In re McCort

IN_RE_MCCORT.93-237; 162 Vt. 481; 650 A.2d 504


[filed 2-Sep-1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports. 
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609- 0801 of any errors in
 order that corrections may be made before this opinion goes to press. 


                                No. 93-237


 Grievance of Gene V. McCort                 Supreme Court
    
                                            On Appeal from
                                            Labor Relations Board

                                            May Term, 1994
    
  
 Charles H. McHugh, Chair
 
 Gene V. McCort, pro se, Montpelier, plaintiff-appellee

 Jeffrey L. Amestoy, Attorney General, and Michael Seibert, Assistant Attorney
 General, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


         DOOLEY, J.   The State of Vermont appeals from a decision of the
Vermont Labor Relations Board rescinding grievant Gene McCort's dismissal,
reducing the penalty to a six work-week suspension without pay, and
ordering him reinstated to his position as an auditor with the Agency of
Transportation.  With the exception of a September 6, 1991 written
reprimand of grievant, which we reverse and remand for further proceedings,
we affirm.          

Grievant originally filed three separate grievances with the Vermont Labor
Relations Board (Board),  alleging that the Agency of Transportation (AOT
or employer) had violated various provisions of the collective bargaining
agreement between the State and the Vermont 



State Employees' Association (VSEA) in effect for the period July 1, 1990
through June 30, 1992.  The Board consolidated the three grievances for
hearing. See Grievance of McCort, 16 V.L.R.B. 70 (1993) (Docket Nos. 91-57,
92-9, 92-26). 

         Grievant began his career with the AOT in July 1989 in the
position of Auditor B.  He was a member of a four-person staff of "external
auditors" responsible for reviewing the records of companies having
contracts with AOT to determine whether the companies were in financial and
contractual compliance.  This position, and the position of Auditor C to
which grievant was promoted after six months, required grievant to have a
great deal of direct contact with contractors.  During his three-year
career with AOT,  with the exception of one interim appraisal, AOT rated
grievant's work performance as "Satisfactory" in each of his annual
performance appraisals.  Following a series of disputes with AOT management
dating back to just over a year after grievant began his job, however, AOT
dismissed grievant in May 1992. 
                                    I.
                                    A.
         Employee's first grievance arose out of his conduct on May 24,
1991.  This grievance was covered by Board Docket No. 91-57, and we will
refer to it later as the No. 91-57 grievance.  On May 24th, grievant had
completed an audit of Company A, in which he expressed serious concerns to
AOT management concerning certain company reporting practices and the
company's unwillingness to provide grievant access to what he considered
necessary financial documents.  As discussed in more detail below, grievant
believed that his superiors improperly intervened in this audit and
prevented him from pursuing an important line of inquiry.  On the day in
question, grievant improperly took from his supervisor's desk a



confidential memo from the AOT Assistant Director for Financial Services
which criticized grievant's audit.  In a meeting that day, grievant made
inappropriate remarks to the AOT Director of Administration.  In another
meeting, he made derogatory remarks about Jewish businessmen.  As a result
of grievant's conduct on the 24th, his supervisor issued him a written
reprimand on May 31st. 

         Grievant challenged this decision on June 20th, and it went
through the grievance process.(FN1)    Some time prior to August 26, 1991,
grievant informed his supervisors that he intended to appeal the denial of
the grievance to the Board, which he did on September 10, 1991. 

         This grievance is significant primarily because the Board found
later State actions were motivated, at least in part, by response to the
Board appeal in this grievance.  The State prevailed on this grievance and
as a result, did not include it in its appeal.  Although grievant did not
file a cross-appeal, he has argued in his brief that the Board should have
upheld his grievance, and this Court should reverse the Board's failure to
do so.  Since this decision is not before us in the State's appeal, we are
unable to consider it.  See Miller v. A.N. Deringer, Inc., 146 Vt. 59, 60,
498 A.2d 501, 503 (1985).  This is not a case where appellee is content
with the judgment but seeks to raise additional claims if it is reversed. 



                                    B.

