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

   EVELEIGH, J., dissenting. I respectfully dissent from
the majority opinion. I generally agree with the dissent
authored by Chief Justice Rogers and join that dissent
except to the extent that she states that the due process
rights of Suzanne Listro, an employee of the named
defendant, the Department of Children and Families
(department), ‘‘were not violated by lack of notice
. . . .’’1 I write separately because, in my view, Listro
was denied her due process rights in this matter because
she was never given notice that ‘‘negligence’’ was the
basis for her termination. The fact that the arbitrator
found that the department had just cause to terminate
Listro because she was negligent in her care of M, her
foster child, despite never giving her notice of that
ground, is in direct conflict with Board of Education
v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 84 L.
Ed. 2d 494 (1985), and Bartlett v. Krause, 209 Conn.
352, 380, 551 A.2d 710 (1988). Indeed, Bartlett is never
cited by the parties or the Appellate Court. I respectfully
dissent because Listro was never given notice that negli-
gence was a possible ground for termination, either
at or before her pretermination hearing or during the
arbitration. In fact, it is clear from the record that the
basis of the department’s charges against Listro was
that it believed that she had caused the death of M
from ‘‘shaken baby syndrome’’ and not through any
negligence. In my view, on the basis of the facts in the
present case, Listro was clearly denied due process
of law.
  I note, at the outset, that I agree with both the facts
and the standard of review set forth within the majority
opinion. Therefore, I will highlight only those facts nec-
essary for my dissent.
   In Board of Education v. Loudermill, supra, 470 U.S.
546, the United States Supreme Court stated that ‘‘[a]
tenured public employee is entitled to oral or written
notice of the charges against him, an explanation of
the employer’s evidence, and an opportunity to present
his side of the story’’ before being terminated. An exami-
nation of the record demonstrates that the focus of the
charges brought by the department against Listro was
related to alleged criminal conduct. The arbitrator
found that the Commissioner of Children and Families
(commissioner) issued a press release explaining as
follows: ‘‘Given [Listro’s] arrest and the seriousness of
the charges, I am seeking her termination.’’ The commis-
sioner did not mention the term negligence. On the
basis of the foregoing, it seems that the commissioner
was seeking termination of Listro’s employment based
upon the seriousness of the criminal charges against
her. On July 18, 2008, Listro received a notice of an
investigatory meeting from the department. The letter
states: ‘‘This meeting is to discuss your serious off-duty
misconduct that has led to your arrest.’’ It then proceeds
to state: ‘‘If appropriate, a [predisciplinary] conference
will be held immediately following the investigatory
meeting. The purpose of the [predisciplinary] meeting
will be to give you an opportunity to respond to any
charges the [d]epartment may deem appropriate.’’
Again there is no mention of the term ‘‘negligence.’’ The
charges relate to the off-duty conduct that led to her
arrest—namely, conduct resulting in the death of a
child.
   After the meeting and hearing, Listro received a letter
from the department notifying her that she had been
dismissed. The letter reads, in part, ‘‘this action is taken
immediately due to your serious misconduct which
affects the public, the safety and welfare of our clients.’’
The following explanation is set forth in the next para-
graph: ‘‘On May 12, 2007, a seven month old baby was
placed in your home for [f]oster [c]are. On May 19,
2008, the baby died while in your care. On July 16, 2008,
you were arrested and charged with [m]anslaughter [in
the] [f]irst [d]egree and [r]isk of injury to a [child]. You
were afforded an opportunity to provide your version
of events. You declined to provide a statement [or]
answer any questions on the matter. During this meeting
you were advised that your actions were deemed detri-
mental to the best interest of the agency and the state.
