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State v. Connecticut Employees Union Independent

Supreme Court of Connecticut

August 30, 2016

STATE OF CONNECTICUT
v.
CONNECTICUT EMPLOYEES UNION INDEPENDENT ET AL.

          Argued March 31, 2016

          Barbara J. Collins, for the appellant (named defendant).

          Gregory T. D’Auria, solicitor general, with whom were Thomas P. Clifford III, assistant attorney general, and, on the brief, George C. Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (plaintiff).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. [*]

          OPINION

          ROGERS, C. J.

         This case presents the question of whether the public policy of Connecticut demands no less than termination of employment as the only appropriate disciplinary response when a state employee is caught smoking marijuana during his working hours. The defendant, [1] Connecticut Employees Union Independent, appeals[2] from the judgment of the trial court rendered following the court’s denial of the defendant’s motion to confirm an arbitration award that reinstated Gregory Linhoff, a union member (grievant), to his employment at the University of Connecticut Health Center (health center). The court denied the defendant’s motion to confirm and granted a motion to vacate the award filed by the plaintiff, the state of Connecticut, after concluding that the award, which imposed a number of sanctions and conditions short of termination, violated public policy. We disagree that the arbitrator’s award, which imposed an unpaid suspension, last chance status and random drug testing, clearly violated an explicit, well-defined and dominant public policy and, therefore, reverse the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. At the time of the incident in question, the grievant had been employed by the state for approximately fifteen years and had not been subject to any previous discipline. His performance evaluations had ranged from ‘‘satisfactory’’ to ‘‘excellent.’’ On March 7, 2012, while working, as he had for the previous eleven years, the 4 p.m. to midnight shift as a ‘‘skilled main-tainer’’[3] at the health center, he was caught smoking marijuana.

         Specifically, at about 5:50 p.m., a health center police officer observed the grievant and a coworker sitting in a state van parked in a secluded area of the health center campus, after the officer was apprised of a confidential informant’s report that the grievant and his coworker were suspected of using marijuana at work. As the officer approached the van, he observed the grievant sitting in the passenger seat with the door open, smoking from a glass pipe. When the officer asked the grievant what he was doing, he initially responded that he was ‘‘just fucking off, ’’ but then acknowledged that he was smoking marijuana. He also surrendered two bags of marijuana that he had in his possession, which together weighed about three quarters of one ounce. The grievant was arrested and provided a statement to police in which he identified the individual from whom he had purchased the marijuana. The criminal charges against the grievant subsequently were dismissed.

         On June 22, 2012, as a result of the foregoing incident, the plaintiff terminated the grievant’s employment. In a letter of termination sent to the grievant, Karen Duffy Wallace, the plaintiff’s director of labor relations, explained that the grievant had violated the health center’s rules of conduct, [4] alcohol abuse and drug-free workplace policy, [5] and smoke-free workplace policy, and that the incident was considered to be serious. Wallace noted further the unsupervised nature of the grievant’s position and the fact that he had access to all areas of the health center, and she opined that the grievant no longer could be trusted to perform his duties in an acceptable manner.

         The defendant contested the grievant’s termination and, on December 19, 2013, pursuant to a grievance procedure provision in the parties’ collective bargaining agreement, an arbitration hearing was held to determine the issues of whether: (1) the dismissal of the grievant was for just cause; and (2) if not, what should be the remedy, consistent with the agreement. Wallace testified at the hearing, explaining that, when she decided to terminate the grievant’s employment, she took into account the nature of the violation and the fact that the grievant was smoking marijuana in a state vehicle on state property, during the earlier part of his work shift. She explained further that a person in the grievant’s position had keys and access to most of the health center campus, including the day care center, research laboratories and the hospital. In Wallace’s view, a person such as the grievant could not be trusted to work independently on the evening shift.

         The grievant testified in his defense. He explained, with some detail, how he had brought his marijuana to work inadvertently, and how, when he and his coworker were presented with about ten minutes of time ‘‘to kill’’ between working assignments, they decided to park in the secluded area where the police officer had discovered them. According to the grievant, when he realized that a glass pipe in his possession was ‘‘smelly, ’’ he decided to smoke the residue in the pipe to eliminate the odor, and at that point was caught by the officer.

