AFSCME, COUNCIL 4, LOCAL 2663 v. DEPT. OF CHILDREN & FAMILIES
SC 19183
Supreme Court of Connecticut
June 23, 2015
317 Conn. 238
FIRST DISSENT
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FIRST DISSENT
ROGERS, C. J., dissenting. I agree with the majority that the arbitration award at issue in this case conformed to the unrestricted submission and was consistent with the collective bargaining agreement of the parties, the plaintiff, AFSCME, Council 4, Local 2663 (union),
In its application to vacate the arbitrator‘s award denying Listro‘s reinstatement, the union invoked
“In construing
“[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to
In Garrity v. McCaskey, supra, 223 Conn. 10, this court “adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of
Although I recognize that the foregoing standard is a strict one, I believe that the unusually confused arbitration award in this case serves to satisfy it. The arbitrator first rejected, as unproven, the department‘s charge that Listro intentionally had inflicted fatal injuries on M. The arbitrator then explicitly based her decision to deny reinstatement on a wholly different legal theory—that Listro merely had been negligent by allowing M to fall, but her negligence had disastrous consequences. The basic elements of a negligence claim are longstanding, conclusively established and frequently identified and applied in our jurisprudence. They are: “duty; breach of that duty; causation; and actual injury.” Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381 (2015). As to the third element, it is beyond fundamental that a party may not prevail on a negligence theory unless he or she proves that the conduct complained of was both a cause in fact and a proximate cause of the injury at issue, that is, the injury would not have occurred absent the conduct, and
Having determined that a well-defined, explicit legal principle clearly was applicable to the present case, I turn to the question of whether the arbitrator purposefully disregarded that principle. An arbitrator‘s manifest disregard of a clearly governing legal principle is established if a party seeking vacatur “demonstrate[s] that the arbitrator knew of the relevant principle, appreciated that this principle controlled the outcome of the disputed issue, and nonetheless willfully flouted the governing law by refusing to apply it.” Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 217 (2d Cir. 2002). Although an arbitrator‘s “[e]xplicit rejection of governing law provides the strongest evidentiary basis for a finding that the arbitrator acted with the requisite intent“; id.; a reviewing court also “may find intentional disregard if the reasoning supporting the arbitrator‘s judgment strain[s] credulity . . . or does not rise to the standard of barely colorable . . . .” (Citations omitted; internal quotation marks omitted.) Id., 218. In my view, for the reasons that follow, this aptly describes the reasoning employed by the arbitrator in this case.
To begin, the only medical evidence in the record decisively demonstrated that M was a homicide victim who had died from shaken baby syndrome, and that he had not died from an accidental fall. Specifically, an autopsy report reflects the state medical examiner‘s conclusions that M died of blunt traumatic head injury and that he was a victim of a homicide. The arbitrator‘s decision describes this report, as well as the medical examiner‘s testimony at the arbitration hearing that “the physical signs found on [M‘s] body were not consistent with death from a fall but were consistent with death from a condition familiarly known as shaken baby syndrome. This was particularly true because M‘s retinas had hemorrhaged, the most indicative symptom of the syndrome.” Moreover, the arbitrator stated, “[t]he [medical examiner] testified that if M had hit his head, the autopsy should have revealed pooled blood under the scalp,” which the autopsy report apparently did not indicate.
After describing this medical evidence, the arbitrator explicitly credited it and further acknowledged that there was no conflicting evidence in the record that would support a finding of a different cause of death. In the words of the arbitrator herself, the “record con-clusively establishes that M was a victim of shaken baby syndrome. The [m]edical [e]xaminer‘s testimony and the autopsy report were not challenged and the [plaintiff] offered not a scintilla of evidence to suggest an alternative diagnosis.”
Thereafter, contrary to the only medical evidence in the record as to the cause of M‘s death and the arbitrator‘s own initial factual finding, which was consistent with that evidence, the arbitrator proceeded to find additionally that M had died as a result of a fall. To reconcile her completely inconsistent factual findings as to the critical issue in this case, the arbitrator, presumably a medical layperson, contrived a speculative theory that had no basis in any cited evidence, medical or otherwise. Specifically, the arbitrator speculated that M had been shaken at some unknown time preceding his death, by some other party, and that M‘s fall from the bed was the “proverbial ‘last straw’ ” that caused his death, even though the only medical evidence that was presented showed that he
The arbitrator‘s wholly speculative theory of the case overtly rests not on any actual evidence in the record, but instead, on a lack of evidence to disprove the theory. Thus, according to the arbitrator, because there was “nothing in the record establish[ing] that . . . a fall could not have been the proverbial ‘last straw’ for earlier traumatic injuries,” it was reasonable to conclude that M‘s death subsequent to an assault ultimately was triggered by the final blow of a fall. Additionally, although the arbitrator acknowledged that there was “no evidence regarding how much time could elapse between a severe shaking and . . . a fall in order for the fall to result in death shortly thereafter,” and a “dearth of medical information regarding the timeliness for shaken baby syndrome‘s impact on a particular child,” the arbitrator concluded that in this case, there was some unspecified period of delay separating the fatal assault of M and his resulting death. Finally, although there was no evidence that M had been removed from his biological parents’ care for physical abuse or that any question had arisen as to the conduct of his prior foster family, who had returned M to the department‘s custody approximately one week prior to his death, the arbitrator posited that one of those parties might have been “tied to M‘s fatal injuries” by shaking him and, thus, leaving him vulnerable to the final blow of a fall.4 Relying on the foregoing evidentiary voids, the arbitrator then concluded that, although the department had failed to prove its allegations of child abuse, the record undoubtedly demonstrated that Listro was negligent, and that her “moment of negligence had unusually serious consequences, the death of a child.”
Although the arbitrator identified negligence as the governing legal theory, she failed to discuss or apply any of the fundamental elements of negligence, in particular proximate cause, to the actual evidence in the record. Most troublingly, she failed to explain how that evidence reasonably could support a finding that M‘s death was proximately caused by Listro‘s conduct. The arbitrator‘s appreciation and disregard of this fundamental requirement is evident from her strained and unconvincing attempt to demonstrate that it had been satisfied, despite the complete lack of evidence that a fall, caused by Listro‘s lapse in judgment, was a substantial factor in M‘s death, and the existence of only evidence to the contrary, which the arbitrator herself explicitly had credited. For the foregoing reasons, the arbitrator‘s decision was not “barely colorable“; (internal quotation marks omitted) Westerbeke Corp. v. Daihatsu Motor Co., Ltd., supra, 304 F.3d 218; but is more accurately described as ” ‘totally irrational’ “; Garrity v. McCaskey, supra, 223 Conn. 9; or a ” ‘failure to exercise honest judgment’ “; id., 10; and no more reasonable than one which is the product of consultation with a Ouija board. See McCann v. Dept. of Environmental Protection, supra, 288 Conn. 220. Consequently, vacatur was warranted. Cf. Hardy v. Walsh Manning Securities, L.L.C., 341 F.3d 126, 130–31, 134 (2d Cir. 2003) (vacating decision for manifest disregard of law when arbitrator
“[T]he principle of vacating an award because of a
Accordingly, I respectfully dissent.