Connecticut Attorney General William Tong on Friday broke with former Attorney General George Jepsen and issued a short, three-page opinion stating one of Democratic lawmakers’ latest captive audience bills would not be preempted by national labor law. Former Attorney General Jepsen issued a formal opinion in 2018 that Democrats’ captive ...
The Fitch Files: Whiting Hospital Was Forced to Rehire Employees Terminated for Abuse
Connecticut’s Whiting Forensic Hospital was forced to rehire employees terminated in 2009 and 2010 for the abuse of state psychiatric patients after grievance arbitrators overturned management decisions, according to documents obtained through a freedom of information request.
The arbitrators based their decisions, in part, on testimony by Whiting employees later arrested or fired for the abuse of William Shehadi — a 2017 abuse scandal that rocked the state-run psychiatric facility.
Mark Cusson, Robert Larned, Owen Hughes, and Robert Martineau — all arrested or terminated as part of the Shehadi abuse investigation — supplied arbitration hearing testimony which was at times verifiably false based on video evidence.
For years, staff members including nurses and mental health workers allegedly subjected William Shehadi — a mentally ill man convicted of murdering his father — to sadistic cruelty.
The abuse, captured on video over the course of 2017, was witnessed by staff members, but not reported until an unknown whistleblower came forward, sparking a state investigation. The abuse of Shehadi allegedly dates back to 2006.
Ultimately, ten Whiting employees were arrested in the scandal and another 26 were either dismissed, terminated or retired, according to information provided by Department of Mental Health and Addiction Services, the agency charged with running Whiting Forensic Hospital.
DMHAS Commissioner Miriam Dephin-Rittmon testified at a public hearing before the Public Health Committee in November of 2017 that the state agency was occasionally forced to rehire employees deemed abusive.
“There have been instances where we’ve moved to separate from individuals based on our investigation,” Delphin-Rittmon told the Committee. “We believe that the best course of action to ensure the protection and health and safety of our clients, our patients, is to separate from them, and we have had instances where through the arbitration process where we’ve had to take individuals back. That is troubling. That has happened at times.”
Now, some of those arbitration decisions have come to light.
“Long been a culture on this particular unit.”
In 2009, camera footage showed Whiting forensic treatment specialist David Morales dragging a patient by his shirt from the bathroom into a hallway. The patient [identified only as W.] had a number of mental health issues along with brittle bone disease, which caused him to be injured easily.
A second camera placed outside the patient’s room then showed Morales dragging the patient by the legs into his bedroom, briefly causing him to be exposed from the waist down.
Morales was accompanied by two other Whiting staff members, including Robert Martineau who was suspended for his involvement in the 2017 Whiting abuse scandal and subsequently retired.
No report was made by staff members regarding the altercation between Morales and W., although the female employee present at the time did file a report alleging W. sexually assaulted her while being dragged into the room.
Under questioning by investigators, Morales said he and another staff member had escorted the patient by each arm out of the bathroom, a statement easily refuted by the video. He also said he could not remember dragging the patient into his bedroom by the legs.
None of the staff members present during the incident — including Martineau — could “recall” Morales dragging W. by the legs. After being shown the video footage, however, all three employees added to their statements.
Martineau said he was not offering excuses for Morales’ behavior, but told investigators that “It’s long been a culture on this particular unit.”
Morales was subsequently terminated in November 2009 following the investigation. Martineau and another staff member were given a five-day suspensions, which were later reduced to three days.
However, New England Health Care Employees Union, District 1199 filed a grievance for unjust dismissal.
The union argued that Morales’ punishment was too severe and the investigation was not “fair and objective.”
Eileen Cenci — an independent labor arbitrator from Massachusetts. — agreed with the union.
“The penalty imposed on the grievant differed so markedly from the penalties imposed on the other employees who were involved in the incident, that the discrepancy raises real doubt as to whether the treatment of all parties was fair and equitable,” Cenci wrote in her decision.
Morales’ penalty was reduced to a 30-day suspension. Since the grievance award did not come until April of 2011, the arbitrator ruled the state of Connecticut had to reimburse Morales for all his lost pay.
Morales remains an employee of DMHAS as a Lead Forensic Treatment Specialist, earning $57,666 in salary and an additional $26,782 in overtime last year.
Martineau retired in the wake the of the 2017 abuse investigation. He earned $96,245.25 in 2016, which included $32,195.91 in overtime, which counts toward his state pension.
In March 2010, Michael Coombs, a Whiting forensic treatment specialist, had a verbal altercation with an agitated patient and shoved the patient into a chair. The physical altercation prompted further staff intervention to restrain the patient and eventually lock him in a seclusion room.
Coombs testified he believed the patient was about to spit on him so he “created space” with his arms. After reviewing video of the altercation, the facility’s director of Safety Education and Training, a labor relations investigator, and the chief executive officer of Connecticut Valley Hospital didn’t see it that way and Coombs was terminated.
The union filed a grievance for unjust dismissal. The union’s defense — and the arbitrator’s final decision — relied, in part, on witness testimony from three Whiting employees who were either arrested or dismissed in the wake of the 2017 Whiting abuse scandal.
Robert Larned and Mark Cusson — two of the men initially arrested for the abuse of William Shehadi — both testified in support of Coombs and authored statements corroborating Coombs’ version of events.
Owen Hughes, a forensic treatment specialist later dismissed by DMHAS for his role in the 2017 abuse scandal, also offered a written statement supporting Coombs’ testimony.
