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AFSCME, Local 2663 v. Dep't of Children & Families

Supreme Court of Connecticut

June 23, 2015

AFSCME, COUNCIL 4, LOCAL 2663
v.
DEPARTMENT OF CHILDREN AND FAMILIES ET AL

Argued December 11, 2014

Page 471

[Copyrighted Material Omitted]

Page 472

Application to vacate an arbitration award, brought to the Superior Court in the judicial district of Hartford, where the named defendant filed a motion to confirm the award; thereafter, the case was tried to the court, Hon. Robert Hale, judge trial referee, who, exercising the powers of the Superior Court, rendered judgment granting the application to vacate the award and denying the motion to confirm, from which the named defendant et al. appealed to the Appellate Court, Lavine, Espinosa and West, Js., which reversed the trial court's judgment and remanded the case with direction to render judgment confirming the award, and the plaintiff, on the granting of certification, appealed to this court.

Affirmed.

SYLLABUS

The plaintiff union sought to vacate an arbitration award that had concluded that the defendant Department of Children and Families had just cause to dismiss L, a department employee, following the death of M, a baby that had been placed in L's foster care. L had given a statement to the police indicating that M, while in L's care, had fallen off a bed immediately before he became unresponsive. The medical examiner's report indicated that M's cause of death was not consistent with injuries from a fall, but from shaken baby syndrome, and L was arrested and charged with manslaughter and risk of injury to a child. Thereafter, the department's special investigations unit concluded that a charge of abuse and/or neglect by L had been substantiated. The department then opened a human resources investigation to determine whether employment discipline was warranted, and, following a hearing, the department notified L by letter that she was being dismissed for just cause in accordance with the collective bargaining agreement and administrative regulations. The union filed a grievance on L's behalf, challenging her termination, and the parties proceeded to arbitration. The arbitrator denied L's grievance and found just cause for L's termination, determining that although the department did not establish that L had caused M's fatal injuries, L was negligent in her care of M because it was her inattention that permitted him to fall off the bed, and that L's actions made her unemployable by the department, the government agency responsible for the care and welfare of children. The union thereafter filed its application to vacate the arbitrator's award, and the department filed a cross application to confirm the award. The trial court rendered judgment granting the union's application to vacate and concluded that the arbitrator had exceeded her authority in using negligence as a standard and basis for the award. The department appealed from that judgment to the Appellate Court, claiming that the trial court improperly vacated the award. The Appellate Court concluded that negligence was within the purview of the collective bargaining agreement and was an appropriate term for the arbitrator to use to describe L's conduct, and determined that the trial court's conclusion to the contrary exceeded the standards of review applicable to arbitration awards. Accordingly, the Appellate Court reversed the judgment of the trial court and remanded the case with direction to confirm the award. The union, on the granting of certification, appealed to this court, claiming that the trial court's vacatur of the arbitration award was proper because the arbitrator exceeded her authority and violated L's contractual and due process rights to notice by relying on a different theory than the one advanced by the department to terminate L. Held that the Appellate Court properly reversed the trial court's judgment granting the union's application to vacate the arbitration award, the award having conformed to the parties' broad, unrestricted submission to determine whether the department had just cause to terminate L and having drawn its essence from the terms of the parties' collective bargaining agreement, which included negligence in its definition of just cause; furthermore, this court could not conclude that the arbitrator exceeded her authority in concluding that there was a sufficient nexus between L's off duty conduct and her employment to constitute just cause for discipline, and the union's claim that L was not provided with sufficient notice of the charges against her was unavailing because L was clearly informed that the arbitrator would consider whether her conduct on the night of M's fall constituted just cause for termination, and L's own account of the events immediately preceding M's death provided the basis for the arbitrator's decision.

J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellant (plaintiff).

Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant).

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js. McDONALD, J. In this opinion PALMER, ZARELLA and ROBINSON, Js., concurred. ROGERS, C. J., dissenting. EVELEIGH, J., dissenting.

OPINION

Page 473

[317 Conn. 240] McDONALD, J.