         The grievant explained further that he recently had experienced stressful life events, namely, a cancer scare and marital problems, leading to anxiety from which he sought relief by smoking marijuana. He claimed that he had not smoked marijuana at work prior to the incident in question. The grievant testified that, following the incident, he went to an employee assistance program and sought treatment, which he regarded as successful. He testified further that, a few days prior to the incident, he had had his first therapy appointment at the Connecticut Anxiety and Depression Treatment Center. At that appointment, he was diagnosed with anxiety and depression, and scheduled another appointment with a psychiatrist to address his conditions.

         The arbitrator concluded that the plaintiff had met its burden of establishing that the grievant had engaged in misconduct, namely, possessing and smoking marijuana while at work. Moreover, in the arbitrator’s view, the grievant’s explanations as to why he had marijuana at work, and why he had decided to smoke from his pipe, were disingenuous. Contrary to the grievant’s testimony, the arbitrator opined, the grievant deliberately had taken the marijuana to work so tha the could smoke it when the occasion arose.

         The arbitrator concluded, however, that under the circumstances, termination of the grievant’s employment did not correspond with the notion of just cause. He cited the plaintiff’s rules, including its drug-free workplace policy, which permitted termination for violations but did not mandate it, as well as the grievant’s previous, positive work record and the nature of the offense. The arbitrator also reasoned that the grievant’s pursuit of therapy for anxiety and depression, prior to the incident, evidenced some level of self-awareness, and that the reality of his dismissal, his ineligibility for unemployment benefits and the subsequent arbitration proceedings had impressed upon him the seriousness of his offense. In the arbitrator’s view, although the grievant’s job duties raised some safety and security issues, the grievant ‘‘did not engage in such a breach of trust or show such lack of character that his return to the workplace would create a danger to persons or property nor [did his actions] prohibit his return to work as a satisfactory and productive employee.’’ Citing the principle of progressive discipline as a vital component of just cause that provides a path to rehabilitation under appropriate circumstances, the arbitrator concluded that termination was unwarranted. In short, the arbitrator rejected the plaintiff’s contention that complete termination of the grievant’s employment was the only appropriate penalty for his misconduct.

         The arbitrator, nevertheless, imposed a significant penalty for the grievant’s substantial misconduct. The grievant was suspended for a period of six months, without pay, to run from the effective date of his earlier removal from the payroll.[6] The arbitrator ordered additionally that the grievant, upon his return to work, be subject to random drug and alcohol testing for a one year period, at the plaintiff’s discretion, and that the grievant ‘‘should consider his return to work to be in a ‘last chance’ context so that any future violation of the [plaintiff’s] policies that were applicable in [the arbitration] proceeding would warrant his immediate dismissal.’’

         Thereafter, the plaintiff filed an application to vacate the arbitrator’s award, and the defendant filed a cross application to confirm that award. See General Statutes §§ 52-417 and 52-418. In its application to vacate, the plaintiff contended, inter alia, that the arbitrator’s award violated public policy due to the serious nature of the grievant’s misconduct. The defendant disputed that contention. In an October 6, 2014 memorandum of decision, the trial court agreed that there was a well- defined public policy against the use of marijuana and, furthermore, that the arbitrator’s award violated that policy. Specifically, the court reasoned, the grievant purposefully had used marijuana at work, raising safety and security concerns, and to reinstate him under those circumstances would send an improper message that personal stress somehow excused his misconduct.[7] The court granted the plaintiff’s application to vacate the award and denied the defendant’s application to confirm the award. This appeal followed.

         We begin with the well established standard of review. ‘‘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. . . . Furthermore, in applying this general rule of deference to an arbitrator’s award, [e]very reasonable presumption and in tendment will be made in favor of the [arbitral] award and of the arbitrators’ acts and proceedings.’’ (Citation omitted; internal quotation marks omitted.) State v. New England Health Care Employees Union, District 1199, AFL-CIO, 271 Conn. 127, 134, 855 A.2d 964 (2004).