You were also advised that the department would make
a decision based on the information gathered without
the benefit of your input.’’ The letter continues as fol-
lows: ‘‘The arrest warrant indicates that you provided
a statement reporting that [M] had fallen from the bed
when you left him unattended while you ejected a tape
from [a video cassette recorder (VCR)]. However, the
medical examiner has deemed that the injury to [M] is
not consistent with such a fall. Additionally, the [c]hild
[p]rotective [s]ervices investigation on this matter has
been substantiated. Your name has been placed on the
[c]entral [r]egistry, meaning [the department] has
deemed that you pose an ongoing risk to children. Your
actions represent a violation of [§ 5-240-1a (c) (4) of
the Regulations of Connecticut State Agencies]: Offen-
sive or abusive conduct toward the public, co-workers,
or inmates, patients or clients of [s]tate institutions
or facilities; and [§ 5-240-1a (c) (13)]: Engaging in any
activity which is detrimental to the best interest of the
agency or [of] the state.’’ Finally, the letter stated the
following: ‘‘A Loudermill meeting was conducted
immediately following the investigatory meeting. You
were afforded an opportunity to provide additional [or]
mitigating information and to make a statement as to
why the agency should not take the action being con-
templated. The information provided by your . . . rep-
resentatives did not serve to mitigate our decision. As
such, we have determined that your continued employ-
ment with [the department] represents an unacceptable
employment risk. Accordingly, due to the seriousness
of these charges you were notified on July 23, 2008,
that you were dismissed effective immediately.’’
   As the foregoing demonstrates, even in the termina-
tion letter, there is no mention of negligence. The
department repeatedly stated that it was the seri-
ousness of the criminal charges that caused her termina-
tion. The very nature of the conduct which she allegedly
committed, according to the department, constituted
‘‘[o]ffensive and abusive conduct . . . .’’ In and of
itself, this reference infers intentional, rather than negli-
gent acts. It is, therefore, manifestly clear that Listro
had no notice that the department was claiming that
she was negligent and that her negligence was the cause
of her dismissal.
   Further, the affidavit of Neal Cunningham, staff repre-
sentative for the plaintiff, AFSCME, Council 4, Local
2663 (union), states that ‘‘[n]o charge of negligence
was ever made by the [department] at the Loudermill
[hearing], nor was she ever charged with negligence in
her termination letter. . . . Thus, when the issue was
framed for arbitration it was based upon the allegations
at the Loudermill [hearing] and in the termination
letter.’’
   In light of the notice provided for the hearing and
the termination letter, when the arbitrator found that
‘‘the [d]epartment has failed to carry its burden of estab-
lishing that . . . Listro committed the fatal abuse of
which she was accused,’’ that should have been the end
of the case. Indeed, the medical examiner established
that M’s fall from the bed was not consistent with the
injuries resulting in M’s death.2 However, instead of
ending her decision with the failure of the department
to prove its case, the arbitrator espoused a view that
Listro ‘‘was negligent in her care of M [and] her inatten-
tion permitted him to fall from the bed that night.
Although this represents a lapse in judgment with which
many parents are familiar . . . Listro’s moment of neg-
ligence had unusually serious consequences, the death
of a child.’’
   If Listro had known the department was considering
negligence as a ground for her termination, she could
have prepared differently for the hearing and the arbi-
tration. In fact, Listro did not testify or present evidence
at the hearing because she was on notice that her crimi-
nal charges were the ground for her termination. Had
she known that negligence was a ground, she may have
presented expert testimony regarding whether her care
of M violated any standards of care or department regu-
lations. The arbitrator seemed to recognize the
dilemma, stating in her decision that Listro’s acts ‘‘repre-
sent[ed] a lapse in judgment with which many parents
are familiar . . . .’’ This is neither a situation where
Listro left the room with a child unattended, nor a
situation where a parent goes into a store leaving a
child in the car. Listro remained in the room and turned
her head for a short period of time to remove a tape
from a VCR. This may well have been a case wherein
it was necessary to have expert testimony before a
decision could have been rendered regarding any negli-
gence. Listro was never able to present such evidence
regarding negligence because she was not given notice
that negligence was being alleged as a ground for termi-
nation.
