Summary
finding that arbitrator did not exceed authority in determining off duty conduct was just cause to terminate employee when, inter alia, "collective bargaining agreement did not ... limit just cause for dismissal to conduct on the job"
Summary of this case from Burr Rd. Operating Co. II, LLC v. New Eng. Health Care Emps. UnionOpinion
No. 19166.
06-23-2015
AFSCME, COUNCIL 4, LOCAL 2663 v. DEPARTMENT OF CHILDREN AND FAMILIES et al.
J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, West Hartford, for the appellant (plaintiff). Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant).
J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, West Hartford, for the appellant (plaintiff).
Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ROBINSON, Js.
Opinion
McDONALD, J.A broadly phrased, unrestricted submission to arbitration may yield unanticipated results, as this case aptly demonstrates. In the underlying arbitration proceeding, the arbitrator found that the named defendant, the Department of Children and Families (department), had failed to establish that a department employee, Suzanne Listro, had inflicted the fatal abuse on her foster child that the department claimed provided just cause for termination of her employment. The arbitrator nonetheless found that Listro's own version of events demonstrated negligence that established just cause for termination. In this certified appeal, Listro's union, the plaintiff, AFSCME, Council 4, Local 2663 (union), appeals from the judgment of the Appellate Court reversing the trial court's judgment granting the union's application to vacate the arbitration award. The union claims that vacatur of the arbitration award was proper because the arbitrator exceeded her authority and violated the employee's contractual and due process rights to notice by relying on a different theory than the one advanced by the department. Upon application of the requisite limited scope of review of arbitration awards, we conclude that the award conformed to the parties' unrestricted submission and drew its essence from the terms of the parties' collective bargaining agreement. We further conclude that notice requirements were satisfied. Accordingly, we affirm the judgment of the Appellate Court.
The State Board of Labor Relations and the Office of the Attorney General were also named as defendants, but they are not parties to this appeal.
This case arises in the context of the following facts, as found by the arbitrator, and procedural history. The union is the collective bargaining unit for the department's social workers. At the time of the incident at issue, Listro had been employed as a social worker by the department for twelve of the preceding fifteen years, having served in various capacities, including as a case worker, hot line worker, and child services consultant. In 2008, she was working in the department's mentor program, where she was responsible for recruiting community volunteers to mentor adolescent girls living in state facilities and for running programs for mentors and mentees.
On May 12, 2008, Listro became the foster parent of a seven month old boy, M, after he had been returned to the department by another foster family who claimed that he was inconsolable and too fussy for them to handle. One week later, Listro called 911 reporting that M was limp and unresponsive. Emergency responders took M to the hospital, where he was later pronounced dead. Shortly thereafter, Listro gave a statement to police indicating that M had fallen off her bed onto the floor immediately before he became unresponsive.
We identify the foster child involved in this appeal only by his first initial.
A state medical examiner issued an autopsy report wherein he concluded that M's cause of death was blunt traumatic head injury and the means of death was homicide. According to the medical examiner, the physical signs found on M's body were not consistent with death from a fall, but rather a condition commonly known as shaken baby syndrome. This diagnosis was evidenced by the fact that M's retinas had hemorrhaged. The medical examiner also determined that, if M had hit his head, the autopsy should have revealed pooled blood under his scalp, but no such pooling had been found. As a result of the medical examiner's report, Listro was arrested and charged with manslaughter in the first degree; General Statutes § 53a–55 ; and risk of injury to a child. General Statutes § 53–21.
The department took two actions in response to these events. First, the department's special investigations unit concluded that a charge of abuse and/or neglect had been substantiated and recommended Listro's placement on the department's central registry of persons deemed to pose a risk to the safety and well-being of children (central registry). See General Statutes § 17a–101g ; see also General Statutes § 17a–101k. Listro chose not to challenge that decision in an administrative hearing because her attorney advised her not to provide testimony in another forum while her criminal charges were pending.
Second, the department opened a human resources investigation to determine whether employment discipline was warranted in light of these events. In connection with this action, which is the subject of the present appeal, the department sent Listro a letter informing her that an investigatory meeting was set to “discuss [her] serious off-duty misconduct that has [led] to [her] arrest” and that “[t]he maximum level of discipline ... being considered is dismissal.” At the investigatory interview, on advice of counsel, Listro declined to answer any questions about the incident while her criminal charges were pending. At the conclusion of the investigatory interview, the department provided Listro with an opportunity to make a statement regarding the incident at issue, in accordance with the dictates of Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), but, again, on advice of counsel, Listro declined to do so.
“[A] tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story” before termination. Board of Education v. Loudermill, supra, 470 U.S. at 546, 105 S.Ct. 1487. The opportunity to present one's “side of the story” is generally referred to as a Loudermill hearing.
Following the Loudermill hearing, the department sent Listro a letter notifying her that it was dismissing her for just cause in accordance with the collective bargaining agreement and administrative regulations. The letter indicated that “this action is taken immediately due to your serious misconduct which affects the public, the safety and welfare of our clients,” and cited as pertinent facts that: “[o]n May 19, 2008, [M] died while in [Listro's] care”; Listro's arrest warrant “indicates that [Listro] provided a statement reporting that the child had fallen from the bed when [Listro] left him unattended”; and the medical examiner had deemed the injury to M inconsistent with a fall. The letter stated that Listro's actions violated § 5–240–1a (c)(4) and (13) of the Regulations of Connecticut State Agencies, respectively, “[o]ffensive or abusive conduct toward the public, co-workers, or inmates, patients or clients of [s]tate institutions or facilities” and “[e]ngaging in any activity which is detrimental to the best interests of the agency or of the state.”Listro was later acquitted of the criminal charges, but a civil action was filed against Listro and the department by M's biological parents.
The union filed a grievance on Listro's behalf, challenging her termination, after which the parties proceeded to arbitration. The union and the department stipulated to the submission of the following issues to the arbitrator: (1) “Did the [department] have just cause to dismiss ... Listro?” and (2) “If not, what shall be the remedy consistent with the terms of the collective bargaining agreement?” In the arbitration proceeding, the department proceeded on the theory that Listro had inflicted the fatal injuries on M. It relied principally on the testimony of the medical examiner, Listro's arrest affidavit, and Listro's placement on the department's central registry to establish just cause for her termination.
The arbitrator concluded that Listro's placement on the department's central registry had been done in violation of her right to due process, in part because the department had not informed her that, under department policy, she would be entitled to seek a delay of proceedings challenging the department's decision to place her on the central registry pending resolution of her criminal charges. The arbitrator ultimately disregarded the department's reliance on Listro's central registry status and found just cause for other reasons. This due process issue is not before this court.
Listro testified before the arbitrator to offer her account of the circumstances leading to M's death. According to her testimony, on the evening of May 19, 2008, Listro placed M on the corner of her king-size bed while she changed his diaper. After she finished changing his diaper, Listro turned around and stepped away to shut off the television and the videocassette recorder (VCR) located on the wall opposite the bed. While her back was turned, she heard a thud and turned around to see that M had fallen off the bed and onto the linoleum tiled floor. M started to cry and, after Listro picked him up, he became limp and unresponsive. She thereafter called 911 and administered rescue breaths while she awaited the ambulance.
Relying on Listro's testimony, the union argued that the department had failed to prove that Listro caused M's death and therefore that it had just cause to terminate her. It conceded that Listro's testimony and the autopsy findings were inconsistent, but argued that the fact that M's death had been caused by shaken baby syndrome did not necessarily suggest that a crime had been committed or, if one had been, that Listro was the perpetrator. The union pointed to the fact that other individuals had the opportunity to injure M and that the state failed to provide medical testimony regarding the window of time in which the fatal injuries may have occurred. The union also argued that there was no nexus between the incident at issue and Listro's role as a mentor for adolescents to justify termination. The union asserted that Listro's discharge was merely a political response to protect the department from liability.
The department, however, maintained that it had the right to discipline Listro for off duty misconduct and that her misconduct constituted just cause for termination. The department contended that the nexus to Listro's job was established by the connection between Listro's misconduct and the department's mission to protect children. With respect to just cause, the department argued that Listro's acquittal of the criminal charges was irrelevant in light of the different burdens of proof in the two forums and that Listro's account was not credible in light of the medical evidence.
The arbitrator issued a lengthy memorandum of decision, wherein she denied Listro's grievance. The arbitrator first agreed with the department that Listro's off duty conduct could provide a proper basis for discipline, but she disagreed that the department had produced sufficient evidence in support of its theory that Listro caused M's fatal injuries. With respect to a nexus between Listro's off duty conduct and her job responsibilities, the arbitrator pointed to the fact that “[the department] in general and social workers in particular are charged with the safety of children in their care; an employee's actions off the job ... cannot be divorced from that responsibility and the public trust necessary to accomplish the [d]epartment's task.” With respect to the department's theory of the case, the arbitrator found that the department did not “carry its burden of establishing that ... Listro committed the fatal abuse of which she was accused.” The arbitrator noted that the department had failed to establish that no other person could have committed the abuse, for instance, M's biological parents or his prior foster family. The arbitrator recognized that the medical evidence “conclusively establishe[d] that M was a victim of shaken baby syndrome,” but she explained: “If M fell as asserted by ... Listro ... nothing in the record establishes that such a fall could not have been the proverbial ‘last straw’ for earlier traumatic injuries. Although the autopsy revealed no external bruising, there is also no evidence that a fall from two feet would cause such bruising in a seven month old baby. Moreover, there was no evidence regarding how much time could elapse between a severe shaking and such a fall in order for the fall to result in death shortly thereafter.”(Footnote omitted.) The arbitrator opined: “As with many tragic events, it is more than likely that the true story will never be known by anyone other than ... Listro.”
