United States: Connecticut Appellate Court Reverses Arbitration Award That Had Reinstated Nursing Assistant, Finding Violation Of Public Policy

Leoni Spence was a nursing assistant at Westport Health Care Center ("WHCC"), a residential nursing facility, from 2002 until her termination in March 2010. As a nursing assistant at WHCC, Spence was a mandated reporter; she was required to report any knowledge or suspicion of abuse or neglect to a nursing supervisor or higher authority as soon as possible.

Spence had a history of disciplinary issues with WHCC. In 2005, her employment was terminated because she improperly restrained a resident, but WHCC ultimately agreed to reduce the discipline to a final warning and a suspension. In April 2009, Spence received a written warning for speaking in an inappropriately rude, loud, and scolding manner to a resident. And in August 2009, Spence received a "2nd and Final Written Warning" for being disrespectful in addressing a resident and touching the resident without explaining to the resident the procedure she was applying.

On March 20, 2010, Spence overheard coworkers talking about what she thought might be abuse of a resident by the shift supervisor in another unit. Before the end of her shift, Spence went over to that unit to "snoop around," but did not learn anything because all the residents were asleep. Two shifts later, on or about March 23, 2010, Spence spoke with a resident ("CJ") who told her that, on March 20, the shift supervisor had been rough with her physically, had spoken gruffly to her, and had turned down her television without asking permission. CJ's roommate confirmed that CJ had cried for some time after the incident. After her shift, Spence called and left several voice mail messages for the social worker at the facility to report what CJ had told her. She never reported what she had learned to a nursing supervisor or higher authority.

WHCC conducted a thorough investigation into the incident. It ultimately concluded that, while the shift supervisor had acted insensitively toward CJ, her conduct did not rise to the level of abuse. Still, WHCC disciplined all involved: the shift supervisor (five day suspension and final warning), the coworkers whom Spence overheard (short suspensions and final warning), and Spence herself (termination). WHCC decided to terminate Spence's employment because she had failed to report an allegation of abuse in a timely manner to the proper chain of command and she had already been issued a final written warning in August 2009.

Spence, a union employee, grieved her termination, and the matter went to arbitration. The arbitrator found that, while Spence clearly had failed to timely report suspected abuse to a nursing supervisor or higher authority, WHCC did not have "just cause" to terminate her employment because she ultimately was the one who brought the incident to light. The arbitrator, therefore, ordered WHCC to reinstate her.

After the Connecticut Superior Court granted Spence's application to confirm the arbitration award and denied WHCC's application to vacate it, WHCC appealed to the Connecticut Appellate Court. WHCC argued that the award violates "the strong public policy of protecting residents in skilled nursing facilities, including the public policy of promptly and properly reporting patient abuse in such facilities." The court agreed, and reversed the Superior Court's decision.

The court noted that "Connecticut has a clear, well-defined and dominant public policy of protecting patients in facilities, such as those of the plaintiff, from abuse, and that this policy includes the prompt reporting of any incident of suspected abuse." After recounting Spence's disciplinary history, and her conduct leading to her termination, the court held that "requiring reinstatement of one who, in a sensitive position of physical authority over such a vulnerable population, has by her 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, violates that policy." The case is Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199.

This case highlights the importance of effective training, for both employers and employees. Employers should ensure that their employees not only have the tools to perform their jobs well, but also the knowledge required to satisfy any statutory or regulatory reporting obligations.

Originally published on the Employer's Law Blog

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