         Board Docket No. 92-9 represents five consolidated grievances. 
The first of the five grievances arose out of events which occurred in late
August 1991.  On August 23, grievant returned from a week-long audit in New
Jersey to find that his supervisor had removed grievant's personal audit
reference files from his office.  These consisted of copies of audits
grievant had done in the past.  Grievant found them in the supervisor's
unlocked office, retrieved them and locked them in his car.  When the
supervisor found the files missing, he ordered grievant to return them by
10:30 a.m.  Grievant requested and was given permission to attempt to
contact his attorney prior to returning the files.  Due to a delay in
reaching his attorney, grievant did not return the files until 11:00 a.m. 
The following day the supervisor suspended grievant for one day without pay
for failing to follow his direct order.  The grievance Step III hearing
officer, the Human Resources Director for the Department of Personnel,
ordered this suspension reduced to a written reprimand. 

         The second incident occurred on September 6.  Grievant was issued
a written reprimand for a comment he made the previous March to an officer
of a company he was auditing.  He said to the officer, who had a southern
accent, that Vermonters might be ignorant but Southerners were stupid. 
Grievant's supervisor became aware of this comment in late August, and
asked the officer to send him a letter detailing the incident, which
arrived on August 27th. The supervisor also directed grievant to send a
letter of apology and was displeased when grievant's letter disputed that
the incident occurred as alleged.  The Step III hearing officer upheld this
reprimand. 

         The third grievance in this series also arose in September.  On
September 10, with 



several grievances pending, grievant requested of his supervisor office
time during which to work on his grievances.  The supervisor agreed but, by
memorandum to grievant, limited such activities to one hour per workday. 
The grievance over this time restriction was also upheld by the Step III
hearing officer. 

         The fourth grievance was related to the third.  To resolve the
third grievance issue, in part, grievant was allowed by an acting
supervisor to use personal and leave time to work on his grievances.  Up to
this time, grievant had been using AOT computers to draft his grievances.
On September 11, the acting supervisor informed grievant that he was not
allowed to use the state computer for personal business, and in particular,
when on leave time.  Grievant refused to stop until the order was put in
writing and the acting supervisor produced the written policy on which the
order was based.  He then ceased using the computer. 

         On Friday, September 13, grievant's supervisor informed grievant
that he had prepared a disciplinary action, and that grievant had the right
to have his attorney present when the supervisor presented the action to
him.  On Monday, September 16, grievant requested that the supervisor delay
his disciplinary action until Wednesday as grievant's attorney would not be
available until that time.  The supervisor refused and issued grievant a
five-day suspension without pay for using state property to conduct
personal business and for ignoring the acting supervisor's order to cease
such use.  The Step III hearing officer ordered this suspension expunged
because of ambiguity regarding the acting supervisor's orders. 
 
         The fifth and final grievance in this series developed one month
later.  On October 11, 1991, grievant was given an interim performance
evaluation covering the period January 1 to September 30, 1991.  His rating
was "Unsatisfactory," and he was placed on a three-month 



prescriptive period of remediation.  The Step III hearing officer upheld
the remediation period. 

         Grievant completed the prescriptive period and was given a
"Satisfactory" evaluation in his January 1992 annual appraisal.  During the
prescriptive period, grievant was suspended for one day without pay for
remarking to the Executive Director of the Human Rights Commission, "Do you
want a piece of candy little girl?"  Grievant did not grieve this
suspension. 

         Following the Step III hearing officer's decision in February
1992, grievant appealed the five individual grievances to the Board in
Docket No. 92-9.  On appeal, the Board found the employer's actions in
violation of the collective bargaining agreement, ruling that they were
taken in response to grievant's grievance activities and were without just
cause.  The Board ordered the written reprimand, the two suspensions, and
the adverse performance evaluation and prescriptive period of remediation
rescinded.  The Board further ordered the Agency to remove all references
to all such disciplinary actions from grievant's employment file.  The
State has appealed this decision. 

                                    C. 