Despite rejecting the department's theory, the arbitrator went on to explain: “[Listro's] problems do not end there, however. Even if we accept her story in its totality, there is no doubt that she was negligent in her care of M: her inattention permitted him to fall from the bed that night. Although this represents a lapse in judgment with which many parents are familiar ... Listro's moment of negligence had unusually serious consequences, the death of a child.... Unfortunately, as an employee of a public welfare agency, her employment status is a further casualty of that event. Given the totality of the circumstances, I conclude that [Listro's] actions—despite being off duty—made her unemployable by the government agency responsible for the care and welfare of children.” The arbitrator therefore issued an award concluding that there was just cause for Listro's termination.
The union thereafter filed an application in the Superior Court seeking to vacate the arbitrator's award pursuant to General Statutes § 52–418(a)(4), and the department filed a cross application to confirm the award pursuant to General Statutes § 52–417. The trial court granted the union's application and denied the department's application. In its summary order, the trial court concluded: “The arbitrator exceeded her authority in using negligence as a standard and basis for her award. The charge of negligence was never made by the department at the [Loudermill ] hearing or in the termination letter sent to [Listro].”
The department appealed from the judgment to the Appellate Court, arguing that the trial court improperly vacated the award. The Appellate Court agreed, concluding that “negligence arguably came within the purview of the [collective bargaining] agreement and was an appropriate term for the arbitrator to use to describe Listro's conduct, which was the basis of her dismissal for just cause.” AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, 142 Conn.App. 1, 10, 62 A.3d 1168 (2013). The court also concluded that it was not necessary for negligence to be cited as the reason for Listro's termination during the Loudermill hearing or in the termination letter because both the hearing and the letter “clearly identified her behavior and the events that constituted the serious off duty misconduct at issue.” Id., at 13, 62 A.3d 1168. The Appellate Court determined that the trial court's contrary conclusion “exceeded the standards of review applicable to arbitration awards” and, therefore, reversed the judgment of the trial court and remanded the case with direction to confirm the award. Id., at 14, 62 A.3d 1168. The union's certified appeal to this court followed. See AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, 309 Conn. 915, 70 A.3d 38 (2013).
Before this court, the union makes a series of interrelated arguments in support of an overarching claim that, contrary to the Appellate Court's conclusion, the arbitrator exceeded her powers. Specifically, the union contends that: (1) the arbitrator disregarded her own factual findings, principal among which was that the department had failed to establish that Listro “committed the fatal abuse of which she was accused”; (2) the arbitrator dispensed her own brand of industrial justice by formulating her own charge of negligence against Listro; (3) the award is inherently inconsistent with the parties' collective bargaining agreement; and (4) the award does not draw its essence from the collective bargaining agreement. The union also argues that, because the department never characterized Listro's misconduct as negligent, the arbitrator's reliance on negligence as the theory under which the department had just cause to terminate Listro amounted to a violation of due process and the notice provisions of the parties' collective bargaining agreement. Because of the constrained standard of review that we must apply in arbitration cases, we disagree that the union is entitled to relief on the basis of any of these claims.
As we explain later in this opinion, under the applicable standard of review, most of the union's arguments effectively state a claim that the arbitrator's decision exceeded the scope of the submission. The Appellate Court determined that the union had not preserved a separate claim that the arbitrator exceeded the scope of the submission; AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, supra, 142 Conn.App. at 7 n. 7, 62 A.3d 1168 ; but nonetheless effectively reviewed the claim when it concluded that the award “arguably came within the purview of the [collective bargaining] agreement....” Id., at 10, 62 A.3d 1168. We conclude that the union did preserve this issue by arguing before the trial court that the arbitrator had exceeded her authority under § 52–418(a), that the award did not conform to the parties' agreement, and that a court must compare the award with the parties' submission.
We note, however, that the union asserts an argument in this court that was not raised before either the trial court or the Appellate Court, namely, that the arbitration award conflicts with established arbitration procedures and policies. We, therefore, decline to review that claim. See, e.g., Ferraro v. Ridgefield European Motors, Inc., 313 Conn. 735, 754, 99 A.3d 1114 (2014) (declining to review unpreserved claim).
In support of each of these contentions, the union makes myriad subsidiary arguments. The connection between the union's arguments and the legal standard for vacating an arbitral award is not always clear, as the union has relied on federal case law that does not involve review of arbitration decisions and/or involves statutory language that is inapplicable to the present case. We have attempted, therefore, to resolve these arguments as best we can through application of our arbitration case law and the language of the relevant documents in the present case.
The propriety of arbitration awards often turns on the unique standard of review and legal principles applied to decisions rendered in this forum. “Judicial review of arbitral decisions is narrowly confined.... 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 efficient and economical system of alternative dispute resolution.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80, 881 A.2d 139 (2005). “When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties' agreement.” (Internal quotation marks omitted.) Id. “Parties to an arbitration may make a restricted or an unrestricted submission.” United Electrical Radio & Machine Workers of America Local 235 v. Union Mfg. Co., 145 Conn. 285, 287, 141 A.2d 479 (1958).
“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that ... the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators' decision of the legal questions involved.... In other words, [u]nder an unrestricted submission, the arbitrators' decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact.”(Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. at 80, 881 A.2d 139 ; see also Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 294, 377 A.2d 323 (1977) (“[b]y agreeing to the unlimited submission in this case, the [parties] authorized the arbitrator to exercise his own judgment and discretion and to render an appropriate award”). “A submission is deemed restricted only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” (Internal quotation marks omitted.) United States Fidelity & Guaranty Co. v. Hutchinson, 244 Conn. 513, 519, 710 A.2d 1343 (1998) ; see also Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 111–12, 779 A.2d 737 (2001) (mere fact that parties asked arbitrator to decide particular question does not render submission restricted, in absence of conditions on arbitrator's final resolution of that matter).
Although it took a different position in the proceedings below and in its brief to this court, the union conceded at oral argument before this court that the submission in this case was unrestricted. Thus, this court cannot review the factual or legal merits of the underlying decision.
Even in the case of an unrestricted submission, however, a reviewing court will vacate an award when an arbitrator has exceeded the power granted to her by the parties' submission. Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., supra, 258 Conn. at 114, 779 A.2d 737 ; see also General Statutes § 52–418(a)(4) (award shall be vacated “if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made”). “[A] claim that the arbitrators have exceeded their powers may be established under § 52–418 in either one of two ways: (1) the award fails to conform to the submission, or, in other words, falls outside the scope of the submission; or (2) the arbitrators manifestly disregarded the law.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. at 85, 881 A.2d 139. Although not expressly stated as such, the union's claims in the present case fall under the first category. In considering whether the arbitrator exceeded her powers on that basis, a reviewing court's inquiry is “limited to a comparison of the award to the submission.” Id.; see also Comprehensive
The union's only argument in which it asserts that the arbitrator manifestly disregarded the law is its claim that the arbitration award failed to draw its essence from the collective bargaining agreement. The union, however, does not analyze the claim as such but, rather, argues that the arbitrator ignored the terms of the parties' collective bargaining agreement. The requirement that an arbitrator's decision must draw its essence from the parties' agreement is analyzed by considering the parties' submission and the terms of the agreement. An arbitrator's power derives from the agreement, and if an arbitration award does not “draw its essence” from the agreement, then the arbitrator has exceeded the scope of the authority that the parties have vested in her. Therefore, we do not consider in the present case whether the arbitrator manifestly disregarded the law, a claim on which litigants have yet to prevail in our courts. See AFSCME, Council 4, Local 1565 v. Dept. of Correction, 298 Conn. 824, 848 n. 12, 6 A.3d 1142 (2010) (“[t]he exceptionally high burden for proving a claim of manifest disregard of the law under § 52–418 [a][4] is demonstrated by the fact that, since the test was first outlined in Garrity [v. McCaskey, 223 Conn. 1, 612 A.2d 742 (1992) ], this court has yet to conclude that an arbitrator manifestly disregarded the law” [internal quotation marks omitted] ).
The union argues that this court must apply de novo review in determining whether an arbitration award conforms to the submission. As this court explained in Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. at 85, 881 A.2d 139, although this court has stated that a court's review of an arbitration award is “ ‘in effect, de novo judicial review,’ ” this means only that we draw our own conclusions regarding whether an arbitration award conforms to the submission. In Harty, we explained that our standard of review “best can be understood when viewed in the context of what the court is permitted to consider when making this determination and the exact nature of the inquiry presented. Our review is limited to a comparison of the award to the submission. Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. With respect to the latter, we have explained that, as long as the arbitrator's remedies were consistent with the agreement they were within the scope of the submission.” (Footnotes omitted; internal quotation marks omitted.) Id., at 85–86, 881 A.2d 139.
Orthopaedics & Musculoskeletal Care, LLC v. Axtmayer, 293 Conn. 748, 755, 980 A.2d 297 (2009) (“[o]ur inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred” [internal quotation marks omitted] ). “[A] court cannot base the decision [regarding whether an arbitrator has exceeded her authority] on whether the court would have ordered the same relief, or whether or not the arbitrator correctly interpreted the contract. The court must instead focus on whether the [arbitrator] had authority to reach a certain issue, not whether that issue was correctly decided.” Comprehensive Orthopaedics & Musculoskeletal Care, LLC v. Axtmayer, supra, at 755, 980 A.2d 297.
Because the arbitrator is required to consider the submission in light of the parties' agreement, “the arbitrator's award ... must draw its essence from the contract and cannot simply reflect the arbitrator's own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers International Union, AFL–CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) ; accord Comprehensive Orthopaedics & Musculoskeletal Care, LLC v. Axtmayer, supra, 293 Conn. at 770–71, 980 A.2d 297 (Katz, J., dissenting). “[E]very reasonable presumption and intendment will be made in favor of the award and of the arbitrator's acts and proceedings. Hence, the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. at 88–89, 881 A.2d 139.