   The majority reasons that ‘‘[i]t was not necessary for
the department to cite ‘negligence’ as the reason, or an
alternative reason, for Listro’s dismissal.’’ I respectfully
disagree. In my view, this statement is completely at
odds with the requirements of due process. The major-
ity does cite to two federal cases for its conclusion
that: ‘‘Neither was it necessary for the arbitral award to
mirror the department’s arguments in order to provide
Listro with sufficient notice.’’ See TiVo, Inc. v. Goldwas-
ser, 560 Fed. Appx. 15, 21 (2d Cir. 2014) (argument that
arbitration panel exceeded authority because panel’s
reasoning ‘‘did not wholly track the parties’ arguments’’
meritless); Rosati v. Bekhor, 167 F. Supp. 2d 1340, 1345
(M.D. Fla. 2001) (‘‘[T]he general issue submitted to the
arbitration panel was securities fraud. While the spe-
cific law mentioned in the [a]ward was not submitted
to the arbitrators, the issue of securities fraud was sub-
mitted.’’ [Emphasis omitted.]). Both cases are easily
distinguishable from the present case on numerous
grounds. First, neither case involves the dismissal of a
public employee nor the notice of charges required
before the arbitration commences. Second, in TiVo,
Inc. v. Goldwasser, supra, 20, the United States Court
of Appeals for the Second Circuit noted that one of the
reasons that the arbitrator’s decision was not funda-
mentally unfair was because the arbitrator, after the
hearing, but before the final decision, had requested
briefing on ‘‘whether the situation underlying arbitra-
tion was contemplated by the parties at the time they
negotiated and executed the [patent licensing
agreement].’’ (Internal quotation marks omitted.) The
Second Circuit opined that ‘‘[b]ecause TiVo, [Inc.] did
not request—and therefore the arbitration panel did not
refuse—an opportunity to reopen the record to answer
this inquiry, and the evidence needed to answer this
inquiry is substantially the same as that needed to com-
bat the arbitration panel’s ultimate reliance on the cove-
nant of good faith and fair dealing, the proceeding was
not fundamentally unfair.’’ Id. ‘‘Moreover, no additional
notice was necessary to assure fundamental fairness
because the covenant of good faith and fair dealing is
in aid and furtherance of other terms of the agreement
of the parties.’’ (Internal quotation marks omitted.) Id.
Therefore, because the court considered the doctrine
of the implied covenant of good faith and fair dealing
to be part of the contract theory there was not a due
process problem. Third, in Rosati v. Bekhor, supra,
1345, the court decided that, because the subject of the
arbitration was securities fraud, the parties were on
notice that any section of securities law involving fraud
could be used in the arbitration. Fourth, in my view,
Rosati would have had a different result if the arbitrator
had considered a doctrine which was not part of securi-
ties fraud, such as negligence in the handling of securi-
ties. Likewise, TiVo, Inc., may have reached a different
result if the arbitration panel had considered a doctrine
that was not part and parcel of the law of contracts,
such as negligent misrepresentation.
   In the present case, Listro was notified that she was
being discharged due to the seriousness of her conduct,
which allegedly resulted in the death of a child. Her
hearing and termination letters both referenced the
criminal charges against her, which were risk of injury
to a child and first degree manslaughter. The state’s
position in the criminal trial was that Listro had caused
M’s ‘‘shaken baby syndrome,’’ which resulted in the
death of M. Because those criminal charges were refer-
enced in her hearing and termination letters, it was
reasonable to assume that the same theory was the
basis for her discipline and termination. Indeed, this
was the only basis upon which both the state and the
department could proceed because the medical exam-
iner, the only medical witness who offered an opinion
on the matter, had stated that the cause of death was
consistent with ‘‘shaken baby syndrome,’’ and was not
consistent with a fall from a bed. The arbitrator ruled
in Listro’s favor on this issue. None of the cases cited
by the majority involve a situation wherein the arbitra-
tor finds in favor of the employee on the principal issue,
but then rules against the employee on an issue never
raised by the parties and not within the scope of the arbi-
tration.
   The majority further posits, without citation, that
‘‘Listro was clearly informed that the arbitrator would
consider whether her conduct on the night of May 19,
2008, constituted just cause for termination. The initial
notice provided to Listro stated that an investigatory
interview would be held to ‘discuss [her] serious off-
duty misconduct that has [led] to [her] arrest,’ and the
termination letter explained that the decision to dismiss
her was made in light of the fact that M had died while
in her care. The termination letter further noted that
Listro’s arrest warrant ‘indicates that [she] provided a
statement reporting that [M] had fallen from the bed
when [Listro] left him unattended while [she] ejected
a tape from [a] VCR.’ Listro’s own account of the events
immediately preceding M’s death in response to these
charges provided the basis for the arbitrator’s decision.
Although Listro did not concede that she had been
negligent, this was a legal conclusion that the arbitrator
was free to draw from her testimony, one that is not
subject to review by this court. Therefore, Listro was
provided with sufficient notice to satisfy her right to
due process and the notice provision of the collective
bargaining agreement.’’ (Footnote omitted.)