         We have recognized, however, that an arbitration award should be vacated when, inter alia, it violates clear public policy. Id. When a challenge to a consensual arbitration award ‘‘raises a legitimate and colorable claim of violation of public policy, the question of whether the award violates public policy requires de novo judicial review.’’[8] (Internal quotation marks omitted.) Id., 135.

         ‘‘The public policy exception applies only when the award is clearly illegal or clearly violative of a strong public policy. . . . A challenge that an award is in contravention of public policy is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . When a challenge to the arbitrator’s authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator’s decision but with the lawfulness of enforcing the award. . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.’’ (Citations omitted; internal quotation marks omitted.) Id., 135-36.

         ‘‘The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.’’ (Internal quotation marks omitted.) Id., 136. ‘‘[G]iven the narrow scope of the public policy limitation on arbitral authority, ’’ the trial court’s order vacating the arbitrator’s award should be upheld only if the plaintiff ‘‘demonstrates that the . . . award clearly violate[d] an established public policy mandate.’’ (Internal quotation marks omitted.) Id. As we repeatedly have emphasized, ‘‘implicit in the stringent and narrow confines of this exception to the rule of deference to arbitrators’ determinations, is the notion that the exception must not be interpreted so broadly as to swallow the rule.’’[9] (Internal quotation marks omitted.) Id.

         Consistent with the foregoing law, the sole issue before us is whether the arbitrator’s award reinstating the grievant to employment after a lengthy unpaid suspension, with various conditions, violates public policy. This court employs a two-pronged analysis to determine whether an arbitration award should be vacated for violating public policy. ‘‘First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator’s award violated the public policy.’’ (Internal quotation marks omitted.) Id., 137.

         Looking to our statutory, regulatory and decisional law, we conclude that there exists an explicit, well-defined and dominant public policy against the possession and recreational use of marijuana in the workplace. It is true that, at least in certain circumstances, the criminal sanctions attendant to personal marijuana use recently have been lessened. Nevertheless, pursuant to Connecticut’s statutes and regulations, marijuana remains a schedule II controlled substance; see General Statutes § 21a-243 (c); Regs., Conn. State Agencies § 21a-243-8 (g); and, therefore, possession of it by unauthorized persons is disallowed. Possession of relatively small amounts of marijuana by an unauthorized person subjects that person to a fine and confiscation of the marijuana and, after more than two convictions, mandatory referral to a drug education program at the offender’s expense. See General Statutes § 21a-279a.[10]Possession of larger amounts of marijuana by an unauthorized person exposes that person to more significant fines, potential imprisonment and, for more than four ounces or a second offense, a felony conviction. See General Statutes § 21a-279.[11] Additionally, pursuant to the regulations of the Department of Administrative Services, the use of illegal drugs while on duty is a type of misconduct for which a classified state employee may be reprimanded, suspended or dismissed. See Regs., Conn. State Agencies § 5-240-1a (c). Finally, the Appellate Court, in an appeal raising the same general issue as the present appeal, previously has held that Connecticut ‘‘has a well-defined public policy against the use of marijuana.’’ Enfield v. AFSCME, Council 4, Local 1029, 100 Conn.App. 470, 476, 918 A.2d 934, cert. denied, 282 Conn. 924, 925 A.2d 1105 (2007). In light of the foregoing authorities, we conclude that the statutory, regulatory and decisional law of Connecticut evinces an explicit and well-defined public policy against the recreational use of marijuana, particularly in the workplace.

         We turn next to the question of whether, under the facts and circumstances of this case, the arbitrator’s award reinstating the grievant with conditions, after a period of suspension without pay, violated this public policy. ‘‘In other words, we must determine whether [the] public policy [that is implicated] required the grievant’s dismissal. . . . In making this determination, we are mindful that the fact that an employee’s misconduct implicates public policy does not require the arbitrator to defer to the employer’s chosen form of discipline for such misconduct.’’ (Citation omitted; emphasis in original; internal quotation marks omitted.) Stratford v. AFSCME, Council 15, Local 407, 315 Conn. 49, 58, 105 A.3d 148 (2014). The party seeking to vacate an award reinstating a terminated employee bears the burden of proving that ‘‘nothing less than the termination of [the grievant’s] employment’’ will suffice given the public policy at issue. (Internal quotation marks omitted.) Id., 59.

