Bridgeport Board of Education v. NAGE, Local RI-200 ( 2015 )

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BRIDGEPORT BOARD OF EDUCATION
v. NAGE, LOCAL RI-200
(AC 36092)
Sheldon, Prescott and Pellegrino, Js.
Argued January 5—officially released October 13, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J.)
John P. Bohannon, Jr., for the appellant (plaintiff).
Thomas W. Bucci, for the appellee (defendant).
Opinion
PELLEGRINO, J. The plaintiff, Bridgeport Board of
Education (board),1 appeals from the decision of the
trial court denying its application to vacate an arbitra-
tion award in favor of the defendant, NAGE, Local RI-
200 (union). On appeal, the board claims that the court
should have vacated the award because (1) it failed to
conform to the submission, (2) the arbitrators exceeded
their authority and issued an award that is not mutual,
final and definite, and (3) the award violates public
policy. Because we conclude that the award violates
public policy, we reverse the judgment of the trial court.
In light of this conclusion, we need not address the
board’s additional claims.
The following facts, as found by the arbitration panel
and recited by the trial court, are relevant to this appeal.
On June 25, 2011, Adam Cleveland, a custodian
employed by the board and assigned to the Bridgeport
public schools, mailed a packet of handwritten and
printed materials to Lawrence Osborne, the director of
labor relations for the city of Bridgeport (city). Copies
of the packet were also mailed to the city’s mayor, the
Bridgeport Police Department and the union. In the
packet, Cleveland identified himself as a custodian and
claimed to be the victim of harassment by Jorge Garcia,
an operations supervisor for the board. Specifically,
Cleveland alleged that Garcia had made untrue state-
ments about him, singled him out for special treatment,
and accused him of making a threatening telephone call
to a female supervisor, a charge that was not proven and
disavowed by the supervisor in question. The packet
clearly indicated that it was coming from Cleveland and
included a note that requested a meeting to discuss
the situation, as well as copies of various e-mails and
definitions of legal terms. The printed material also
included detailed descriptions from the internet of the
mass shooting incidents at Columbine High School in
1999 and Virginia Polytechnic Institute and State Uni-
versity (Virginia Tech) in 2007. The handwritten mate-
rial concluded with the statement that ‘‘[i]f Jorge Garcia
can’t control the statements he can’t control the out
come. If I’m being punished for breaking rules then we
all should.’’
After receiving these materials on June 28, 2011,
Osborne contacted the Bridgeport Police Department.
Cleveland was thereafter arrested and charged with
threatening in the second degree and harassment in the
second degree. That same day, the board suspended
Cleveland with pay. On December 23, 2011, following
an investigation, the board terminated Cleveland’s
employment. The letter terminating Cleveland’s
employment stated that his conduct in sending the
packet had been in violation of the city’s prohibition
on the following forms of inappropriate behavior:
‘‘[p]hysical violence, fighting or promoting a fight on
City property . . . [b]ehavior that disrupts the work
environment [including] indecent, inappropriate or
immoral conduct . . . [and] [f]oul or abusive language
directed at co-workers, visitors, clients or taxpayers.’’2
The letter further stated that Cleveland’s conduct had
violated the city’s prohibition against unprofession-
alism, and unethical or illegal actions, and, furthermore,
that such conduct was considered a ‘‘ ‘grave offense’ ’’
under the collective bargaining agreement between the
union and the city.3
The union filed a grievance on Cleveland’s behalf,
claiming that the termination was in violation of the
collective bargaining agreement between the union and
the city. The case proceeded to arbitration before the
state board of mediation and arbitration. By agreement
of the parties, the issue submitted to the arbitration
panel was unrestricted; it asked: ‘‘Did the City of Bridge-
port have just cause to terminate Adam Cleveland pur-
suant to the Collective Bargaining Agreement? If not,
what shall the remedy be?’’
On January 9, 2013, the panel of arbitrators, after
considering all of the evidence submitted at a three day
hearing, issued its award. After noting that Cleveland
had prior disciplinary issues, the panel stated that ‘‘[t]he
incident that led to his dismissal was a serious offense
and the people mentioned in the packet of letters had
reason to be alarmed and fearful of their lives.4 Under
normal circumstances, the City would be justified in
terminating Mr. Cleveland’s employment. The panel of
arbitrators, however, believes that Mr. Cleveland’s
actions were a ‘cry for help.’ He was completely frus-
trated with the situation that led to his dismissal. He
felt that he was being singled out and harassed by Jorge
Garcia and there was nobody available to help him in his
plight. The claimed threatening phone call to a female
supervisor was not proven. In fact, such claim was
deemed inappropriate by those directly involved.’’
(Emphasis added; footnote added.)
The panel then issued the following unanimous
award: ‘‘The discharge of the grievant, Adam Cleveland,
was not for just cause. Mr. Cleveland shall be afforded
the opportunity to submit to the Employee Assistance
Program (EAP), provided in the Collective Bargaining
Agreement. If he takes advantage of, successfully com-
pletes the EAP, and is deemed able to be re-employed
by the medical professionals involved, the discharge
will be converted to a suspension without pay. If Mr.