         In Docket No. 92-26, grievant appealed the AOT decision to
terminate him.  As discussed below, the AOT terminated the grievant because
of the events described above and one further event.  Two months after
filing the Docket No. 92-9 grievance with the Board, grievant attended an
April 30 hearing between AOT and Company A at which the company sought to
contest the final audit report.  After filing his preliminary audit,
grievant had been taken off the contract, and had not seen the final audit.
 He had previously told his supervisor that he did not want to attend this
hearing, and he did not stay long.  He was given a copy of the final
two-page report, which had been reduced by his supervisor from his original
twelve-page submission. He 



stated, "[A]nyone who reduced my twelve page report to two pages is a
fool."  He then attempted to question Company A's representatives, its
president and its attorney, directly. When  the AOT Deputy Secretary, who
was serving as hearing officer, informed grievant that he would conduct the
hearing, grievant responded by telling the Deputy Secretary not to be so
arrogant.  Grievant was then ordered out of the hearing.  That night,
grievant's supervisor placed grievant on paid administrative leave for the
following day and thereafter extended it while AOT investigated grievant's
conduct at the April 30 hearing.  Following an opportunity for grievant to
respond to a specification of grounds, grievant's employment was terminated
on May 22, 1992, effective immediately. 

         The termination letter detailed the April 30th incident,
describing grievant's actions as "highly unprofessional, insubordinate, and
disruptive of the hearing process."  It then itemized "other unprofessional
conduct," including (1) the disciplinary actions covered by Docket No. 91-
57, (2) the suspension (reduced to a reprimand) for failing to return the
copies of the audit reports by the specified deadline, (3) the suspension
(which was expunged on grievant's appeal) for failing to cease using the
state computer for drafting of grievance documents, (4) the comment to the
director of the Human Rights Commission that resulted in a one-day
suspension, and (5) grievant's conduct at the April 30th hearing, as set
out above. 

         The substantive part of this letter concluded with the following
statement: 

     As a result of the combined effect of your actions described
     above, and other actions which you have been counseled, 
     there is just cause for your dismissal.  Your actions have
     convinced the Agency that you can not be trusted to conduct
     objective and unbiased audits on its behalf.

On May 28, 1992, grievant appealed his dismissal to the Board.  The Board
concluded 



that grievant's dismissal was motivated in part by response to his
grievance activity and that dismissal would not otherwise have been imposed
on grievant although his misconduct was serious.  Instead, the Board
concluded that the maximum sanction indicated was a "stiff suspension" of
thirty working days and ordered him reinstated with back pay and interest
less the amount that would have been earned during the suspension period. 

                                    II. 

         Although the State has appealed the decisions in Docket No. 92-9
and Docket No. 92-26, its focus is on the decision in Docket No. 92-26 that
just cause did not exist to terminate grievant.  The first point of the
State's argument is that the Board improperly construed the dismissal
letter as terminating grievant for all the misconduct itemized.  The State
argues that the proper interpretation of the letter is that grievant was
terminated for his misconduct on April 30, 1992 at the audit hearing.  In
the State's view, the remainder of the grounds cited in the letter were to
show that progressive discipline had been employed. 
         
         The Board's interpretation of the termination letter is supported
by the plain meaning of the language; dismissal was imposed "[a]s a result
of the combined effect of [grievant's] . . . actions described above, and
other actions as to which you have been counseled . . . ." Moreover, the
Board acted properly in evaluating only the grounds specified in the
termination letter, and the termination meeting.  See Grievance of Merrill,
151 Vt. 270, 276, 559 A.2d 651, 655 (1988). 

         The Board also concluded that the State could not rely on the
reference to other unspecified misconduct because the reference was "too
vague to allow Grievant to defend against the charges."  McCort, 16
V.L.R.B. at 122.  This conclusion is supported by our decisions



requiring fair notice of the grounds for termination.  See, e.g., In re
Yashko, 138 Vt. 364, 366, 415 A.2d 1322, 1323-24 (1980). 

         Pursuant to the Board's interpretation of the termination letter,
it evaluated all of the grounds cited to determine whether in the aggregate
they established just cause for dismissal. Necessarily, the Board was
required to discount or ignore grounds it found to be improper.  We see no
error in the logic of the Board's approach. 

                                   III. 

         The State's next claim is that the Board did not apply the correct
employment discrimination law so that the burden to prove absence of
discrimination was improperly placed on the State.  This issue is also
central to the Board's analysis of the grievances.  As claimed by grievant,
the Board found that the actions of the State in imposing the discipline
complained of in Docket No. 92-9 and the dismissal complained of in Docket
No. 92-26 was in retaliation for grievances filed by grievant.  In reaching
this decision, the Board went through the following logical steps.  First,
it found that grievant had grievances pending when AOT took the action
complained of and AOT was aware of the grievances.  Second, it found,
primarily from the timing of the State's actions and the lack of a
sufficient explanation for them, that retaliation for grievant's grievances
was a motivating factor for the disciplinary actions and the dismissal.
Third, it shifted to the State the burden to show that it would have
imposed the discipline and would have terminated grievant even if he had
never filed grievances.  Fourth, it concluded the State failed to make the
proper showing.  McCort, 16 V.L.R.B. at 106-09. 

