AFSCME, COUNCIL 4, LOCAL 2663 v. DEPARTMENT OF CHILDREN AND FAMILIES, SC 19166
Judicial District of Hartford
Arbitration; Whether Arbitrator Properly Determined that DCF Worker's Employment was Terminated for Just Cause Following the Death of a Foster Child in her Care. Suzanne Listro served as a foster mother to a seven month old baby while employed as a social worker for the defendant Department of Children and Families. The baby died shortly after he came under Listro’s care. While Listro claimed that the baby was injured when he fell off a bed, an autopsy concluded that he died as a result of shaken baby syndrome. Listro was charged with manslaughter and risk of injury to a minor, and the department terminated her employment. She was later acquitted of the criminal charges, and the plaintiff union filed a grievance challenging her termination. An arbitrator denied the grievance, finding that although the department did not prove that Listro had shaken the baby, Listro was negligent in her care of the baby because her inattention permitted the baby to fall off a bed. The arbitrator stated that Listro's off duty actions in caring for the baby were related to her employment and made her unemployable by the department, an agency responsible for the care and welfare of children. The trial court granted the union’s application to vacate the arbitration award, finding that the arbitrator exceeded her authority in using negligence as a standard and basis for the award. The court also noted that the charge of negligence was never made by the department in Listro’s termination proceedings. The department appealed and the Appellate Court (142 Conn. App. 1) reversed, concluding that the arbitrator was not precluded by the unrestricted submission from finding that Listro's negligence constituted just cause for her discharge under the terms of the collective bargaining agreement. It found that, while the agreement did not specifically list negligence as constituting just cause for termination, negligence arguably came within the purview of the agreement. It further found that negligence was an appropriate term to describe Listro's conduct and that the department was not required to identify negligence as a reason for her dismissal in the termination letter or at the disciplinary hearing, as the agreement only required the department to identify the evidence that supported its disciplinary action. The Appellate Court found that the termination letter clearly identified the behavior that formed the basis for Listro's termination, that it did not matter whether Listro's behavior was labeled misconduct or negligence, and that Listro was informed throughout the termination proceedings that it was her off duty misconduct that led to her arrest that was at issue. In this appeal, the Supreme Court will decide whether the Appellate Court properly reversed the trial court's judgment vacating the arbitration award that upheld the termination of Listro’s employment.