Cleveland refuses the offer to submit to the EAP within
ten (10) days of receipt of this Award or fails to com-
plete the program or abide by the recommendations of
the EAP, the discharge will be upheld.’’
On January 15, 2013, the board filed an application
to vacate the arbitration award in the Superior Court,
contending that the award was in violation of this state’s
clearly defined and dominant public policies against
violence in public schools and workplace violence. The
board further claimed that the award did not conform
to the submission and that it should be vacated pursuant
to General Statutes § 52-418 (a). On April 15, 2013, the
board filed a memorandum of law, in which it argued
that the award was in contravention of explicit, well-
defined and dominant public policies prohibiting work-
place violence, harassment and threatening, and pro-
moting school safety. The board also argued that the
panel exceeded its powers in manifest disregard of the
law. The union opposed the board’s application to
vacate, arguing that, although there are well established
public policies against workplace violence, threats and
harassment, and in support of school safety, the award
did not violate any of those policies. The union further
argued that the panel had not exceeded its powers in
manifest disregard of the law.
Following a hearing, the court denied the board’s
application to vacate. In its memorandum of decision,
the court considered whether enforcement of the arbi-
tration award would violate public policy. It recognized
that simply because there was a clear and dominant
public policy against workplace violence did not man-
date that, in every instance of threatening conduct, an
employee must be terminated immediately without
regard to the facts and circumstances of the particular
case. The court found that the arbitration panel had
issued a ‘‘thoughtful, well-reasoned decision, based
upon a weighing of the evidence presented, during the
course of a three day hearing,’’ and that this decision
was not in violation of the public policy concerning
workplace violence. The board then filed the present
appeal, arguing, inter alia, that the award violates well
established public policies prohibiting workplace vio-
lence, threatening and harassment, and promoting a
safe school setting in our public schools.
Before addressing the board’s claims, we first set
forth the legal principles regarding judicial review of
arbitral awards. ‘‘Judicial review of arbitral decisions
is narrowly confined. . . . When the parties agree to
arbitration and establish the authority of the arbitrator
through the terms of their submission, the extent of
our judicial review of the award is delineated by the
scope of the parties’ agreement. . . . When the scope
of the submission is unrestricted, the resulting award
is not subject to de novo review even for errors of law
so long as the award conforms to the submission. . . .
Because we favor arbitration as a means of settling
private disputes, we undertake judicial review of arbi-
tration awards in a manner designed to minimize inter-
ference with an efficient and economical system of
alternative dispute resolution.’’ (Internal quotation
marks omitted.) AFSCME, Council 4, Local 1565 v.
Dept. of Correction, 298 Conn. 824, 834, 6 A.3d 1142(2010).
‘‘The long-standing principles governing consensual
arbitration are, however, subject to certain exceptions.
Although we have traditionally afforded considerable
deference to the decisions of arbitrators, we have also
conducted a more searching review of arbitral awards
in certain circumstances. In Garrity v. McCaskey, [223
Conn. 1, 6, 612 A.2d 742 (1992)], this court listed three
recognized grounds for vacating an award: (1) the
award rules on the constitutionality of a statute . . .
(2) the award violates clear public policy . . . or (3)
the award contravenes one or more of the statutory
proscriptions of § 52-418 (a). . . . The judicial recogni-
tion of these grounds for vacatur evinces a willingness,
in limited circumstances, to employ a heightened stan-
dard of judicial review of arbitral conclusions, despite
the traditional high level of deference afforded to arbi-
trators’ decisions when made in accordance with their
authority pursuant to an unrestricted submission.’’
(Internal quotation marks omitted.) AFSCME, Council
4, Local 1565 v. Dept. of Correction, supra, 298
Conn. 835.
‘‘[W]hen a party challenges a consensual arbitral
award on the ground that it violates public policy, and
where that challenge has a legitimate, colorable basis,
de novo review of the award is appropriate in order to
determine whether the award does in fact violate public
policy. . . . To determine whether an arbitration
award must be vacated for violating public policy, we
employ a two-pronged analysis. . . . First, we must
determine whether the award implicates any explicit,
well-defined, and dominant public policy. . . . To iden-
tify the existence of a public policy, we look to statutes,
regulations, administrative decisions, and case law.
. . . Second, if the decision of the arbitrator does impli-
cate a clearly defined public policy, we then determine
whether the contract, as construed by the arbitration
award, violates that policy.’’ (Citations omitted; internal
quotation marks omitted.) Burr Road Operating Co.
II, LLC v. New England Health Care Employees Union,
District 1199, 316 Conn. 618, 630–31, 114 A.3d 144(2015) (Burr Road).
