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BURR ROAD OPERATING COMPANY II, LLC v.
NEW ENGLAND HEALTH CARE EMPLOYEES
UNION, DISTRICT 1199
(SC 19160)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.*
Argued October 20, 2014—officially released May 5, 2015
Michael E. Passero, for the appellant (defendant).
Andrea C. Kramer, for the appellee (plaintiff).
Opinion
ROBINSON, J. The sole issue in this certified appeal
is whether an arbitration award reducing the termina-
tion of an employee of a skilled nursing facility to a
one month unpaid suspension, as a consequence for a
two day delay by that employee in reporting her suspi-
cion that her supervisor might have abused a resident,
violated a clearly discernible public policy against the
delayed reporting of suspected abuse of nursing home
residents. The defendant, New England Health Care
Employees Union, District 1199, appeals, upon our
grant of its petition for certification,1 from the judgment
of the Appellate Court reversing the judgment of the
trial court granting its application to confirm, and deny-
ing the application of the plaintiff, Burr Road Operating
Company II, LLC, to vacate an arbitration award that
reinstated the grievant, Leoni Spence, to her employ-
ment as a certified nursing assistant at a skilled nursing
facility operated by the plaintiff. Burr Road Operating
Co. II, LLC v. New England Health Care Employees
Union, District 1199, 142 Conn. App. 213, 234, 70 A.3d
42 (2013) (Burr Road). On appeal, the defendant claims
that the Appellate Court improperly determined that the
arbitration award reinstating the grievant’s employment
violated Connecticut’s clear public policy requiring the
prompt reporting of any incident of suspected abuse of
a nursing home resident. Having conducted a thorough
analysis of the four factors governing whether an arbi-
tration award requiring the reinstatement of a termi-
nated employee violates public policy, we conclude that
the award in the present case did not violate this public
policy. Accordingly, we reverse the judgment of the
Appellate Court.
The opinion of Appellate Court, as supplemented by
the record, reveals the following relevant facts and pro-
cedural history. The plaintiff operates a 120 bed skilled
nursing facility known as the Westport Health Care
Center (Westport). Id., 215. The grievant was employed
there as a certified nursing assistant from 2002 until
the termination of her employment in 2010, and is repre-
sented by the defendant. Id., 215–16.
Between 2005 and 2009, the grievant was the subject
of three disciplinary actions that have remained part
of her personnel file. Id., 216. In 2005, she received
a suspension and final warning after she improperly
restrained a resident by using a bed sheet to tie him
into his wheelchair. Id. In April, 2009, she received a
written warning for speaking to a resident in an inappro-
priately rude, loud, and scolding manner, and for being
insubordinate and disrespectful to her shift supervisor,
registered nurse Gay Muizulles. Id., 216–17. Finally, in
August, 2009, the grievant received a ‘‘ ‘[second] and
[f]inal’ ’’2 written warning for addressing a resident dis-
respectfully and touching that resident without first
explaining the procedure involved. Id., 216.
The incident that led to the termination of the griev-
ant’s employment transpired in March, 2010. Id. The
grievant worked the night shift, which runs from 11
p.m. to 7 a.m., from the evening of Saturday, March 20,
to the morning of Sunday, March 21. Id. She was
assigned to work on Westport’s ‘‘ ‘Riverside Unit’ ’’ (Riv-
erside) that night, along with Dezra Leonard, a charge
nurse. Id., 216–17. Muizulles was working on Westport’s
‘‘ ‘Woodside Unit’ ’’ (Woodside) that night, together with
Laurel Johnson, another certified nursing assistant. Id.,
217. Sometime late in the shift, the grievant overheard
Johnson telling Leonard about an incident that had tran-
spired that night at Woodside. Id. The grievant under-
stood, from what she had overheard, that a Woodside
resident had been crying. Id. The grievant also heard
Johnson state something to the effect of, ‘‘ ‘[i]f the
supervisor wasn’t so rude, I would have picked up more
residents,’ ’’ or, ‘‘ ‘[t]hat’s what [Muizulles] gets, for not
calling Kim.’ ’’3 Id. When the grievant approached John-
son and Leonard and asked them who had been crying,
Leonard did not respond, and Johnson indicated that
she would talk with the grievant later. Id. The grievant
and Johnson did not, however, have an opportunity to
talk further before their shifts ended. Id.
On the basis of the conversation she overheard, the
grievant concluded that Muizulles had been involved in
an incident in which a resident had been crying. Id.
Although the grievant could not be certain, she also
believed that the incident might have involved abuse.
Id. Before her shift ended, the grievant went to Wood-
side ‘‘ ‘to snoop’ ’’ around and investigate. Id. The resi-
dents were all asleep, however, and no one was
crying. Id.
According to the arbitration report, the grievant did
not report her suspicions at that time because, in her
words, ‘‘ ‘I didn’t know for sure that there had been
abuse . . . . I wasn’t sure what had happened.’ ’’ There
also is no indication that she pursued the matter the
following night shift, from Sunday, March 21, to Mon-
day, March 22, when she again worked on Riverside
with Muizulles. Burr Road, supra, 142 Conn. App. 217.
The first shift that the grievant worked on Woodside
after the suspected incident was the next night, from
Monday, March 22, to Tuesday, March 23. Id. During
that shift, she had occasion to speak with a resident of
Woodside, who told the grievant that, on the previous
Saturday night, Muizulles had been somewhat rough
while helping her get her legs up onto her bed, had
spoken gruffly, and had turned down the television
without asking permission. Id. The resident’s roommate
confirmed that these events had upset the resident, who
had cried for some time afterward. Id., 217–18.
The grievant realized that this was likely the incident
she had overheard Johnson and Leonard discussing
during the Saturday night shift. Id., 218. The grievant
comforted the resident, explained to her that she should
not have been subjected to such treatment, and
informed her that she should feel comfortable reporting
it. Id. The grievant suggested that she could arrange for
someone to come and speak to the resident about what
had happened to her, and the resident agreed. Id.
After her shift ended on Tuesday morning, the griev-
ant went home and tried to call a social worker at
Westport. Id. The social worker was not available, how-
ever, so the grievant left her three lengthy voice mail
messages reporting what the resident had told her and
urging the social worker to talk to the resident. Id.
The plaintiff subsequently carried out a thorough
investigation of Muizulles’ treatment of the resident. Id.
Its ultimate conclusion was that Muizulles had acted
insensitively, but that her treatment had not risen to
the level of resident abuse or neglect. Id. In light of
Muizulles’ twenty years of employment, with no prior
discipline on her record, the plaintiff gave her a five
day suspension and a final warning. Id.
During its investigation of Muizulles, the plaintiff also
concluded that three staff members—Johnson, the
grievant, and the assistant director of nursing, whom
the social worker had notified of the suspected abuse—
had failed to fulfill their obligations promptly to report
Muizulles’ possible abuse. Id. Johnson received a final
warning and a two day suspension for failing to report
a complaint made by a resident regarding possible
abuse by another staff member. Id. The assistant direc-
tor of nursing also was suspended because, after she
was informed by the social worker of the possible
abuse, the assistant director of nursing failed to notify
Westport’s director of nursing or another administrator
immediately. Id., 218–19. There is no indication in the
record that Leonard was ever disciplined for her failure
to report what Johnson had told her.