Applying these principles to the case at hand, as we previously indicated, the submission agreed upon by the parties asked the arbitrator to decide: (1) “Did the [department] have just cause to dismiss ... Listro?”; and (2) “If not, what shall be the remedy consistent with the terms of the collective bargaining agreement?” The award concluded as follows: “In the totality of circumstances, there is just cause for ... Listro's separation from her employment at the [department].” The award, therefore, manifestly conforms to the submission. Indeed, the parties agreed to this broadly framed submission. Had they intended to limit the arbitrator's consideration to specific conduct, specific evidence, or a specific state of mind, they could have limited the scope of the submission if the agreement permitted such a limitation. See United Electrical Radio & Machine Workers of America Local 235 v. Union Mfg. Co., supra, 145 Conn. at 289, 141 A.2d 479 (“[t]he parties themselves control the form in which a submission is made”).We therefore turn to the question of whether, in reaching her conclusion, the arbitrator's award failed to draw its essence from the collective bargaining agreement. At the outset of her decision, the arbitrator cited article 16, § 1, of the parties' collective bargaining agreement as the pertinent provision. That section of the collective bargaining agreement provides in relevant part: “No permanent employee ... shall be ... dismissed except for just cause. Just cause may include but is not necessarily restricted to incompetency, inefficiency, neglect of duty, misconduct or insubordination.” (Emphasis added.) Thus, the question is whether the arbitrator was arguably applying this definition of just cause in concluding that negligence by Listro constituted such cause. See Comprehensive Orthopaedics & Musculoskeletal Care, LLC v. Axtmayer, supra, 293 Conn. at 755, 980 A.2d 297 (“as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of authority, the award must be enforced” [internal quotation marks omitted] ). We first note the expansive language of article 16, § 1, of the collective bargaining agreement—that just cause is “not necessarily restricted to” the listed justifications for dismissal. We further note that most of the examples of just cause provided in article 16, § 1, of the collective bargaining agreement could arise as a result of either negligent or intentional conduct. For these reasons, we agree with the Appellate Court that “negligence arguably came within the purview of the [collective bargaining] agreement....” AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, supra, 142 Conn.App. at 10, 62 A.3d 1168 ; see also Local 1042, Council 4, AFSCME, AFL–CIO v. Board of Education, 66 Conn.App. 457, 463–64, 784 A.2d 1018 (2001) (when arbitration panel resolved ambiguity in collective bargaining agreement, plaintiff failed to carry burden of showing that award did not conform to submission because it could not establish that agreement was unambiguous). Thus, contrary to the union's argument, the arbitrator did not “dispense her ‘own brand of industrial justice’ ”; she interpreted the collective bargaining agreement when concluding that negligence constituted just cause for discipline, including dismissal.
To the extent that the union contends that the arbitrator exceeded her authority in relying on Listro's off duty conduct, we disagree. The union argues that there was no nexus to her employment because Listro's inattention to M did not “make her unable to mentor adolescent girls, or unable to run programs for mentors and mentees.” The collective bargaining agreement did not, however, limit just cause for dismissal to conduct on the job. Cf. James v. Dale, 355 F.3d 1375, 1378 (Fed.Cir.2004) (discussing federal nexus requirement in light of statute permitting agency to terminate employee “only for such cause as will promote the efficiency of the service” [internal quotation marks omitted] ). Nor did it specify that any off duty misconduct must impair the employee's ability to perform her particular job responsibilities, as opposed to the department's ability to perform its mission generally. See State v. AFSCME, Council 4, Local 2663, AFL–CIO, 59 Conn.App. 793, 801, 758 A.2d 387 (dismissal for off duty conduct was proper for person employed by department as driver of children in light of Commissioner of Children and Families' obligation under General Statutes § 17a–90 [a] to “have general supervision over the welfare of children who require the care and protection of the state”), cert. denied, 255 Conn. 905, 762 A.2d 910 (2000). Indeed, this “nexus” requirement is not a separate ground under our case law for vacating an award sustaining a termination decision, nor is the union challenging the award on public policy grounds. Rather, the question is whether the arbitrator arguably was construing and applying the agreement. In the present case, the arbitrator found that Listro's conduct was related to her job because the department is “charged with the safety of children in [its] care....” In light of the department's mission and the just cause provision of the parties' contract, we cannot say that the arbitrator exceeded her authority in concluding that there was a sufficient nexus between Listro's off duty conduct and her employment to constitute just cause for discipline.
The cases cited by the union in support of its argument that courts will reverse discharge decisions when the employee's conduct was unrelated to on-the-job performance are inapposite. They all occurred in the context of a federal court's review of an agency decision, involving a less restrictive standard of review than our review of an arbitration decision, and requiring application of a federal statute requiring a specific nexus. Compare D.E. v. Dept. of the Navy, MSPB, 721 F.2d 1165, 1166 (9th Cir.) (court shall “hold unlawful any agency action which we find to be arbitrary, capricious, or an abuse of discretion; procedurally defective; or unsupported by substantial evidence”), amended, 722 F.2d 455 (9th Cir.1983) ; McLeod v. Dept. of the Army, 714 F.2d 918, 922 (9th Cir.1983) (reviewing agency action under arbitrary and capricious standard); Young v. Hampton, 568 F.2d 1253, 1257 (7th Cir.1977) (judicial review of agency decision limited to ensuring “that required procedures have been substantially complied with and that the action taken was not arbitrary or capricious” [internal quotation marks omitted] ), with Comprehensive Orthopaedics & Musculoskeletal Care, LLC v. Axtmayer, supra, 293 Conn. at 753–54, 980 A.2d 297 (when submission to arbitrator is unrestricted, court will not review award for errors of law or fact); see also O & G/O'Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 155, 523 A.2d 1271 (1987) (“judicial review of arbitration awards is even more restrictive than judicial review of a decision of an administrative agency under the Uniform Administrative Procedure Act”).
We turn next to the union's argument that the arbitrator exceeded her authority by disregarding her own factual findings, principal among which was the arbitrator's determination that “the [d]epartment ... failed to carry its burden of establishing that ... Listro committed the fatal abuse of which she was accused.” The union essentially claims that this court may review the arbitrator's ultimate conclusion of fact—that there was just cause to terminate Listro—because that conclusion is against the evidence presented to the arbitrator. This claim, however, has no basis in arbitration law. To the extent that the union states a claim separate from those resolved by our preceding analysis, this argument appears to be “a thinly veiled attempt to have the award vacated on the ground that it was not supported by any evidence presented at the hearings.” O & G/O'Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 154, 523 A.2d 1271 (1987). A court does not sit to review the factual findings of an arbitrator. See id., at 155, 523 A.2d 1271 (“the trial court's review of an arbitral award is a far cry from a trial de novo”). This court considered a similar argument in Milford Employees Assn. v. Milford, 179 Conn. 678, 684, 427 A.2d 859 (1980), wherein “the plaintiffs assert[ed] that, as a matter of law, the evidence required a conclusion in their favor.” In rejecting the plaintiffs' argument, this court noted that the plaintiffs were essentially requesting a full trial on their claim, which § 52–418 does not permit. Id. This court explained: “The parties freely bargained for the remedy of arbitration in the event of a dispute of this nature. Having done so, they are bound by the decision lawfully rendered.” Id.; cf. Blakeslee Arpaia Chapman, Inc. v. Dept. of Transportation, 273 Conn. 746, 757, 873 A.2d 155 (2005) (inconsistency between arbitrators' award and findings of fact does not permit court to vacate award as manifestly disregarding law; General Statutes § 4–61 [e], requiring arbitrators interpreting public works contracts to issue written findings of facts “contains no well defined, explicit or clear requirement that the award be consistent with the findings of fact”); Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 96, 868 A.2d 47 (2005) (“Hartford Steam Boiler ... contends that the award manifests an egregious or patently irrational application of the law because the award rests on factual findings that, according to Hartford Steam Boiler, are wholly unsupported by the undisputed evidence. As we have stated, however, courts do not review the evidence or otherwise second-guess an arbitration panel's factual determinations when the arbitration submission is unrestricted.” [Internal quotation marks omitted.] ). We note, however, that it would not be inconsistent for the arbitrator to conclude that M's fall due to Listro's inattention could have been the last straw on top of previously inflicted traumatic injuries that led to M's death, even if Listro was not responsible for those prior injuries.
The union also questions the arbitrator's finding that Listro was negligent, arguing that Listro's conduct was not the proximate cause of M's death. Whether there is sufficient evidence to prove negligence is not a question that this court may consider in reviewing an arbitration award. See, e.g., Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 96, 868 A.2d 47 (2005) (“courts do not review the evidence or otherwise second-guess an arbitration panel's factual determinations when the arbitration submission is unrestricted”). Moreover, although in her dissent Chief Justice Rogers concludes otherwise, there is no claim in the present case that the award is in manifest disregard of the law of negligence. Indeed, although the union clearly was aware of the elements of a claim of manifest disregard of the law; see footnote 7 of this opinion; the union made only a single vague reference in its brief to the elements of a negligence cause of action, and did so only in connection with its argument that there was insufficient evidence to support the arbitrator's conclusion that Listro was negligent. Nowhere did the union contend that the arbitrator appreciated the existence of the governing legal principles of a negligence claim and yet that she decided to ignore them. See, e.g., Economos v. Liljedahl Bros., Inc., 279 Conn. 300, 307, 901 A.2d 1198 (2006). Furthermore, under our governing law, it is difficult to comprehend how a claim of manifest disregard of the law could lie where the arbitrator did not recite the principles which she is alleged to have disregarded; see id., at 312, 901 A.2d 1198 (claim of manifest disregard of law failed where party could not show that arbitrator “considered, but elected to ignore, governing legal principles”); and, indeed, where it is not clear that the arbitrator even intended to use the term “negligence” in the strict legal sense, rather than merely colloquially, to suggest that Listro failed to exercise due care under the circumstances.