With regard to the first prong, the union does not
dispute the existence of well-established public policies
prohibiting workplace violence, threatening and harass-
ment, and promoting safe settings for Connecticut pub-
lic schools. As the existence of these policies is not in
dispute, we proceed to consider whether the arbitration
award in this case violated any of those policies. In
making this determination, we are ‘‘mindful that the
fact that an employee’s misconduct implicates public
policy does not require the arbitrator to defer to the
employer’s chosen form of discipline for such miscon-
duct. . . . Rather, a party seeking to vacate an arbitra-
tion award reinstating a terminated employee bears the
burden of proving that illegality or conflict with public
policy is clearly demonstrated . . . and that nothing
less than the termination of [the grievant’s] employment
will suffice to vindicate the public policy at issue.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
631.
Our Supreme Court recently ‘‘clarif[ied] the factors
a reviewing court should consider when evaluating a
claim that an arbitration award reinstating a terminated
employee violates public policy, and, by extension, the
types of factual findings an arbitrator may make in
order to assist a reviewing court in considering such a
challenge. Specifically, in determining whether termina-
tion of employment was necessary to vindicate the pub-
lic policies at issue, both the majority and dissenting
opinions of [our Supreme] [C]ourt have, either
expressly or implicitly, focused on four principal fac-
tors: (1) any guidance offered by the relevant statutes,
regulations, and other embodiments of the public policy
at issue; (2) whether the employment at issue implicates
public safety or the public trust; (3) the relative egre-
giousness of the grievant’s conduct; and (4) whether
the grievant is incorrigible.’’ Id., 633–34.5 The arbitration
panel in the present case did not unconditionally rein-
state Cleveland to his employment as a custodian; it
did, however, conclude that termination of Cleveland’s
employment was not for good cause. Accordingly, we
analyze this case pursuant to the factors set forth in
Burr Road and conclude that that the board has satis-
fied its burden of establishing that the award violates
the public policy of this state and, therefore, the trial
court improperly denied the application to vacate the
award.
I
‘‘The first factor requires us to consider whether the
relevant statutes, regulations, and other manifestations
of the public policy at issue themselves recommend or
require termination of employment as the sole accept-
able remedy for a violation thereof. . . . Put differ-
ently, we ask whether the offense committed by the
employee involves the sort of conduct the law deems
to be inexpiable, or that would expose the employer
to substantial liability if it were to reoccur. . . .
Whether sources of public policy themselves mandate
termination is a question of law subject to plenary
review.’’ (Citations omitted.) Id., 634–35.
In determining whether the public policies at issue
required Cleveland’s immediate termination from
employment, we first note that threatening violence
against another person is a crime punishable by up
to one year in prison. See General Statutes § 53a-62.6
Cleveland’s conduct in this case resulted in his arrest
for threatening in the second degree and harassment
in the second degree. We next note, with regard to
school safety, that the board is required, pursuant to
General Statutes § 10-220 (a) (4), to provide ‘‘an appro-
priate learning environment for its students which
includes . . . a safe school setting . . . .’’
With respect to the workplace, Executive Order No.
16, ‘‘Violence in the Workplace Prevention Policy’’
(August 4, 1999) (executive order),7 expressly adopts
and sets forth a statewide ‘‘zero tolerance’’ policy pro-
hibiting state employees from committing or threaten-
ing to commit violent acts in the workplace.8 See State
v. Connecticut State Employees Assn., SEIU Local
2001, 287 Conn. 258, 276, 947 A.2d 928 (2008) (‘‘the
public policy against workplace violence is clearly
defined and dominant’’). The executive order explicitly
recognized that workplace violence is a growing prob-
lem and that the state is committed to providing its
employees with a reasonably safe and healthy working
environment, free from intimidation, harassment,
threats and violent acts. It states that ‘‘violence or the
threat of violence by or against any employee of the
[s]tate of Connecticut or member of the public in the
workplace is unacceptable and will subject the perpe-
trator to serious disciplinary action up to and including
discharge and criminal penalties.’’ The executive order,
therefore, contemplates that some instances of miscon-
duct violative of the policy will be so egregious that
termination is the only appropriate sanction.9 We con-
clude that this is such a case.
The packet that Cleveland mailed to city and board
officials included printed material with detailed refer-
ences to the 1999 shooting at Columbine High School
in Colorado, where two gunmen killed twelve students
and one teacher, and to the 2007 Virginia Tech massa-
cre, where a student with mental illness killed thirty-
two students and faculty, wounding many others. In
addition to the descriptions of the shootings at Colum-
bine High School and Virginia Tech, the printed material
in the packet included legal definitions of ‘‘terroristic
threat’’ and ‘‘wanton endangerment.’’ In one of the hand-
written pages, entitled ‘‘The Threat to the Mayor,’’
Cleveland referenced a picnic attended by other board
employees and stated: ‘‘[Twenty] feet from them you
were standing while looking at them. I walk[ed] to you
and shook your hand and you don’t even know what I
look like! But they got up and left.’’ The last page of
the mailing included the following handwritten state-
ment: ‘‘If Jorge Garcia can’t control the statements he
can’t control the out come. If I’m being punished for
breaking rules we all should.’’ After Cleveland was
arrested for mailing this packet, an incident report
states that he indicated to police that ‘‘the information
included in the packet with regards to Columbine and
Virginia Tech was included as an example of what could
happen if Jorge [Garcia] would continue threatening
people.’’10 The board reasonably understood Cleveland
to have threatened to murder students and coworkers
in the school system if he did not have his demands met.