         Certain parts of the Board's analysis are conceded.  By virtue of
the applicable collective bargaining agreement, a state employee has a
vested property interest in continued employment, 



In re Muzzy, 141 Vt. 463, 472, 449 A.2d 970, 974 (1982), and cannot be
disciplined or terminated except for just cause.  In re Brooks, 135 Vt.
563, 568, 382 A.2d 204, 207 (1977). Under the State-VSEA contract, every
employee may freely institute complaints and/or grievances without threats,
reprisal or harassment by the employer.  The State may not retaliate
against the exercise of this right by discipline or termination. 

         The Board found that the critical precedent in analyzing this kind
of retaliation case is Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977), in which the plaintiff, a school teacher, alleged that he
was not rehired by the Board of Education because of unfavorable statements
he made about certain school policies.  McCort, 16 V.L.R.B. at 105-06. 
Although Mt. Healthy is a constitutional decision, we agree that its
analytical approach is an appropriate model because we face the same
problem of allocating burdens of persuasion and production where the
employer's motives may be mixed.  Other states have adopted a
burden-shifting rule parallel to that in Mt. Healthy.  See Appeal of
Professional Firefighters Local 3353, 635 A.2d 1352, 1354 (N.H. 1993). 
Indeed, our unfair labor practice decisions have engaged in analysis very
similar to that in Mt. Healthy where anti-union motivation is alleged to be
a part of the employer's actions.  See Kelley v. Day Care Center, Inc., 141
Vt. 608, 613-15, 451 A.2d 1106, 1109 (1982); In re Southwestern Vt. Educ.
Ass'n, 136 Vt. 490, 493-94, 396 A.2d 123, 124-25 (1978); Ohland v. Dubay,
133 Vt. 300, 302-03, 336 A.2d 203, 204-05 (1975). 

         In Mt. Healthy, the employer disputed the teacher's assertion and
claimed he was not rehired for unrelated misconduct.  Characterizing the
case as one involving mixed motives, the Court held that an employee must
show that he or she was engaged in constitutionally protected conduct, and
that such conduct was a substantial or motivating factor in the employer's
action. 



Mt. Healthy, 429 U.S.  at 287.  If the employee makes such a
showing, the Court ruled that the burden of persuasion then moves to the
employer to prove "by a preponderance of the evidence that it would have
reached the same decision . . . even in the absence of the protected
conduct." Id.  The Court reasoned that this allocation of burdens ensures
that an employee is 

     placed in now worse a position that if [the employee] had not
     engaged in the [protected ] conduct . . .  But that same [employee]
     ought not to be able, by engaging in such conduct, to prevent [the]
     employer from assessing his performance record and reaching a
     decision to [terminate] on the basis of that record, simply because
     the protected conduct makes the employer more certain of the
     correctness of its decision.  

Id. at 285-86.

The State argues that the Board misapplied Mt. Healthy because grievance
retaliation was found to be a motivating but not a substantial factor. 
Moreover, the State contends there was no direct evidence that AOT was
motivated at all by the grievances.  In the State's view, the Board should
have applied the traditional burdens of proof as set out in such cases as
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) and
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Its analysis relies
on Justice O'Connor's concurrence in Price Waterhouse v. Hopkins, 490 U.S. 228, 260-280 (1989) (O'Connor C.J., concurring), a Title VII mixed motive
case. 

         Because the State relies heavily on it, we have looked at Price
Waterhouse, a 4-1-1 plurality decision in which Justices White and O'Connor
concurred separately.  Justice O'Connor's concurrence suggests that the
burden of production does not shift to the employer in a mixed-motive Title
VII case unless there is direct evidence that an improper consideration was
a substantial factor in the employment decision.  Id. at 276 (O'Connor, J.,
concurring). 