   I respectfully disagree. In my view, the majority opin-
ion substantiates its decision on the basis of the general
nature of the description of Listro’s conduct. This is
akin to saying that, because the background of an acci-
dent was adequately described in a civil complaint, a
plaintiff can recover for both intentional conduct and
negligence, even if only intentional conduct has been
alleged, because the defendant should be on notice of
the general factual background of the accident. In my
view, this analysis completely ignores the requirements
of due process.
   It is undisputed that Listro has a constitutionally pro-
tected property interest in her employment with the
department stemming from the collective bargaining
agreement and its requirement that she only be removed
for just cause. ‘‘Generally speaking, courts have recog-
nized a property interest if, by statute, rule or contract,
express or implied, the employee can only be fired for
‘cause’ . . . .’’ Ventetuolo v. Burke, 470 F. Supp. 887,
891 (D.R.I. 1978), aff’d, 596 F.2d 476 (1st Cir. 1979). As
the United States Supreme Court explained in Board
of Education v. Loudermill, supra, 470 U.S. 546, ‘‘[t]he
essential requirements of due process . . . are notice
and an opportunity to respond. The opportunity to pre-
sent reasons, either in person or in writing, why pro-
posed action should not be taken is a fundamental due
process requirement.’’ The United States Supreme
Court explained that ‘‘[t]he tenured public employee is
entitled to oral or written notice of the charges against
him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story.’’ Id. The
United States Supreme Court further reasoned that ‘‘the
pretermination ‘hearing,’ though necessary, need not
be elaborate.’’ Id., 545. In Loudermill, state law pro-
vided that the employee was entitled to a full adminis-
trative hearing and judicial review, so the United States
Supreme Court only considered what procedural pro-
tections were required before termination. Id.
  In Bartlett v. Krause, supra, 209 Conn. 353, this court
considered the process for removing a fire marshal from
his or her position under General Statutes § 29-300. In
Bartlett, this court recognized, that ‘‘[t]he United States
Supreme Court and other courts have often said that
due process is flexible and calls for such procedural
protections as the particular situation demands.’’ (Inter-
nal quotation marks omitted.) Id., 369. In examining
the procedural protections required under the facts of
Bartlett, this court explained that ‘‘the answer as to
what process is due in this case is not, as the defendants
claim, to be found in the express language of the Con-
necticut statutes.’’ Id. Instead, ‘‘[t]he need for proce-
dural safeguards that due process guarantees in this
case goes beyond the notice and opportunity (‘right to
respond’) language of § 29-300 . . . .’’ Id., 378.
   In Bartlett, this court first concluded that the plaintiff
had a property interest in her employment as a fire
marshal because the state statute provided that the fire
marshal could only be terminated for ‘‘ ‘cause.’ ’’ Id.,
367; see also General Statutes § 29-297 (‘‘[e]ach local
fire marshal shall be sworn to the faithful performance
of his duties by the clerk of the town, city, borough or
fire district and shall continue to serve in that office
until removed for cause’’). On the basis of the fact
that ‘‘[b]oth parties knew and expected that she would
continue her employment as fire marshal until ‘removed
for cause,’ ’’ this court concluded that the plaintiff ‘‘has
a property interest that is protected by due process.’’
Bartlett v. Krause, supra, 209 Conn. 367. This court
further reasoned that ‘‘[o]nce it is determined that due
process applies, the question remains what process is
due. . . . It is crucial to note that the right to due
process is conferred not by legislative grace, but by
constitutional guarantee. While the legislature may
elect not to confer a property interest in [public]
employment, it may not constitutionally authorize the
deprivation of such an interest, once conferred, without
appropriate procedural safeguards. . . . The United
States Supreme Court and other courts have often said
that due process is flexible and calls for such procedural
protections as the particular situation demands.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
369.
  Although this court recognized that Loudermill man-
dated that ‘‘when a property interest in continued public
employment is created . . . the government must take
an additional step, that of a pretermination hearing,’’ it
also recognized that the due process protections that
were found to pass constitutional muster in Loudermill,
might not be sufficient in Bartlett. Id., 376. Specifically,
this court recognized in Bartlett that, unlike the statu-
tory scheme at issue in in Loudermill, the statutory
scheme for fire marshals in this state did not provide
for any posttermination administrative procedures. Id.,
373–74. Recognizing that ‘‘the existence of [posttermi-
nation] procedures is relevant to the necessary scope
of [pretermination] procedures’’; (internal quotation
marks omitted) id., 374; this court had to decide ‘‘what
kind of pretermination hearing, given the Connecticut
statutory scheme, complies with the constitutional
command of due process.’’ Id., 376.