As stated previously, in considering whether public
policy recommends or requires the immediate termina-
tion of Cleveland’s employment, ‘‘we ask whether the
offense committed by [Cleveland] involves the sort of
conduct the law deems to be inexpiable, or that would
expose the employer to substantial liability if it were
to reoccur.’’ Burr Road Operating Co. II, LLC v. New
England Health Care Employees Union, District 1199,
supra, 316 Conn. 634–35. The answer to this question
weighs heavily in favor of vacating the arbitration
award. The arbitration panel stated that the people men-
tioned in the packet of letters had reason to be alarmed
and in fear of their lives. There would be substantial
liability for an employer if it failed to eradicate this
threat. Also critical is the fact, as we have previously
noted, that the threats were directed not only to the
recipients of the packet but to many others—innocent
persons, like the victims of the Columbine High School
and Virginia Tech shootings. In this day and age, such
threats are intolerable, however subtly or indirectly
they are phrased or presented. In light of the public
policies outlined earlier, and considering that the mate-
rial included in the packet was such that the recipients
had reason to fear for their lives, and the entire commu-
nity had reason to consider itself in danger, it is clear
that Cleveland’s conduct is the type of conduct that the
law deems to be inexpiable.
II
‘‘The second factor we consider is whether the nature
of the employment at issue implicates public safety or
the public trust. . . . Nationally, in the vast majority
of cases in which courts have vacated for public policy
reasons arbitration awards reinstating terminated
employees, the grievant has been a public sector
employee, primarily working in fields such as law
enforcement, education, transportation, and health
care, in other words, fields that cater to vulnerable
populations or help ensure the public safety. . . . This
reflects the fact that the threat to public policy involved
in reinstating a terminated employee is magnified when
the offending employee provides an essential public
service, and especially when he is employed by, repre-
sents, and, ultimately, is answerable to the people.’’
(Citations omitted.) Id., 635–36. ‘‘This factor also hinges
on general questions of law and policy and is, therefore,
subject to plenary judicial review.’’ Id., 637.
In the present case, the union contends that Cleve-
land’s position as a custodian with the board does not
implicate the public safety or public trust. We disagree.
It is undisputed that Cleveland’s employment with the
board is in the public sector. It is also clear that the
board is required to provide a safe school setting; Gen-
eral Statutes § 10-220 (a) (4); and that parents are
required to send their children to school. General Stat-
utes § 10-184.11 Furthermore, ‘‘schools have a duty to
protect students from imminent harm.’’ Haynes v. Mid-
dletown, 314 Conn. 303, 314–15 n. 6, 101 A.3d 249 (2014)
(discussing imminent harm to identifiable persons
exception to defense of governmental immunity).
Cleveland’s employment with the Bridgeport public
school system, which is in the public sector, and where
attendance by the students is required, is a position
that ‘‘cater[s] to vulnerable populations . . . .’’ Burr
Road Operating Co. II, LLC v. New England Health
Care Employees Union, District 1199, supra, 316 Conn.
635. His employment implicates the public safety or
public trust. Cleveland’s mailing, which implicitly
threatened the mass murder of students and coworkers
employed by the board as well as the mayor, jeopard-
ized the public safety and public trust. For this reason,
we conclude that this factor weighs in favor of vacating
the arbitration award.
III
‘‘The third factor we consider is the relative ‘egre-
giousness’ of the grievant’s offense. . . . This factor
encompasses myriad considerations, including, but not
limited to: (1) the severity of the harms imposed and
risks created by the grievant’s conduct; (2) whether
that conduct strikes at the core or falls on the periphery
of the relevant public policy; (3) the intent of the griev-
ant with respect to the offending conduct and the public
policy at issue; (4) whether reinstating the grievant
would send an unacceptable message to the public or
to other employees regarding the conduct in question;
(5) the potential impact of the grievant’s conduct on
customers/clients and other nonparties to the employ-
ment contract; (6) whether the misconduct occurred
during the performance of official duties; and (7)
whether the award reinstating the employee is founded
on the arbitrator’s determination that mitigating circum-
stances, or other policy considerations, counterbalance
the public policy at issue. . . .
‘‘This factor presents a mixed question of law and
fact. We take as our starting point the factual findings
of the arbitrator, which are not subject to judicial
review. . . . We defer as well to the arbitrator’s ulti-
mate determination whether termination was a just or
appropriate punishment for the conduct at issue. . . .
