Burr Rd. Operating Co. II v. New England Health Care Emps. Union, Dist. 1199

• Decision Date: 30 April 2013
• Docket Number: No. 33954.,33954.
• Citation: 142 Conn.App. 213,70 A.3d 42
• Court: Connecticut Court of Appeals
• Parties: BURR ROAD OPERATING COMPANY II, LLC v. NEW ENGLAND HEALTH CARE EMPLOYEES UNION, DISTRICT 1199.

142 Conn.App. 213

70 A.3d 42

BURR ROAD OPERATING COMPANY II, LLC

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

No. 33954.

Appellate Court of Connecticut.

Argued Oct. 18, 2012.

Decided April 30, 2013.

Andrea C. Kramer, for the appellant (plaintiff).

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

DiPENTIMA, C.J., and BEAR and BORDEN, Js.

BORDEN, J.

The dispositive issue of this appeal is whether the award of the arbitrator reinstating the grievant, Leoni Spence, who is an employee of the plaintiff, Burr Road Operating Company II, LLC, operating as Westport Health Care Center, and a member of the defendant, New England Health Care Employees Union, District 1199, violates public policy and, therefore, must be vacated. We conclude that the award does violate public policy and, accordingly, we reverse the determination of the trial court to the contrary.

The plaintiff terminated the employment of the grievant. The defendant took the termination to arbitration. The arbitrator found that there was just cause only to suspend the grievant for one month, not to discharge her. Accordingly, the arbitrator ordered that she be reinstated with back pay and lost benefits, less the one month period during which she was suspended from work, and that she be issued a final warning. The plaintiff filed with the trial court an application to vacate the award, and the defendant filed a cross application to confirm the award. The court denied the application to vacate the award, granted the cross application to confirm the award and rendered judgment accordingly. This appeal by the plaintiff followed.

The plaintiff claims that the court improperly denied the application to vacate and granted the cross application to confirm for two reasons: (1) the award violates public policy, and (2) the arbitrator exceeded his authority. We agree with the plaintiff's first claim. Therefore, it is not necessary to reach its second claim.

The arbitrator was asked to answer two questions on the basis of the collective bargaining agreement between the plaintiff and the defendant: “Was [the grievant's employment] terminated for just cause? If not, what shall the remedy be?” After a hearing, the arbitrator found the following facts.

The plaintiff is a 120 bed, skilled nursing facility located in 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.

The events leading to the termination of the grievant's employment occurred between March 20 and 24, 2010. Prior to that time, the grievant had received a number of disciplinary actions that remained as part of her personnel file. In 2005, her employment was terminated after she improperly restrained a resident by using a bedsheet to tie him into his wheelchair. That termination was reduced to a suspension and final warning by agreement between the plaintiff and the defendant. Because that disciplinary action resulted from an incident of patient abuse, that suspension and final warning properly was retained in the grievant's personnel file indefinitely.¹ In April, 2009, the grievant received a written warning for speaking in an inappropriately rude, loud and scolding manner to a resident, and for being insubordinate and disrespectful to her shift supervisor. That written warning was challenged by the grievant and the matter proceeded to arbitration, where it was upheld as having been imposed for just cause. In August, 2009, the grievant received a “2nd and Final Written Warning” for having been disrespectful in addressing a resident and touching the resident without explaining the procedure that the grievant would be applying to the resident. The grievant did not file a union grievance with respect to that warning.

The incident that led to the termination of the grievant's employment occurred between March 20 and 24, 2010. The grievant worked the night shift from 11 p.m. on Saturday, March 20, until 7 a.m. on Sunday, March 21. She was assigned to work on the “Riverside Unit,” along with charge nurse Dezra Leonard. The shift supervisor, registered nurse Gay Muizulles, and another certified nursing assistant, Laurel Johnson, were working on the “Woodside Unit.” At some point during the night shift, Johnson came over from Woodside to Riverside and had a conversation with Leonard. Although the grievant was not a participant in this conversation, from where she was working in a resident's room she overheard part of the conversation, namely, Johnson talking about a resident on Woodside who had been crying. The grievant further overheard Johnson state to Leonard 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 Gay (Muizulles, the shift supervisor) gets, for not calling Kim.” The grievant came out into the hall and asked who had been crying. Leonard did not respond. The grievant asked Johnson, who replied that she would talk with the grievant later. Both the grievant and Johnson, however, were busy and did not have the opportunity to talk further before their shifts ended.