A broadly phrased, unrestricted submission to arbitration may yield unanticipated results, as this case aptly demonstrates. In the underlying arbitration proceeding, the arbitrator found that the named defendant, the Department of Children and Families (department),[1] had failed to establish that a department employee, Suzanne Listro, had inflicted the fatal abuse on her foster child that the department claimed provided just cause for termination of her employment. The arbitrator nonetheless found that Listro's own version of events demonstrated negligence that established just cause for termination. In this certified appeal, Listro's union, the plaintiff, AFSCME, Council 4, Local 2663 (union), appeals from the judgment of the Appellate Court reversing the trial court's judgment granting [317 Conn. 241] the union's application to vacate the arbitration award. The union claims that vacatur of the arbitration award was proper because the arbitrator exceeded her authority and violated the employee's contractual and due process rights to notice by relying on a different theory than the one advanced by the department. Upon application of the requisite limited scope of review of arbitration awards, we conclude that the award conformed to the parties' unrestricted submission and drew its essence from the terms of the parties' collective bargaining agreement. We further conclude that notice requirements were satisfied.

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Accordingly, we affirm the judgment of the Appellate Court.

This case arises in the context of the following facts, as found by the arbitrator, and procedural history. The union is the collective bargaining unit for the department's social workers. At the time of the incident at issue, Listro had been employed as a social worker by the department for twelve of the preceding fifteen years, having served in various capacities, including as a case worker, hot line worker, and child services consultant. In 2008, she was working in the department's mentor program, where she was responsible for recruiting community volunteers to mentor adolescent girls living in state facilities and for running programs for mentors and mentees.

On May 12, 2008, Listro became the foster parent of a seven month old boy, M,[2] after he had been returned to the department by another foster family who claimed that he was inconsolable and too fussy for them to handle. One week later, Listro called 911 reporting that M was limp and unresponsive. Emergency responders took M to the hospital, where he was later pronounced dead. Shortly thereafter, Listro gave a statement to [317 Conn. 242] police indicating that M had fallen off her bed onto the floor immediately before he became unresponsive.

A state medical examiner issued an autopsy report wherein he concluded that M's cause of death was blunt traumatic head injury and the means of death was homicide. According to the medical examiner, the physical signs found on M's body were not consistent with death from a fall, but rather a condition commonly known as shaken baby syndrome. This diagnosis was evidenced by the fact that M's retinas had hemorrhaged. The medical examiner also determined that, if M had hit his head, the autopsy should have revealed pooled blood under his scalp, but no such pooling had been found. As a result of the medical examiner's report, Listro was arrested and charged with manslaughter in the first degree; General Statutes § 53a-55; and risk of injury to a child. General Statutes § 53-21.

The department took two actions in response to these events. First, the department's special investigations unit concluded that a charge of abuse and/or neglect had been substantiated and recommended Listro's placement on the department's central registry of persons deemed to pose a risk to the safety and well-being of children (central registry). See General Statutes § 17a-101g; see also General Statutes § 17a-101k. Listro chose not to challenge that decision in an administrative hearing because her attorney advised her not to provide testimony in another forum while her criminal charges were pending.

Second, the department opened a human resources investigation to determine whether employment discipline was warranted in light of these events. In connection with this action, which is the subject of the present appeal, the department sent Listro a letter informing her that an investigatory meeting was set to " discuss [her] serious off-duty misconduct that has [led] to [her] [317 Conn. 243] arrest" and that " [t]he maximum level of discipline . . . being considered is dismissal." At the investigatory interview, on advice of counsel, Listro declined to answer any questions about the incident while her criminal charges were pending. At the conclusion of the investigatory interview, the department provided Listro with an opportunity to make a statement regarding the incident

Page 475

at issue, in accordance with the dictates of Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985),[3] but, again, on advice of counsel, Listro declined to do so.

Following the Loudermill hearing, the department sent Listro a letter notifying her that it was dismissing her for just cause in accordance with the collective bargaining agreement and administrative regulations. The letter indicated that " this action is taken immediately due to your serious misconduct which affects the public, the safety and welfare of our clients," and cited as pertinent facts that: " [o]n May 19, 2008, [M] died while in [Listro's] care" ; Listro's arrest warrant " indicates that [Listro] provided a statement reporting that the child had fallen from the bed when [Listro] left him unattended" ; and the medical examiner had deemed the injury to M inconsistent with a fall. The letter stated that Listro's actions violated § 5-240-1a (c) (4) and (13) of the Regulations of Connecticut State Agencies, respectively, " [o]ffensive or abusive conduct toward the public, co-workers, or inmates, patients or clients of [s]tate institutions or facilities" and " [e]ngaging in any activity which is detrimental to the best interests of the agency or of the state."