[F]or purposes of the public policy analysis [however],
our determination of whether the conduct in question
was so egregious that any punishment short of termina-
tion would offend public policy is not restricted to those
findings. . . . A broader review is required because the
arbitrator, in determining whether there was just cause
or some other contractual basis for termination, may
focus on case specific considerations such as how the
employer has disciplined other employees under similar
circumstances. Judicial review, by contrast, necessarily
transcends the interests of the parties to the contract,
and extends to the protection of other stakeholders and
the public at large, who may be adversely impacted by
the decision to reinstate the employee. . . . Accord-
ingly, we review de novo the question whether the rem-
edy fashioned by the arbitrator is sufficient to vindicate
the public policies at issue.’’ (Citations omitted.) Id.,637–39.
In its decision in this case, the arbitration panel set
forth the history of animosity between Cleveland and
his supervisor, Garcia, prior to Cleveland mailing the
packet of letters, and described how the situation esca-
lated when Cleveland mailed the packet.12 The panel
noted that Cleveland had been disciplined for a past
incident and that progressive discipline had been
applied to him. It then stated: ‘‘The incident that led
to his dismissal was a serious offense and the people
mentioned in the packet of letters had reason to be
alarmed and fearful of their lives. Under normal circum-
stances, the city would be justified in terminating Mr.
Cleveland’s employment. The panel of arbitrators, how-
ever, believes that Mr. Cleveland’s actions were a ‘cry
for help.’ He was completely frustrated with the situa-
tion that led to his dismissal. He felt that he was being
singled out and harassed by Jorge Garcia and there was
nobody available to help him in his plight. The claimed
threatening phone call to a female supervisor was not
proven. In fact, such claim was deemed inappropriate
by those directly involved.’’
Pursuant to Burr Road, we defer to the arbitration
panel’s factual findings, as stated previously, but review
de novo the question whether the remedy was sufficient
to vindicate the public policies at issue. In making this
determination, we again emphasize the panel’s finding
that ‘‘[t]he incident that led to [Cleveland’s] dismissal
was a serious offense and the people mentioned in the
packet of letters had reason to be alarmed and fearful
of their lives.’’ The fact that the panel required Cleveland
to submit to the employee assistance program, and fur-
ther, that he be deemed fir for work by medical profes-
sionals prior to reinstatement, shows that it viewed
Cleveland’s conduct as threatening and serious. The
severity of the harm imposed and the risk created by
Cleveland’s conduct was great; he made his intent
known when he informed the police, upon arrest, that
the information regarding Columbine High School and
Virginia Tech was included in the packet as an example
of what could happen if Garcia continued to threaten
people. Threats of a mass atrocity against students and
educators falls at the very core of the public policies
prohibiting workplace violence, threatening and harass-
ment, and promoting a safe school setting for Connecti-
cut public schools.
The arbitration panel stated that ‘‘[u]nder normal cir-
cumstances,’’ the board would be justified in terminat-
ing Cleveland’s employment; in this case, however, it
found that termination was not justified because Cleve-
land’s actions were a ‘‘ ‘cry for help.’ ’’ We conclude, to
the contrary, that even if Cleveland’s actions were a
cry for help, the award would still be in violation of
the various public policies specified earlier in this opin-
ion. In State v. AFSCME, Council 4, Local 387, AFL-
CIO, 252 Conn. 467, 469, 471, 478, 747 A.2d 480 (2000),
our Supreme Court upheld the judgment of the trial
court vacating an arbitration award that ordered rein-
statement of a correction officer who had made an
anonymous, obscene and racist telephone call to a pub-
lic official from a state owned telephone. The arbitrator
in that case had justified reinstating the correction offi-
cer because his conduct was ‘‘the outgrowth of various
personal stressors.’’ (Internal quotation marks omitted.)
Id., 477. The Supreme Court ‘‘agree[d] with the trial
court that, in doing so, the arbitrator minimize[d] soci-
ety’s overriding interest in preventing conduct such as
that at issue in this case from occurring. Thus, the
award—with its inherent rationalization of conduct
stipulated to by [the correction officer], which was vio-
lative of statute and regulations—is in itself violative
of clear public policy. As the trial court aptly stated,
the termination of [the correction officer] as provided
for in the department of correction regulations is war-
ranted . . . . A lesser sanction—a progressive sanc-
tion, as suggested by the arbitrator—would, very
simply, send the message that stress, or poor judgment,
or other factors, somehow renders the conduct permis-
sible or excusable.’’ (Internal quotation marks omit-
ted.) Id.
Similarly, we conclude that Cleveland’s termination
from employment was warranted in the present case.
