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

• Decision Date: 05 May 2015
• Docket Number: No. 19160.,19160.
• Citation: 316 Conn. 618,114 A.3d 144
• Court: Connecticut Supreme Court
• Parties: BURR ROAD OPERATING COMPANY II, LLC v. NEW ENGLAND HEALTH CARE EMPLOYEES UNION, DISTRICT 1199.

316 Conn. 618

114 A.3d 144

BURR ROAD OPERATING COMPANY II, LLC

v.NEW ENGLAND HEALTH CARE EMPLOYEES UNION, DISTRICT 1199.

No. 19160.

Supreme Court of Connecticut.

Argued Oct. 20, 2014.

Decided May 5, 2015.

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

Andrea C. Kramer, Boston, MA, for the appellee (plaintiff).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.^*

Opinion

ROBINSON, J.

The sole issue in this certified appeal is whether an arbitration award reducing the termination of an employee of a skilled nursing facility to a one month unpaid suspension, as a consequence for a two day delay by that employee in reporting her suspicion that her supervisor might have abused a resident, violated a clearly discernible public policy against the delayed reporting of suspected abuse of nursing home residents. The defendant, New England Health Care Employees Union, District 1199, appeals, upon our grant of its petition for certification,¹ from the judgment of the Appellate Court reversing the judgment of the trial court granting its application to confirm, and denying the application of the plaintiff, Burr Road Operating Company II, LLC, to vacate an arbitration award that reinstated the grievant, Leoni Spence, to her employment as a certified nursing assistant at a skilled nursing facility operated by the plaintiff. Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 142 Conn.App. 213, 234, 70 A.3d 42 (2013) (Burr Road ). On appeal, the defendant claims that the Appellate Court improperly determined that the arbitration award reinstating the grievant's employment violated Connecticut's clear public policy requiring the prompt reporting of any incident of suspected abuse of a nursing home resident. Having conducted a thorough analysis of the four factors governing whether an arbitration award requiring the reinstatement of a terminated employee violates public policy, we conclude that the award in the present case did not violate this public policy. Accordingly, we reverse the judgment of the Appellate Court.

The opinion of Appellate Court, as supplemented by the record, reveals the following relevant facts and procedural history. The plaintiff operates a 120 bed skilled nursing facility known as the Westport Health Care Center (Westport). Id., at 215, 70 A.3d 42. 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. Id., at 215–16, 70 A.3d 42.

Between 2005 and 2009, the grievant was the subject of three disciplinary actions that have remained part of her personnel file. Id., at 216, 70 A.3d 42. 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. Id. 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. Id., at 216–17, 70 A.3d 42. Finally, in August, 2009, the grievant received a “ ‘[second] and [f]inal’ ”² written warning for addressing a resident disrespectfully and touching that resident without first explaining the procedure involved. Id., at 216, 70 A.3d 42.

The incident that led to the termination of the grievant's employment transpired in March, 2010. Id. The grievant worked the night shift, which runs from 11 p.m. to 7 a.m., from the evening of Saturday, March 20, to the morning of Sunday, March 21. Id. She was assigned to work on Westport's “ ‘Riverside Unit’ ” (Riverside) that night, along with Dezra Leonard, a charge nurse. Id., at 216–17, 70 A.3d 42. Muizulles was working on Westport's “ ‘Woodside Unit’ ” (Woodside) that night, together with Laurel Johnson, another certified nursing assistant. Id., at 217, 70 A.3d 42. Sometime late in the shift, the grievant overheard Johnson telling Leonard about an incident that had transpired that night at Woodside. Id. The grievant understood, from what she had overheard, that a Woodside resident had been crying. Id. The grievant also heard Johnson state something to the effect of, “ ‘[i]f the supervisor wasn't so rude, I would have picked up more residents,’ ” or, “ ‘[t]hat's what [Muizulles] gets, for not calling Kim.’ ”³ Id. When the grievant approached Johnson and Leonard and asked them who had been crying, Leonard did not respond, and Johnson indicated that she would talk with the grievant later. Id. The grievant and Johnson did not, however, have an opportunity to talk further before their shifts ended. Id.

On the basis of the conversation she overheard, the grievant concluded that Muizulles had been involved in an incident in which a resident had been crying. Id. Although the grievant could not be certain, she also believed that the incident might have involved abuse. Id. Before her shift ended, the grievant went to Woodside “ ‘to snoop’ ” around and investigate. Id. The residents were all asleep, however, and no one was crying. Id.

According to the arbitration report, the grievant did not report her suspicions at that time because, in her words, “ ‘I didn't know for sure that there had been abuse.... I wasn't sure what had happened.’ ” There also 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. Burr Road, supra, 142 Conn.App. at 217, 70 A.3d 42.

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. Id. 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. Id. The resident's roommate confirmed that these events had upset the resident, who had cried for some time afterward. Id., at 217–18, 70 A.3d 42.

The grievant realized that this was likely the incident she had overheard Johnson and Leonard discussing during the Saturday night shift. Id., at 218, 70 A.3d 42. 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. Id. 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. Id.

After her shift ended on Tuesday morning, the grievant went home and tried to call a social worker at Westport. Id. 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. Id.

The plaintiff subsequently carried out a thorough investigation of Muizulles' treatment of the resident. Id. Its ultimate conclusion was that Muizulles had acted insensitively, but that her treatment had not risen to the level of resident abuse or neglect. Id. In light of Muizulles' twenty years of employment, with no prior discipline on her record, the plaintiff gave her a five day suspension and a final warning. Id.

During its investigation of Muizulles, the plaintiff also concluded that three staff members—Johnson, the grievant, and the assistant director of nursing, whom the social worker had notified of the suspected abuse—had failed to fulfill their obligations promptly to report Muizulles' possible abuse. Id. Johnson received a final warning and a two day suspension for failing to report a complaint made by a resident regarding possible abuse by another staff member. Id. The assistant director of nursing also was suspended because, after she was informed by the social worker of the possible abuse, the assistant director of nursing failed to notify Westport's director of nursing or another administrator immediately. Id., at 218–19, 70 A.3d 42. There is no indication in the record that Leonard was ever disciplined for her failure to report what Johnson had told her.

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. Id., at 219, 70 A.3d 42. It subjected her to more serious discipline than Muizulles, Johnson, and the assistant director of nursing 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. Id., at 233–34, 70 A.3d 42. “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.

The arbitrator agreed with the plaintiff that the grievant improperly had delayed reporting an incident of suspected resident abuse. Specifically, the arbitrator found that the grievant: (1) was aware, based on training she had received and simple common sense, that she was required to report immediately any information regarding suspected resident abuse to a nursing supervisor or more senior administrator, regardless of the source of that information; (2) came to believe in the early hours on Sunday, March 21,⁴ that Muizulles might have committed resident abuse, but waited more than two days, until her shift ended on...