[317 Conn. 244] Listro was later acquitted of the criminal charges, but a civil action was filed against Listro and the department by M's biological parents.

The union filed a grievance on Listro's behalf, challenging her termination, after which the parties proceeded to arbitration. The union and the department stipulated to the submission of the following issues to the arbitrator: (1) " Did the [department] have just cause to dismiss . . . Listro?" and (2) " If not, what shall be the remedy consistent with the terms of the collective bargaining agreement?" In the arbitration proceeding, the department proceeded on the theory that Listro had inflicted the fatal injuries on M. It relied principally on the testimony of the medical examiner, Listro's arrest affidavit, and Listro's placement on the department's central registry to establish just cause for her termination.[4]

Listro testified before the arbitrator to offer her account of the circumstances leading to M's death. According to her testimony, on the evening of May 19, 2008, Listro placed M on the corner of her king-size bed while she changed his diaper. After she finished changing his diaper, Listro turned around and stepped away to shut off the television and the videocassette recorder (VCR) located on the wall opposite the bed. While her back was turned, she heard a thud and turned around to see that M had fallen off the bed and onto the linoleum tiled floor. M started to cry and, after Listro picked him up, he became limp and unresponsive. She [317 Conn. 245] thereafter called 911 and administered

Page 476

rescue breaths while she awaited the ambulance.

Relying on Listro's testimony, the union argued that the department had failed to prove that Listro caused M's death and therefore that it had just cause to terminate her. It conceded that Listro's testimony and the autopsy findings were inconsistent, but argued that the fact that M's death had been caused by shaken baby syndrome did not necessarily suggest that a crime had been committed or, if one had been, that Listro was the perpetrator. The union pointed to the fact that other individuals had the opportunity to injure M and that the state failed to provide medical testimony regarding the window of time in which the fatal injuries may have occurred. The union also argued that there was no nexus between the incident at issue and Listro's role as a mentor for adolescents to justify termination. The union asserted that Listro's discharge was merely a political response to protect the department from liability.

The department, however, maintained that it had the right to discipline Listro for off duty misconduct and that her misconduct constituted just cause for termination. The department contended that the nexus to Listro's job was established by the connection between Listro's misconduct and the department's mission to protect children. With respect to just cause, the department argued that Listro's acquittal of the criminal charges was irrelevant in light of the different burdens of proof in the two forums and that Listro's account was not credible in light of the medical evidence.

The arbitrator issued a lengthy memorandum of decision, wherein she denied Listro's grievance. The arbitrator first agreed with the department that Listro's off duty conduct could provide a proper basis for discipline, but she disagreed that the department had produced [317 Conn. 246] sufficient evidence in support of its theory that Listro caused M's fatal injuries. With respect to a nexus between Listro's off duty conduct and her job responsibilities, the arbitrator pointed to the fact that " [the department] in general and social workers in particular are charged with the safety of children in their care; an employee's actions off the job . . . cannot be divorced from that responsibility and the public trust necessary to accomplish the [d]epartment's task." With respect to the department's theory of the case, the arbitrator found that the department did not " carry its burden of establishing that . . . Listro committed the fatal abuse of which she was accused." The arbitrator noted that the department had failed to establish that no other person could have committed the abuse, for instance, M's biological parents or his prior foster family. The arbitrator recognized that the medical evidence " conclusively establishe[d] that M was a victim of shaken baby syndrome," but she explained: " If M fell as asserted by . . . Listro . . . nothing in the record establishes that such a fall could not have been the proverbial 'last straw' for earlier traumatic injuries. Although the autopsy revealed no external bruising, there is also no evidence that a fall from two feet would cause such bruising in a seven month old baby. Moreover, there was no evidence regarding how much time could elapse between a severe shaking and such a fall in order for the fall to result in death shortly thereafter." (Footnote omitted.) The arbitrator opined: " As with many tragic events, it is more than likely that the true story will never be known by anyone other than . . . Listro."