A lesser sanction would send an unacceptable message
to the public and other employees that a threat by an
employee to commit random shootings in an educa-
tional setting is permissible or excusable. We recognize
that referral to the employee assistance program is con-
sistent with article 33 of the parties’ collective bar-
gaining agreement. That section provides in relevant
part that ‘‘[t]he [c]ity . . . recognizes that almost any
human problem can be successfully treated provided
it is identified in its early stages, and referral is made
to an appropriate modality of care. This applies whether
the problem be one of physical illness, mental or emo-
tional illness, finances, marital or family distress, alco-
holism, drug abuse or legal problems.’’ This
consideration, however, does not outweigh the strong
public policies at issue in the present case. For this
reason, we conclude that this factor weighs in favor of
vacating the arbitration award.
IV
‘‘The fourth factor we consider is whether the griev-
ant is so ‘incorrigible’ as to require termination. . . .
Put differently, in light of the grievant’s full employment
history, is there a substantial risk that, should a court
uphold the arbitration award of reinstatement, this par-
ticular employee will reengage in the offending con-
duct? . . . Here, relevant considerations include
whether, on the one hand, the grievant has committed
similar offenses in the past and has disregarded an
employer’s prior warnings or clear policy statements;
or, on the other hand, whether the grievant: (1) has
generally performed his work in a competent and pro-
fessional manner; (2) has demonstrated a willingness
to change and an amenability to discipline; (3) has
exhibited remorse and attempted to make restitution
for past offenses; and (4) is likely to benefit from addi-
tional training and guidance. . . . We also consider
whether the penalty imposed by the arbitrator is severe
enough to deter future infractions by the grievant or
others. . . .
‘‘Because these considerations are largely fact based
and case specific, a reviewing court must defer to an
arbitrator’s assessment—whether express or implied—
that a particular employee is unlikely to reoffend if
reinstated. . . . Absent an express finding by the arbi-
trator, which would be unreviewable, a court will deem
an employee incorrigible only when the likelihood of
recidivism is plain from the face of the record.’’ (Cita-
tions omitted.) Burr Road Operating Co. II, LLC v.
New England Health Care Employees Union, District
1199, supra, 316 Conn. 639–40.
In the present case, the arbitration panel noted that
Cleveland had been subject to discipline in the past,
including a suspension, and that progressive discipline
had been applied to him, but it did not find that Cleve-
land was likely to reengage in the offending conduct.
A review of Cleveland’s employment file, however,
makes it clear that, although Cleveland had been subject
to prior discipline, he had not demonstrated a willing-
ness to change his behavior, nor had he indicated
remorse for past offenses.13 The file also reveals that
Cleveland’s erratic behavior was a concern to his
coworkers in the school system. By memorandum dated
August 10, 2009, David Sharpe, an employee of the Curi-
ale School in Bridgeport, reported an incident in which
Cleveland had acted in a threatening manner.14 The
same day, Delmar Twistol, an operations supervisor for
the board, e-mailed several individuals and stated: ‘‘In
light of [Cleveland’s] past confrontations with Jorge
Garcia and his increasingly erratic and paranoiac behav-
ior, Jorge and myself believe [Cleveland] needs to be
psychiatrically evaluated a.s.a.p. His co-workers are
wary and often frightened of his behavior. His supervi-
sors are hesitant of giving him orders in fear of setting
him off. He is now making statements of putting this
‘to an end.’ We are wary for the safety of all concerned.’’
In December, 2008, Cleveland was suspended with pay
for ten working days as a result of an incident involving
Cleveland and Garcia. Finally, as noted by the arbitra-
tion panel, Cleveland had a prior suspension for leaving
work prior to the conclusion of his shift.
In light of Cleveland’s erratic and threatening behav-
ior, as evidenced in his employment file, we conclude
that the likelihood of recidivism was substantial if he
was not terminated from employment. As the packet
of materials that precipitated this incident contained
clear references to the Columbine High School and
Virginia Tech school massacres, and the arbitration
panel concluded that the recipients of the packet ‘‘had
reason to be alarmed and fearful of their lives,’’ we
further conclude that the discipline imposed by the
arbitration panel was not severe enough to deter future
infractions. Accordingly, this factor weighs in favor of
vacating the arbitration award.
In sum, because each of the Burr Road factors weighs
in favor of vacating the award, we conclude that it is
necessary to reverse the judgment of the court denying
the board’s application to vacate the award. In doing
so, we emphasize the trust parents place in our school
systems and educators that their children will attend
schools that are safe and devoid of threats and violence,
thereby freeing children to learn and grow. Because
Cleveland’s conduct gravely undermines this trust, an
award permitting him to continue to work among the
children of the Bridgeport public school system simply
cannot stand.
The judgment is reversed and the case is remanded
with direction to render judgment granting the board’s
application to vacate the arbitration award.
In this opinion the other judges concurred.
1
The record reflects that on March 4, 2013, the board filed a motion to
substitute the city of Bridgeport as the plaintiff in place of the board. The
court granted this motion on March 19, 2013. The court’s memorandum of
decision, however, refers to the plaintiff as the board. Additionally, the
appellant’s brief refers to the plaintiff as the board. For purposes of this
opinion, therefore, we refer to the plaintiff as the board.