By contrast, the plaintiff terminated the grievant’s
employment on the ground that she had failed to make
a timely report of an allegation of resident abuse. Id.,
219. It subjected her to more serious discipline than
Muizulles, Johnson, and the assistant director of nursing
because, unlike those employees, the grievant already
had a final warning in her employee file. Prior to termi-
nating the grievant’s employment, the plaintiff never
informed her that she was under investigation, nor
afforded her any opportunity to tell her side of the story
or to explain or to clarify why she did not immediately
report her suspicions after her shift had ended on Sun-
day morning. Id., 233–34. ‘‘This most rudimentary due
process,’’ the arbitrator remarked, ‘‘was not afforded
to the grievant.’’
The grievant grieved her termination, and the defen-
dant took the termination to arbitration pursuant to the
collective bargaining agreement between the parties.
The parties asked the arbitrator to determine: (1)
whether the grievant had been terminated for just
cause; and (2) if not, what the remedy should be.
The arbitrator agreed with the plaintiff that the griev-
ant improperly had delayed reporting an incident of
suspected resident abuse. Specifically, the arbitrator
found that the grievant: (1) was aware, based on training
she had received and simple common sense, that she
was required to report immediately any information
regarding suspected resident abuse to a nursing supervi-
sor or more senior administrator, regardless of the
source of that information; (2) came to believe in the
early hours on Sunday, March 21,4 that Muizulles might
have committed resident abuse, but waited more than
two days, until her shift ended on Tuesday morning,
March 23, to report her suspicion; and (3) reported her
suspicion ‘‘imperfect[ly],’’ by leaving telephone mes-
sages for Westport’s social worker, instead of reporting
directly to someone in the proper line of authority.5 On
the basis of these findings, the arbitrator concluded
that ‘‘the grievant was guilty of the offense of failing to
timely report to a nursing supervisor (or higher author-
ity) the information that had come into her posses-
sion . . . .’’
In determining whether the plaintiff had just cause
to terminate the grievant for this offense, the arbitrator
recognized that a health care provider ‘‘is under [a]
clear, statutory obligation to report immediately to the
state regulatory body whenever there has been an event
of possible resident abuse,’’ which ‘‘obligation only can
be fulfilled if employees report in a timely manner.
Moreover, and more fundamentally, any delay in
reporting by a staff member leaves the residents at risk
of possible further abuse by the alleged perpetrator;
corrective action by [the administrators] to assure resi-
dent well-being inevitably is delayed if reporting by staff
is delayed.’’ For that reason, the arbitrator credited the
plaintiff’s argument that ‘‘a delay in reporting is almost
as bad as not reporting at all.’’
The arbitrator also concluded, however, that it was
‘‘an important mitigating fact that the grievant was the
one who actually came forward, although belatedly,
and made [the plaintiff] aware of the problem. If the
grievant had not come forward on March 23, it is quite
likely that [the plaintiff] never would have learned of
the insensitive treatment given by Muizulles, nor of
the failure to report by multiple staff members. It is
important to recognize that contribution which the
grievant made, then, albeit belatedly, to help assure the
well-being of the residents . . . .’’ For that reason, the
arbitrator recognized that ‘‘the grievant’s misconduct
arguably was much less egregious than the misconduct
of the others involved,’’ who ‘‘apparently had no inten-
tion of making any report.’’6
Ultimately, the arbitrator found as follows: ‘‘The
grievant did fail to make a timely report of what she
had learned on March 20.7 She knew the rule that she
had to report, and to do so without delay. She failed
to fulfill that responsibility in a timely manner. And,
she had a poor disciplinary record, so that placed her
in a worse position than the other staff members
involved . . . . On the other hand, there is the signifi-
cant mitigating factor that it was the grievant, not the
others, who did come forward and report to [the plain-
tiff], although belatedly; and it was her reporting [that]
allowed [the plaintiff] to take corrective actions.’’ (Foot-
note added.) Accordingly, the arbitrator concluded that
the plaintiff lacked just cause to terminate the grievant’s
employment. Instead, the arbitrator interpreted the par-
ties’ collective bargaining agreement to mean that
‘‘severe disciplinary action just short of termination was
warranted.’’ The arbitrator therefore determined that
the plaintiff had just cause to suspend the grievant
without pay for one month and to issue her a final
warning and, accordingly, he ordered the grievant rein-
stated.
The plaintiff filed an application to vacate the arbitra-
tion award on the grounds that: (1) the award violated
Connecticut’s clear public policy of protecting residents
in health care facilities from abuse; and (2) the arbitra-
tor exceeded his powers under the collective bargaining
agreement and refused to hear pertinent evidence. The
defendant filed an application to confirm the award. The
trial court rejected the plaintiff’s public policy argument
based on the limited scope of judicial review over arbi-
tration decisions, as well as the lack of clear authority
requiring a nursing home employee to be terminated,
rather than disciplined in some other way, for this type
of misconduct. The trial court also determined that,
because the award answered the submitted questions,
the arbitrator did not exceed the scope of his authority.
Accordingly, the trial court rendered judgment denying
the plaintiff’s application to vacate and granting the
defendant’s application to confirm the award.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court on both grounds. With
respect to the public policy claim, the Appellate Court
reversed, concluding that the arbitration award violated
a well-defined public policy against delayed reporting of
suspected abuse of vulnerable nursing home residents.8
Burr Road, supra, 142 Conn. App. 215. Specifically, the
court concluded that, in light of her past record of
misconduct and her failure to report promptly and
through the proper channels, the grievant had demon-
strated an ‘‘inability to meet the demands of the public
policy of protection and reporting.’’ Id., 226; see id., 226
n.6. Because the Appellate Court reversed the judgment
of the trial court with respect to the first claim, it
declined to reach the plaintiff’s second claim on appeal,
namely, that the arbitrator had exceeded his authority.
Id., 215. This certified appeal followed. See footnote 1
of this opinion. Additional facts will be set forth as nec-
essary.
On appeal, the defendant argues that there is no basis
for the Appellate Court’s conclusion that an employee
who delays reporting suspected abuse must be termi-
nated in order to protect vulnerable nursing home resi-
dents, and that, in concluding to the contrary, the
Appellate Court improperly relied on its own fact-find-
ing, which exceeded the scope of, and was unsupported
by, the arbitration award. Specifically, the defendant
contends that there is no basis in the record for the
Appellate Court’s conclusion that the grievant’s delay
in reporting her suspicions was related to her prior
disciplinary infractions, and, therefore, that she likely
would be unable to meet the demands of public policy
if reinstated. In response, the plaintiff contends that
termination of an employee such as the grievant, with
a documented history of resident abuse, is necessary
in order to ensure resident safety, and that the Appellate
Court properly relied on the facts found by the arbitra-
tor and conclusions reasonably to be drawn therefrom.
We agree with the defendant, and conclude that none
of the factors we have previously considered when
reviewing public policy challenges to arbitration awards
reinstating terminated employees militate in favor of
vacating the award in the present case.