  In Bartlett, this court concluded that the plaintiff was
entitled to the following procedural safeguards prior
to her dismissal: ‘‘First, notification in writing of the
specific grounds for the proposed dismissal. Second,
the meaningful opportunity to be heard in her own
defense, personally or by counsel, at a public hearing,
before the defendants have the power of dismissal. This
meaningful opportunity includes not only the produc-
tion at the public hearing, by the defendants, of the
person or persons whose complaints form the basis of
the ground or grounds in the notification of grounds
for potential dismissal, but also the opportunity to
examine at that time any or all of these complainants
should the plaintiff decide to do so. Third, a statement,
oral or in writing, of the reason or reasons upon which
the defendants premise termination if that is the sanc-
tion imposed.’’ Id., 380–81.
  Although I recognize that the procedural protections
required in a particular situation are flexible, I think
that Bartlett is instructive in the present case. In that
case, this court explained that ‘‘[t]he ‘opportunity to be
heard in [her] own defense’ ought, when procedural
due process is factored in, to mean that the plaintiff
had the opportunity, at least, to examine the persons
who were the complainants of the various charges prof-
fered against her. In addition, there is no record of the
defendants’ decision of final termination except their
conclusory determination of termination. While such a
decision need not be in great detail, the complete
absence of any statement of the reasons supporting
that decision makes judicial review difficult.’’ Id., 380.
  In the present case, Listro was never given the oppor-
tunity to be heard in her own defense on the charge
that her care of M was negligent. Indeed, the word
negligence was never used in her notice of hearing
or termination letter, or in her pretermination hearing
pursuant to Loudermill. Without any reference to negli-
gence in the hearing or termination letter, she could
not have had an opportunity to respond to whether she
was negligent in caring for M.
  Instead, the notice of hearing and termination letters
notified Listro that the department was considering tak-
ing action based on ‘‘her serious off-duty misconduct
that has [led] to [her] arrest.’’ The termination letter
even referred to the arrest warrant. Clearly, Listro
would never have been arrested for negligent conduct.
She was arrested because of ‘‘shaken baby syndrome,’’
which was alleged to have caused M’s death. Indeed,
this is the only conduct for which she could have been
prosecuted because the medical examiner explicitly
determined that M’s fall was not consistent with the
cause of death.
   Although, unlike in Bartlett, the procedure for Listro’s
termination did provide for posttermination review of
the department’s decision by way of arbitration, I would
conclude that this review was meaningless because the
ground used as ‘‘just cause’’ for her termination in the
arbitrator’s decision—negligence—was never the focus
at the underlying Loudermill hearing. Therefore, Listro
was never given the opportunity to address negligence
at the pretermination hearing and never had ‘‘an oppor-
tunity to present [her] side of the case [as it related to
negligence] to the official responsible for the dis-
charge,’’ which is the purpose of the pretermination
hearing. Bartlett v. Krause, supra, 209 Conn. 376. More-
over, even during the arbitration proceeding, none of
the parties addressed whether Listro’s conduct consti-
tuted negligence. Therefore, Listro was never given the
required ‘‘pretermination opportunity to respond, cou-
pled with [posttermination] administrative procedures’’
on the issue of whether her conduct constituted negli-
gence. Board of Education v. Loudermill, supra, 470
U.S. 547–48.
   Further, the department has suggested, and the
Appellate Court agreed, that it was sufficient for due
process purposes that Listro was aware of the incident
which gave rise to the charges. See AFSCME, Council
4, Local 2663 v. Dept. of Children & Families, 142
Conn. App. 1, 13, 62 A.3d 1168 (2013). This proposition
is directly contrary to federal precedent. In addressing
the notice required for due process purposes, the United
States District Court for the Western District of Louisi-
ana has stated that ‘‘[a]t the very least though, it is clear
that in [the Fifth Circuit] notice of the charges against
the employee given at the [pretermination] hearing will
suffice where there is a history of contact between the
employer and employee that warns the employee that
he will be terminated for the reasons given at the termi-
nation hearing.’’ Nunnery v. Bossier, 822 F. Supp. 2d
620, 625 (W.D. La. 2011). In the present case, there was
no such history of contact between the department and
Listro regarding alleged negligence.