In contrast, the plurality that held that once a plaintiff
showed that a protected factor "played a motivating part in an employment
decision, the [employer] may avoid a finding of liability only by proving
that it would have made the same decision even if it had not allowed [the
protected factor] to play such a role."(FN2) Id. at 244-45.  The plurality also
held that the employer's burden "is most appropriately deemed an
affirmative defense:  the plaintiff must persuade the factfinder on one
point, and then the employer, if it wishes to prevail, must persuade it on
another."  Id. at 246; see also NLRB v. Transportation Management Corp.,
462 U.S. 393, 400 (1983) (when employee has proved that his union activity
was substantial or motivating factor in his discharge, employer's proof
that it would have discharged employee in absence of union activity and for
valid reasons "amounted to affirmative defense on which the employer
carried the burden of proof"). 

         Justice O'Connor accepted the plurality rule as applied to the
facts in Price Waterhouse because there was testimony that a number of
partners made gender-biased comments in refusing to promote plaintiff to
partner. Price Waterhouse, 490 U.S.  at 267-68 (O'Connor, J. concurring). 
She opposed its use, however, in the normal Title VII case based on
"statistical proof."  Id.  The State argues we should adopt this
distinction regarding the necessity of direct evidence, and hold that there
is no direct evidence in this case. 

         First, we think the distinction between a "substantial" factor and
a "motivating" factor 



is a quibble.  Mt. Healthy used these terms as synonyms, Mt. Healthy, 429 U.S.  at 287, and we have used them interchangeably.  See Graff v. Eaton,
157 Vt. 321, 324, 598 A.2d 1383, 1384 (1991) (citing Price Waterhouse for
proposition that once employee has proved illegitimate factor was a
motivating factor, burden shifts to employer).  This is the same standard
that the Supreme Court has also endorsed in the context of an analogous
employee action for retaliation brought under the National Labor Relations
Act.  See Transportation Management Corp., 462 U.S.  at 400 (employee must
show that union activity protected under NLRA was "a substantial or a
motivating factor in the discharge").  There is no suggestion that the
Vermont Labor Relations Board thought that response to the grievance
activity was an insubstantial factor in the disciplinary actions and
grievant's dismissal. 

         Second, regarding whether a plaintiff must put forth direct
evidence of an improper motive, we emphasize that we are using the United
States Supreme Court decisions as responses to analogous circumstances and
not as governing precedents.  Our decisions have clearly authorized the use
of circumstantial evidence to show that one of the employer's motives was
improper in mixed-motive cases.  See Grievance of Regan, 153 Vt. 333, 337,
571 A.2d 664, 666 (1989); Kelley v. Day Care Center, Inc., 141 Vt. at 613,
451 A.2d at 1108-09; In re Southwestern Vt. Educ. Ass'n, 136 Vt. at 494-95,
396 A.2d  at 125-26.  When we look for an analogy, we find our case is far
closer to Mt. Healthy than to Price Waterhouse, a statutory Title VII case.
 There is nothing in Mt. Healthy to suggest that presence of an improper
motive must be shown by direct evidence.  Decisions following Mt. Healthy
have routinely relied upon circumstantial evidence to show that an improper
factor motivated the employment action.  See, e.g., Ware v. Unified School
Dist., 881 F.2d 906, 911 (10th Cir. 1989). 



         Even if Price Waterhouse were the governing precedent, we do not
agree that we should take its holding exclusively from Justice O'Connor's
concurrence or that her opinion has the meaning the State attributes to it.
 In Graff v. Eaton, a decision relying directly on Price Waterhouse, we
took the applicable standard from the plurality opinion and not from the
concurrence.  See 157 Vt. at 324-27, 598 A.2d at 1384-86; see also Tyler v.
Bethlehem Steel Corp., 958 F.2d 1176, 1183 (2d Cir. 1992) (majority of
Court in Price Waterhouse endorsed Mt. Healthy framework and did not
require direct evidence of improper motivation).  There was no suggestion
in Graff that a specific type of evidence was necessary to shift the burden
of production as long as the fact-finder found the presence of an
impermissible motive by a preponderance of the evidence.  See 157 Vt. at
325-26, 598 A.2d  at 1385. 

