervisor, Connecticut State Police. Dr. Klein also administered several psychological tests but testified that he did not know what tests are recognized as valid for the purposes of a pre-employment psychological evaluation for law enforcement.
Dr. Klein’s report did not contain a specific recommendation as to the plaintiff’s suitability for law enforcement. He concluded that the plaintiff " manifests no overt psychopathology. Intellectual and cognitive functioning are in the upper scaled limits of Normal, and without any apparent deficits." Following submission of his report, Sargeant Kittle contacted Dr. Klein and asked him for his opinion as to the plaintiff’s suitability for employment in law enforcement. In response, Dr. Klein amended his report to add a finding that the plaintiff psychologists disagreed, an additional psychologist may be requested by DESPP to conduct a DESPP to conduct the third evaluation. Dr. Goldstein served as a consultant to DESPP to perform independent psychological evaluations of applicants in the appeal process. Dr. Goldstein is board certified by the American Board of Forensic Psychology. He has conducted approximately one thousand to twelve hundred law enforcement psychological assessments. Dr. Goldstein also serves as a consultant to Offices of the District Attorney and Legal Aid Society in several states and law-enforcement agencies in New York.
There were four applicants, including the plaintiff, who appealed Dr. Geysen’s finding that they were psychologically unsuitable for law-enforcement work and who were ultimately referred to Dr. Goldstein. The Recruitment and Selections Unit sent the reports of Dr. Geysen and of the doctors retained by the applicants to Dr. Goldstein. In addition, Dr. Geysen sent Dr. Goldstein a copy of his reports and test data for all of the applicants in the appeal process. Dr. Goldstein contacted Dr. Klein and requested his test data. Dr. Goldstein also received a copy of the plaintiff’s background investigation summary and the polygraph examination summary from Dr. Geysen.
Dr. Goldstein was also aware that the plaintiff had filed a CHRO complaint from Dr. Geysen’s report, as she had reported that to Dr. Geysen, and from the Background Investigation Summary, as it had been reported by her husband. Dr. Goldstein evaluated the plaintiff on May 29, 2014, at his home in New Milford, Connecticut, while he was on vacation there, in order to conduct his evaluation prior to the start of the 124th Training Troop program scheduled to begin in May 2014. Dr. Goldstein has seen other applicants at this location and is licensed in Connecticut. In evaluating applicants for the position of State Police Trooper, Dr. Goldstein considers the applicant’s judgment, ability to communicate in a focused and logical way, levels of anxiety, impulse control, and ability to keep personal feelings to oneself. He looks for " someone who I would feel comfortable with being given a gun and a car and going out [among the general public]." He also relied on the DAS Class Specification for the State Police Trooper Trainee position, which specifically lists the job qualifications.
Dr. Goldstein met with the plaintiff for three hours and re-administered the MMPI-2 with instructions to her to answer honestly as the test administered by Dr. Geysen had been found invalid. Dr. Goldstein testified that he has the MMPI-2 tests scored by Caldwell Reports, an outside service licensed to interpret the MMPI-2. Nonetheless, the results of the re-administered test were barely valid and described by Dr. Goldstein as very problematic. The results reflected an extremely high level of defensiveness and resistance to admitting minor faults, suggesting that the results may significantly underestimate emotional and social issues. The test also revealed negative characteristics, particularly problems with social functioning and impulse control under stress. In addition to the MMPI-2 results, Dr. Goldstein was concerned about what he described as the plaintiff’s rambling speech, divergent thinking, and inability to focus, observations shared by Dr. Geysen. Dr. Klein also noted " some tangential rambling" in the plaintiff’s speech. Dr. Goldstein found that the plaintiff exhibited excessive potential problems with impulse control under stress. In addition to the MMPI-2 results, Dr. Goldstein was concerned about what he described as the plaintiff’s rambling speech, divergent thinking, and inability to focus, observations shared by Dr. Geysen. Dr. Klein also noted " some tangential rambling" in the plaintiff’s speech. Dr. Goldstein found that the plaintiff exhibited excessive potential problems with impulse control and attention to safety, emotional regulation, and stress tolerance and concluded that she was not psychologically suited for employment as a potential State Police Trooper. Dr. Klein’s ultimate finding of suitability, had Dr. Goldstein known of it, would not have influenced his conclusion because he was not persuaded that there was a foundation for such an opinion in Dr. Klein’s report. Dr. Goldstein first reported his findings orally to DESPP, due to time constraints, and, thereafter, submitted a written report on June 6, 2014.