         We recently issued a comprehensive opinion ‘‘to clarify the factors a reviewing court should consider when evaluating a claim that an arbitration award reinstating a terminated employee violates public policy, and, by extension, the types of factual findings an arbitrator may make in order to assist a reviewing court in considering such a challenge.’’ Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 316 Conn. 618, 633, 114 A.3d 144 (2015). We held that, when determining whether termination of employment is required to vindicate the public policy at issue, a court should focus on four principal factors (Burr Road factors): ‘‘(1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible.’’[12]Id., 634.

         ‘‘The first [Burr Road] factor requires us to consider whether the relevant statutes, regulations, and other manifestations of the public policy at issue themselves recommend or require termination of employment as the sole acceptable remedy for a violation thereof. . . . Put differently, we ask whether the offense committed by the employee involves the sort of conduct the law deems to be inexpiable, or that would expose the employer to substantial liability if it were to reoccur. . . . Whether sources of public policy themselves mandate termination is a question of law subject to plenary review.’’ (Citations omitted.) Id., 634-35.

         The regulations governing state employment are most pertinent here. As we previously have stated, the use of illegal drugs in the workplace explicitly is identified as misconduct warranting discipline. See Regs., Conn. State Agencies § 5-240-1a (c) (10). Notably, however, the regulations do not require the dismissal of an employee for such misconduct. Although that sanction is available; see id., § 5-240-5a (a); the employer also is authorized to respond with a lesser sanction such as a reprimand; see id., § 5-240-2a; or a suspension with reduced or no pay. See id., § 5-240-3a (a) and (b). The state’s drug-free workplace policy mirrors the regulations, providing that ‘‘[a]ny employee violating this policy [by unlawfully possessing or using a controlled substance in the workplace] will be subject to discipline, up to and including termination.’’[13] (Emphasis added.) The policy also notes ‘‘Connecticut’s existing three-pronged strategy of education, treatment and enforcement to combat substance abuse, ’’ and encourages employees with substance abuse problems to participate in an employee assistance program or a rehabilitation program.

         The state’s drug-free workplace policy explicitly references the federal Drug-Free Workplace Act of 1988 (federal act), 41 U.S.C. § 8101 et seq., which requires any state agency that receives federal funding to certify that it will maintain a drug-free workplace. The current incarnation of that federal act provides that, when an employee of a federal grant recipient is convicted under a criminal drug statute for a violation in the workplace, the grantee shall either: ‘‘(1) take appropriate personnel action against the employee, up to and including termination; or (2) require the employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for those purposes by a [f]ederal, [s]tate, or local health, law enforcement, or other appropriate agency.’’ 41 U.S.C. § 8104; see also 41 U.S.C. § 8103 (a) (1) (F). Citing an identical provision in the federal act applicable to federal contractors; see 41 U.S.C. § 8102 (a) (1) (F); the United States Court of Appeals for the Second Circuit has held that an arbitral award that reinstated an employee of a Connecticut skilled nursing facility after a seven month unpaid suspension, following his arrest in the workplace for possession of marijuana with intent to distribute, did not violate the public policy evidenced by, inter alia, the federal act. Saint Mary Home, Inc. v. Service Employees International Union, District 1199, 116 F.3d 41, 46 (2d Cir. 1997). Thus, the federal act, like the state policy that draws from it, does not require termination for drug related misconduct in the workplace, but rather, allows for the options of a lesser sanction or a rehabilitative approach.[14]

         In sum, the relevant sources of public policy do not support the conclusion that such policy is offended by discipline short of termination for a state employee’s use of marijuana in the workplace. Rather, they provide for an array of responses and explicitly support efforts at rehabilitation, thereby ...


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