State v. Conn. Emps. Union Indep.

• Decision Date: 30 August 2016
• Docket Number: No. 19590.,19590.
• Citation: 142 A.3d 1122,322 Conn. 713
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. CONNECTICUT EMPLOYEES UNION INDEPENDENT et al.

322 Conn. 713

142 A.3d 1122

STATE of Connecticut

v.CONNECTICUT EMPLOYEES UNION INDEPENDENT et al.

No. 19590.

Supreme Court of Connecticut.

Argued March 31, 2016.

Decided Aug. 30, 2016.

Barbara J. Collins, Hartford, for the appellant (named defendant).

Gregory T. D'Auria, solicitor general, with whom were Thomas P. Clifford III, assistant attorney general, and, on the brief, George C. Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (plaintiff).

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

ROGERS

, C.J.

This case presents the question of whether the public policy of Connecticut demands no less than termination of employment as the only appropriate disciplinary response when a state employee is caught smoking marijuana during his working hours. The defendant,¹ Connecticut Employees Union Independent, appeals² from the judgment of the trial court rendered following the court's denial of the defendant's motion to confirm an arbitration award that reinstated Gregory Linhoff, a union member (grievant), to his employment at the University of Connecticut Health Center (health center). The court denied the defendant's motion to confirm and granted a motion to vacate the award filed by the plaintiff, the state of Connecticut, after concluding that the award, which imposed a number of sanctions and conditions short of termination, violated public policy. We disagree that the arbitrator's award, which imposed an unpaid suspension, last chance status and random drug testing, clearly violated an explicit, well-defined and dominant public policy and, therefore, reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. At the time of the incident in question, the grievant had been employed by the state for approximately fifteen years and had not been subject to any previous discipline. His performance evaluations had ranged from “satisfactory” to “excellent.” On March 7, 2012, while working, as he had for the previous eleven years, the 4 p.m. to midnight shift as a “skilled maintainer”³ at the health center, he was caught smoking marijuana.

Specifically, at about 5:50 p.m., a health center police officer observed the grievant and a coworker sitting in a state van parked in a secluded area of the health center campus, after the officer was apprised of a confidential informant's report that the grievant and his coworker were suspected of using marijuana at work. As the officer approached the van, he observed the grievant sitting in the passenger seat with the door open, smoking from a glass pipe. When the officer asked the grievant what he was doing, he initially responded that he was “just fucking off,” but then acknowledged that he was smoking marijuana. He also surrendered two bags of marijuana that he had in his possession, which together weighed about three quarters of one ounce. The grievant was arrested and provided a statement to police in which he identified the individual from whom he had purchased the marijuana. The criminal charges against the grievant subsequently were dismissed.

On June 22, 2012, as a result of the foregoing incident, the plaintiff terminated the grievant's employment. In a letter of termination sent to the grievant, Karen Duffy Wallace, the plaintiff's director of labor relations, explained that the grievant had violated the health center's rules of conduct,⁴ alcohol abuse and drug-free workplace policy,⁵ and smoke-free workplace policy, and that the incident was considered to be serious. Wallace noted further the unsupervised nature of the grievant's position and the fact that he had access to all areas of the health center, and she opined that the grievant no longer could be trusted to perform his duties in an acceptable manner.

The defendant contested the grievant's termination and, on December 19, 2013, pursuant to a grievance procedure provision in the parties' collective bargaining agreement, an arbitration hearing was held to determine the issues of whether: (1) the dismissal of the grievant was for just cause; and (2) if not, what should be the remedy, consistent with the agreement. Wallace testified at the hearing, explaining that, when she decided to terminate the grievant's employment, she took into account the nature of the violation and the fact that the grievant was smoking marijuana in a state vehicle on state property, during the earlier part of his work shift. She explained further that a person in the grievant's position had keys and access to most of the health center campus, including the day care center, research laboratories and the hospital. In Wallace's view, a person such as the grievant could not be trusted to work independently on the evening shift.