From what the grievant had overheard, her sense was that “[i]t could have been abuse, but I was not sure.” She knew that Muizulles was involved and that a patient had been crying. Before her shift ended, the grievant went over to Woodside “to snoop” around to see who was crying. The residents were all asleep, however, and no one was crying.

The grievant next worked from 11 p.m. on Sunday to 7 a.m. on Monday, again with Muizulles as the shift supervisor. She then worked again on the Monday night to Tuesday morning shift, this time on Woodside.During that shift, she spoke to a resident, CJ, who told her that, on the previous Saturday night, Muizulles had been somewhat rough as she helped CJ in getting her legs up onto her bed, had spoken gruffly to CJ and had turned down the television without asking CJ's permission. CJ's roommate confirmed that this had upset CJ, who had cried for some time after the incident. The grievant realized that this likely was the incident of a crying resident about which she had overheard on the Saturday night shift. The grievant comforted CJ, explained to her that she should not have been subjected to such treatment and that she should feel comfortable about reporting it. The grievant suggested that she could arrange for someone to come and speak to CJ about what had happened to her, and CJ agreed.

The grievant went home, and then telephoned in to speak with the social worker at the facility to report what CJ had told her. The social worker was not in, but the grievant left a message in the social worker's voice mail box, and during the course of the day she left three separate, lengthy recorded messages for the social worker, reporting what CJ had told her and urging the social worker to talk to CJ in order to hear CJ's concerns directly from CJ.

The arbitrator also found that the plaintiff carried out a very thorough investigation of the possibility of patient abuse by Muizulles in her treatment of CJ. The ultimate conclusion was that Muizulles had acted insensitively toward CJ, but that the insensitivity had not risen to the level of abuse or neglect. Given Muizulles' twenty years of employment with the plaintiff with no prior discipline on her record, the plaintiff gave her a five day suspension and final warning. It was during that investigation regarding Muizulles' conduct that the plaintiff obtained the information that led it to conclude that three other staff members—Johnson, the assistant director of nursing, and the grievant—had failed to fulfill their obligation promptly to report possible abuse by Muizulles. Johnson was issued 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. The assistant director of nursing was suspended because, once she was informed by the social worker of the possible abuse of CJ, she failed immediately to notify the director of nursing or the administrator of the plaintiff's facility. Although the assistant nursing director initiated an investigation, she failed to inform her superiors immediately as required by policy.

Regarding the grievant, the plaintiff reached the following conclusions: “[The grievant] had a final warning in her employee file and termination was appropriate. [She] stated that she was concerned about overhearing another employee discuss a resident who was crying after receiving assistance from another employee. Although [the grievant] stated she overheard this information, she did not report it until Tuesday, March 23, in which [she] left a voice message for the social worker. According to [the grievant], what she heard on Saturday, March 20, bothered her to the point where she felt she needed to go to the other side [Woodside] to investigate however, towards the end of the shift and the resident was found sleeping at that time. [The grievant] worked the 11–7 shift on Monday, March 22 and was assigned to the unit of the resident in question. [The grievant] states that the resident told her what happened on [Saturday] and [the grievant] stated that she told the resident that it was not right.... Given this course of events, it would appear that the grievant failed to report an allegation of abuse timely.” ²

The arbitrator further found that the record clearly and convincingly established that the grievant learned, on the March 20–21 night shift, that Muizulles may have committed resident abuse in her treatment of a patient that night. The grievant's own state of mind from what she overheard was, “[i]t could have been abuse, but I was not sure.” She was concerned enough about what had happened that she went over to Woodside to see if she could figure out what had happened. Yet, she went home without reporting the information that had come into her...