We begin our analysis with the applicable standard
of review. ‘‘[W]e favor arbitration as a means of settling
private disputes, [thus] we undertake judicial review of
arbitration awards in a manner designed to minimize
interference with an efficient and economical system
of alternative dispute resolution. . . . We will, how-
ever, submit to higher scrutiny an arbitration award
that is claimed to be in contravention of public policy.
. . . [P]arties cannot expect an arbitration award
approving conduct which is . . . contrary to public
policy to receive judicial endorsement any more than
parties can expect a court to enforce such a contract
between them. . . . When a challenge to the arbitra-
tor’s authority is made on public policy grounds, how-
ever, the court is not concerned with the correctness
of the arbitrator’s decision but with the lawfulness of
enforcing the award. . . .
‘‘Thus, when a party challenges a consensual arbitral
award on the ground that it violates public policy, and
where that challenge has a legitimate, colorable basis,
de novo review of the award is appropriate in order to
determine whether the award does in fact violate public
policy. . . . As this court maintained in [State v.
AFSCME, Council 4, Local 391, 309 Conn. 519, 528, 69
A.3d 927 (2013)], we defer to the arbitrator’s interpreta-
tion of the agreements regarding the scope of the [con-
tract] provision . . . . We conclude only that as a
reviewing court, we must determine, pursuant to our
plenary authority and giving appropriate deference to
the arbitrator’s factual conclusions, whether the con-
tract provision in question violates those policies.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Stratford v. AFSCME, Council 15,
Local 407, 315 Conn. 49, 55–56, 105 A.3d 148 (2014).
To determine whether an arbitration award must be
vacated for violating public policy, we employ a two-
pronged analysis. See id., 56. First, we must determine
whether the award implicates any explicit, well-defined,
and dominant public policy. See id. To identify the exis-
tence of a public policy, we look to statutes, regulations,
administrative decisions, and case law. See id. Second,
if the decision of the arbitrator does implicate a clearly
defined public policy, we then determine whether the
contract, as construed by the arbitration award, violates
that policy. See id.
In the present case, with regard to the first prong
of the analysis, neither party actively challenges the
Appellate Court’s conclusion that Connecticut has a
clear, well-defined, and dominant public policy of pro-
tecting vulnerable residents in skilled nursing facilities
from abuse, and that this policy encompasses the
prompt reporting of any incidents of suspected abuse.
See Burr Road, supra, 142 Conn. App. 224. Accordingly,
the sole issue before us is whether, under the circum-
stances of the present case, an arbitration award of a
one month unpaid suspension and final warning, rather
than termination of the grievant, violates that public
policy.9 ‘‘In making this determination, we are mindful
that the fact that an employee’s misconduct implicates
public policy does not require the arbitrator to defer
to the employer’s chosen form of discipline for such
misconduct.’’ (Internal quotation marks omitted.) Strat-
ford v. AFSCME, Council 15, Local 407, supra, 315
Conn. 58. Rather, a party seeking to vacate an arbitra-
tion award reinstating a terminated employee ‘‘bears
the burden of proving that illegality or conflict with
public policy is clearly demonstrated’’; (internal quota-
tion marks omitted) State v. New England Health Care
Employees Union, District 1199, AFL-CIO, 271 Conn.
127, 136, 855 A.2d 964 (2004); and that ‘‘nothing less
than the termination of [the grievant’s] employment’’
will suffice to vindicate the public policy at issue. (Inter-
nal quotation marks omitted.) Stratford v. AFSCME,
Council 15, Local 407, supra, 59. ‘‘It bears emphasizing,
moreover, that implicit in the stringent and narrow con-
fines of this exception to the rule of deference to arbitra-
tors’ determinations, is the notion that the exception
must not be interpreted so broadly as to swallow the
rule.’’ (Internal quotation marks omitted.) State v. New
England Health Care Employees Union, District 1199,
AFL-CIO, supra, 271 Conn. 136.
I
GENERAL PRINCIPLES
Since this court first recognized the public policy
exception to the general rule of deference to an arbitra-
tion award made pursuant to an unrestricted submis-
sion; see Board of Trustees v. Federation of Technical
College Teachers, 179 Conn. 184, 195, 425 A.2d 1247
(1979); we have decided one half dozen cases in which
an employer sought to vacate on public policy grounds
an award reinstating an employee who had been termi-
nated for misconduct.10 In one half of those cases, we
held that reinstatement of the terminated employee vio-
lated a clear public policy of the state. See State v.
AFSCME, Council 4, Local 391, supra, 309 Conn. 521
(correction officer engaged in persistent sexual harass-
ment of coworkers); Groton v. United Steelworkers of
America, 254 Conn. 35, 36–37, 757 A.2d 501 (2000)
(weighmaster at municipal landfill pleaded nolo conten-
dere to embezzlement charge); State v. AFSCME, Coun-
cil 4, Local 387, AFL-CIO, 252 Conn. 467, 468–69, 747
A.2d 480 (2000) (correction officer placed obscene, rac-
ist telephone call to state senator). In the other three
cases, we upheld the decision of the arbitrator reinstat-
ing the terminated employee. See Stratford v. AFSCME,
Council 15, Local 407, supra, 315 Conn. 50–52 (police
officer misrepresented history of alcohol use during
official medical exam); State v. New England Health
Care Employees Union, District 1199, AFL-CIO, supra,
271 Conn. 129–31 (Department of Mental Retardation11
employee shoved agitated client into chair); South
Windsor v. South Windsor Police Union Local 1480,
Council 15, 255 Conn. 800, 802–805, 770 A.2d 14 (2001)
(police officer deemed unfit for duty after drawing gun
on trespassers playing basketball in school gym). This
has, moreover, been an area of the law in which consen-
sus has proved elusive. See Stratford v. AFSCME, Coun-
cil 15, Local 407, supra, 62 (dissenting opinion authored
by Justice Palmer and joined by Justice Espinosa); State
v. AFSCME, Council 4, Local 391, supra, 542 (dis-
senting opinion authored by Justice Eveleigh); State v.
New England Health Care Employees Union, District
1199, AFL-CIO, supra, 145 (opinion dissenting in part
authored by Justice Zarella); Groton v. United Steel-
workers of America, supra, 53 (dissenting opinion
authored by Justice Katz and joined by Justices Norcott
and Palmer); see also State v. AFSCME, Council 4,
Local 387, AFL-CIO, supra, 478 (opinion by Justice
Peters concurring in result reached by majority).
Accordingly, to assure consistent, principled decision
making in cases of this nature, we take this opportunity
to clarify the factors a reviewing court should consider
when evaluating a claim that an arbitration award
reinstating a terminated employee violates public pol-
icy, and, by extension, the types of factual findings an
arbitrator may make in order to assist a reviewing court
in considering such a challenge. Specifically, in
determining whether termination of employment was
necessary to vindicate the public policies at issue, both
the majority and the dissenting opinions of this court
have, either expressly or implicitly, focused on four
principal factors: (1) any guidance offered by the rele-
vant statutes, regulations, and other embodiments of
the public policy at issue; (2) whether the employment
at issue implicates public safety or the public trust; (3)
the relative egregiousness of the grievant’s conduct;
and (4) whether the grievant is incorrigible.12 See, e.g.,
State v. AFSCME, Council 4, Local 391, supra, 309
Conn. 538–41. In the remainder of this part of the opin-
ion, we discuss each of those factors, and clarify the
extent to which the factual findings of the arbitrator
control or affect the reviewing court’s analysis under
each factor. In part II of this opinion, we consider each
factor as applied to the present appeal.
