AFSCME v. Dep't of Children & Families

• Decision Date: 23 June 2015
• Docket Number: No. 19166.,19166.
• Court: Connecticut Supreme Court
• Parties: AFSCME, COUNCIL 4, LOCAL 2663 v. DEPARTMENT OF CHILDREN AND FAMILIES et al.

317 Conn. 238

117 A.3d 470

AFSCME, COUNCIL 4, LOCAL 2663

v.DEPARTMENT OF CHILDREN AND FAMILIES et al.

No. 19166.

Supreme Court of Connecticut.

Argued Dec. 11, 2014.

Decided June 23, 2015.

J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, West Hartford, 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.

Opinion

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 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.

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 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] 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 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.”

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 thereafter called 911 and administered 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...