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AFSCME, COUNCIL 4, LOCAL 2663 v. DEPT. OF CHILDREN & FAMILIES—

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), and the defendant Department of Children and

Families (department),1 and that the due process rights

of the department’s employee, Suzanne Listro, were not

violated by lack of notice regarding the basis of her

dismissal. I would conclude, nevertheless, that the arbitration award should be vacated pursuant to General

Statutes § 52-418 (a) (4) due to the arbitrator’s manifest

disregard of the law. Specifically, the only medical evidence in the record and the arbitrator’s own initial

factual finding, in accord with that evidence, established that M, a foster child in Listro’s care, had died

from shaken baby syndrome. Therefore, the arbitrator’s

subsequent conclusion to the contrary, that Listro was

negligent, causing M’s death by allowing him to fall

from a bed, was a patently irrational application of basic

legal principles as contemplated by the test adopted by

this court in Garrity v. McCaskey, 223 Conn. 1, 8–9,

612 A.2d 742 (1992).2 Accordingly, I would reverse the

judgment of the Appellate Court, which reversed the

trial court’s judgment and remanded the case to that

court with direction to affirm the arbitration award;

AFSCME, Council 4, Local 2663 v. Dept. of Children &

Families, 142 Conn. App. 1, 14, 62 A.3d 1168 (2013);

thereby reinstating the trial court’s order vacating the

arbitration award and referring the matter back to arbitration for a rehearing.

In its application to vacate the arbitrator’s award

denying Listro’s reinstatement, the union invoked § 52-

418 (a) (4), claiming, inter alia, that ‘‘[t]he arbitrator

[had] exceeded her power[s] or so imperfectly executed

them such that a mutual, final and definite award upon

the subject matter [submitted to her] was not made.’’

The trial court granted the union’s application to vacate

after concluding that ‘‘[t]he arbitrator exceeded her

authority in using negligence as a standard and basis

for her award,’’ and it referred the matter back to arbitration for a rehearing.

‘‘In construing § 52-418 (a) (4), we have, as a general

matter, looked to a comparison of the award with the

submission to determine whether the arbitrators have

exceeded their powers. . . . We have also recognized,

however, that an arbitrator’s egregious misperformance

of duty may warrant rejection of the resulting award.

. . . [For example] [i]f the memorandum of an arbitrator revealed that he had reached his decision by consulting a [O]uija board, surely it should not suffice that
the award conformed to the submission. . . . Other

states have also recognized that an arbitrator’s egregious misperformance of duty or patently irrational

application of legal principles warrants review and

rejection of the resulting award. . . .

‘‘[A]n award that manifests an egregious or patently

irrational application of the law is an award that should

be set aside pursuant to § 52-418 (a) (4) because the

arbitrator has exceeded [his] powers or so imperfectly

executed them that a mutual, final and definite award

upon the subject matter submitted was not made.’’

(Citation omitted; internal quotation marks omitted.)

McCann v. Dept. of Environmental Protection, 288

Conn. 203, 220, 952 A.2d 43 (2008).

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 § 52-418 (a) (4). . . . The test

consists of the following three elements, all of which

must be satisfied in order for a court to vacate an

arbitration award on the ground that the arbitration

panel manifestly disregarded the law: (1) the error was

obvious and capable of being readily and instantly perceived by the average person qualified to serve as an

arbitrator;(2)the arbitration panel appreciated the existence of a clearly governing legal principle but decided

to ignore it; and (3) the governing law alleged to have

been ignored by the arbitration panel is well defined,

explicit, and clearly applicable.’’3

(Internal quotation

marks omitted.) McCann v. Dept. of Environmental

Protection, supra, 288 Conn. 220–21. Pursuant to this

test, an arbitration award should be set aside only for

blatant and egregious legal error, and not ‘‘because of

an arguable difference regarding the meaning or applicability of laws urged upon it.’’ (Internal quotation

marks omitted.) Garrity v. McCaskey, supra, 9; see

also id., 9–10 (vacation for manifest disregard of law

reserved for cases in which arbitrator’s determination

is ‘‘ ‘totally irrational’ ’’ or resulted from ‘‘ ‘failure to

exercise honest judgment’ ’’).