A
The first factor requires us to consider whether the
relevant statutes, regulations, and other manifestations
of the public policy at issue themselves recommend or
require termination of employment as the sole accept-
able remedy for a violation thereof. See id., 540–41;
South Windsor v. South Windsor Police Union Local
1480, Council 15, supra, 255 Conn. 823; State v.
AFSCME, Council 4, Local 387, AFL-CIO, supra, 252
Conn. 477; accord Eastern Associated Coal Corp. v.
United Mine Workers of America District 17, 531 U.S.
57, 66, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000) (relying
on fact that reinstatement order did not violate ‘‘specific
provision of any law or regulation’’). Put differently, we
ask whether the offense committed by the employee
involves the sort of conduct the law deems to be inexpi-
able, or that would expose the employer to substantial
liability if it were to reoccur. See State v. AFSCME,
Council 4, Local 391, supra, 309 Conn. 549–50 (Eve-
leigh, J., dissenting). Whether sources of public policy
themselves mandate termination is a question of law
subject to plenary review. See id., 528–29; State v.
AFSCME, Council 4, Local 387, AFL-CIO, supra,
475–76.
B
The second factor we consider is whether the nature
of the employment at issue implicates public safety or
the public trust. See, e.g., Stratford v. AFSCME, Council
15, Local 407, supra, 315 Conn. 68–71 (Palmer, J., dis-
senting) (community places special public trust in
police officers, who are granted broad authority and
wide discretion in maintaining law and order); Groton
v. United Steelworkers of America, supra, 254 Conn.
48–49 (employer should not be required to retain
employee established to have stolen public funds while
in position of financial trust); Board of Police Commis-
sioners v. Stanley, 92 Conn. App. 723, 741–42, 887 A.2d
394 (2005) (collecting cases). Nationally, in the vast
majority of cases in which courts have vacated for pub-
lic policy reasons arbitration awards reinstating termi-
nated employees, the grievant has been a public sector
employee, primarily working in fields such as law
enforcement, education, transportation, and health
care, in other words, fields that cater to vulnerable
populations or help ensure the public safety. See gener-
ally annot., 112 A.L.R.5th 263 (2003 and Supp. 2013);
see also A. Hodges, ‘‘Judicial Review of Arbitration
Awards on Public Policy Grounds: Lessons from the
Case Law,’’ 16 Ohio St. J. on Disp. Resol. 91, 114–20
(2000). This reflects the fact that the threat to public
policy involved in reinstating a terminated employee is
magnified when the offending employee provides an
essential public service, and especially when he is
employed by, represents, and, ultimately, is answerable
to the people. See generally Brooklyn Center v. Law
Enforcement Labor Services, Inc., 635 N.W.2d 236, 244
(Minn. App. 2001) (because police are held out as
deserving of public trust and have unique opportunities
to exploit that trust, municipality has special duty not
to employ abusive officer). In most private sector dis-
putes, by contrast, the law presumes that the parties
have secured their own interests through their contrac-
tual arrangements, including the agreement to submit
any disputes to binding arbitration; see J. Gordon,
‘‘Common Enterprise and Multiple Investors: A Con-
tractual Theory for Defining Investment Contracts and
Notes,’’ 1988 Colum. Bus. L. Rev. 635, 667–68 (1988);
and that the customers or clients whom they serve may
vote with their feet and protect their own interests
should they deem the conduct of an employee to be
unacceptable. See A. Eisenberg, ‘‘When HMO Patients
Can’t Get No Satisfaction,’’ 4 DePaul J. Health Care L.
367, 377 (2001).
When courts have barred the reinstatement of private
sector employees, those employees typically have
worked in fields in which the misconduct involved
could lead to disastrous consequences not only for their
employer’s customers but also for the public at large.
See Stead Motors of Walnut Creek v. Automotive
Machinists Lodge No. 1173, International Assn. of
Machinists & Aerospace Workers, 886 F.2d 1200, 1214
(9th Cir. 1989) (Stead Motors), cert. denied, 495 U.S.
946, 110 S. Ct. 2205, 109 L. Ed. 2d 531 (1990); see also
Delta Air Lines, Inc. v. Air Line Pilots Assn., Interna-
tional, 861 F.2d 665, 672 (11th Cir. 1988) (intoxicated
commercial airline pilot), cert. denied, 493 U.S. 871, 110
S. Ct. 201, 107 L. Ed. 2d 154 (1989); Iowa Electric Light &
Power Co. v. Local Union 204 of International Brother-
hood of Electric Workers (AFL-CIO), 834 F.2d 1424,
1426 (8th Cir. 1987) (nuclear power plant machinist
intentionally violated federally mandated secondary
containment rules); Amalgamated Meat Cutters &
Butcher Workmen of North America AFL-CIO, Local
Union 540 v. Great Western Food Co., 712 F.2d 122,
124 (5th Cir. 1983) (‘‘[a truck] driver who imbibes the
spirits endangers not only his own life, but the health
and safety of all other drivers’’); Black v. Cutter Labora-
tories, 43 Cal. 2d 788, 807, 278 P.2d 905 (1955) (potential
terrorist working in private plant producing military
and civilian antibiotics), cert. dismissed, 351 U.S. 292,
76 S. Ct. 824, 100 L. Ed. 1188 (1956).
In Connecticut, in every case wherein this court has
concluded that an arbitration award reinstating a termi-
nated employee offended public policy, the grievant
was a state or municipal employee. See State v.
AFSCME, Council 4, Local 391, supra, 309 Conn. 519
(correction officer); Groton v. United Steelworkers of
America, supra, 254 Conn. 35 (weighmaster at munici-
pal landfill); State v. AFSCME, Council 4, Local 387,
AFL-CIO, supra, 252 Conn. 467 (correction officer). In
State v. AFSCME, Council 4, Local 391, supra, 538, for
example, in upholding the vacatur of the arbitration
award, we emphasized that ‘‘the [grievant’s offensive]
conduct occurred in a prison in the presence of other
employees and inmates, where the need for order, disci-
pline and a culture of mutual respect among employees
is particularly acute.’’ This factor also hinges on general
questions of law and policy and is, therefore, subject
to plenary judicial review.
C
The third factor we consider is the relative ‘‘egre-
giousness’’ of the grievant’s offense. See Stratford v.