Connecticut courts have consistently recognized that, under the eggshell plaintiff doctrine, a defendant in a negligence action must take her plaintiff as she finds him. See, e.g., Rua v. Kirby, 125 Conn.App. 514, 516 n. 2, 8 A.3d 1123 (2010) (“[W]here a tort is committed, and injury may reasonably be anticipated, the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health.... The eggshell plaintiff doctrine ... makes the defendant responsible for all damages that the defendant legally caused even if the plaintiff was more susceptible to injury because of a preexisting condition or injury.” [Internal quotation marks omitted.] ). In considering Listro's own account of events, the arbitrator may have drawn the inference that M's fall was the last straw for earlier inflicted injuries, when, according to Listro, M became limp and unresponsive immediately after he fell and died only a few hours later.
Nonetheless, even if we were to conclude that the arbitrator ignored her own factual findings, we still would have to conclude that the trial court's vacatur of the award was improper. “This court frequently has stated that the award rather than the finding and conclusions of fact controls, and that, ordinarily, the memorandum of the arbitrator is irrelevant.” Board of Education v. Bridgeport Education Assn., supra, 173 Conn. at 292, 377 A.2d 323 ; see also Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 553, 191 A.2d 557 (1963) (“The arbitrator filed an extended memorandum setting forth the process of his reasoning and the bases of his award. We may disagree with both, but unless his memorandum patently shows an infidelity to his obligation, the result reached by the award, and not the memorandum, controls.”). As previously explained, because the arbitration award clearly resolved the issue presented to the arbitrator and did so while remaining within the confines of the parties' collective bargaining agreement, the trial court's review should have ended there.
Finally, we turn to the union's notice claims. The union argues that the arbitrator's reliance on Listro's negligent conduct, as opposed to the intentional conduct cited by the department, deprived Listro of sufficient notice of the issue before the arbitrator. The union challenges notice on two grounds: as a violation of due process and as a violation of the parties' collective bargaining agreement. Due process requires that an employee be provided with notice of the charges against her, an explanation of the employer's evidence, and an opportunity to present her side of the story. Board of Education v. Loudermill, supra, 470 U.S. at 546, 105 S.Ct. 1487. Article 16, § 2(a), of the notice provision of the parties' collective bargaining agreement similarly provides in relevant part: “Prior to a decision to suspend an employee, demote an employee ... or dismiss an employee, the [department] shall provide the employee with oral or written notice.... The notice shall include what form of action is being considered, shall contain a concise statement explaining what evidence supports the imposition of the action that is being considered and shall state a specific time and place for a meeting where the employee will be given an opportunity to present his side of the story....” Because these notice requirements are substantially similar, we consider these two claims collectively.
Our conclusion that the award drew its essence from the just cause provision of the collective bargaining agreement largely resolves these claims. Indeed, in arguing that Listro lacked notice of a “charge of negligence,” the union contends that Listro's purported negligence was not within the scope of the submission. Rather, the union claims, the parties only asked that the arbitrator determine whether the department had just cause for termination.
It was not necessary for the department to cite “negligence” as the reason, or an alternative reason, for Listro's dismissal. Cf. Pergament United Sales, Inc. v. National Labor Relations Board, 920 F.2d 130, 135 (2d Cir.1990) ( “Notice does not mean a complaint necessarily must state the legal theory upon which the [employer] intends to proceed. Instead notice must inform the respondent of the acts forming the basis of the complaint.”). Neither was it necessary for the arbitral award to mirror the department's arguments in order to provide Listro with sufficient notice. Cf. TiVo, Inc. v. Goldwasser, 560 Fed.Appx. 15, 21 (2d Cir.2014) (argument that arbitration panel exceeded authority because panel's reasoning “did not wholly track the parties' arguments” meritless); Rosati v. Bekhor, 167 F.Supp.2d 1340, 1345 (M.D.Fla.2001) (“[T]he general issue submitted to the arbitration panel was securities fraud. While the specific law mentioned in the [a]ward was not submitted to the arbitrators, the issue of securities fraud was submitted.” [Emphasis omitted.] ).
Listro was clearly informed that the arbitrator would consider whether her conduct on the night of May 19, 2008, constituted just cause for termination. The initial notice provided to Listro stated that an investigatory interview would be held to “discuss [her] serious off-duty misconduct that has [led] to [her] arrest,” and the termination letter explained that the decision to dismiss her was made in light of the fact that M had died while in her care. The termination letter further noted that Listro's arrest warrant “indicates that [she] provided a statement reporting that the child had fallen from the bed when [Listro] left him unattended while [she] ejected a tape from the VCR.” Listro's own account of the events immediately preceding M's death in response to these charges provided the basis for the arbitrator's decision. Although Listro did not concede that she had been negligent, this was a legal conclusion that the arbitrator was free to draw from her testimony, one that is not subject to review by this court. Therefore, Listro was provided with sufficient notice to satisfy her right to due process and the notice provision of the collective bargaining agreement. As the arbitrator in the present case aptly stated, this is a tragic case for all parties involved. Notwithstanding the tragic nature of this case, in light of the unrestricted, broadly phrased submission, the expansive reach of the just cause provision of the collective bargaining agreement, and the notice to Listro that her conduct on the evening of M's death provided the basis for termination, we agree with the Appellate Court that it was improper for the trial court to grant the union's application to vacate the arbitrator's award.
For this reason, the cases on which Justice Eveleigh relies in his dissent are inapposite because here, Listro, the party whose due process rights were at issue, is the one who introduced the very facts that formed the basis of the arbitrator's decision.
In support of its argument that Listro lacked notice, the union contends that because Listro's termination letter cited two department regulations, the arbitrator's conclusion that Listro was negligent reflected that the arbitrator “substitute[d] her own standard and basis for the award ... rather than the [a]dministrative [r]egulations stated in the termination letter.” The union does not contend, however, that conduct that constitutes just cause under the collective bargaining agreement could not constitute just cause under the regulations. We therefore view this argument as merely a variation on the union's claim that Listro lacked notice because the department never cited negligence as a basis for its decision to terminate her employment.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ZARELLA and ROBINSON, Js., concurred.
ROGERS, C.J., dissenting.
I agree with the majority that the arbitration award at issue in this case conformed to the unrestricted submission and was consistent with the collective bargaining agreement of the parties, the plaintiff, AFSCME, Council 4, Local 2663 (union), and the defendant Department of Children and Families (department), and that the due process rights of the department's employee, Suzanne Listro, were not violated by lack of notice regarding the basis of her dismissal. I would conclude, nevertheless, that the arbitration award should be vacated pursuant to General Statutes § 52–418(a)(4) due to the arbitrator's manifest disregard of the law. Specifically, the only medical evidence in the record and the arbitrator's own initial factual finding, in accord with that evidence, established that M, a foster child in Listro's care, had died from shaken baby syndrome. Therefore, the arbitrator's subsequent conclusion to the contrary, that Listro was negligent, causing M's death by allowing him to fall from a bed, was a patently irrational application of basic legal principles as contemplated by the test adopted by this court in Garrity v. McCaskey, 223 Conn. 1, 8–9, 612 A.2d 742 (1992). Accordingly, I would reverse the judgment of the Appellate Court, which reversed the trial court's judgment and remanded the case to that court with direction to affirm the arbitration award; AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, 142 Conn.App. 1, 14, 62 A.3d 1168 (2013) ; thereby reinstating the trial court's order vacating the arbitration award and referring the matter back to arbitration for a rehearing.
See footnote 1 of the majority opinion for a listing of the other defendants in this case.
I note that the State Board of Labor Relations and the Office of the Attorney General were also named as defendants, but are not parties to the present appeal.
Although the union's arguments concededly are somewhat disorganized, I disagree that it has not sufficiently raised a claim regarding the manifest disregard of the law aspect of § 52–418(a)(4). The union argues variously throughout its brief that the arbitrator's decision lacks evidentiary support and is inherently inconsistent with her own findings, that the medical evidence showed that M did not die from a fall and that there was no evidence of negligence, in particular, of the element of proximate cause. Moreover, the union repeatedly quotes from or references the applicable standard for manifest disregard of the law, as recited hereinafter.
Although, it may have been a debatable subject to find that Listro was negligent, the undisputed medical evidence was that the fall was not consistent with the cause of death. Therefore, it was improper for the arbitrator to conclude that Listro's negligence caused M's death. Further, the department's own dismissal letter belies any relationship between M's death and M falling off the bed. The letter states: “[T]he medical examiner has deemed that the injury to [M] is not consistent with such a fall.”
In its application to vacate the arbitrator's award denying Listro's reinstatement, the union invoked § 52–418(a)(4), claiming, inter alia, that “[t]he arbitrator [had] exceeded her power[s] or so imperfectly executed them such that a mutual, final and definite award upon the subject matter [submitted to her] was not made.” The trial court granted the union's application to vacate after concluding that “[t]he arbitrator exceeded her authority in using negligence as a standard and basis for her award,” and it referred the matter back to arbitration for a rehearing.
“In construing § 52–418(a)(4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers.... We have also recognized, however, that an arbitrator's egregious misperformance of duty may warrant rejection of the resulting award.... [For example] [i]f the memorandum of an arbitrator revealed that he had reached his decision by consulting a [O]uija board, surely it should not suffice that the award conformed to the submission.... Other states have also recognized that an arbitrator's egregious misperformance of duty or patently irrational application of legal principles warrants review and rejection of the resulting award....
“[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52–418(a)(4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” (Citation omitted; internal quotation marks omitted.) McCann v. Dept. of Environmental Protection, 288 Conn. 203, 220, 952 A.2d 43 (2008).
