The state Appellate Court on Monday reinstated a labor arbitrator’s decision that the state Department of Children and Families acted properly in firing social worker Suzanne Listro of Mansfield, whose 7-month-old foster child died as a result of injuries possibly sustained under her care in May 2008.
A trial judge had vacated the arbitrator’s decision and ordered a further arbitration hearing. But the Appellate Court held that the judge had exceeded the limited scope of judicial review of arbitration awards. It overturned his decision and ordered that the arbitrator’s decision be “confirmed.”
Listro’s union, AFSCME Local 2663, which challenged the arbitrator’s decision in court, can ask the state Supreme Court to review the Appellate Court decision. But the state’s top court doesn’t have to hear the appeal.
The union faces an uphill battle in at least one respect: The three-judge Appellate Court panel was unanimous, and Supreme Court rules indicate that the court is more likely to accept cases when an Appellate Court panel splits its votes.
Listro was arrested on criminal charges of first-degree manslaughter and risk of injury to a child in the death of the baby, Michael Brown Jr., who had been placed under her care after DCF removed him from his parents’ home in East Hartford. But Judge William Bright acquitted her of those charges after a non-jury trial in Vernon Superior Court in 2010.
Listro told investigators that Michael fell 26 inches from her bed to a tile floor when she turned her back to remove a videotape from a videocassette recorder. When she picked up the baby, Listro reported, he became limp and unresponsive.
She called 911 and administered rescue breaths while she waited for the ambulance to arrive. Michael died that night after being treated initially at Windham Hospital, then taken by Life Star helicopter to the Connecticut Children’s Medical Center in Hartford.
Dr. H. Wayne Carver II, the state’s chief medical examiner, concluded that Michael died as a result of shaken baby syndrome. But defense experts vigorously disputed that conclusion at Listro’s criminal trial.
DCF fired Listro in July 2008 after a hearing in which she declined, on her lawyer’s advice, to respond to the disciplinary charges leveled against her by the department.
After a hearing held more than two years later, the labor arbitrator decided that there was “just cause” for Listro’s firing, finding that she was negligent in her care of the baby. The arbitrator also found, however, that DCF had failed to prove that Listro had shaken the baby — or that no one else could have harmed him.
Although Listro was off duty at the time of the events at issue, the arbitrator found, her actions “made her unemployable by the government agency responsible for the care and welfare of children.”
When her union appealed to court, Judge Referee Robert J. Hale, a semi-retired Superior Court judge, ruled that the arbitrator had exceeded her authority by basing her decision on negligence, when the department hadn’t accused Listro of negligence.
The Appellate Court disagreed that DCF was required to identify negligence as the reason for Listro’s firing.
It said the union contract required the department to identify the evidence supporting the personnel action under consideration, adding that the termination letter did identify the conduct on which Listro’s firing was based.
Judge Douglas S. Lavine wrote for the Appellate Court, “Negligence is a legal theory; … it is not evidence of conduct.”
The termination letter “did not put a label on Listro’s serious off-duty misconduct but clearly identified her behavior and the events that constituted the serious off-duty misconduct at issue,” Lavine wrote.
Joining him in the decision were Judge Carmen E. Espinosa and Judge Referee Thomas G. West.