   Likewise, in Lizzio v. Dept. of the Army, 534 F.3d
1376 (Fed. Cir. 2008), the United States Court of Appeals
for the Federal Circuit addressed an issue similar to
the one in the present case. In that case, the defendant
removed the plaintiff from his employment as a special
agent in the Major Procurement Fraud Unit of the Crimi-
nal Investigation Command because it determined that
he had breached a last chance agreement that he had
entered into with the defendant in settlement of a previ-
ous removal action. Id., 1377. ‘‘The last chance
agreement contained a waiver of appeal rights. [The
plaintiff] appealed his removal to the [Merit Systems
Protection Board (board)]. Following a hearing on the
issue of jurisdiction, the administrative judge . . . to
whom the appeal was assigned issued an initial decision
in which she held that the waiver of appeal rights in
the last chance agreement was unenforceable. She did
so after ruling that [the plaintiff] had established that
he had not committed the breach of the last chance
agreement asserted by the [defendant] in its [n]otice of
[i]ntention to [i]nvoke the last chance agreement . . . .
[The administrative judge] therefore reversed the
removal action.’’ (Citation omitted.) Id., 1377–78.
   ‘‘The [administrative judge] concluded that [the plain-
tiff] had not breached the last chance agreement. . . .
Focusing upon the alleged breach cited by [the defen-
dant] . . . the [administrative judge] concluded that,
though ‘rude and obnoxious,’ [the plaintiff’s] conduct
could not have embarrassed the government and there-
fore did not justify invocation of the last chance
agreement. . . . Thereafter, in response to the [defen-
dant’s] petition for review, rather than disturbing the
[administrative judge’s] finding that the [defendant]
asserted in the notice of breach that [the plaintiff]
breached the agreement by engaging in conduct embar-
rassing to the government or her finding that [the plain-
tiff’s] conduct did not embarrass the government, the
[b]oard relied upon a ground for breach different from
the one found by the [administrative judge] to have
been asserted by the [defendant] in the notice of breach.
Thus, the [b]oard concluded that ‘rude and obnoxious’
behavior comprised ‘misconduct’ within the meaning
of the last chance agreement and therefore justified the
[defendant’s] invocation of the agreement and removal
of [the plaintiff] for his prior misconduct.’’ (Citations
omitted.) Id., 1384.
   On appeal, the Federal Circuit vacated the plaintiff’s
removal. It concluded as follows: ‘‘In sum, the [b]oard
erred when . . . it relied on a ground for breach of the
last chance agreement—conduct on [the plaintiff’s] part
that was ‘rude and obnoxious’—different from the
ground found by the [administrative judge] to have been
asserted by the [defendant] in the notice of breach—
conduct on [the plaintiff’s] part that was ‘embarrassing’
to the government, a finding not disturbed by the
[b]oard. In so doing, the [b]oard deprived [the plaintiff]
of due process. . . . We do so because the [b]oard
rested [its decision] solely upon the ground that [the
plaintiff] engaged in rude and obnoxious behavior.
Among other things, it declined to review the [adminis-
trative judge’s] finding that the [defendant] charged [the
plaintiff] with breaching the last chance agreement by
engaging in conduct that embarrassed the [defendant],
or her finding that his conduct . . . did not embarrass
the [defendant].’’ (Citations omitted.) Id., 1386.
   Like the present case, although the two separate
charges arose from the same incident, the fact that the
plaintiff in Lizzio did not have notice of the second
charge was sufficient to vacate the board’s decision.
While I recognize that Lizzio involved a result after
trial before an administrative judge, as opposed to arbi-
tration, the case is important because of its recognition
that due process requires notice of the specific reasons
for dismissal, even if those reasons arise out of the
same set of facts. Likewise, in the present case, Listro
did not have notice of the negligence claim, although
it arguably arose out of the same set of facts. The rea-
sons for termination of employment must be specific.
Unquestionably, the notice provided Listro in the pre-
sent case falls far below any traditional notion of due
process. Any attempts to gloss the allegations for dis-
missal with the cloak of knowledge of the incident must
fail because of the panoply of charges that can result
from one set of circumstances.