AFSCME, Council 15, Local 407, supra, 315 Conn. 61;
State v. AFSCME, Council 4, Local 391, supra, 309
Conn. 534, 538; see also Metropolitan District Commis-
sion v. Local 184, Council 4, AFSCME, AFL-CIO, 77
Conn. App. 832, 845–46, 825 A.2d 218 (2003) (collecting
cases). This factor encompasses myriad considerations,
including, but not limited to: (1) the severity of the
harms imposed and risks created by the grievant’s con-
duct; (2) whether that conduct strikes at the core or
falls on the periphery of the relevant public policy; (3)
the intent of the grievant with respect to the offending
conduct and the public policy at issue; (4) whether
reinstating the grievant would send an unacceptable
message to the public or to other employees regarding
the conduct in question; (5) the potential impact of
the grievant’s conduct on customers/clients and other
nonparties to the employment contract; (6) whether the
misconduct occurred during the performance of official
duties; and (7) whether the award reinstating the
employee is founded on the arbitrator’s determination
that mitigating circumstances, or other policy consider-
ations, counterbalance the public policy at issue. See
Stratford v. AFSCME, Council 15, Local 407, supra,
59–60 and n.4; State v. AFSCME, Council 4, Local 391,
supra, 538; State v. New England Health Care Employ-
ees Union, District 1199, AFL-CIO, supra, 271 Conn.
138–41; Groton v. United Steelworkers of America,
supra, 254 Conn. 48–49; State v. AFSCME, Council 4,
Local 387, AFL-CIO, supra, 252 Conn. 477–78.
This factor presents a mixed question of law and fact.
We take as our starting point the factual findings of the
arbitrator, which are not subject to judicial review. See
State v. New England Health Care Employees Union,
District 1199, AFL-CIO, 265 Conn. 771, 778, 830 A.2d
729 (2003). We defer as well to the arbitrator’s ultimate
determination whether termination was a just or appro-
priate punishment for the conduct at issue. We also
agree with the plaintiff, however, that, for purposes of
the public policy analysis, our determination of whether
the conduct in question was so egregious that any pun-
ishment short of termination would offend public policy
is not restricted to those findings. See State v. AFSCME,
Council 4, Local 387, AFL-CIO, supra, 252 Conn. 479
(Peters, J., concurring); Schoonmaker v. Cummings &
Lockwood of Connecticut, P.C., 252 Conn. 416, 430, 747
A.2d 1017 (2000). A broader review is required because
the arbitrator, in determining whether there was just
cause or some other contractual basis for termination,
may focus on case specific considerations such as how
the employer has disciplined other employees under
similar circumstances. Judicial review, by contrast, nec-
essarily transcends the interests of the parties to the
contract, and extends to the protection of other stake-
holders and the public at large, who may be adversely
impacted by the decision to reinstate the employee. See
C. Fox & B. Gruhn, ‘‘Toward a Principled Public Policy
Standard: Judicial Review of Arbitrators’ Decisions,’’
1989 Det. C.L. Rev. 863, 867, 872, 896 (1989). Accord-
ingly, we review de novo the question whether the rem-
edy fashioned by the arbitrator is sufficient to vindicate
the public policies at issue.
D
The fourth factor we consider is whether the grievant
is so ‘‘incorrigible’’ as to require termination. See Strat-
ford v. AFSCME, Council 15, Local 407, supra, 315
Conn. 59; State v. AFSCME, Council 4, Local 391, supra,
309 Conn. 538. Put differently, in light of the grievant’s
full employment history, is there a substantial risk that,
should a court uphold the arbitration award of reinstate-
ment, this particular employee will reengage in the
offending conduct? See State v. New England Health
Care Employees Union, District 1199, AFL-CIO, supra,
271 Conn. 138–39, 141. Here, relevant considerations
include whether, on the one hand, the grievant has
committed similar offenses in the past and has disre-
garded an employer’s prior warnings or clear policy
statements; or, on the other hand, whether the grievant:
(1) has generally performed his work in a competent
and professional manner; (2) has demonstrated a will-
ingness to change and an amenability to discipline; (3)
has exhibited remorse and attempted to make restitu-
tion for past offenses; and (4) is likely to benefit from
additional training and guidance. See id., 138–41; see
also Stratford v. AFSCME, Council 15, Local 407,
supra, 59 and 61 n.6; State v. AFSCME, Council 4, Local
391, supra, 538; State v. New England Health Care
Employees Union, District 1199, AFL-CIO, supra, 271
Conn. 149–50 (Zarella, J., dissenting in part); South
Windsor v. South Windsor Police Union Local 1480,
Council 15, supra, 255 Conn. 821. We also consider
whether the penalty imposed by the arbitrator is severe
enough to deter future infractions by the grievant or
others. See Stratford v. AFSCME, Council 15, Local
407, supra, 58–59.
Because these considerations are largely fact based
and case specific, a reviewing court must defer to an
arbitrator’s assessment—whether express or implied—
that a particular employee is unlikely to reoffend if
reinstated. See Stead Motors, supra, 886 F.2d 1213;
Stratford v. AFSCME, Council 15, Local 407, supra,
315 Conn. 61 n.6. Absent an express finding by the
arbitrator, which would be unreviewable, a court will
deem an employee incorrigible only when the likelihood
of recidivism is plain from the face of the record. See,
e.g., State v. AFSCME, Council 4, Local 391, supra, 309
Conn. 535–40 (concluding that grievant was incorrigible
because he was aware of employer’s zero tolerance
policy but had, nevertheless, repeatedly and openly har-
assed complainant and others over substantial period
of time, even after being asked to desist).
II
APPLICATION OF FACTORS TO THIS CASE
Turning to the record in the present case, we con-
clude that each of these four factors is either neutral
or weighs against vacating the arbitration award before
us. Accordingly, we conclude that the plaintiff has not
met the heavy burden of demonstrating that reinstating
the grievant clearly violates the public policy of Con-
necticut.
We first consider whether sources or manifestations
of the relevant public policy indicate that the public
policy can be vindicated only if all workplace violations
thereof result in termination of the offender. Connecti-
cut’s well established public policies of protecting vul-
nerable residents who reside in skilled nursing facilities,
and of promptly reporting any suspected abuse or
neglect thereof, are embodied, respectively, in General
Statutes §§ 19a-550 and 17b-451.13 Both policies are fur-
ther implemented in § 19-13-D8t of the Regulations of
Connecticut State Agencies.
Section 19a-550, Connecticut’s patients’ bill of rights,
provides in relevant part: ‘‘(b) There is established a
patients’ bill of rights for any person admitted as a
patient to any nursing home facility, residential care
home or chronic disease hospital. . . . The patients’
bill of rights shall provide that each such patient . . .
(8) is free from mental and physical abuse, corporal
punishment, involuntary seclusion and any physical or
chemical restraints imposed for purposes of discipline
or convenience . . . .’’ By way of remedy, the statute
creates a private right of action for any patient so
harmed; General Statutes § 19a-550 (e); and also entitles
the patient to seek administrative relief from the Depart-
ment of Social Services or the Department of Public
Health. General Statutes § 19a-550 (b) (20). Notably,
the patients’ bill of rights does not provide for any
particular penalty for offending nursing home
employees.