In Garrity v. McCaskey, supra, 223 Conn. at 10, 612 A.2d 742, this court “adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52–418(a)(4).... The test consists of the following three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable.” (Internal quotation marks omitted.) McCann v. Dept. of Environmental Protection, supra, 288 Conn. at 220–21, 952 A.2d 43. Pursuant to this test, an arbitration award should be set aside only for blatant and egregious legal error, and not “because of an arguable difference regarding the meaning or applicability of laws urged upon it.” (Internal quotation marks omitted.) Garrity v. McCaskey, supra, at 9, 612 A.2d 742 ; see also id., at 9–10, 612 A.2d 742 (vacation for manifest disregard of law reserved for cases in which arbitrator's determination is “ ‘totally irrational’ ” or resulted from “ ‘failure to exercise honest judgment’ ”).
More recent Second Circuit cases clarify that two of the three prongs enumerated in Garrity, and Connecticut cases that followed that decision, essentially go to the same point, and thus characterize the inquiry as having only two prongs: “The two-prong test for ascertaining whether an arbitrator has manifestly disregarded the law has both an objective and a subjective component. We first consider whether the governing law alleged to have been ignored by the [arbitrator was] well defined, explicit, and clearly applicable.... We then look to the knowledge actually possessed by the arbitrator. The arbitrator must [appreciate] the existence of a clearly governing legal principle but [decide] to ignore or pay no attention to it.... Both of these prongs must be met before a court may find that there has been a manifest disregard of law.” (Citations omitted; internal quotation marks omitted.) Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 209 (2d Cir.2002). In regard to the first prong, “[a] legal principle clearly governs the resolution of an issue before the arbitrator if its applicability is obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator.” (Internal quotation marks omitted.) Id.; see also D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110–11 (2d Cir.2006) (reciting two-pronged test); Hardy v. Walsh Manning Securities, LLC, 341 F.3d 126, 129 (2d Cir.2003) (same).
The majority's citation to Rua v. Kirby, 125 Conn.App. 514, 516 n. 2, 8 A.3d 1123 (2010) ; see footnote 11 of the majority opinion; actually reinforces my contention that there was no proof to support the arbitrator's decision and that, instead of an inference supporting the decision, the medical examiner's testimony suggested an opposite conclusion. The operable quote, omitted by the majority from its citation to Rua, is that “under [the eggshell plaintiff doctrine the plaintiff] still has to prove the nature and probable duration of the injuries sustained.” (Internal quotation marks omitted.) Id. There was no such proof in the present case. Likewise, in Rua, the Appellate Court decided that the “eggshell plaintiff” charge was not warranted because “[t]he plaintiff did not present any evidence or pursue a line of questioning that would reasonably support a finding that the preexisting condition was aggravated by the accident. In fact, the plaintiff's questioning with respect to the preexisting condition was intended to show that it was the accident that had caused the plaintiff's radiculopathy and not the preexisting condition. We therefore reject the plaintiff's claim that the court improperly refused to charge the jury that the defendants must ‘take the plaintiff as they find him’ and conclude that the court acted well within its discretion when it refused to set aside the verdict.” (Footnote omitted.) Id., at 518–19, 8 A.3d 1123.
In the present case, the arbitrator found that “[r]egarding the merits of the case, the record conclusively established that M was a victim of shaken baby syndrome. The medical examiner's testimony and the autopsy report were not challenged and the union offered not a scintilla of evidence to suggest an alternative diagnosis. The decisive question before us is not the manner of his death but who caused it, i.e., who shook M so hard as to give him injuries that in the end were fatal.
“If M fell as asserted by ... Listro ... nothing in the record establishes that such a fall could not have been the ‘proverbial last straw’ for earlier traumatic injuries. Although the autopsy revealed no external bruising, there is no evidence that a fall from two feet would cause such bruising in a seven month old baby.” (Footnote omitted.) The arbitrator then noted that “[t]he [medical examiner] testified that if M had hit his head, the autopsy should have revealed pooled blood under the scalp. Because ... Listro testified that she did not see M fall, she never claimed that he hit his head, other, softer body parts might not be expected to suffer such bruising.” Finally, the arbitrator found that “there was no evidence regarding how much time could elapse between a severe shaking and such a fall in order to result in death shortly thereafter.” By creating a causal connection between Listro's alleged negligence and the death of M, both the arbitrator and the majority have made a medical finding, in the absence of support from any medical evidence, that directly contradicts the only medical doctor who was credited by the arbitrator. Such a form of industrial justice should not stand. See Hudson Wire Co. v. Winsted Brass Workers Union, supra, 150 Conn. at 553, 191 A.2d 557.
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Although I recognize that the foregoing standard is a strict one, I believe that the unusually confused arbitration award in this case serves to satisfy it. The arbitrator first rejected, as unproven, the department's charge that Listro intentionally had inflicted fatal injuries on M. The arbitrator then explicitly based her decision to deny reinstatement on a wholly different legal theory—that Listro merely had been negligent by allowing M to fall, but her negligence had disastrous consequences. The basic elements of a negligence claim are long-standing, conclusively established and frequently identified and applied in our jurisprudence. They are: “duty; breach of that duty; causation; and actual injury.” Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381 (2015). As to the third element, it is beyond fundamental that a party may not prevail on a negligence theory unless he or she proves that the conduct complained of was both a cause in fact and a proximate cause of the injury at issue, that is, the injury would not have occurred absent the conduct, and the conduct was a substantial factor in producing that injury. Id., at 329, 107 A.3d 381. Accordingly, the legal principle of proximate causation as an essential element of negligence was well-defined, explicit and clearly applicable to the present case, as the arbitrator herself conceived it.
Having determined that a well-defined, explicit legal principle clearly was applicable to the present case, I turn to the question of whether the arbitrator purposefully disregarded that principle. An arbitrator's manifest disregard of a clearly governing legal principle is established if a party seeking vacatur “demonstrate[s] that the arbitrator knew of the relevant principle, appreciated that this principle controlled the outcome of the disputed issue, and nonetheless willfully flouted the governing law by refusing to apply it.” Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 217 (2d Cir.2002). Although an arbitrator's “[e]xplicit rejection of governing law provides the strongest evidentiary basis for a finding that the arbitrator acted with the requisite intent”; id.; a reviewing court also “may find intentional disregard if the reasoning supporting the arbitrator's judgment strain[s] credulity ... or does not rise to the standard of barely colorable....” (Citations omitted; internal quotation marks omitted.) Id., at 218. In my view, for the reasons that follow, this aptly describes the reasoning employed by the arbitrator in this case.
To begin, the only medical evidence in the record decisively demonstrated that M was a homicide victim who had died from shaken baby syndrome, and that he had not died from an accidental fall. Specifically, an autopsy report reflects the state medical examiner's conclusions that M died of blunt traumatic head injury and that he was a victim of a homicide. The arbitrator's decision describes this report, as well as the medical examiner's testimony at the arbitration hearing that “the physical signs found on [M's] body were not consistent with death from a fall but were consistent with death from a condition familiarly known as shaken baby syndrome. This was particularly true because M's retinas had hemorrhaged, the most indicative symptom of the syndrome.” Moreover, the arbitrator stated, “[t]he [medical examiner] testified that if M had hit his head, the autopsy should have revealed pooled blood under the scalp,” which the autopsy report apparently did not indicate.
After describing this medical evidence, the arbitrator explicitly credited it and further acknowledged that there was no conflicting evidence in the record that would support a finding of a different cause of death. In the words of the arbitrator herself, the “record conclusively establishes that M was a victim of shaken baby syndrome. The [m]edical [e]xaminer's testimony and the autopsy report were not challenged and the [plaintiff] offered not a scintilla of evidence to suggest an alternative diagnosis.”
Thereafter, contrary to the only medical evidence in the record as to the cause of M's death and the arbitrator's own initial factual finding, which was consistent with that evidence, the arbitrator proceeded to find additionally that M had died as a result of a fall. To reconcile her completely inconsistent factual findings as to the critical issue in this case, the arbitrator, presumably a medical layperson, contrived a speculative theory that had no basis in any cited evidence, medical or otherwise. Specifically, the arbitrator speculated that M had been shaken at some unknown time preceding his death, by some other party, and that M's fall from the bed was the “proverbial ‘last straw’ ” that caused his death, even though the only medical evidence that was presented showed that he did not die from a fall. Furthermore, the arbitrator surmised, it was Listro's negligence that had allowed that fall and caused M's death.
The arbitrator's wholly speculative theory of the case overtly rests not on any actual evidence in the record, but instead, on a lack of evidence to disprove the theory. Thus, according to the arbitrator, because there was “nothing in the record establish[ing] that ... a fall could not have been the proverbial ‘last straw’ for earlier traumatic injuries,” it was reasonable to conclude that M's death subsequent to an assault ultimately was triggered by the final blow of a fall. Additionally, although the arbitrator acknowledged that there was “no evidence regarding how much time could elapse between a severe shaking and ... a fall in order for the fall to result in death shortly thereafter,” and a “dearth of medical information regarding the timeliness for shaken baby syndrome's impact on a particular child,” the arbitrator concluded that in this case, there was some unspecified period of delay separating the fatal assault of M and his resulting death. Finally, although there was no evidence that M had been removed from his biological parents' care for physical abuse or that any question had arisen as to the conduct of his prior foster family, who had returned M to the department's custody approximately one week prior to his death, the arbitrator posited that one of those parties might have been “tied to M's fatal injuries” by shaking him and, thus, leaving him vulnerable to the final blow of a fall. Relying on the foregoing evidentiary voids, the arbitrator then concluded that, although the department had failed to prove its allegations of child abuse, the record undoubtedly demonstrated that Listro was negligent, and that her “moment of negligence had unusually serious consequences, the death of a child.”
In support of this rationale, the arbitrator assumed the role of a medical expert, without the benefit of any supporting testimony, by noting the prior foster family's report that M had been “ ‘inconsolable’ ” and explaining that “[e]xcessive crying and fussiness is a known symptom of shaken baby syndrome as well as a commonly accepted cause of the perpetration of that syndrome.”
