Burr Rd. Operating Co. v. New England Health Care Emps. Union

• Decision Date: 26 January 2016
• Docket Number: AC 33954
• Court: Connecticut Court of Appeals
• Parties: BURR ROAD OPERATING COMPANY II, LLC v. NEW ENGLAND HEALTH CARE EMPLOYEES UNION, DISTRICT 1199

BURR ROAD OPERATING COMPANY II, LLCv. NEW ENGLAND HEALTH CARE EMPLOYEES UNION, DISTRICT 1199

AC 33954

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 14, 2015

January 26, 2016

DiPentima, C. J., and Beach and Bear, Js.

(Appeal from Superior Court, judicial district of Hartford, Hon. Robert F. Stengel, judge trial referee.)

Jeffrey R. Babbin, with whom, on the brief, was Andrea C. Kramer, for the appellant (plaintiff).

Michael E. Passero, for the appellee (defendant).

Opinion

BEAR, J. This appeal comes to us on remand from our Supreme Court. In Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 142 Conn. App. 213, 214-15, 70 A.3d 42 (2013), rev'd, 316 Conn. 618, 621, 114 A.3d 144 (2015), this court held that an arbitration award "reinstating the grievant, Leoni Spence, who is an employee of the plaintiff, Burr Road Operating Company II, LLC . . . and a member of the defendant, New England Health Care Employees Union, District 1199," violated public policy, and we reversed the trial court's determination to the contrary. Our Supreme Court reversed our decision, holding that the award did not violate public policy. Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 316 Conn. 618, 621, 114 A.3d 144 (2015) (Burr Road). Consequently, the court remanded the case to us with the direction to consider the plaintiff's remaining claim.¹ Id., 651. The sole remaining issue for our consideration is whether the trial court improperly denied the plaintiff's application to vacate the award pursuant to General Statutes § 52-418 (a) (4)² because the arbitrator exceeded his authority. We conclude it did not and accordingly affirm the judgment of the trial court.

The facts relevant to our resolution of the plaintiff's remaining claim, as set forth by our Supreme Court, are as follows. "The plaintiff operates a 120 bed skilled nursing facility known as the Westport Health Care Center (Westport). . . . The grievant was employed there as a certified nursing assistant from 2002 until the termination of her employment in 2010, and is represented by the defendant. . . .

"Between 2005 and 2009, the grievant was the subject of three disciplinary actions that have remained part of her personnel file. . . . In 2005, she received a suspension and final warning after she improperly restrained a resident by using a bed sheet to tie him into his wheelchair. . . . In April, 2009, she received a written warning for speaking to a resident in an inappropriately rude, loud, and scolding manner, and for being insubordinate and disrespectful to her shift supervisor, registered nurse Gay Muizulles. . . . Finally, in August, 2009, the grievant received a [second] and [f]inal written warning for addressing a resident disrespectfully and touching that resident without first explaining the procedure involved." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 621-22.

The particular incident giving rise to the plaintiff's termination of the grievant's employment began on Saturday, March 20, 2010. Id., 622. During a night shift beginning on the evening of March 20 and ending on the morning of March 21 in Westport's Riverside unit(Riverside), the grievant overheard a conversation between two coworkers, Dezra Leonard and Laurel Johnson. Id. "On the basis of the conversation she overheard, the grievant concluded that Muizulles had been involved in an incident [in Westport's Woodside unit (Woodside)] in which a resident had been crying. . . . Although the grievant could not be certain, she also believed that the incident might have involved abuse. . . . Before her shift ended, the grievant went to Woodside to . . . investigate. . . . The residents were all asleep, however, and no one was crying." (Citations omitted.) Id., 622-23. The grievant failed to report her suspicions immediately, because, as found by the arbitrator, "[she] didn't know for sure that there had been abuse . . . ." (Internal quotation marks omitted.) Id., 623. Further, "[t]here . . . is no indication that she pursued the matter the following night shift, from Sunday, March 21, to Monday, March 22, when she again worked on Riverside with Muizulles." Id.

"The first shift that the grievant worked on Woodside after the suspected incident was the next night, from Monday, March 22, to Tuesday, March 23. . . . During that shift, she had occasion to speak with a resident of Woodside, who told the grievant that, on the previous Saturday night, Muizulles had been somewhat rough while helping her get her legs up onto her bed, had spoken gruffly, and had turned down the television without asking permission. . . . The resident's roommate confirmed that these events had upset the resident, who had cried for some time afterward. . . .