The grievant testified in his defense. He explained, with some detail, how he had brought his marijuana to work inadvertently, and how, when he and his coworker were presented with about ten minutes of time “to kill” between working assignments, they decided to park in the secluded area where the police officer had discovered them. According to the grievant, when he realized that a glass pipe in his possession was “smelly,” he decided to smoke the residue in the pipe to eliminate the odor, and at that point was caught by the officer.

The grievant explained further that he recently had experienced stressful life events, namely, a cancer

scare and marital problems, leading to anxiety from which he sought relief by smoking marijuana. He claimed that he had not smoked marijuana at work prior to the incident in question. The grievant testified that, following the incident, he went to an employee assistance program and sought treatment, which he regarded as successful. He testified further that, a few days prior to the incident, he had had his first therapy appointment at the Connecticut Anxiety and Depression Treatment Center. At that appointment, he was diagnosed with anxiety and depression, and scheduled another appointment with a psychiatrist to address his conditions.

The arbitrator concluded that the plaintiff had met its burden of establishing that the grievant had engaged in misconduct, namely, possessing and smoking marijuana while at work. Moreover, in the arbitrator's view, the grievant's explanations as to why he had marijuana at work, and why he had decided to smoke from his pipe, were disingenuous. Contrary to the grievant's testimony, the arbitrator opined, the grievant deliberately had taken the marijuana to work so that he could smoke it when the occasion arose.

The arbitrator concluded, however, that under the circumstances, termination of the grievant's employment did not correspond with the notion of just cause. He cited the plaintiff's rules, including its drug-free workplace policy, which permitted termination for violations but did not mandate it, as well as the grievant's previous, positive work record and the nature of the offense. The arbitrator also reasoned that the grievant's pursuit of therapy for anxiety and depression, prior to the incident, evidenced some level of self-awareness, and that the reality of his dismissal, his ineligibility for unemployment benefits and the subsequent arbitration proceedings had impressed upon him the seriousness of his offense. In the arbitrator's view, although the grievant's job duties raised some safety and security issues, the grievant “did not engage in such a breach of trust or show such lack of character that his return to the workplace would create a danger to persons or property nor [did his actions] prohibit his return to work as a satisfactory and productive employee.” Citing the principle of progressive discipline as a vital component of just cause that provides a path to rehabilitation under appropriate circumstances, the arbitrator concluded that termination was unwarranted. In short, the arbitrator rejected the plaintiff's contention that complete termination of the grievant's employment was the only appropriate penalty for his misconduct.

The arbitrator, nevertheless, imposed a significant penalty for the grievant's substantial misconduct. The grievant was suspended for a period of six months, without pay, to run from the effective date of his earlier removal from the payroll.⁶ The arbitrator ordered additionally that the grievant, upon his return to work, be subject to random drug and alcohol testing for a one year period, at the plaintiff's discretion, and that the grievant “should consider his return to work to be in a ‘last chance’ context so that any future violation of the [plaintiff's] policies that were applicable in [the arbitration] proceeding would warrant his immediate dismissal.”

Thereafter, the plaintiff filed an application to vacate the arbitrator's award, and the defendant filed a cross application to confirm that award. See General Statutes §§ 52–417

and 52–418. In its application to vacate, the plaintiff contended, inter alia, that the arbitrator's award violated public policy due to the serious nature of the grievant's misconduct. The defendant disputed that contention. In an October 6, 2014 memorandum of decision, the trial court agreed that there was a well-defined public policy against the use of marijuana and, furthermore, that the arbitrator's award violated that policy. Specifically, the court reasoned, the grievant purposefully had used marijuana at work, raising safety and security concerns, and to reinstate him under those circumstances would send an improper message that personal stress somehow excused his misconduct.⁷ The court granted the plaintiff's application to vacate the award and denied the defendant's application to confirm the award. This appeal followed.

We begin with the well established standard of review. “Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an...