Although the arbitrator identified negligence as the governing legal theory, she failed to discuss or apply any of the fundamental elements of negligence, in particular proximate cause, to the actual evidence in the record. Most troublingly, she failed to explain how that evidence reasonably could support a finding that M's death was proximately caused by Listro's conduct. The arbitrator's appreciation and disregard of this fundamental requirement is evident from her strained and unconvincing attempt to demonstrate that it had been satisfied, despite the complete lack of evidence that a fall, caused by Listro's lapse in judgment, was a substantial factor in M's death, and the existence of only evidence to the contrary, which the arbitrator herself explicitly had credited. For the foregoing reasons, the arbitrator's decision was not “barely colorable”; (internal quotation marks omitted) Westerbeke Corp. v. Daihatsu Motor Co., Ltd., supra, 304 F.3d at 218 ; but is more accurately described as “ ‘totally irrational’ ”; Garrity v. McCaskey, supra, 223 Conn. at 9, 612 A.2d 742 ; or a “ ‘failure to exercise honest judgment’ ”; id., at 10, 612 A.2d 742 ; and no more reasonable than one which is the product of consultation with a Ouija board. See McCann v. Dept. of Environmental Protection, supra, 288 Conn. at 220, 952 A.2d 43. Consequently, vacatur was warranted. Cf. Hardy v. Walsh Manning Securities, L.L.C., 341 F.3d 126, 130–31, 134 (2d Cir.2003) (vacating decision for manifest disregard of law when arbitrator identified respondeat superior as sole governing principle of liability, although parties had agreed that individual held liable was fellow employee, and not employer, of wrongdoer, which barred recovery under well-defined principles of state law, and “no one point [ed] [court] to any evidence in the record that provide[d] a colorable justification for [the arbitrator's] conclusion”).
“[T]he principle of vacating an award because of a manifest disregard of the law is an important safeguard of the integrity of alternat[ive] dispute resolution mechanisms. Judicial approval of arbitration decisions that so egregiously depart from established law that they border on the irrational would undermine society's confidence in the legitimacy of the arbitration process.” Garrity v. McCaskey, supra, 223 Conn. at 10, 612 A.2d 742. For the reasons explained herein, I would reverse the judgment of the Appellate Court, thereby reinstating the order of the trial court that vacated the arbitration award and remanded the case for a new arbitration hearing.
Accordingly, I respectfully dissent.
EVELEIGH, J., dissenting.
I respectfully dissent from the majority opinion. I generally agree with the dissent authored by Chief Justice Rogers and join that dissent except to the extent that she states that the due process rights of Suzanne Listro, an employee of the named defendant, the Department of Children and Families (department), “were not violated by lack of notice....”1 I write separately because, in my view, Listro was denied her due process rights in this matter because she was never given notice that “negligence” was the basis for her termination. The fact that the arbitrator found that the department had just cause to terminate Listro because she was negligent in her care of M, her foster child, despite never giving her notice of that ground, is in direct conflict with Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and Bartlett v. Krause, 209 Conn. 352, 380, 551 A.2d 710 (1988). Indeed, Bartlett is never cited by the parties or the Appellate Court. I respectfully dissent because Listro was never given notice that negligence was a possible ground for termination, either at or before her pretermination hearing or during the arbitration. In fact, it is clear from the record that the basis of the department's charges against Listro was that it believed that she had caused the death of M from “shaken baby syndrome” and not through any negligence. In my view, on the basis of the facts in the present case, Listro was clearly denied due process of law.
I note, at the outset, that I agree with both the facts and the standard of review set forth within the majority opinion. Therefore, I will highlight only those facts necessary for my dissent.
In Board of Education v. Loudermill, supra, 470 U.S. at 546, 105 S.Ct. 1487 the United States Supreme Court stated that “[a] tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story” before being terminated. An examination of the record demonstrates that the focus of the charges brought by the department against Listro was related to alleged criminal conduct. The arbitrator found that the Commissioner of Children and Families (commissioner) issued a press release explaining as follows: “Given [Listro's] arrest and the seriousness of the charges, I am seeking her termination.” The commissioner did not mention the term negligence. On the basis of the foregoing, it seems that the commissioner was seeking termination of Listro's employment based upon the seriousness of the criminal charges against her. On July 18, 2008, Listro received a notice of an investigatory meeting from the department. The letter states: “This meeting is to discuss your serious off-duty misconduct that has led to your arrest.” It then proceeds to state: “If appropriate, a [predisciplinary] conference will be held immediately following the investigatory meeting. The purpose of the [predisciplinary] meeting will be to give you an opportunity to respond to any charges the [d]epartment may deem appropriate.” Again there is no mention of the term “negligence.” The charges relate to the off-duty conduct that led to her arrest—namely, conduct resulting in the death of a child.
After the meeting and hearing, Listro received a letter from the department notifying her that she had been dismissed. The letter reads, in part, “this action is taken immediately due to your serious misconduct which affects the public, the safety and welfare of our clients.” The following explanation is set forth in the next paragraph: “On May 12, 2007, a seven month old baby was placed in your home for [f]oster [c]are. On May 19, 2008, the baby died while in your care. On July 16, 2008, you were arrested and charged with [m]anslaughter [in the] [f]irst [d]egree and [r]isk of injury to a [child]. You were afforded an opportunity to provide your version of events. You declined to provide a statement [or] answer any questions on the matter. During this meeting you were advised that your actions were deemed detrimental to the best interest of the agency and the state. You were also advised that the department would make a decision based on the information gathered without the benefit of your input.” The letter continues as follows: “The arrest warrant indicates that you provided a statement reporting that [M] had fallen from the bed when you left him unattended while you ejected a tape from [a video cassette recorder (VCR) ]. However, the medical examiner has deemed that the injury to [M] is not consistent with such a fall. Additionally, the [c]hild [p]rotective [s]ervices investigation on this matter has been substantiated. Your name has been placed on the [c]entral [r]egistry, meaning [the department] has deemed that you pose an ongoing risk to children. Your actions represent a violation of [§ 5–240–1a (c)(4) of the Regulations of Connecticut State Agencies ]: Offensive or abusive conduct toward the public, co-workers, or inmates, patients or clients of [s]tate institutions or facilities; and [§ 5–240–1a (c)(13) ]: Engaging in any activity which is detrimental to the best interest of the agency or [of] the state.” Finally, the letter stated the following: “A Loudermill meeting was conducted immediately following the investigatory meeting. You were afforded an opportunity to provide additional [or] mitigating information and to make a statement as to why the agency should not take the action being contemplated. The information provided by your ... representatives did not serve to mitigate our decision. As such, we have determined that your continued employment with [the department] represents an unacceptable employment risk. Accordingly, due to the seriousness of these charges you were notified on July 23, 2008, that you were dismissed effective immediately.”
As the foregoing demonstrates, even in the termination letter, there is no mention of negligence. The department repeatedly stated that it was the seriousness of the criminal charges that caused her termination. The very nature of the conduct which she allegedly committed, according to the department, constituted “[o]ffensive and abusive conduct....” In and of itself, this reference infers intentional, rather than negligent acts. It is, therefore, manifestly clear that Listro had no notice that the department was claiming that she was negligent and that her negligence was the cause of her dismissal.
Further, the affidavit of Neal Cunningham, staff representative for the plaintiff, AFSCME, Council 4, Local 2663 (union), states that “[n]o charge of negligence was ever made by the [department] at the Loudermill [hearing], nor was she ever charged with negligence in her termination letter.... Thus, when the issue was framed for arbitration it was based upon the allegations at the Loudermill [hearing] and in the termination letter.”
In light of the notice provided for the hearing and the termination letter, when the arbitrator found that “the [d]epartment has failed to carry its burden of establishing that ... Listro committed the fatal abuse of which she was accused,” that should have been the end of the case. Indeed, the medical examiner established that M's fall from the bed was not consistent with the injuries resulting in M's death.2 However, instead of ending her decision with the failure of the department to prove its case, the arbitrator espoused a view that Listro “was negligent in her care of M[and] her inattention permitted him to fall from the bed that night. Although this represents a lapse in judgment with which many parents are familiar ... Listro's moment of negligence had unusually serious consequences, the death of a child.”
If Listro had known the department was considering negligence as a ground for her termination, she could have prepared differently for the hearing and the arbitration. In fact, Listro did not testify or present evidence at the hearing because she was on notice that her criminal charges were the ground for her termination. Had she known that negligence was a ground, she may have presented expert testimony regarding whether her care of M violated any standards of care or department regulations. The arbitrator seemed to recognize the dilemma, stating in her decision that Listro's acts “represent [ed] a lapse in judgment with which many parents are familiar....” This is neither a situation where Listro left the room with a child unattended, nor a situation where a parent goes into a store leaving a child in the car. Listro remained in the room and turned her head for a short period of time to remove a tape from a VCR. This may well have been a case wherein it was necessary to have expert testimony before a decision could have been rendered regarding any negligence. Listro was never able to present such evidence regarding negligence because she was not given notice that negligence was being alleged as a ground for termination.