          Moreover, we do not read Justice O'Connor as creating any
significant distinction between circumstantial and direct evidence.  Any
emphasis she placed on direct evidence was used to distinguish the
framework she outlined in Price Waterhouse from that in McDonnell- Douglas.
 See Tyler v. Bethlehem Steel Corp., 958 F.2d  at 1186.  In
McDonnell-Douglas, a decreased burden of persuasion is shifted to the
employer only when the plaintiff's prima facie case is established.  Price
Waterhouse, 490 U.S.  at 278 (O'Connor, J. concurring). The plaintiff
establishes the prima facie case upon a showing that plaintiff was a member
of a protected group, was qualifed for an open job but was rejected, and
that the job remained open.  Id.  In O'Connor's Price Waterhouse framework,
however, a more stringent burden of persuasion shifts to the employer when
the plaintiff establishes not only the prima facie case, but also provides
specific evidence of discrimination.  Id.  In other contexts, we have
rejected artificial distinctions between propositions proved by
circumstantial evidence and those proved by direct evidence. 



See State v. DeRouchie, 140 Vt. 437, 445, 440 A.2d 146, 150 (1981)
(rejecting differential treatment of circumstantial and direct evidence in
criminal cases).  We do not believe that Justice O'Connor intended to
resurrect such inappropriate distinctions. 

                                    IV.
                                    A.

         Having concluded that the Board correctly allocated the burdens of
production and persuasion in accordance with Mt. Healthy, we turn now to
the State's contention that the Board improperly applied the law to the
facts in both dockets.  Although the State is primarily concerned with the
dismissal decision in Docket No. 92-26, we begin with the analysis of the
disciplinary actions in Docket No. 92-9, as the Board did, because these
grievances underlie the State's ultimate decision to terminate grievant. 
We emphasize that our standard of review is limited.  We will not disturb
the Board's findings of fact absent a showing that the challenged findings
are clearly erroneous.  Grievance of Merrill, 151 Vt. at 273, 559 A.2d  at
653.  Further, we will uphold the Board's conclusions of law if supported
by the findings.  Vermont State Colleges Staff Fed'n v. Vermont State
Colleges, 157 Vt. 645, 646, 596 A.2d 355, 356-57 (1991) (mem.). 

                                    B.

         As set forth above, grievant clearly met the first prong of the
Mt. Healthy test.  Mt. Healthy, 429 U.S.  at 287 (employee must first show
conduct is protected).  The real dispute here is about the second Mt.
Healthy prong, which requires the employee to prove that his conduct was a
substantial or motivating factor in the employer's actions.  See id.; see
also Grievance of Morrissey, 149 Vt. 1, 14 n.3, 538 A.2d 678, 687 n.3(1987)



(protected conduct must be "substantial factor in the termination
decision").  Absent specific, direct evidence that AOT was motivated by
retaliation for grievant's grievance activities, the Board may look to a
number of indicia of improper motivation we have developed in unfair labor
practice decisions involving claims of anti-union retaliation.  These
include "whether the employer knew of the employee's [protected] activity .
. . , whether there was a climate of coercion, and whether the timing of
the discharge was suspect."  Ohland v. Dubay, 133 Vt. at 302-03, 336 A.2d 
at 205.  A climate of coercion is one in which the employer's "conduct may
reasonably be said to have a tendency to interfere with the free exercise
of employee rights." Ralph's Toys, Hobbies, Cards & Gifts, Inc., 272
N.L.R.B. 164, 164 (1984) (discussing NLRA proscription on interference,
coercion and restraint).  The critical inquiry is not whether the coercion
succeeded or failed, but whether the employer's conduct reasonably tended
to interfere with or restrain an employee's exercise of protected rights. 
See N.L.R.B. v. Shelby Memorial Hosp. Ass'n, 1 F.3d 550, 559 (7th Cir.
1993); see also International Bro. of Elec. Workers v. N.L.R.B., 487 F.2d 1113, 1126 (D.C. Cir. 1972) cert. denied, 418 U.S. 904 (1974) (concern is
with subjective effect of employer's actions). 

         We reiterate the use of the Ohland factors.  We emphasize, as we
did in Kelley v. Day Care Center, Inc., 141 Vt. at 613, 451 A.2d  at 1108,
that Ohland actually states a nonexclusive list of circumstances which were
particularly relevant to the facts of that case. 