2
The city ‘‘Work Rules and Regulations’’ provide in relevant part as fol-
lows: ‘‘There are certain standards of behavior which we must all observe
as good citizens and good employees. All employees are expected to perform
their jobs with pride and respect for our City, and with consideration for
their associates.
‘‘Violation of City rules and disciplinary steps are oral warning, written
warning, suspension and discharge. Your supervisor will discuss our disci-
plinary steps in detail with you. Generally, no conduct which is unprofes-
sional, unethical or illegal will be tolerated. It is impossible to list all the
circumstances which warrant discipline. In our opinion, the following are
some of those circumstances. We consider the following to be unacceptable
and inappropriate behavior and intend to take actions up to and including
immediate termination, when appropriate and consistent with any existing
collective bargaining agreement. . . .
‘‘5. Physical violence, fighting or promoting a fight on city property. . . .
‘‘9. Behavior that disrupts the work environment to include indecent,
inappropriate, or immoral conduct. . . .
‘‘14. Foul or abusive language directed at co-workers, visitors, clients
or taxpayers.’’
3
Section 15.3 of the parties’ collective bargaining agreement provides:
‘‘Disciplinary action shall include (a) a verbal warning, (b) a written warning,
(c) suspension without pay, and (d) discharge. The City and the Union
recognize the concept of a progressive discipline policy, however both par-
ties agree that there are certain grave offenses wherein the discipline
imposed by the City does not require compliance to the aforementioned
provisions.’’ The collective bargaining agreement does not define what con-
stitutes a ‘‘grave offense’’ for purposes of this section.
4
We note that the arbitration panel referred to the incident in question
as a ‘‘serious offense’’ while the letter terminating Cleveland’s employment
indicated that his conduct was considered a ‘‘ ‘grave offense’ ’’ as set forth
in the collective bargaining agreement. See footnote 3 of this opinion.
5
Burr Road was released on May 5, 2015. On May 7, 2015, this court
ordered the parties to file simultaneous supplemental briefs addressing the
applicability of Burr Road to the present case.
6
General Statutes § 53a-62, entitled ‘‘Threatening in the second degree,’’
provides: ‘‘(a) A person is guilty of threatening in the second degree when:
(1) By physical threat, such person intentionally places or attempts to place
another person in fear of imminent serious physical injury, (2) such person
threatens to commit any crime of violence with the intent to terrorize another
person, or (3) such person threatens to commit such crime of violence in
reckless disregard of the risk of causing such terror.
‘‘(b) Threatening in the second degree is a class A misdemeanor.’’
7
Executive Order No. 16 provides in relevant part: ‘‘WHEREAS, the [s]tate
of Connecticut recognizes that workplace violence is a growing problem
that must be addressed; and
‘‘WHEREAS, the [s]tate is committed to providing its employees a reason-
ably safe and healthy working environment, free from intimidation, harass-
ment, threats, and/or violent acts; and
‘‘WHEREAS, violence or the threat of violence by or against any employee
of the [s]tate of Connecticut or member of the public in the workplace is
unacceptable and will subject the perpetrator to serious disciplinary action
up to and including discharge and criminal penalties.
‘‘NOW, THEREFORE, I, John G. Rowland, [g]overnor of the [s]tate of
Connecticut, acting by virtue of the authority vested in me by the [c]onstitu-
tion and by the statutes of this state, do hereby ORDER and DIRECT:
‘‘1. That all state agency personnel, contractors, subcontractors, and ven-
dors comply with the following Violence in the Workplace Prevention Policy:
‘‘The [s]tate of Connecticut adopts a statewide zero tolerance policy for
workplace violence.
‘‘Therefore, except as may be required as a condition of employment—
• No employee shall bring into any state worksite any weapon or danger-
ous instrument as defined herein.
• No employee shall use, attempt to use, or threaten to use any such
weapon or dangerous instrument in a state worksite.
• No employee shall cause or threaten to cause death or physical injury
to any individual in a state worksite. . . .
‘‘3. That all managers and supervisors are expected to enforce this policy
fairly and uniformly.
‘‘4. That any employee who feels subjected to or witnesses violent, threat-
ening, harassing, or intimidating behavior in the workplace immediately
report the incident or statement to their supervisor, manager, or human
resources office.
‘‘5. That any employee who believes that there is a serious threat to their
safety or the safety of others that requires immediate attention notify proper
law enforcement authorities and his or her manager or supervisor.
‘‘6. That any manager or supervisor receiving such a report shall immedi-
ately contact their human resources office to evaluate, investigate and take
appropriate action.
‘‘7. That all parties must cooperate fully when questioned regarding viola-
tions of this policy.
‘‘8. That all parties be advised that any weapon or dangerous instrument
at the worksite will be confiscated and that there is no reasonable expecta-
tion of privacy with respect to such items in the workplace.
‘‘9. That this order applies to all state employees in the executive branch.