The majority reasons that “[i]t was not necessary for the department to cite ‘negligence’ as the reason, or an alternative reason, for Listro's dismissal.” I respectfully disagree. In my view, this statement is completely at odds with the requirements of due process. The majority does cite to two federal cases for its conclusion that: “Neither was it necessary for the arbitral award to mirror the department's arguments in order to provide Listro with sufficient notice.” See TiVo, Inc. v. Goldwasser, 560 Fed.Appx. 15, 21 (2d Cir.2014) (argument that arbitration panel exceeded authority because panel's reasoning “did not wholly track the parties' arguments” meritless); Rosati v. Bekhor, 167 F.Supp.2d 1340, 1345 (M.D.Fla.2001) ( “[T]he general issue submitted to the arbitration panel was securities fraud. While the specific law mentioned in the [a]ward was not submitted to the arbitrators, the issue of securities fraud was submitted.” [Emphasis omitted.] ). Both cases are easily distinguishable from the present case on numerous grounds. First, neither case involves the dismissal of a public employee nor the notice of charges required before the arbitration commences. Second, in TiVo, Inc. v. Goldwasser, supra, at 20, the United States Court of Appeals for the Second Circuit noted that one of the reasons that the arbitrator's decision was not fundamentally unfair was because the arbitrator, after the hearing, but before the final decision, had requested briefing on “whether the situation underlying arbitration was contemplated by the parties at the time they negotiated and executed the [patent licensing agreement].” (Internal quotation marks omitted.) The Second Circuit opined that “[b]ecause TiVo, [Inc.] did not request—and therefore the arbitration panel did not refuse—an opportunity to reopen the record to answer this inquiry, and the evidence needed to answer this inquiry is substantially the same as that needed to combat the arbitration panel's ultimate reliance on the covenant of good faith and fair dealing, the proceeding was not fundamentally unfair.” Id. “Moreover, no additional notice was necessary to assure fundamental fairness because the covenant of good faith and fair dealing is in aid and furtherance of other terms of the agreement of the parties.” (Internal quotation marks omitted.) Id. Therefore, because the court considered the doctrine of the implied covenant of good faith and fair dealing to be part of the contract theory there was not a due process problem. Third, in Rosati v. Bekhor, supra, at 1345, the court decided that, because the subject of the arbitration was securities fraud, the parties were on notice that any section of securities law involving fraud could be used in the arbitration. Fourth, in my view, Rosati would have had a different result if the arbitrator had considered a doctrine which was not part of securities fraud, such as negligence in the handling of securities. Likewise, TiVo, Inc., may have reached a different result if the arbitration panel had considered a doctrine that was not part and parcel of the law of contracts, such as negligent misrepresentation.In the present case, Listro was notified that she was being discharged due to the seriousness of her conduct, which allegedly resulted in the death of a child. Her hearing and termination letters both referenced the criminal charges against her, which were risk of injury to a child and first degree manslaughter. The state's position in the criminal trial was that Listro had caused M's “shaken baby syndrome,” which resulted in the death of M. Because those criminal charges were referenced in her hearing and termination letters, it was reasonable to assume that the same theory was the basis for her discipline and termination. Indeed, this was the only basis upon which both the state and the department could proceed because the medical examiner, the only medical witness who offered an opinion on the matter, had stated that the cause of death was consistent with “shaken baby syndrome,” and was not consistent with a fall from a bed. The arbitrator ruled in Listro's favor on this issue. None of the cases cited by the majority involve a situation wherein the arbitrator finds in favor of the employee on the principal issue, but then rules against the employee on an issue never raised by the parties and not within the scope of the arbitration.
The majority further posits, without citation, that “Listro was clearly informed that the arbitrator would consider whether her conduct on the night of May 19, 2008, constituted just cause for termination. The initial notice provided to Listro stated that an investigatory interview would be held to ‘discuss [her] serious off-duty misconduct that has [led] to [her] arrest,’ and the termination letter explained that the decision to dismiss her was made in light of the fact that M had died while in her care. The termination letter further noted that Listro's arrest warrant ‘indicates that [she] provided a statement reporting that [M] had fallen from the bed when [Listro] left him unattended while [she] ejected a tape from [a] VCR.’ Listro's own account of the events immediately preceding M's death in response to these charges provided the basis for the arbitrator's decision. Although Listro did not concede that she had been negligent, this was a legal conclusion that the arbitrator was free to draw from her testimony, one that is not subject to review by this court. Therefore, Listro was provided with sufficient notice to satisfy her right to due process and the notice provision of the collective bargaining agreement.” (Footnote omitted.)
I respectfully disagree. In my view, the majority opinion substantiates its decision on the basis of the general nature of the description of Listro's conduct. This is akin to saying that, because the background of an accident was adequately described in a civil complaint, a plaintiff can recover for both intentional conduct and negligence, even if only intentional conduct has been alleged, because the defendant should be on notice of the general factual background of the accident. In my view, this analysis completely ignores the requirements of due process.
It is undisputed that Listro has a constitutionally protected property interest in her employment with the department stemming from the collective bargaining agreement and its requirement that she only be removed for just cause. “Generally speaking, courts have recognized a property interest if, by statute, rule or contract, express or implied, the employee can only be fired for ‘cause’....” Ventetuolo v. Burke, 470 F.Supp. 887, 891 (D.R.I.1978), aff'd, 596 F.2d 476 (1st Cir.1979). As the United States Supreme Court explained in Board of Education v. Loudermill, supra, 470 U.S. at 546, 105 S.Ct. 1487 “[t]he essential requirements of due process ... are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.” The United States Supreme Court explained that “[t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.” Id. The United States Supreme Court further reasoned that “the pretermination ‘hearing,’ though necessary, need not be elaborate.” Id., at 545, 105 S.Ct. 1487. In Loudermill, state law provided that the employee was entitled to a full administrative hearing and judicial review, so the United States Supreme Court only considered what procedural protections were required before termination. Id.
In Bartlett v. Krause, supra, 209 Conn. at 353, 551 A.2d 710, this court considered the process for removing a fire marshal from his or her position under General Statutes § 29–300. In Bartlett, this court recognized, that “[t]he United States Supreme Court and other courts have often said that due process is flexible and calls for such procedural protections as the particular situation demands.” (Internal quotation marks omitted.) Id., at 369, 551 A.2d 710. In examining the procedural protections required under the facts of Bartlett, this court explained that “the answer as to what process is due in this case is not, as the defendants claim, to be found in the express language of the Connecticut statutes.” Id. Instead, “[t]he need for procedural safeguards that due process guarantees in this case goes beyond the notice and opportunity (‘right to respond’) language of § 29–300....” Id., at 378, 551 A.2d 710.
In Bartlett, this court first concluded that the plaintiff had a property interest in her employment as a fire marshal because the state statute provided that the fire marshal could only be terminated for “ ‘cause.’ ” Id., at 367, 551 A.2d 710 ; see also General Statutes § 29–297 (“[e]ach local fire marshal shall be sworn to the faithful performance of his duties by the clerk of the town, city, borough or fire district and shall continue to serve in that office until removed for cause”). On the basis of the fact that “[b]oth parties knew and expected that she would continue her employment as fire marshal until ‘removed for cause,’ ” this court concluded that the plaintiff “has a property interest that is protected by due process.” Bartlett v. Krause, supra, 209 Conn. at 367, 551 A.2d 710. This court further reasoned that “[o]nce it is determined that due process applies, the question remains what process is due.... It is crucial to note that the right to due process is conferred not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.... The United States Supreme Court and other courts have often said that due process is flexible and calls for such procedural protections as the particular situation demands.” (Citations omitted; internal quotation marks omitted.) Id., at 369, 551 A.2d 710.
Although this court recognized that Loudermill mandated that “when a property interest in continued public employment is created ... the government must take an additional step, that of a pretermination hearing,” it also recognized that the due process protections that were found to pass constitutional muster in Loudermill, might not be sufficient in Bartlett. Id., at 376, 551 A.2d 710. Specifically, this court recognized in Bartlett that, unlike the statutory scheme at issue in Loudermill, the statutory scheme for fire marshals in this state did not provide for any posttermination administrative procedures. Id., at 373–74, 551 A.2d 710. Recognizing that “the existence of [posttermination] procedures is relevant to the necessary scope of [pretermination] procedures”; (internal quotation marks omitted) id., at 374, 551 A.2d 710 ; this court had to decide “what kind of pretermination hearing, given the Connecticut statutory scheme, complies with the constitutional command of due process.” Id., at 376, 551 A.2d 710.In Bartlett, this court concluded that the plaintiff was entitled to the following procedural safeguards prior to her dismissal: “First, notification in writing of the specific grounds for the proposed dismissal. Second, the meaningful opportunity to be heard in her own defense, personally or by counsel, at a public hearing, before the defendants have the power of dismissal. This meaningful opportunity includes not only the production at the public hearing, by the defendants, of the person or persons whose complaints form the basis of the ground or grounds in the notification of grounds for potential dismissal, but also the opportunity to examine at that time any or all of these complainants should the plaintiff decide to do so. Third, a statement, oral or in writing, of the reason or reasons upon which the defendants premise termination if that is the sanction imposed.” Id., at 380–81, 551 A.2d 710.
Although I recognize that the procedural protections required in a particular situation are flexible, I think that Bartlett is instructive in the present case. In that case, this court explained that “[t]he ‘opportunity to be heard in [her] own defense’ ought, when procedural due process is factored in, to mean that the plaintiff had the opportunity, at least, to examine the persons who were the complainants of the various charges proffered against her. In addition, there is no record of the defendants' decision of final termination except their conclusory determination of termination. While such a decision need not be in great detail, the complete absence of any statement of the reasons supporting that decision makes judicial review difficult.” Id., at 380, 551 A.2d 710.
In the present case, Listro was never given the opportunity to be heard in her own defense on the charge that her care of M was negligent. Indeed, the word negligence was never used in her notice of hearing or termination letter, or in her pretermination hearing pursuant to Loudermill. Without any reference to negligence in the hearing or termination letter, she could not have had an opportunity to respond to whether she was negligent in caring for M.
Instead, the notice of hearing and termination letters notified Listro that the department was considering taking action based on “her serious off-duty misconduct that has [led] to [her] arrest.” The termination letter even referred to the arrest warrant. Clearly, Listro would never have been arrested for negligent conduct. She was arrested because of “shaken baby syndrome,” which was alleged to have caused M's death. Indeed, this is the only conduct for which she could have been prosecuted because the medical examiner explicitly determined that M's fall was not consistent with the cause of death.