"The grievant realized that this was likely the incident she had overheard Johnson and Leonard discussing during the Saturday night shift. . . . The grievant comforted the resident, explained to her that she should not have been subjected to such treatment, and informed her that she should feel comfortable reporting it. . . . The grievant suggested that she could arrange for someone to come and speak to the resident about what had happened to her, and the resident agreed." (Citations omitted.) Id., 623. Subsequently, "[a]fter her shift ended on Tuesday morning, the grievant went home and tried to call a social worker at Westport. . . . The social worker was not available, however, so the grievant left her three lengthy voice mail messages reporting what the resident had told her and urging the social worker to talk to the resident." (Citation omitted.) Id., 624.

After "a thorough investigation of Muizulles' treatment of the resident," the plaintiff determined that, although insensitive, her treatment did not rise to the level of abuse or neglect and gave her a five day suspension and a final warning. Id., 624. During this investigation, "the plaintiff also concluded that three staff members . . . [one of whom was] the grievant . . . had failed to fulfill their obligations promptly to reportMuizulles' possible abuse." Id. Johnson received a suspension and a final warning, and the other staff member received a suspension. Id. "There is no indication in the record that Leonard was ever disciplined for her failure to report what Johnson had told her." Id.

"By contrast, the plaintiff terminated the grievant's employment on the ground that she had failed to make a timely report of an allegation of resident abuse. . . . It subjected her to more serious discipline than Muizulles, Johnson, and the [other staff member] because, unlike those employees, the grievant already had a final warning in her employee file. Prior to terminating the grievant's employment, the plaintiff never informed her that she was under investigation, nor afforded her any opportunity to tell her side of the story or to explain or to clarify why she did not immediately report her suspicions after her shift had ended on Sunday morning. . . . 'This most rudimentary due process,' the arbitrator remarked, 'was not afforded to the grievant.'

"The grievant grieved her termination, and the defendant took the termination to arbitration pursuant to the collective bargaining agreement between the parties. The parties asked the arbitrator to determine: (1) whether the grievant had been terminated for just cause; and (2) if not, what the remedy should be." (Citations omitted.) Id., 624-25.

The arbitrator determined that "the grievant improperly had delayed reporting an incident of suspected resident abuse" and, thus, "was guilty of the offense of failing to timely report to a nursing supervisor (or higher authority) the information that had come into her possession . . . ." (Internal quotation marks omitted.) Id., 625-26. In evaluating whether just cause existed to terminate the grievant's employment for her failure to timely report, the arbitrator considered a health care provider's statutory duty to report suspected abuse³ and the potential harms that could arise if an employee delays reporting, ultimately "credit[ing] the plaintiff's argument that a delay in reporting is almost as bad as not reporting at all." (Internal quotation marks omitted.) Id., 626. "The arbitrator also concluded, however, that it was 'an important mitigating fact that the grievant was the one who actually came forward, although belatedly, and made [the plaintiff] aware of the problem. If the grievant had not come forward on March 23, it is quite likely that [the plaintiff] never would have learned of the insensitive treatment given by Muizulles, nor of the failure to report by multiple staff members. It is important to recognize that contribution which the grievant made, then, albeit belatedly, to help assure the well-being of the residents . . . .' For that reason, the arbitrator recognized that 'the grievant's misconduct arguably was much less egregious than the misconduct of the others involved,' who 'apparently had no intention of making any report.' "Ultimately, the arbitrator found as follows: 'The grievant did fail to make a timely report of what she had learned on March 20. She knew the rule that she had to report, and to do so without delay. She failed to fulfill that responsibility in a timely manner. And, she had a poor disciplinary record, so that placed her in a worse position than the other staff members involved . . . . On the other hand, there is the significant mitigating factor that it was the grievant, not the others, who did come forward and report to [the plaintiff], although belatedly; and it was her reporting [that] allowed [the plaintiff] to take corrective actions.' . . . Accordingly, the arbitrator concluded that the plaintiff lacked just cause to terminate the grievant's employment. Instead, the arbitrator interpreted the parties' collective bargaining agreement to mean that 'severe disciplinary action...