Despite rejecting the department's theory, the arbitrator went on to explain: " [Listro's] problems do not end there, however. Even if we accept her story in its totality, there is no doubt that she was

Page 477

negligent in her care of M: her inattention permitted him to fall from the bed [317 Conn. 247] that night. Although this represents a lapse in judgment with which many parents are familiar . . . Listro's moment of negligence had unusually serious consequences, the death of a child. . . . Unfortunately, as an employee of a public welfare agency, her employment status is a further casualty of that event. Given the totality of the circumstances, I conclude that [Listro's] actions--despite being off duty--made her unemployable by the government agency responsible for the care and welfare of children." The arbitrator therefore issued an award concluding that there was just cause for Listro's termination.

The union thereafter filed an application in the Superior Court seeking to vacate the arbitrator's award pursuant to General Statutes § 52-418 (a) (4), and the department filed a cross application to confirm the award pursuant to General Statutes § 52-417. The trial court granted the union's application and denied the department's application. In its summary order, the trial court concluded: " The arbitrator exceeded her authority in using negligence as a standard and basis for her award. The charge of negligence was never made by the department at the [ Loudermill ] hearing or in the termination letter sent to [Listro]."

The department appealed from the judgment to the Appellate Court, arguing that the trial court improperly vacated the award. The Appellate Court agreed, concluding that " negligence arguably came within the purview of the [collective bargaining] agreement and was an appropriate term for the arbitrator to use to describe Listro's conduct, which was the basis of her dismissal for just cause." AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, 142 Conn.App. 1, 10, 62 A.3d 1168 (2013). The court also concluded that it was not necessary for negligence to be cited as the reason for Listro's termination during the Loudermill hearing or in the termination letter because both the hearing and [317 Conn. 248] the letter " clearly identified her behavior and the events that constituted the serious off duty misconduct at issue." Id., 13. The Appellate Court determined that the trial court's contrary conclusion " exceeded the standards of review applicable to arbitration awards" and, therefore, reversed the judgment of the trial court and remanded the case with direction to confirm the award. Id., 14. The union's certified appeal to this court followed. See AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, 309 Conn. 915, 70 A.3d 38 (2013).

Before this court, the union makes a series of interrelated arguments in support of an overarching claim that, contrary to the Appellate Court's conclusion, the arbitrator exceeded her powers.[5] Specifically,

Page 478

the union contends that: (1) the arbitrator disregarded her own factual findings, principal among which was that the department had failed to establish that Listro " committed the fatal abuse of which she was accused" ; (2) the arbitrator dispensed her own brand of industrial justice by formulating her own charge of negligence against Listro; (3) the award is inherently inconsistent with the [317 Conn. 249] parties' collective bargaining agreement; and (4) the award does not draw its essence from the collective bargaining agreement.[6] The union also argues that, because the department never characterized Listro's misconduct as negligent, the arbitrator's reliance on negligence as the theory under which the department had just cause to terminate Listro amounted to a violation of due process and the notice provisions of the parties' collective bargaining agreement. Because of the constrained standard of review that we must apply in arbitration cases, we disagree that the union is entitled to relief on the basis of any of these claims.

The propriety of arbitration awards often turns on the unique standard of review and legal principles applied to decisions rendered in this forum. " Judicial review of arbitral decisions is narrowly confined. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80, 881 A.2d 139 (2005). " When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties' agreement." (Internal quotation marks omitted.) Id. " Parties to an arbitration may make a restricted or an unrestricted submission." United Electrical Radio & Machine Workers of [317 Conn. 250] America Local 235 v. Union Mfg. Co., 145 Conn. 285, 287, 141 A.2d 479 (1958).

" Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved. . . . In other words, [u]nder an unrestricted submission, the arbitrators' decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact." (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 80; see also Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 294, 377

Page 479

A.2d 323 (1977) (" [b]y agreeing to the unlimited submission in this case, the [parties] authorized the arbitrator to exercise his own judgment and discretion and to render an appropriate award" ). " A submission is deemed restricted only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review." (Internal quotation marks omitted.) United States Fidelity & Guaranty Co. v. Hutchinson, 244 Conn. 513, 519, 710 A.2d 1343 (1998); see also Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 111-12, 779 A.2d 737 (2001) (mere fact that parties asked ...


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