Although, unlike in Bartlett, the procedure for Listro's termination did provide for posttermination review of the department's decision by way of arbitration, I would conclude that this review was meaningless because the ground used as “just cause” for her termination in the arbitrator's decision—negligence—was never the focus at the underlying Loudermill hearing. Therefore, Listro was never given the opportunity to address negligence at the pretermination hearing and never had “an opportunity to present [her] side of the case [as it related to negligence] to the official responsible for the discharge,” which is the purpose of the pretermination hearing. Bartlett v. Krause, supra, 209 Conn. at 376, 551 A.2d 710. Moreover, even during the arbitration proceeding, none of the parties addressed whether Listro's conduct constituted negligence. Therefore, Listro was never given the required “pretermination opportunity to respond, coupled with [posttermination] administrative procedures” on the issue of whether her conduct constituted negligence. Board of Education v. Loudermill, supra, 470 U.S. at 547–48, 105 S.Ct. 1487.Further, the department has suggested, and the Appellate Court agreed, that it was sufficient for due process purposes that Listro was aware of the incident which gave rise to the charges. See AFSCME, Council 4, Local 2663 v. Dept. of Children & Families, 142 Conn.App. 1, 13, 62 A.3d 1168 (2013). This proposition is directly contrary to federal precedent. In addressing the notice required for due process purposes, the United States District Court for the Western District of Louisiana has stated that “[a]t the very least though, it is clear that in [the Fifth Circuit] notice of the charges against the employee given at the [pretermination] hearing will suffice where there is a history of contact between the employer and employee that warns the employee that he will be terminated for the reasons given at the termination hearing.”Nunnery v. Bossier, 822 F.Supp.2d 620, 625 (W.D.La.2011). In the present case, there was no such history of contact between the department and Listro regarding alleged negligence.
Likewise, in Lizzio v. Dept. of the Army, 534 F.3d 1376 (Fed.Cir.2008), the United States Court of Appeals for the Federal Circuit addressed an issue similar to the one in the present case. In that case, the defendant removed the plaintiff from his employment as a special agent in the Major Procurement Fraud Unit of the Criminal Investigation Command because it determined that he had breached a last chance agreement that he had entered into with the defendant in settlement of a previous removal action. Id., at 1377. “The last chance agreement contained a waiver of appeal rights. [The plaintiff] appealed his removal to the [Merit Systems Protection Board (board) ]. Following a hearing on the issue of jurisdiction, the administrative judge ... to whom the appeal was assigned issued an initial decision in which she held that the waiver of appeal rights in the last chance agreement was unenforceable. She did so after ruling that [the plaintiff] had established that he had not committed the breach of the last chance agreement asserted by the [defendant] in its [n]otice of [i]ntention to [i]nvoke the last chance agreement.... [The administrative judge] therefore reversed the removal action.” (Citation omitted.) Id., at 1377–78.
“The [administrative judge] concluded that [the plaintiff] had not breached the last chance agreement.... Focusing upon the alleged breach cited by [the defendant] ... the [administrative judge] concluded that, though ‘rude and obnoxious,’ [the plaintiff's] conduct could not have embarrassed the government and therefore did not justify invocation of the last chance agreement.... Thereafter, in response to the [defendant's] petition for review, rather than disturbing the [administrative judge's] finding that the [defendant] asserted in the notice of breach that [the plaintiff] breached the agreement by engaging in conduct embarrassing to the government or her finding that [the plain-tiff's] conduct did not embarrass the government, the [b]oard relied upon a ground for breach different from the one found by the [administrative judge] to have been asserted by the [defendant] in the notice of breach. Thus, the [b]oard concluded that ‘rude and obnoxious' behavior comprised ‘misconduct’ within the meaning of the last chance agreement and therefore justified the [defendant's] invocation of the agreement and removal of [the plaintiff] for his prior misconduct.” (Citations omitted.) Id., at 1384.
On appeal, the Federal Circuit vacated the plaintiff's removal. It concluded as follows: “In sum, the [b]oard erred when ... it relied on a ground for breach of the last chance agreement—conduct on [the plaintiff's] part that was ‘rude and obnoxious'—different from the ground found by the [administrative judge] to have been asserted by the [defendant] in the notice of breach—conduct on [the plaintiff's] part that was ‘embarrassing’ to the government, a finding not disturbed by the [b]oard. In so doing, the [b]oard deprived [the plaintiff] of due process.... We do so because the [b]oard rested [its decision] solely upon the ground that [the plaintiff] engaged in rude and obnoxious behavior. Among other things, it declined to review the [administrative judge's] finding that the [defendant] charged [the plaintiff] with breaching the last chance agreement by engaging in conduct that embarrassed the [defendant], or her finding that his conduct ... did not embarrass the [defendant].” (Citations omitted.) Id., at 1386.
Like the present case, although the two separate charges arose from the same incident, the fact that the plaintiff in Lizzio did not have notice of the second charge was sufficient to vacate the board's decision. While I recognize that Lizzio involved a result after trial before an administrative judge, as opposed to arbitration, the case is important because of its recognition that due process requires notice of the specific reasons for dismissal, even if those reasons arise out of the same set of facts. Likewise, in the present case, Listro did not have notice of the negligence claim, although it arguably arose out of the same set of facts. The reasons for termination of employment must be specific. Unquestionably, the notice provided Listro in the present case falls far below any traditional notion of due process. Any attempts to gloss the allegations for dismissal with the cloak of knowledge of the incident must fail because of the panoply of charges that can result from one set of circumstances.
In Darien Education Assn. v. Board of Education, 172 Conn. 434, 438–39, 374 A.2d 1081 (1977), this court held that it can examine the merits of an arbitration decision in considering whether the arbitrator has failed to abide by his or her obligation to remain within the scope of his authority under the submission. Moreover, this court has previously stated that an arbitration award must draw its essence from the terms of the contract, and that the arbitrator cannot simply, “dispense his own brand of industrial justice.” (Internal quotation marks omitted.) Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 553, 191 A.2d 557 (1963), quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
In the present case, the question before the arbitrator was whether Listro was terminated for just cause. The reason for her termination thus becomes a critical item in the determination. In my view, Listro was terminated for the conduct that led to the serious charges against her, alleged actions that resulted in the unfortunate death of a young child. The notice of hearing and the termination letter sent to Listro support my understanding of this case. The department never asserted negligence as the reason for termination. Negligence is never mentioned in any notice to Listro. The arbitrator answered the question presented to her. She stated: “I must conclude that the [d]epartment has failed to carry its burden of establishing that ... Listro committed the fatal abuse of which she was accused.” Therefore, Listro was not terminated for just cause.
The arbitrator's remaining findings go far beyond the scope of the submission. Specifically, the arbitrator held that Listro had been negligent in her care of M when negligence was never an issue before the arbitrator and Listro was never given notice that negligence would be an issue. It certainly was never the basis for Listro's termination. Further, the arbitrator's statement that Listro's “moment of negligence had unusually serious consequences” is totally unwarranted, especially when the medical examiner testified that M's injuries were not consistent with the fall. Specifically on these two grounds, which serve as the basis for the arbitrator's decision, the arbitrator was offering her own brand of industrial justice and failed in her obligation to remain within the scope of the submission. “This additional analysis is conducted pursuant to such a claim because an arbitrator's award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.... If, for example, there was evidence that revealed that [the arbitrator] had reached his decision by consulting a [O]uija board, [it would] not suffice that the award conformed to the submission.... [I]n the face of such a claimed inconsistency, this court will review the award only to determine whether it draws its essence from the collective bargaining agreement.” (Citations omitted; internal quotation marks omitted.) Board of Education v. Local 818, Council 4, AFSCME, AFL–CIO, 5 Conn.App. 636, 640, 502 A.2d 426 (1985). In my view, Listro was not only denied due process because she was never informed that she was terminated for negligence, but also because the arbitrator engaged in her own brand of industrial justice. The arbitrator found negligence, and then found that the negligence resulted in M's death when the medical evidence was to the contrary. The medical examiner testified that M's injuries were not consistent with the fall. The arbitrator exceeded her own authority by issuing her own charge against Listro—that charge being one of negligence. Further, there was no causation related to the negligence. The medical examiner testified that if M had hit his head, the autopsy should have revealed pooled blood under the scalp. It did not.
The submission was restricted in that it required that the award be consistent with the terms of the parties' collective bargaining agreement. Article 15, § 9(c), of the parties' collective bargaining agreement states in relevant part: “The arbitrator shall have no power to add to, subtract from, alter, or modify this [a]greement....” The award in the present case was not consistent with this provision of the contract between the parties. The parties could have framed the remedy section of the issue by stating the following question: If, not, what shall the remedy be? Instead, they specifically put the restriction that the arbitration award be consistent with the terms of the parties' collective bargaining agreement. Further, if the union had known that negligence was going to be an issue, the submission to the arbitrator may have been on different terms.
Further, I am surprised at the majority's statement that “[w]e note, however, that it would not be inconsistent for the arbitrator to conclude that M's fall due to Listro's inattention could have been the last straw on top of previously inflicted traumatic injuries that led to M's death, even if Listro was not responsible for those prior injuries.”3 This statement is completely at odds with the findings of the medical examiner that the fall was not consistent with the cause of death. Nor was there any testimony that the fall contributed, in any way, to the cause of death. For this court to conclude that it could have been the “last straw” in the process is to suggest that an arbitrator, or any court, could draw a contrary inference from testimony which does not support the proposition. How could any court draw an inference that this was the “last straw” in the sequence such a view is not only illogical, but contrary to our evidentiary jurisprudence.
For the foregoing reasons, I respectfully dissent from the majority opinion. Therefore, I would reverse the judgment of the Appellate Court and remand the case to that court with direction to affirm the judgment of the trial court vacating the award.