Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199
Connecticut has a clear, well defined and dominant public policy of protecting patients in facilities, including skilled nursing home facilities, from abuse, and this policy includes the prompt reporting of any incident of suspected abuse. The plaintiff, Burr Road Operating Company II, LLC, operating as Westport Health Care Center, terminated the employment of the grievant, Leoni Spence, who failed to promptly and properly report suspected abuse of a patient. Arbitration ensued. The arbitrator found just cause only to suspend Spence for a month, not to discharge her, considering the mitigating fact that Spence was the only employee to report the incident, although belatedly, and the potential disincentive of reporting. The court denied the plaintiff's application to vacate the award ordering Spence's reinstatement and granted the application of the defendant, New England Health Care Employees Union, District 1199, to confirm the award. The plaintiff appealed, claiming that the award violated the public policy of protecting residents in skilled nursing facilities, including the public policy of promptly and properly reporting patient abuse. The majority of the Appellate Court panel agreed and reversed the judgment. De novo review was accorded under the public policy exception. The award was found to violate public policy because of a confluence of factors. Spence's history included a prior incident of patient abuse from 2005, resulting in a final warning. She received a written warning in April 2009 for an incident involving speaking rudely, loudly and scoldingly to a resident. In Aug. 2009, she received a second final warning for behaving disrespectfully and inappropriately toward a resident. Finally, in March 2010, despite being aware of her obligation promptly to report through proper channels her suspicions of patient abuse, and her two final warnings, Spence did not report suspected abuse for several days and then not through the proper channels, increasing the risk that the suspected abuse would not be addressed properly and promptly. An award requiring the reinstatement of one who, in a sensitive position of physical authority over a vulnerable population, has by a prior record of related disciplinary actions and two prior final warnings, demonstrated her inability to meet the demands of the public policy of protection and reporting on abuse, violates that policy. Judge Bear dissented.