         The first disciplinary action analyzed by the Board was the
one-day suspension imposed for taking the files from the office of
grievant's supervisor.  The Board noted that this action was taken after
grievant announced his intention to appeal to the Board in Docket No.
91-57. It found the supervisor's reason for removing them from grievant's
office--to prevent grievant 



from going to the news media with them--to be weak and unsupported by the
evidence.  See N.L.R.B. v. Shelby Memorial Hosp. Ass'n, 1 F.3d  at 568 ("an
implausible explanation for the discharge" is circumstantial evidence of
improper motive); Ware v. Unified School Dist., 881 F.2d  at 911 (plaintiff
creates reasonable inference of improper motivation by showing "the reasons
proffered for the adverse action are without factual support").  It found
that although a specific deadline was set for grievant to return the files,
the supervisor acted inconsistently in giving grievant an opportunity to
contact counsel but disciplining him for being thirty minutes late in
returning the files after he attempted unsuccessfully to reach counsel. 
The Board found in the latter actions a climate of coercion because
grievant could not rely on the oral representations of his superiors.  The
Board's conclusions are supported by its findings, which in turn are
supported by the evidence.  The Board could conclude that the supervisor's
actions were motivated in part by retaliation against grievant for his
grievance activity. 

         The Board's analysis of the five-day suspension for failing to
follow the acting supervisor's order to stop using the state computer for
grievance drafting was similar.  Although this discipline had been expunged
before it reached the Board, the Board examined it because it was a ground
for the termination decision and it was relevant to the employer's overall
motives.  The Board found the timing of this action was also suspicious
because it occurred on the day after grievant actually appealed his
grievance to the Board in Docket No. 91-57.  It found the action
unwarranted because there was "no reasonable basis by which to conclude
that Grievant had refused to obey a direct order by a supervisor" and
emphasized that grievant was not allowed to tell his side of the story
before the discipline was imposed.  McCort, 16 V.L.R.B. at 116.  Again, we
conclude that the Board's decision that grievance retaliation



motivated the employer's actions, at least in part, is supported. 

         For similar reasons, we uphold the Board's finding of improper
motivation for the period of remediation and the reprimand for the insults
of Southerners in the statements to the company officer. 

         We also uphold the Board's decision that the State's termination
of grievant was motivated, at least in part, by retaliation for his
grievance activities, although we agree with the State that the question is
a close one.  In its reasoning, the Board first noted that two of the
stated reasons for dismissal -- the failure to return the duplicate files
by the deadline imposed by grievant's supervisor and the refusal to follow
an order that he discontinue using the AOT computer for grievance work --
could not be relied upon by the State.  In fact, the Board labeled it
"inappropriate and inexcusable" that the latter of these two grounds was
relied upon because the disciplinary action for this conduct had been
ordered to be expunged.  McCort, 16 V.L.R.B. at 122. 

         The Board reached its conclusion in large part because of its
conclusion about the grievances in Docket No. 92-9 that the severe nature
of the discipline imposed "cast substantial doubt that the dismissal was
properly motivated."  Id. at 125.  The Board was also influenced by the
fact that the employer relied in part on the misuse of computer equipment
when the discipline for that action had been expunged.  This reliance
demonstrated to the Board that the [E]mployer continued to hold Grievant's
grievance activities against him.  Id.  Related in the Board's view was a
February 1992 memo from the AOT personnel officer, the person who signed
grievant's letter of termination, to the AOT Secretary detailing all the
disciplinary action against grievant and criticizing a grievance decision
favorable to grievant as a "very bad



decision."  The Board viewed this memo as reinforcing its conclusion that
AOT was still acting out of pique at grievant's grievance activities.  Id.
at 126. 

         The State strongly disputes the Board's analysis, but its
arguments generally seek a different evaluation of the evidence rather than
demonstrating reversible error.  It would have us rule as a matter of law
that the unlawful motivation had abated by the time of the dismissal, as
evidenced by the fact that following the period of remediation AOT gave
grievant a satisfactory performance rating and thereby removed him from a
termination track.  Thus, the State argues, the termination was caused
solely by the April 30th misconduct, which the Board agreed was extremely
serious.  Although this argument has force, it is undercut by the
termination letter that listed other grounds for the termination and relied
on one ground that had been expunged and another that was found to be
motivated by grievance retaliation. 

