O'Rourke v. Dep't of Labor

• Decision Date: 01 March 2022
• Docket Number: AC 43519
• Parties: Joan O'ROURKE v. DEPARTMENT OF LABOR et al.
• Court: Connecticut Court of Appeals

210 Conn.App. 836

271 A.3d 700

Joan O'ROURKE

v.DEPARTMENT OF LABOR et al.

AC 43519

Appellate Court of Connecticut.

Argued December 1, 2021

Officially released March 1, 2022

Austin Berescik-Johns, for the appellant (plaintiff).

Frank N. Cassetta, general counsel, with whom was J. Brian Meskill, assistant general counsel, for the appellee (named defendant).

Richard T. Sponzo, assistant attorney general, for the appellee (defendant Department of Children and Families).

Anthony J. Bento, for the appellee (defendant AFSCME, AFL-CIO, Council 4, Local 2663).

Alvord, Prescott and DiPentima, Js.

PRESCOTT, J.

In this administrative appeal, the plaintiff, Joan O'Rourke, appeals from the decision of the Superior Court, affirming the dismissal of her hybrid action¹ against the defendant AFSCME, AFL-CIO, Council 4, Local 2663 (union) and the defendant Department of Children and Families (department) by the Department of Labor, State Board of Labor Relations (board), a codefendant in this case. Following the termination of the plaintiff's employment with the department, the union filed a grievance on her behalf and represented her in an arbitration proceeding. After the arbitrator determined that the department had just cause to terminate the plaintiff's employment, the plaintiff filed a complaint with the board and, ultimately, appealed the decision of the board to the Superior Court. On appeal, the plaintiff claims that the Superior Court improperly determined that substantial evidence supported the findings of the board and that the board reasonably concluded that the plaintiff had failed to establish that the union breached its duty of fair representation. The plaintiff specifically contends that the union breached its duty of fair representation because it failed to make two particular legal arguments to the arbitrator. We affirm the decision of the Superior Court.

The following facts, which the board found, and procedural history are relevant to our resolution of the present appeal. The union represents a bargaining unit composed of department employees, including social workers and social work supervisors. In 2004, the department hired the plaintiff as a social work trainee and, in 2006, promoted her to the position of full-time social worker.

In 2009, the plaintiff became an investigative social worker for the department.² In this position, the plaintiff investigated allegations of child abuse and neglect to determine whether there was evidence to substantiate the allegations. Generally, after being assigned a case, the plaintiff would review the family's prior history with the department, conduct home visits, review relevant records, and conduct interviews with individuals, including the children, their parents, other family members, witnesses, health care providers, counselors, school staff, and law enforcement officials. The plaintiff would document her investigation and her conclusions concerning the safety of the children in a draft investigative report.³ Once she completed her investigation, the plaintiff would submit electronically her draft investigative report to her supervisor for approval. If her supervisor determined that the investigative report required additional information, the supervisor either would add the additional information or request that the plaintiff make the necessary changes.

In March, 2011, Sandra Fitzpatrick, a social work supervisor for the department, became the immediate supervisor of the plaintiff. In the following two months, the department received reports that alleged that a mother of two children was neglecting them. Specifically, according to the allegations, the mother had refused to take her son to outpatient therapy sessions or to have her son evaluated by a psychiatrist, which evaluation the son needed in order to attend school. Further, the mother allegedly had prevented her daughter from attending school. Fitzpatrick assigned the plaintiff to investigate the allegations, and, following the completion of her investigation, the plaintiff submitted to Fitzpatrick a thirty page, draft investigative report.

In the draft report, the plaintiff concluded that the allegation of educational neglect of the son was not substantiated.⁴ According to the plaintiff, a school psychologist who had examined the son determined that " ‘[the son] [wa]s [psychotic] because he [was] hear[ing] voices,’ " but a clinician who had evaluated the son did not observe that the son had experienced any such auditory hallucinations. According to the plaintiff, after the son was hospitalized in connection with concerns about his mental health, administrators from his school would not allow him to return to school until he underwent a psychiatric evaluation. The plaintiff reported that, although the son had not received a psychiatric evaluation and, thus, had not returned to school, the school nonetheless had excused his absences. She thus determined that the mother and the school administrators simply were "at odds" with respect to the needs of the son. The plaintiff recommended that the case be transferred to another unit within the department and that further support be provided to the family.