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 long-standing, 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 the conduct

was a substantial factor in producing that injury. Id.,

329. Accordingly, the legal principle of proximate causation as an essential element of negligence was welldefined, explicit and clearly applicable to the present

case, as the arbitrator herself conceived it.

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 atthe 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 did not die from a fall.

Furthermore, the arbitrator surmised, it was Listro’s

negligence that had allowed that fall and caused M’s

death.

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

requirementis evidentfrom 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

identified respondeat superior as sole governing principle of liability, although parties had agreed that individual held liable was fellow employee, and not employer,

of wrongdoer, which barred recovery under welldefined principles of state law, and ‘‘no one point[ed]

[court] to any evidence in the record that provide[d] a

colorable justification for [the arbitrator’s] conclusion’’).

‘‘[T]he principle of vacating an award because of a

manifest disregard of the law is an important safeguard

of the integrity of alternat[ive] dispute resolution mechanisms. Judicial approval of arbitration decisions that

so egregiously depart from established law that they

border on the irrational would undermine society’s confidence in the legitimacy of the arbitration process.’’

Garrity v. McCaskey, supra, 223 Conn. 10. For the reasons explained herein, I would reverse the judgment

of the Appellate Court, thereby reinstating the order of

the trial court that vacated the arbitration award and

remanded the case for a new arbitration hearing.

Accordingly, I respectfully dissent.

1 See footnote 1 of the majority opinion for a listing of the other defendants

in this case.

2 Although the union’s arguments concededly are somewhat disorganized,

I disagree that it has not sufficiently raised a claim regarding the manifest

disregard of the law aspect of § 52-418 (a) (4). The union argues variously

throughout its brief that the arbitrator’s decision lacks evidentiary support

and is inherently inconsistent with her own findings, that the medical evidence showed that M did not die from a fall and that there was no evidence

of negligence, in particular, of the element of proximate cause. Moreover,
the union repeatedly quotes from or references the applicable standard for

manifest disregard of the law, as recited hereinafter.

3 More recent Second Circuit cases clarify that two of the three prongs

enumerated in Garrity, and Connecticut cases that followed that decision,

essentially go to the same point, and thus characterize the inquiry as having

only two prongs: ‘‘The two-prong test for ascertaining whether an arbitrator

has manifestly disregarded the law has both an objective and a subjective

component. We first consider whether the governing law alleged to have

been ignored by the [arbitrator was] well defined, explicit, and clearly applicable. . . . We then look to the knowledge actually possessed by the arbitrator. The arbitrator must [appreciate] the existence of a clearly governing

legal principle but [decide] to ignore or pay no attention to it. . . . Both

of these prongs must be met before a court may find that there has been

a manifest disregard of law.’’ (Citations omitted; internal quotation marks

omitted.) Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 209

(2d Cir. 2002). In regard to the first prong, ‘‘[a] legal principle clearly governs

the resolution of an issue before the arbitrator if its applicability is obvious

and capable of being readily and instantly perceived by the average person

qualified to serve as an arbitrator.’’ (Internal quotation marks omitted.) Id.;

see also D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110–11 (2d Cir. 2006)

(reciting two-pronged test); Hardy v. Walsh Manning Securities, LLC, 341

F.3d 126, 129 (2d Cir. 2003) (same).

4

In support of this rationale, the arbitrator assumed the role of a medical

expert, without the benefit of any supporting testimony, by noting the prior

foster family’s report that M had been ‘‘ ‘inconsolable’ ’’ and explaining that

‘‘[e]xcessive crying and fussiness is a known symptom of shaken baby

syndrome as well as a commonly accepted cause of the perpetration of

that syndrome.’’