AFSCME, Council 4, Local 2663 v. Dept. of Children & Families ( 2015 )

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AFSCME, COUNCIL 4, LOCAL 2663 v. DEPARTMENT
OF CHILDREN AND FAMILIES ET AL.
(SC 19166)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued December 11, 2014—officially released June 23, 2015
J. William Gagne, Jr., with whom, on the brief, was
Kimberly A. Cuneo, 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 gen-
eral, for the appellee (named defendant).
Opinion
McDONALD, J. A broadly phrased, unrestricted sub-
mission to arbitration may yield unanticipated results,
as this case aptly demonstrates. In the underlying arbi-
tration proceeding, the arbitrator found that the named
defendant, the Department of Children and Families
(department),1 had failed to establish that a department
employee, Suzanne Listro, had inflicted the fatal abuse
on her foster child that the department claimed pro-
vided just cause for termination of her employment.
The arbitrator nonetheless found that Listro’s own ver-
sion 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 Appel-
late 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 author-
ity 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 appli-
cation of the requisite limited scope of review of arbitra-
tion awards, we conclude that the award conformed
to the parties’ unrestricted submission and drew its
essence from the terms of the parties’ collective bar-
gaining agreement. We further conclude that notice
requirements were satisfied. Accordingly, we affirm the
judgment of the Appellate Court.
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 depart-
ment’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 com-
munity 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,2 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.
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 homi-
cide. 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 medi-
cal 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 per-
sons 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 disci-
pline was warranted in light of these events. In connec-
tion 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 crim-
inal 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),3 but, again, on
advice of counsel, Listro declined to do so.
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 immedi-
ately 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 ‘‘indi-
cates 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 depart-
ment by M’s biological parents.
The union filed a grievance on Listro’s behalf, chal-
lenging her termination, after which the parties pro-
ceeded 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 termi-
nation.4
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 termi-
nate 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 lia-
bility.
The department, however, maintained that it had the
right to discipline Listro for off duty misconduct and
that her misconduct constituted just cause for termina-
tion. 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 depart-
ment 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 deci-
sion, wherein she denied Listro’s grievance. The arbitra-
tor 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 responsi-
bilities, 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 arbi-
trator found that the department did not ‘‘carry its bur-
den 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 ‘‘con-
clusively 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. More-
over, 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 arbitra-
tor went on to explain: ‘‘[Listro’s] problems do not end
there, however. Even if we accept her story in its total-
ity, 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 conse-
quences, 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 unemploy-
able 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 Supe-
rior Court seeking to vacate the arbitrator’s award pur-
suant 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 author-
ity 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, con-
cluding that ‘‘negligence arguably came within the pur-
view 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., 13. The Appellate Court determined that the
trial court’s contrary conclusion ‘‘exceeded the stan-
dards 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., 14. The union’s certified appeal to this court fol-
lowed. 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 interre-
lated arguments in support of an overarching claim
that, contrary to the Appellate Court’s conclusion, the
arbitrator exceeded her powers.5 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 ‘‘commit-
ted 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.6 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 viola-
tion 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.
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 arbi-
tration awards in a manner designed to minimize inter-
ference 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 quota-
tion 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. 80; 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] author-
ized 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 omit-
ted.) United States Fidelity & Guaranty Co. v. Hutch-
inson, 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 proceed-
ings below and in its brief to this court, the union con-
ceded 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, how-
ever, 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. 114; 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 estab-
lished 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.’’ (Inter-
nal quotation marks omitted.) Harty v. Cantor Fitzger-
ald & Co., supra, 275 Conn. 85. Although not expressly
stated as such, the union’s claims in the present case
fall under the first category.7
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 submis-
sion.’’8 Id.; see also Comprehensive 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 Ortho-
paedics & Musculoskeletal Care, LLC v. Axtmayer,
supra, 755.
Because the arbitrator is required to consider the
submission in light of the parties’ agreement, ‘‘the arbi-
trator’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. 770–71 (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.
88–89.
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 sep-
aration from her employment at the [department].’’ The
award, therefore, manifestly conforms to the submis-
sion. 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. 289 (‘‘[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 . . . dis-
missed except for just cause. Just cause may include
but is not necessarily restricted to incompetency, inef-
ficiency, neglect of duty, misconduct or insubordina-
tion.’’ (Emphasis added.) Thus, the question is whether
the arbitrator was arguably applying this definition of
just cause in concluding that negligence by Listro con-
stituted such cause. See Comprehensive Orthopae-
dics & Musculoskeletal Care, LLC v. Axtmayer, supra,
293 Conn. 755 (‘‘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 necessar-
ily 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.
10; 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 ambi-
guity 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, includ-
ing dismissal.
To the extent that the union contends that the arbitra-
tor 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 inat-
tention to M did not ‘‘make her unable to mentor adoles-
cent 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]).9 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 chil-
dren 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 termina-
tion 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 arbitra-
tor 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.
We turn next to the union’s argument that the arbitra-
tor exceeded her authority by disregarding her own
factual findings, principal among which was the arbitra-
tor’s determination that ‘‘the [d]epartment . . . failed
to carry its burden of establishing that . . . Listro com-
mitted the fatal abuse of which she was accused.’’10 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., 155 (‘‘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. Mil-
ford, 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 fac-
tual 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 pan-
el’s factual determinations when the arbitration submis-
sion is unrestricted.’’ [Internal quotation marks
omitted.]). We note, however, that it would not be incon-
sistent 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.11
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 conclu-
sions of fact controls, and that, ordinarily, the memoran-
dum of the arbitrator is irrelevant.’’ Board of Education
v. Bridgeport Education Assn., supra, 173 Conn. 292;
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 memoran-
dum patently shows an infidelity to his obligation, the
result reached by the award, and not the memorandum,
controls.’’). As previously explained, because the arbi-
tration 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 con-
duct cited by the department, deprived Listro of suffi-
cient 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. 546. 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 impo-
sition 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 require-
ments 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 negli-
gence,’’ the union contends that Listro’s purported neg-
ligence 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 ‘‘negli-
gence’’ 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 necessar-
ily 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 arbi-
tral 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 securi-
ties 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.12 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.13
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.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ZARELLA and ROBINSON,
Js., concurred.
1
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.
2
We identify the foster child involved in this appeal only by his first initial.
3
‘‘[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. 546. The opportunity to present
one’s ‘‘side of the story’’ is generally referred to as a Loudermill hearing.
4
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 depart-
ment’s reliance on Listro’s central registry status and found just cause for
other reasons. This due process issue is not before this court.
5
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. 7 n.7;
but nonetheless effectively reviewed the claim when it concluded that the
award ‘‘arguably came within the purview of the [collective bargaining]
agreement . . . .’’ Id., 10. 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’ sub-
mission.
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).
6
In support of each of these contentions, the union makes myriad subsid-
iary 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 arbitra-
tion 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.
7
The union’s only argument in which it asserts that the arbitrator mani-
festly 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]).
8
The union argues that this court must apply de novo review in determin-
ing whether an arbitration award conforms to the submission. As this court
explained in Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 85, 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 submis-
sion. 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 submis-
sion. 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., 85–86.
9
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. 753–54 (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’’).
10
The union also questions the arbitrator’s finding that Listro was negli-
gent, 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., Eco-
nomos 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.,
312 (claim of manifest disregard of law failed where party could not show
that arbitrator ‘‘considered, but elected to ignore, governing legal princi-
ples’’); 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 cir-
cumstances.
11
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 plain-
tiff 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 imme-
diately after he fell and died only a few hours later.
12
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.
13
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.