   In Darien Education Assn. v. Board of Education,
172 Conn. 434, 438–39, 374 A.2d 1081 (1977), this court
held that it can examine the merits of an arbitration
decision in considering whether the arbitrator has failed
to abide by his or her obligation to remain within the
scope of his authority under the submission. Moreover,
this court has previously stated that an arbitration
award must draw its essence from the terms of the
contract, and that the arbitrator cannot simply, ‘‘dis-
pense his own brand of industrial justice.’’ (Internal
quotation marks omitted.) Hudson Wire Co. v. Winsted
Brass Workers Union, 150 Conn. 546, 553, 191 A.2d
557 (1963), quoting United Steelworkers v. Enterprise
Wheel & Car Corp., 363 U.S. 593, 597, 80 S. Ct. 1358, 4
L. Ed. 2d 1424 (1960).
   In the present case, the question before the arbitrator
was whether Listro was terminated for just cause. The
reason for her termination thus becomes a critical item
in the determination. In my view, Listro was terminated
for the conduct that led to the serious charges against
her, alleged actions that resulted in the unfortunate
death of a young child. The notice of hearing and the
termination letter sent to Listro support my understand-
ing of this case. The department never asserted negli-
gence as the reason for termination. Negligence is never
mentioned in any notice to Listro. The arbitrator
answered the question presented to her. She stated: ‘‘I
must conclude that the [d]epartment has failed to carry
its burden of establishing that . . . Listro committed
the fatal abuse of which she was accused.’’ Therefore,
Listro was not terminated for just cause.
  The arbitrator’s remaining findings go far beyond the
scope of the submission. Specifically, the arbitrator held
that Listro had been negligent in her care of M when
negligence was never an issue before the arbitrator and
Listro was never given notice that negligence would be
an issue. It certainly was never the basis for Listro’s
termination. Further, the arbitrator’s statement that
Listro’s ‘‘moment of negligence had unusually serious
consequences’’ is totally unwarranted, especially when
the medical examiner testified that M’s injuries were
not consistent with the fall. Specifically on these two
grounds, which serve as the basis for the arbitrator’s
decision, the arbitrator was offering her own brand of
industrial justice and failed in her obligation to remain
within the scope of the submission. ‘‘This additional
analysis is conducted pursuant to such a claim because
an arbitrator’s award is legitimate only so long as it
draws its essence from the collective bargaining
agreement. When the arbitrator’s words manifest an
infidelity to this obligation, courts have no choice but
to refuse enforcement of the award. . . . If, for exam-
ple, there was evidence that revealed that [the arbitra-
tor] had reached his decision by consulting a [O]uija
board, [it would] not suffice that the award conformed
to the submission. . . . [I]n the face of such a claimed
inconsistency, this court will review the award only
to determine whether it draws its essence from the
collective bargaining agreement.’’ (Citations omitted;
internal quotation marks omitted.) Board of Education
v. Local 818, Council 4, AFSCME, AFL-CIO, 5 Conn.
App. 636, 640, 502 A.2d 426 (1985). In my view, Listro
was not only denied due process because she was never
informed that she was terminated for negligence, but
also because the arbitrator engaged in her own brand
of industrial justice. The arbitrator found negligence,
and then found that the negligence resulted in M’s death
when the medical evidence was to the contrary. The
medical examiner testified that M’s injuries were not
consistent with the fall. The arbitrator exceeded her
own authority by issuing her own charge against Lis-
tro—that charge being one of negligence. Further, there
was no causation related to the negligence. The medical
examiner testified that if M had hit his head, the autopsy
should have revealed pooled blood under the scalp. It
did not.
   The submission was restricted in that it required that
the award be consistent with the terms of the parties’
collective bargaining agreement. Article 15, § 9 (c), of
the parties’ collective bargaining agreement states in
relevant part: ‘‘The arbitrator shall have no power to
add to, subtract from, alter, or modify this [a]greement
. . . .’’ The award in the present case was not consistent
with this provision of the contract between the parties.
The parties could have framed the remedy section of
the issue by stating the following question: If, not, what
shall the remedy be? Instead, they specifically put the
restriction that the arbitration award be consistent with
the terms of the parties’ collective bargaining
agreement. Further, if the union had known that negli-
gence was going to be an issue, the submission to the
arbitrator may have been on different terms.