Section 17b-451 mandates the prompt reporting of
suspected abuse. Subsection (a) of § 17b-451 provides
in relevant part that ‘‘any registered nurse, any nursing
home administrator, nurse’s aide or . . . staff person
employed by a nursing home facility . . . who has rea-
sonable cause to suspect or believe that any elderly
person has been abused, neglected, exploited or aban-
doned . . . shall, not later than seventy-two hours after
such suspicion or belief arose, report such information
or cause a report to be made in any reasonable manner
to the Commissioner of Social Services or to the person
or persons designated by the commissioner to receive
such reports. Any person required to report under the
provisions of this section who fails to make such report
within the prescribed time period shall be fined not
more than five hundred dollars, except that, if such
person intentionally fails to make such report within
the prescribed time period, such person shall be guilty
of a class C misdemeanor for the first offense and a
class A misdemeanor for any subsequent offense.’’ The
plaintiff suggests that, because the statute provides only
seventy-two hours for its administrators to report cases
of suspected abuse to the Commissioner of Social Ser-
vices, to facilitate statutory compliance Westport must
in turn require that its nursing staff immediately report
any such suspicions to their superiors.
Whether the plaintiff was warranted in establishing
and strictly enforcing prompt internal reporting require-
ments, however, goes to the substance of the arbitra-
tor’s determination that the plaintiff lacked just cause
for terminating the grievant, the merits of which are
not at issue in this certified appeal. The question we
must resolve is not whether § 17b-451 mandates prompt
internal reporting by nursing home employees, but,
rather, whether the statute evidences a determination
by the legislature that one who fails to timely report
suspected abuse of nursing home residents is, ipso
facto, unfit for continued employment in such a facility.
We perceive no such legislative intent. The statute
clearly provides that a person whose failure to timely
report is inadvertent—as the grievant’s arguably was,
and as Westport’s surely would have been until the
grievant belatedly reported her suspicions—is subject
only to a maximum fine of $500. More importantly,
the statute provides that one who intentionally fails to
timely report is guilty of a class A misdemeanor for
‘‘any subsequent offense.’’ General Statutes § 17b-451
(a). In other words, the legislature envisioned that a
health care worker might be permitted to remain in her
position even after having repeatedly and intentionally
violated the provisions of the statute.
Rules intended to protect the residents of nursing
homes from abuse and neglect are further specified
in § 19-13-D8t of the Regulations of Connecticut State
Agencies. The regulations require immediate telephone
reporting to the Department of Public Health of any
complaint of patient abuse, to be followed by a written
report within seventy-two hours. Regs., Conn. State
Agencies § 19-13-D8t (g). Although the regulations
expressly provide that a facility’s medical director has
the responsibility to ‘‘suspend or terminate the facility
privileges of a medical staff member [who] is unable or
unwilling to adequately care for a patient in accordance
with . . . statutes and regulations . . . or facility by-
laws’’; id., § 19-13-D8t (h) (2) (H); no such provision
is made for members of a nursing staff who either
perpetrate or fail promptly to report patient abuse or
neglect. Instead, the regulations simply require that
facility administrators make ‘‘[a] determination . . . as
to what preventative measures shall be implemented’’
in such cases; id., § 19-13-D8t (g) (5); and that the
Department of Public Health maintain a registry of nurs-
ing aides that records, inter alia, any final determination
by the Department of Public Health that an aide has
engaged in resident abuse or neglect. Id., § 19-13-D8t
(l) (2). As with the governing statutes, then, we read
the Department of Public Health regulations to mean
that a nursing facility is not required to terminate a
health care worker who has failed to report an incident
of resident abuse in order adequately to protect its res-
idents.
We next consider the second factor, namely, whether
reinstatement of the grievant would compromise public
safety or violate the public trust. The plaintiff is a private
limited liability company, and there is no indication in
the record that Westport is anything other than a pri-
vate, for-profit nursing home. As we previously have
noted herein, it is the rare case in which a court will
vacate on public policy grounds an arbitration decision
reinstating a private sector employee who has been
unjustly terminated. Nor is this a case like Delta Air
Lines, Inc. v. Air Line Pilots Assn., International,
supra, 861 F.2d 665, in which reinstatement of the griev-
ant could by itself pose a serious threat to public safety.
We acknowledge, however, that residential nursing
facilities do represent something of an exceptional case
relative to other private sector employers. Nursing
home residnts may lack the physical, mental, or finan-
cial wherewithal to leave an unsafe or undesirable facil-
ity. The state, in its traditional role as parens patriae,
or parent of the nation, has an established interest in
protecting its most vulnerable citizens, which extends
to adult residents of skilled nursing facilities. Cf. Con-
necticut v. Physicians Health Services of Connecticut,
Inc., 103 F. Supp. 2d 495, 505 (D. Conn. 2000) (dis-
cussing cases involving group home residents), aff’d,
287 F.3d 110 (2d Cir.), cert. denied, 537 U.S. 878, 123
S. Ct. 77, 154 L. Ed. 2d 133 (2002); Support Ministries
for Persons with AIDS, Inc. v. Waterford, 799 F. Supp.
272, 277 (N.D.N.Y. 1992) (state’s ‘‘quasi-sovereign inter-
est in the health and well-being of its citizens’’ extends
to residential care facility for patients with AIDS). More-
over, many patients in private nursing facilities may be
the beneficiaries of Medicaid or other public funding
sources, so that the financial transactions involved are
not purely private. Indeed, whether a medical facility
is publicly or privately owned and operated may be
indiscernible to the average patient. Consistent with
these principles, courts from other jurisdictions consid-
ering whether to vacate, for public policy reasons, arbi-
tration awards reinstating nurses and nursing assistants
have done so by reference to the other factors discussed
in this opinion, without expressly distinguishing public
from private facilities. Accordingly, we conclude that
this factor is neutral with respect to vacating the arbitra-
tion award.
We next consider the third factor, namely, whether
the grievant’s conduct was so egregious that no disci-
plinary measure short of termination will vindicate the
relevant public policies. We begin by observing that the
grievant’s misconduct in the present case falls at the
periphery of the ultimate public policy concern—pro-
tecting vulnerable nursing home residents from abuse
and neglect. The grievant did not actually abuse any
residents. Rather, she merely delayed reporting a sec-
ond-hand conversation she had overheard simply sug-
gesting that someone else might have committed abuse,
and only delayed reporting for a few days. There is no
indication in the record that any resident came to harm
as a result of her delay, or that the plaintiff suffered
any adverse legal consequences. In fact, the plaintiff
itself ultimately determined that the incident in question
did not constitute abuse. Most significantly, the arbitra-
tor did not find that the grievant intentionally chose to
neglect her reporting duties or to place residents at risk.