The plaintiff was notified by a letter from Major Hourigan, dated June 2, 2014, that her appeal had not been successful and that she was eliminated from further consideration in the selection process. Other applicants were also eliminated from the selection process for the 124th Training Troop based on the psychological evaluation.
The plaintiff thereafter filed complaint with the CHRO on August 7, 2014, alleging she was denied employment with the defendant on June 2, 2014, due, in pertinent part, to her opposition to unlawful employment discrimination in the form of her previous December 7, 2007, CHRO complaint filed against the defendant. A release of jurisdiction by the CHRO was issued on February 23, 2015, authorizing suit in the Superior Court pursuant to General Statutes § 46a-100. Additional facts may be found as necessary.
FINDINGS
RETALIATION, GENERAL STATUTES § 46a-60(a)(4)
The Connecticut Fair Employment Practices Act, General Statutes § 46a-60(a)(4), prohibits an employer from discriminating against an employee because the employee previously filed a complaint under the Act. " In interpreting our antidiscrimination and antiretaliation statutes, we look to federal law for guidance. In drafting and modifying the Connecticut Fair Employment Practices Act ... our legislature modeled that act on its federal counterpart, Title VII ... and it has sought to keep our state law consistent with federal law in this area." (Citations omitted; internal quotation marks omitted.) Eagen v. Commission on Human Rights & Opportunities, 135 Conn.App. 563, 579, 42 A.3d 478 (2012). However, " it is axiomatic that decisions of the United States Supreme Court are not binding on Connecticut courts tasked with interpreting our General Statutes. Rather, ‘Connecticut is the final arbiter of its own laws.’ " (Footnote omitted.) Vollemans v. Wallingford, 103 Conn.App. 188, 199-200, 928 A.2d 586 (2007), aff’d, 289 Conn. 57, 956 A.2d 579 (2008) (quoting Johnson v. Manson, 196 Conn. 309, 319, 493 A.2d 846 [1985], cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 [1986]).
" To establish a prima facie case of retaliation, a plaintiff must show four elements: (1) that [s]he participated in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action against [her]; and (4) a causal connection between the protected activity and the adverse employment action." (Citation omitted.) Ayantola v. Board of Trustees of Technical Colleges, 116 Conn.App. 531, 536, 976 A.2d 784 (2009). " If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, [non-retaliatory] reason for its actions." (Citation omitted.) Beizer v. Dept . of Labor, 56 Conn.App. 347, 356, 742 A.2d 821, cert. denied, 252 Conn. 937, 747 A.2d 1 (2000). " If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination [retaliation] either directly by persuading the court ... that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence." (Citations omitted; internal quotation marks omitted.) Id.