Fitzpatrick reviewed the draft investigative report and disagreed with various parts of it. For example, Fitzpatrick contended that a clinician , not school administrators, recommended that the son be evaluated by a psychiatrist before returning to school. Fitzpatrick made changes to the draft investigative report to address her concerns, including removing a reference to the fact that the clinician who had evaluated the son did not observe that the child was "hear[ing] voices" and editing the report to reflect that the clinician , not school administrators, had directed that the son be evaluated by a psychiatrist before he returned to school. Fitzpatrick also added that the clinician had "wanted to admit" the son to the hospital but that his "mother [had] refused," notwithstanding the fact that the son was "hearing voices and ... [expressed] at [the] hospital that he wanted to kill himself ...." The final version of the report incorporated the changes that Fitzpatrick had made. Fitzpatrick subsequently removed the plaintiff from investigating the case and reassigned the case to another social worker.

In light of the information in the final investigative report, the department filed an application for an ex parte order of temporary custody (OTC) of both children. When the plaintiff became aware that the department had filed the application for an OTC, she felt "troubled ...." The plaintiff believed that the final investigative report and the documents related to the application, both of which she had reviewed, contained false and misleading information that did not represent accurately the circumstances surrounding the family. The plaintiff submitted a complaint to Vannessa Dorantes, an office director for the department, in which the plaintiff insisted that Fitzpatrick had removed "exculpatory information" or, in her words, information " ‘that ... tend[ed] to [demonstrate] the innocence of’ " the mother, which the plaintiff intentionally had included in the draft investigative report. The plaintiff contended that the documents that the department filed in conjunction with its application for an OTC likewise omitted the "exculpatory" information that she had included in the draft investigative report. The plaintiff maintained that Fitzpatrick had mishandled the investigation and had mischaracterized the facts of the case in the final investigative report.

The plaintiff also sent a copy of her draft investigative report to assistant attorney general Cynthia Mahon, who represented the department in the proceedings on the application for an OTC. Mahon compared the draft and final investigative reports, ultimately disagreed with the plaintiff that the final investigative report omitted " ‘salient exculpatory information’ " that the plaintiff had included in the draft investigative report, and concluded that the final investigative report correctly represented the relevant facts of the case. The department then proceeded with its filing of an application for an ex parte OTC of the children.

On June 23, 2011, without notifying or obtaining permission from the department, the plaintiff sent a copy of the confidential,⁵ draft investigative report to the attorney who represented the mother in the OTC proceedings. At a hearing concerning the application for an OTC that same day, counsel for the mother brought the draft investigative report to the attention of the court, and the department agreed to withdraw the application for an OTC of the daughter,⁶ so long as the mother abided by certain conditions, including bringing her daughter to therapy sessions. On the following day, however, the department filed a second application for an OTC of the daughter after the department received allegations of sexual abuse of the daughter.

Tyrone Mellon, a principal human resources specialist for the department, subsequently initiated an investigation of the plaintiff regarding her disclosure of the confidential, draft investigative report. As part of his investigation, Mellon searched the plaintiff's work computer and her e-mail communications. He uncovered that, between March, 2006, and September, 2010, the plaintiff had sent nine e-mails, which contained confidential department information, to her then husband, who was not an employee of the department. Additionally, the department received a report that, in May, 2011, the plaintiff had left a five year old child unattended in a car while transporting children to foster homes on behalf of the department. The plaintiff admitted to Mellon that she had sent the draft investigative report to counsel for the mother without authorization from the department, e-mailed confidential information to a nonemployee on nine occasions, and left the five year old child unattended in a car. At the...