To the contrary, the arbitrator found, as a significant
mitigating factor, that it was only the grievant who
actually came forward, albeit belatedly, and made the
plaintiff aware of the problem. In this act, she distin-
guished herself from Johnson and Leonard, who were
the original source of the grievant’s suspicions, and
from the Westport administrator, to whom she was
obliged to report.14 The arbitrator thus found that, but
for the grievant’s contribution, Muizulles’ insensitive
treatment of the resident at Woodside quite likely never
would have come to light, and, therefore, that ‘‘the griev-
ant’s misconduct arguably was much less egregious
than the misconduct of the others involved.’’ Although
he did not expressly identify them as mitigating factors,
the arbitrator also found that the grievant: (1) actively
and promptly investigated the possible abuse on her
own initiative; (2) comforted and counseled the resident
upon learning of the incident with Muizulles; and (3)
left multiple, lengthy messages for the social worker
that same day, urging her to speak with the resident
about the incident. There is abundant evidence in the
record, then, to support the conclusion that, although
the grievant acted improperly in delaying reporting her
suspicions and failing to report through the proper
channels, her conduct was devoid of insidious
motives.15
Our review of the case law from both Connecticut
and other jurisdictions confirms our conclusion that
the grievant’s conduct was not so egregious as to render
her reinstatement a violation of public policy. In State v.
New England Health Care Employees Union, District
1199, AFL-CIO, supra, 271 Conn. 127, we considered
a public policy challenge to an arbitration award
reinstating an employee found to have physically
abused a blind and mentally handicapped resident of
a training school. The grievant in that case had deliber-
ately shoved the agitated resident into a chair, in viola-
tion of facility policy, resulting in a laceration to the
resident’s arm. Id., 131. In holding that a thirty day
disciplinary suspension was adequate to vindicate the
public policy against abuse of Department of Mental
Retardation16 clients, we observed that there was no
evidence of intent to harm the resident, the magnitude
of the harm was minimal, and the conduct itself was
not criminal in nature. Id., 138–42. The same can be
said of the present case, which did not implicate actual
resident abuse.
Outside of Connecticut, a number of our sister courts
have rejected public policy challenges to the reinstate-
ment of nurses or nursing assistants, even in cases in
which the conduct at issue was more egregious, and
the risk to patient safety more pronounced, than in the
present case. See, e.g., Boston Medical Center v. Service
Employees International Union, Local 285, 260 F.3d
16, 25–26 (1st Cir. 2001) (upholding arbitration award
reinstating nurse whose clinical misjudgments resulted
in death of septic infant), cert. denied, 534 U.S. 1083,
122 S. Ct. 816, 151 L. Ed. 2d 700 (2002); MidMichigan
Regional Medical Center–Clare v. Professional
Employees Division of Local 79, Service Employee
International Union, AFL-CIO, 183 F.3d 497, 504 (6th
Cir. 1999) (reasoning that ‘‘[e]ven highly skilled profes-
sionals err on occasion’’ and concluding that reinstate-
ment of intensive care nurse who had twice tried to
administer improper medication and once negligently
operated cardiac defibrillator did not offend public pol-
icy); Maggio v. Local 1199, 702 F. Supp. 989, 991, 996
(E.D.N.Y.) (upholding reinstatement of nurse’s aide
whom arbitrator found to have inadvertently mistreated
two elderly patients), aff’d, 880 F.2d 1319 (2d Cir.), cert.
denied, 493 U.S. 936, 110 S. Ct. 329, 107 L. Ed. 2d 319
(1989); Brigham & Women’s Hospital v. Massachusetts
Nurses Assn., 684 F. Supp. 1120, 1121, 1125 (D. Mass.
1988) (upholding award reinstating nurse with history
of five disciplinary incidents, including improper admin-
istration of medication, refusal to follow orders, and
failure to notify physician of medical emergency);
Teamsters Union Local No. 2, International Brother-
hood of Teamsters v. C.N.H. Acquisitions, Inc., 350
Mont. 18, 23–24, 204 P.3d 733 (2009) (fact that nurse
might have placed vulnerable patients at risk did not
mean that reinstatement would violate public policy).
By the same token, in the cases in which courts have
vacated arbitration awards reinstating terminated nurs-
ing professionals, including those cited by the plaintiff,
the conduct at issue was objectively more dangerous
than that of the grievant in the present case. See, e.g.,
Russell Memorial Hospital Assn. v. United Steelwork-
ers of America, 720 F. Supp. 583, 584, 587 (E.D. Mich.
1989) (arbitrator found that nurse had ‘‘a propensity
for misconduct’’ and that her repeated insubordination
and negligent failure to administer medication were
‘‘ ‘extremely serious’ ’’); Illinois Nurses Assn. v. Board
of Trustees of University of Illinois, 318 Ill. App. 3d
519, 530–32, 741 N.E.2d 1014 (critical care nurse failed
timely to order and administer medication, charted that
she had administered medication when she had not,
failed to chart or report pacemaker malfunction, and
had long history of inattentive work attitude and below
average nursing skills), appeal denied, 194 Ill. 2d 567,
747 N.E.2d 352 (2001). Accordingly, we conclude that
the egregiousness factor does not support vacating the
arbitration award in the present case on public pol-
icy grounds.
Lastly, we consider the fourth factor, namely,
whether the grievant is so incorrigible as to require
termination. As previously noted, this is a factual ques-
tion, for which we defer to the findings of the arbitrator.
In the present case, the arbitrator did not find that the
grievant was likely to reoffend if reinstated. Rather, the
fact that he ordered her reinstated to a position of
direct patient care strongly suggests that the arbitrator
discounted the likelihood of recidivism, and that he
deemed a one month unpaid suspension to be a suffi-
ciently severe punishment to deter any future miscon-
duct of this sort. See Illinois Nurses Assn. v. Board of
Trustees of University of Illinois, supra, 318 Ill. App.
3d 532. Nothing in the record leads us to gainsay that
conclusion. Accordingly, this factor also weighs against
vacating the decision of the arbitrator.
The Appellate Court majority, in concluding other-
wise, improperly substituted its judgment for that of
the arbitrator. That court reasoned that reinstatement
of the grievant would place ‘‘the residents [of Westport]
at risk of possible further abuse,’’ because her ‘‘prior
record of related disciplinary actions and two prior
final warnings demonstrated her inability to meet the
demands of . . . public policy . . . .’’ (Emphasis
added.) Burr Road, supra, 142 Conn. App. 226–27. The
Appellate Court further opined that the grievant had
‘‘a history of three incidents of similar misconduct,
including two prior final warnings, within a period of
five years.’’ (Emphasis added.) Id., 229. That court’s
analysis, then, was founded on the premise that the
grievant had engaged in a pattern of related misconduct,
despite having twice received final warnings and, there-
fore, that she could be expected to offend again if rein-
stated.
The arbitrator, however, never found that the griev-
ant’s delay in reporting Muizulles’ possible abuse was
in any way related or similar to the grievant’s prior
incidents of resident abuse and insubordination. The
incident for which the grievant was terminated was not
one in which she personally engaged in physically or
verbally abusive behavior, or even in which she
attempted to cover-up or delay reporting abuse in which
she had been involved. Rather, she merely overheard
a conversation suggesting that her supervisor might
possibly have made a resident cry. Her transgression
in this instance was not rudeness, heavy-handedness,
or insubordination. Nor did she exhibit indifference to
the needs and suffering of the residents for whom she
cared. To the contrary, upon learning that abuse might
have taken place, she immediately set about trying to
investigate it and, when she learned the truth, she
offered the resident her compassionate support and
assistance. The grievant’s misstep, rather, was that she
went about helping in the wrong way. She failed to
follow proper protocol, which required that she immedi-
ately report her suspicions to a Westport administrator,
who was better situated than she to conduct a prompt
and thorough investigation and to comply with the rele-
vant legal requirements. The grievant made a serious
mistake in this respect, but the arbitrator did not find
that she had made such a mistake before. There is
nothing in the record to suggest that either: (1) after
receiving a one month unpaid suspension, the grievant
is likely to repeat this error in the future; or (2) her
failure to timely and properly report her suspicions
bespeaks any ongoing proclivity toward resident abuse.