The court finds that the plaintiff has established the first three elements of her prima facie case. She engaged in protected activity, known to the defendant, in December 2007, when she filed a CHRO complaint against the defendant alleging various forms of discrimination, and again when she testified at the public hearing on that complaint in November 2012, in satisfaction of the first two elements. The third element is established by the uncontested fact that she was eliminated from consideration as a State Trooper Trainee in June 2014. The fourth element of a prima facie case, however, is contested. The defendant contends that it had a legitimate nonretaliatory reason for ultimately declining her May 2012, employment application, and, therefore, she cannot establish a causal connection between her protective activity and the decision to eliminate her from consideration in the selection process for the 124th Training Troop in June 2014. Specifically, the defendant contends that the plaintiff was eliminated from consideration due to an unfavorable psychological evaluation that she failed to overturn on appeal. The plaintiff argues that she has overcome that assertion by demonstrating (1) substantial flaws, inconsistencies, and improbabilities in the psychological reports of Drs. Geysen and Goldstein, upon which the defendant claims to have relied; (2) that both Drs. Geysen and Goldstein were longtime contract psychologists of the defendant who depend upon the defendant for a substantial part of their income; and (3) that both psychologists were advised in advance of rendering their opinions that the plaintiff was actively engaged in employment discrimination litigation against the defendant, and that these factors equate to substantial motivation to render reports adverse to the plaintiff which do not withstand close scrutiny.
The court disagrees. There is no evidence that DESPP did not follow standard practice in connection with the plaintiff’s psychological evaluation. Although there may be some flaws in the written reports of Dr. Geysen and Dr. Goldstein, they are inconsequential when compared to the flaws of the plaintiff revealed during the application process, in the most pertinent psychological tests administered by the psychologists, and in her in-person interviews. Further, although the reports of Drs. Geysen and Goldstein are detailed, thorough and specifically related to law enforcement employment, the report Dr. Klein is cursory at best and concludes with a generalized statement concerning the plaintiff’s mental health, stating an opinion that there was no manifestation of overt psychopathology and normal intellectual and cognitive functioning. When pressed for a specific recommendation concerning her suitability for a position as a Connecticut State Trooper by Master Sargeant Kittle, Dr. Klein’s response was that " Ms. Salvatore is psychologically fit to proceed with her training and psychologically fit to perform law enforcement work should she pass your requirements. " (Emphasis added.)
Significantly, the plaintiff twice produced invalid results on the MMPI-2. There are 567 true or false questions on the MMPI-2. Dr. Geysen scored it by hand twice. The invalid result indicated to him that the plaintiff was not forthcoming in her responses because she was " disinclined or unwilling to disclose personal information or chose to respond to items in such a manner that would not reveal social emotional difficulties that could bear on the decisions about her employment." Dr. Goldstein had the plaintiff retake the MMPI-2 because the first test produced invalid results. He advised the plaintiff of the problem with the results of the test administered by Dr. Geysen and advised her to be as honest as possible. Dr. Goldstein had the re-administered test interpreted by a third party, Caldwell Reports, who produced a computer generated report. Nonetheless, these MMPI-2 results came back as " barely valid, " indicating a high level of defensiveness and a resistance to admitting to minor faults. The result further suggested problems with social functioning, the possibility of impulse control, particularly under stress. In addition, each psychologist was justifiably concerned about the number of failed or incomplete applications made by the plaintiff to other law enforcement agencies, her expressed difficulties with polygraph examinations she had taken in connection with those applications, as well as her stated distrust of polygraph examiners and her inability to take a polygraph examination.
The plaintiff is required to prove prextext on the part of DESPP by a preponderance of the evidence. Although she argues that there were substantial flaws, inconsistencies, and improbabilities in the psychological reports of Drs. Geysen and Goldstein, she has failed to point to specific evidence in support of these assertions. Further, there was no real evidence of bias or improper motive on the part of either Dr. Geysen or Dr. Goldstein. They each have other sources of income beyond DESPP. Both psychologists were aware of the plaintiff’s underlying complaint of discrimination because she disclosed that information gratuitously to Dr. Geysen who included it in his report, which was ultimately provided to Dr. Goldstein.
CONCLUSION
For all the foregoing reasons, the plaintiff has failed to establish a violation of General Statutes § 46a-60(a)(4) by a preponderance of the evidence as set forth in count one. In addition, because the plaintiff does not seek judgment as to count two, that count is hereby dismissed. Accordingly, judgment is hereby ordered in favor of the defendant.