   Further, I am surprised at the majority’s statement
that ‘‘[w]e note, however, that it would not be inconsis-
tent for the arbitrator to conclude that M’s fall due to
Listro’s inattention could have been the last straw on
top of previously inflicted traumatic injuries that led to
M’s death, even if Listro was not responsible for those
prior injuries.’’3 This statement is completely at odds
with the findings of the medical examiner that the fall
was not consistent with the cause of death. Nor was
there any testimony that the fall contributed, in any
way, to the cause of death. For this court to conclude
that it could have been the ‘‘last straw’’ in the process
is to suggest that an arbitrator, or any court, could draw
a contrary inference from testimony which does not
support the proposition. How could any court draw an
inference that this was the ‘‘last straw’’ in the sequence
of death, when the only medical testimony suggests
that the fall was not related to the death? In my view,
such a view is not only illogical, but contrary to our
evidentiary jurisprudence.
  For the foregoing reasons, I respectfully dissent from
the majority opinion. Therefore, I would reverse the
judgment of the Appellate Court and remand the case
to that court with direction to affirm the judgment of
the trial court vacating the award.
    1
      I note that the State Board of Labor Relations and the Office of the
Attorney General were also named as defendants, but are not parties to the
present appeal.
    2
      Although, it may have been a debatable subject to find that Listro was
negligent, the undisputed medical evidence was that the fall was not consis-
tent with the cause of death. Therefore, it was improper for the arbitrator
to conclude that Listro’s negligence caused M’s death. Further, the depart-
ment’s own dismissal letter belies any relationship between M’s death and
M falling off the bed. The letter states: ‘‘[T]he medical examiner has deemed
that the injury to [M] is not consistent with such a fall.’’
    3
      The majority’s citation to Rua v. Kirby, 125 Conn. App. 514, 516 n.2, 8
A.3d 1123 (2010); see footnote 11 of the majority opinion; actually reinforces
my contention that there was no proof to support the arbitrator’s decision
and that, instead of an inference supporting the decision, the medical examin-
er’s testimony suggested an opposite conclusion. The operable quote, omit-
ted by the majority from its citation to Rua, is that ‘‘under [the eggshell
plaintiff doctrine the plaintiff] still has to prove the nature and probable
duration of the injuries sustained.’’ (Internal quotation marks omitted.) Id.
There was no such proof in the present case. Likewise, in Rua, the Appellate
Court decided that the ‘‘eggshell plaintiff’’ charge was not warranted because
‘‘[t]he plaintiff did not present any evidence or pursue a line of questioning
that would reasonably support a finding that the preexisting condition was
aggravated by the accident. In fact, the plaintiff’s questioning with respect
to the preexisting condition was intended to show that it was the accident
that had caused the plaintiff’s radiculopathy and not the preexisting condi-
tion. We therefore reject the plaintiff’s claim that the court improperly
refused to charge the jury that the defendants must ‘take the plaintiff as
they find him’ and conclude that the court acted well within its discretion
when it refused to set aside the verdict.’’ (Footnote omitted.) Id., 518–19.
    In the present case, the arbitrator found that ‘‘[r]egarding the merits of
the case, the record conclusively established that M was a victim of shaken
baby syndrome. The medical examiner’s testimony and the autopsy report
were not challenged and the union offered not a scintilla of evidence to
suggest an alternative diagnosis. The decisive question before us is not the
manner of his death but who caused it, i.e., who shook M so hard as to
give him injuries that in the end were fatal.
    ‘‘If M fell as asserted by . . . Listro . . . nothing in the record establishes
that such a fall could not have been the ‘proverbial last straw’ for earlier
traumatic injuries. Although the autopsy revealed no external bruising, there
is no evidence that a fall from two feet would cause such bruising in a seven
month old baby.’’ (Footnote omitted.) The arbitrator then noted that ‘‘[t]he
[medical examiner] testified that if M had hit his head, the autopsy should
have revealed pooled blood under the scalp. Because . . . Listro testified
that she did not see M fall, she never claimed that he hit his head, other,
softer body parts might not be expected to suffer such bruising.’’ Finally,
the arbitrator found that ‘‘there was no evidence regarding how much time
could elapse between a severe shaking and such a fall in order to result in
death shortly thereafter.’’ By creating a causal connection between Listro’s
alleged negligence and the death of M, both the arbitrator and the majority
have made a medical finding, in the absence of support from any medical
evidence, that directly contradicts the only medical doctor who was credited
by the arbitrator. Such a form of industrial justice should not stand. See
Hudson Wire Co. v. Winsted Brass Workers Union, supra, 150 Conn. 553.