The arbitrator, Richard G. Boulanger, relied on that witness testimony and on the Morales grievance decision in his ruling, noting that Coombs’ actions did not meet the definition of physical abuse used in the Morales case, because — according to Coombs and his co-workers — the patient was preparing to spit on him, necessitating physical intervention.
Coombs returned to his job and was given back-pay for two years worth of lost wages. In 2017, Coombs earned a salary of $67,265 with an additional $105,742 in overtime.
Both Mark Cusson and Owen Hughes retired in the wake of the Whiting scandal and will receive their pensions, while Robert Larned was dismissed by DMHAS.
A total of 36 Whiting employees retired, resigned, were dismissed or terminated in the wake of the Shehadi abuse investigation, according to information provided by DMHAS.
The size and scope of the 2017 investigation begged the question as to whether or not there exists a culture of disregard for patients’ rights on the unit.
According to DMHAS’s patient bill of rights, physical restraint or seclusion can only be used when a patient is an “imminent danger” to themselves or others.
In the Morales case, W. refused to leave the bathroom and sat down on the floor while cursing and yelling at staff. In the Coombs case there was reportedly a threat of spitting, although the video could not give confirmation.
Anonymous written testimony submitted by Whiting patients for the November public hearing before the Committee on Public Health made a variety of accusations regarding abuse by Whiting staff, ranging from drug use by staff members, employees engaging in sexual relationships with patients, physical abuse and, in one case, death.
“The hospital and union has hired a few staff members who are unprofessional and should have no business working here and taking care of peoples’ lives,” the authors wrote in their testimony. “We have witnessed cruel, antisocial, racial, mob-mentality. Many state workers at CVH are unprofessional and through their eyes, they have power over patients and can do or say anything they want without consequence.”
Keeping the Public in the Dark
The grievance arbitration hearing acts as a quasi-legal hearing in which the employee or union doesn’t have to go through the court system, but the arbitrator’s decision still carries the force of law. It also keeps the public, the media and lawmakers in the dark regarding employee issues within a state agency, unless the agency tries to fight the arbitration decision in court, or if hearing documents are specifically requested.
Fighting grievance decisions in court are rarely successful because the state agrees to be bound by decisions made by arbitrators in collective bargaining agreements.
When an UConn Health Center employee was terminated for smoking marijuana on the job, an arbitrator overturned the termination. The state took the case all the way to the Connecticut Supreme Court and lost. The justices said state lawmakers chose to use arbitration to settle cases like this, so they had to abide by the arbitrators’ decisions.
Once the state makes its bed with arbitration, it is forced to lie in it.
The grievance arbitration process does allow the state and the union to work out contractual problems efficiently without clogging the court system with employee disputes over sick-time or overtime pay, but not all employee disputes and grievances are created equal.
Decisions regarding abuse or assault of patients under the state’s care necessitate public scrutiny in ways that decisions over back-pay or sick time do not. One is a contract dispute, the other is a potential crime which can carry grave repercussions.
Under collective bargaining agreements, the state must demonstrate “just cause” in terminating an employee. Despite the state’s “zero tolerance” policy regarding patient abuse, the decision of whether or not an employee accused of abuse stays on the job is ultimately left to a single arbitrator.
To be sure, not all grievance decisions overturn management’s findings. Cases involving other allegations of abuse, employee fist-fights in the Whiting parking lot, and CVH police officers with a history of falling asleep on the job resulted in employee terminations being upheld by an arbitrator, but the decisions are not open to public scrutiny except through filing a freedom of information request.
Some states are reforming what can actually by grieved by a union to make it easier to terminate employees who commit certain acts, although the changes have been limited to school teachers.
Pennsylvania’s Public School Act says any teacher who is found guilty of certain serious criminal acts can be terminated without recourse.
But the law only works for crimes and criminals that see the light of day and have been adjudicated in court — something that doesn’t happen when potentially criminal behavior is left to quiet, closed door arbitration hearings.
In California, a landmark 2014 court case and subsequent legislation made it easier for school districts to dismiss teachers suspected of “serious offenses, such as attempted murder, sexual misconduct or drug offenses,” according to the Los Angeles Times. “It does not require that an instructor be convicted of a crime to be fired, only that a school district has determined that they employee is unfit for the classroom.”
The new law meant an instructor would have 30 days to file for an independent hearing before an administrative law judge, which would have to begin within 60 days.
The change in California means a much faster hearing than the year-long arbitration process currently at work in Connecticut, although it is unclear whether it would ultimately give the state more discretion in determining who it employs to care for some of society’s most disturbed and vulnerable populations.
Of course, it is much easier politically to argue for broader termination rights to protect school-children than for mentally ill persons who have committed criminal acts.
But the price of not protecting patients at Whiting is adding up. Connecticut paid $2.3 million in a wrongful death suit in 2006 when Whiting patient James Bell died while being restrained by staff members.
Shehadi’s family has also filed two lawsuits — one state, one federal — against Connecticut alleging violations of the U.S. Constitution and the Connecticut Patients’ Bill of Rights. The Shehadi family is represented by the same firm that won Bell’s settlement.
Changes to the grievance process would likely be a difficult fight, particularly because the unions will likely challenge any change to arbitration language, even if it only includes modifications for abuse by those in caretaker positions.
But the lawsuits resulting from cases like Shehadi’s combined with the collective shock and guilt over such incidents taking place in a state-controlled, taxpayer-funded facility may make the political battle worth fighting.
In the wake to two controversial police shootings in Connecticut, the latest Connecticut State Police contract exempts officers’ personnel records and grievance hearings from public disclosure under the state’s Freedom of Information statute. Along with the wage increases and benefits totaling $22.1 million outlined in the contract, Article 9 states ...