                                    C.

         Once the burden shifted to the State, it was up to the State to
show that the specific action would have been taken even if no improper
motive were involved.  With respect to the disciplinary actions involved in
Docket No. 92-9, the Board ruled that the State failed to meet this burden.
 We find no error in the Board's analysis of the suspension for failure to
return the files, the expunged suspension for failure to desist from using
the AOT computer for grievance drafting, and the period of remediation.  In
each case, the Board relied upon the weak or nonexistent rationale for the
State's action to conclude the State failed to meet its burden.  Its
conclusion is supported by its findings. 

         We cannot agree with the Board's analysis of the complaint from
the officer of the audited company about grievant's description of
Southerners.  Although there was sufficient



evidence to shift the burden to
the State to explain its action, the Board failed to evaluate properly the
State's explanation.  The Board found that "Employer did not explain at the
hearing under what circumstances [grievant's supervisor] suddenly
discovered in August that Grievant had made this alleged comment . . . ." 
Id. at 115.  Because of the lack of an explanation, the Board concluded
that the supervisor solicited the complaint to penalize grievant for his
grievance activity.  Id.  In fact, the supervisor testified that the
complaint came to light from the unsolicited comment of another employee of
the audited company, and he acted on it promptly after receiving the
information.  Because the Board's conclusion is based on a clearly
erroneous finding, it cannot stand.  We must reverse its decision to strike
the reprimand and remand for further analysis by the Board. 

         The Board found that the State failed to meet its burden with
respect to the termination. This conclusion is supported by the fact that
two of the grounds for the dismissal could not be used.  The Board also
concluded that the ultimate reason for termination stated in the letter was
not supported by the evidence.  The letter stated that grievant's actions
had convinced AOT "that you can not be trusted to conduct objective and
unbiased audits on its behalf."  The Board found no evidence that bias in
conducting audits was an issue or that such a concern supported dismissal. 
Its conclusions are supported by its findings. 

                                    V.

         Finally, the State challenges the Board's alternative conclusion
that the evidence presented by the State was insufficient to warrant
grievant's dismissal.  The State argues that this conclusion was beyond the
Board's jurisdiction, as explained in a number of decisions of this Court. 
See, e.g., Grievance of Gorruso, 150 Vt. 139, 145, 549 A.2d 631, 635 (1988).  
This



conclusion was an alternative basis for the Board's decision to reverse
grievant's termination, and the basis for its decision to impose a thirty
-day suspension.  Because we have affirmed the decision on the primary
ground asserted by the Board, we need not reach this alternative ground.
Since the normal remedy for a discrimination decision is reinstatement and
back pay, the suspension operates to the State's benefit and was not the
subject of a cross-appeal by grievant. 

         The decision of the Vermont Labor Relations Board in Docket No.
92-9 is reversed with respect to the September 6, 1991 written reprimand of
grievant and remanded for proceedings consistent with this opinion; in all
other respects, the Board's decision in that docket is affirmed. The
decision of the Board in Docket No. 92-26 is affirmed. 

                                  FOR THE COURT:



                                  _____________________________
                                  Associate Justice


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                              Footnotes



FN1.    The State-VSEA collective bargaining agreement attempts to resolve
employer- employee disputes within the individual state departments before
appeal to the Board.  A Step I complaint is heard by the employee's
immediate supervisor, and may be filed orally within fifteen days of the
action giving rise to the complaint.  If there is no satisfactory
resolution at this level, the employee may file a Step II grievance, which
requires a written grievance, and is heard at the department level.  The
next level of appeal, the Step III grievance, is heard at the agency level.
 Appeal from a Step III grievance goes to the Board. 

FN2.    We recognize that the impact of Price Waterhouse has been modified 
by the enactment of the Civil Rights Act of 1991 with respect to the 
remedies available to a Title VII plaintiff when the plaintiff proves 
unlawful discrimination, and the employer is able to show that it would 
have made the same decision in the absence of the impermissible factor.  
See Civil Rights Act of 1991, P.L. 102-166, { 105(b), codified at 42 U.S.C. 
{ 2000e-5G({ 706(g)(2)(B)).  That modification, however, does not disturb 
the Court's discussion of burdens of proof.