Accordingly, the arbitrator’s implicit finding that the
grievant was not incorrigible was not clearly erroneous.
Lastly, we reject the plaintiff’s contention that termi-
nation was necessary because the grievant previously
had received two ‘‘final’’ warnings. ‘‘[C]onsiderations of
an employer’s subjective policies, even a zero-tolerance
policy . . . do not in any manner constitute public pol-
icy and are thus not relevant to our inquiry.’’ (Internal
quotation marks omitted.) State v. AFSCME, Council
4, Local 391, supra, 309 Conn. 531. The plaintiff is,
of course, free to adopt any legal policy of employee
discipline. When contracting with the defendant, the
plaintiff could have held out for terms in the collective
bargaining agreement that would allow it to terminate
any employee who commits an infraction after having
received a final warning, without the possibility of griev-
ance or appeal. See id., 547–48, 556–57 (Eveleigh, J.,
dissenting). It did not. Rather, both parties agreed that
an arbitrator would ultimately determine the fairness
and reasonableness of the plaintiff’s disciplinary poli-
cies and actions. In this instance, the arbitrator con-
cluded that strictly enforcing a final warning policy,
under the circumstances, would be unjust. Having
agreed to delegate that decision to the arbitrator, the
plaintiff cannot now be heard to complain that it should
not be required to give the grievant a second chance.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
consider the plaintiff’s remaining claims on appeal.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Although Justice Robinson was
not present when the case was argued before the court, he has read the
record and briefs and listened to a recording of the oral argument prior to
participating in this decision.
1
We granted the defendant’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court properly determine that the
trial court improperly confirmed the arbitration award because such award
violated public policy?’’ Burr Road Operating Co. II, LLC v. New England
Health Care Employees Union, District 1199, 309 Conn. 909, 68 A.3d 662
(2013).
2
Although the arbitrator suggests that these notations had important sig-
nificance under the collective bargaining agreement, that significance is not
explained in the arbitration award.
3
We note that, although the arbitrator’s decision sets forth this quotation,
it does not identify Kim or provide any further detail about that person’s
relationship to Muizulles or the present case.
4
In his award, the arbitrator at times suggests that the grievant learned of
the possible abuse on Saturday, March 20. However, in light of the arbitrator’s
finding that she overheard the conversation between Leonard and Johnson
‘‘later’’ in the night shift, which ran from 11 p.m. on March 20 to 7 a.m. on
March 21, we presume that those events must have transpired sometime
during the early morning hours of March 21.
5
Because the person suspected of possible abuse was also her supervisor,
the arbitrator concluded that the grievant was required to report the matter
to someone else in the proper line of authority. Specifically, the arbitrator
found that the grievant had other suitable options available, such as waiting
to see the incoming day shift supervisor on the Sunday morning following
her night shift, or calling Westport’s director of nursing, its administrator,
or any other nursing supervisor.
6
In addition, the arbitrator reasoned that a nursing home operator should
‘‘not want to create a huge disincentive to reporting, if and when an employee
for whatever reason has hesitated or delayed initially in reporting possible
resident abuse. If the disciplinary approach is, once you have delayed you
will be terminated even if you then make a belated report, then that creates
a perverse incentive to never report. The belated reporter ends up being
fired as the direct consequence of coming forward.’’
7
See footnote 4 of this opinion.
8
Judge Bear authored a dissenting opinion, in which he concluded, pursu-
ant to State v. New England Health Care Employees Union, District 1199,
ALF-CIO, 271 Conn. 127, 855 A.2d 964 (2004), that the public policy at issue
did not mandate termination of the grievant. Burr Road, supra, 142 Conn.
App. 247. Judge Bear suggested that ‘‘[t]his case has a subtext of the age
old response of unfair punishment of the bearer of bad tidings’’; id., 237
n.3; and that the Appellate Court majority, in vacating the award, had
‘‘improperly and unnecessarily displac[ed] our courts’ long-standing protec-
tion of the private arbitration process . . . .’’ Id., 243.
9
For the purposes of this opinion, we take the public policy at issue to
be the narrow one of prompt reporting of suspected abuse. See South
Windsor v. South Windsor Police Union, Local 1480, 255 Conn. 800, 816,
770 A.2d 14 (2001). The outcome of our analysis would be no different,
however, were we to consider the broader policy of protecting vulnerable
residents in skilled nursing facilities from abuse.
10
During that time, the Appellate Court has heard numerous additional
appeals in which similar claims were presented. See, e.g., Hartford v. Hart-
ford Municipal Employees Assn., 134 Conn. App. 559, 39 A.3d 1146 (2012),
cert. denied, 305 Conn. 904, 44 A.3d 180 (2012); Board of Police Commission-
ers v. Stanley, 92 Conn. App. 723, 887 A.2d 394 (2005); Metropolitan District
Commission v. Local 184, Council 4, AFSCME, AFL-CIO, 77 Conn. App.
832, 825 A.2d 218 (2003); South Windsor v. South Windsor Police Union,
41 Conn. App. 649, 677 A.2d 464, cert. denied, 239 Conn. 926, 683 A.2d 22
(1996); State v. Council 4, AFSCME, 27 Conn. App. 635, 608 A.2d 718 (1992).
11
In 2007, the Department of Mental Retardation was renamed the Depart-
ment of Developmental Services. See Public Acts 2007, No. 07-73.
12
By identifying these factors, we do not preclude the possibility that, in
an exceptional case, other factors not enumerated herein might prove rele-
vant or even dispositive.
13
We note that §§ 19a-550 and 17b-451 have been amended by our legisla-
ture since the events underlying the present appeal. See, e.g., Public Acts
2013, No. 13-208, § 55; Public Acts 2013, No. 13-250, § 4. These amendments,
however, have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of these statutes.
14
Notably, the only Westport employee who appears to have properly
reported the incident was the social worker in whom the grievant chose
to confide.
15
We are not persuaded by the plaintiff’s contention that treating the
grievant’s belated reporting of her suspicions as a mitigating factor sends
other employees the message that they have carte blanche to delay reporting
suspected abuse so long as they eventually fulfill their reporting obligation.
The plaintiff has failed to demonstrate, and the arbitrator clearly did not
believe, that a one month unpaid suspension is not a severe enough sanction
to encourage prompt reporting. Rather, the arbitrator reasonably concluded
that a sanction short of termination may accomplish the twin objectives of
punishing the failure to promptly report while still incentivizing employees
who have not immediately reported their suspicions to do so without fur-
ther delay.
16
See footnote 11 of this opinion.