‘‘10. That each agency will monitor the effective implementation of this
policy.
‘‘11. That this order shall take effect immediately.’’
8
The executive order arose from a 1998 workplace incident in which ‘‘a
disgruntled employee, returning to work after a leave to treat stress, went
on a shooting rampage at the Connecticut Lottery Office and killed four
people and then himself.’’ Office of Legislative Research, Research Report
No. 2008-R-0623, ‘‘Bullying and the State Zero Tolerance Policy for Work-
place Violence’’ (November 14, 2008), available at http://www.cga.ct.gov/
2008/rpt/2008-R-0623.htm (last visited October 2, 2015).
9
We recognize, as we must, that in some instances the employee’s conduct
will not be so egregious that termination is required, and that the policies
cited herein do not require termination in every instance. Threatening to
commit a mass atrocity in the manner of Columbine High School or Virginia
Tech, where many students and faculty lost their lives, is, in our view, so
serious that nothing less than termination is necessary to vindicate these
dominant public policies.
10
The arraignment report and affidavit regarding this incident states, in
part: ‘‘Upon talking with Cleveland [he] states that he sent a manila envelope
containing a handwritten letter, along with several other emails to several
offices in City Hall; one addressed to Larry Osborne, his union, and civil
service. Cleveland state[d] he [had] been having an on-going problem with
the city regarding an incident that took place back in 2008. Shortly after
we advised Cleveland that he was under arrest for threatening and was
handcuffed and placed in the back of the patrol car, Cleveland was trans-
ported to booking. While in the vehicle . . . the suspect made a spontaneous
utterance to [one] [o]fficer . . . that the information included in the packet
with regards to Columbine and Virginia Tech was included as an example
of what could happen if his boss Jorge [Garcia] would continue threatening
people. Due to the fact, according to [Cleveland], that his boss Jorge had
someone call and threaten a police officer’s wife.’’
11
General Statutes § 10-184, entitled ‘‘Duties of parents. School attendance
age requirements,’’ provides in relevant part: ‘‘[E]ach parent or other person
having control of a child five years of age and over and under eighteen
years of age shall cause such child to attend a public school regularly during
the hours and terms the public school in the district in which such child
resides is in session, unless such child is a high school graduate or the
parent or person having control of such child is able to show that the child
is elsewhere receiving equivalent instruction in the studies taught in the
public schools.’’
12
The panel found as follows: ‘‘The grievant, Adam Cleveland, had been
a custodian in the Bridgeport Public Schools since February 18, 2007. He
had been transferred a few times and, thus, worked under several supervi-
sors. One of his supervisors was Jorge Garcia. Cleveland and Garcia had
issues with each other emanating from an incident outside of work when
they ran into each other in front of a barber shop when Garcia was with
his son.
‘‘Cleveland was suspended previously [when he and] other employees
. . . were caught leaving a school earlier than their shift terminated. There-
after, he seemed to have a running issue with Garcia, who became director
of operations and facilities in charge of the maintenance in several school
buildings. According to Cleveland, Garcia was attempting to accuse Cleve-
land of making a threatening phone call to a female supervisor who Cleveland
was scheduled to work under. Several employees, including the female
supervisor, testified that Garcia’s actions were inappropriate when he tried
to connect Cleveland to the phone call.
‘‘All the issues came to a head when Larry Osborne, the director of labor
relations, received a package on June 28, 2011, of handwritten letters with
various computer printouts relating to definitions of legal terms, various
incidents involving [Cleveland] and Jorge Garcia and computer pages that
contained information about the Columbine High School massacre and the
Virginia Tech massacre. The letter was very random when it related to
incidents that [Cleveland] had encountered with Garcia and indicated that
[Cleveland] felt he was being harassed by Garcia. The letter clearly identified
that it came from [Cleveland] who asked to have a meeting with Mr. Osborne
so that he could explain the problems he was encountering. The letter was
also referred to the mayor and other city employees.’’
13
A portion of Cleveland’s employment file was attached as an exhibit to
the board’s memorandum of law in support of its application to vacate the
arbitration award.
14
The memorandum stated as follows: ‘‘This morning around 6:45 a.m. I
was working on our progress sheet when Adam Cleveland came in. I said
good morning to him and he walked right by me then turned around and
had a tape recorder in his hand. He said to me [he] was tired of this fucking
shit and he said that I could tell Jorge that he was going to put this to bed
once and for all. He started to play the tape but I couldn’t understand it.
He started ranting and raving about me, Jorge [Garcia], Delmar [Twistol]
and Curtis [Hooks] about putting this to bed once and for all. At this point
he was gritting his teeth, his eyes were bulging out and he was babbling on
about they’ll see and I should call them and tell them.
‘‘He did not look like himself when he was leaving and said I’ll take my
days when I get good dam and ready. I do not know what he meant by this.
I feel like he is a threat to me as well as others by the way he looked
and acted.’’