In re Butler
Annotate this Case
In re Butler (95-044); 166 Vt. 423; 697 A.2d 659
[Filed 23-May-1997]
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. 95-044
In re Grievance of Deborah Butler Supreme Court
On Appeal from
Labor Relations Board
March Term, 1996
Charles H. McHugh, Chairman
Samuel C. Palmisano, VSEA Legal Counsel, Montpelier, for appellee
Deborah Butler
Jeffrey L. Amestoy, Attorney General, and David K. Herlihy, Assistant
Attorney General, Montpelier, for appellant State of Vermont Department of
Public Safety
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
MORSE, J. The State appeals a decision of the Vermont Labor
Relations Board holding that the Department of Public Safety discriminated
against grievant Deborah Butler on the basis of her gender, and ordering
her reinstatement as a Vermont State Police officer. Butler had been
dismissed because she did not successfully complete her probationary period
of employment. The Board concluded that had she not been treated
differently because of her sex, Butler would have become a permanent state
trooper. We affirm the decision of the Board.
We emphasize at the outset the limited nature of our review. The
Board's decision is entitled to substantial deference. In re Towle, 164
Vt. 145, 148, 665 A.2d 55, 58 (1995). We will not reverse its conclusions
where the findings of fact, taken as whole, support them, In re VSEA, 164
Vt. 214, 216, 666 A.2d 1182, 1183 (1995), nor disturb its findings unless
they are clearly erroneous. In re Merrill, 157 Vt. 150, 154, 596 A.2d 345,
348 (1991). Even if there is substantial evidence contrary to a challenged
finding, it will stand if there is credible evidence to support it. In re
Brooks, 135 Vt. 563, 567, 382 A.2d 204, 207 (1977). In sum, we will not
overturn a Board decision merely because we would not have reached the same
decision had we been on the Board. International Ass'n of Fire-Fighters v.
Town of Hartford, 146 Vt. 371, 374, 503 A.2d 1143, 1145 (1985).
The record discloses the following pertinent facts. In August 1991,
Butler accepted a position with the Department as a Vermont State Police
officer. Following a brief training course at the Vermont Police Academy
and a temporary assignment to Waterbury, Butler was directed to return to
the Academy for a full three-month training session. She was one of three
women out of twenty-four participants, and the only female state police
officer. It was during this training period that Butler first experienced
treatment that made her feel uncomfortable as a woman in a male-dominated
profession. The director asked her for her "opinion" about another female
trooper whose earlier sex discrimination grievance had been dismissed by
the Board, which she took as a warning against filing a similar complaint.
Several male troopers also taunted her with comments that they had better
"watch out" or she would charge them with sexual harassment. From these
and other experiences the Board concluded that Butler's supervisors and
colleagues sent "a powerful message very early in [her] tenure to not raise
complaints because of her gender if she wished to fit into the law
enforcement profession." Butler was also the target of a number of lewd and
sexually suggestive remarks from a male officer in training, Mark Lucas.
On one occasion, he grabbed his crotch in front of her and told her to
"suck on this." On another, he attacked her kick-boxer fashion and
ridiculed her when she protested, stating, "[I]f you can't take it in here,
you're not going to take it in the streets."
After the three-month training course, both Butler and Lucas were
assigned to the St. Albans Police Barracks to begin the mandatory six-month
probationary period. Butler was the only full-time woman officer in the
barracks. Over the ensuing months, Butler experienced numerous incidents
which, the Board found, evidenced an atmosphere in the barracks that was
sexist, demeaning, and hostile to women. For example, pictures of
semi-nude women were openly displayed, an officer told his girlfriend that
Butler was his "sex slave," and St. Albans
personnel, including Butler's supervisors, repeatedly discussed her
reported marital difficulties and interfered in her personal relationship
with a former state police officer. A supervisor eventually informed
Butler that her relationship with the former trooper was antagonizing her
colleagues and was "tarnishing the green and gold." The Board found that
such singular conduct "had the effect of . . . making [Butler] an object of
ridicule" among her fellow officers and "contributed to an intimidating and
offensive work environment . . . based on her gender."
In September 1992, Butler received her first performance evaluation.
Her point total of 272 (based upon numerical ratings in various performance
categories) placed her within the range of a rating of "3" (i.e.,
"consistently meets job requirements/standards"). Nevertheless, her
overall evaluation for the probationary period was a "2" (i.e.,
"inconsistently meets job requirements/standards") because of negative
remarks in the narrative portion of her evaluation. These remarks included
recommendations that Butler "become more aware of [her] surroundings,"
"take a more defensive posture when dealing with the unknown," "become more
aggressive," and develop a "more rigid mindset." The evaluation noted that
Butler had filed seventeen late reports. Butler's colleague, Lucas, had
earned 296 performance points and an overall evaluation of "3." His
supervisor praised Lucas's "aggressive approach." Based upon their
respective performance evaluations, Lucas was informed that he had
successfully completed his probationary period, while Butler's probation
was extended an additional six months.
During the extended probationary period, a colleague told Butler that
it was his birthday and solicited a kiss. When she refused, he derided her
appearance, stating that she was several "ax handles wide." Another
trooper cursed at her across the barracks allegedly because she was taking
a personal telephone call, although this was common practice among the
officers. Although Butler later reported several such incidents to her
supervisor, he failed to respond. At the conclusion of the extended
probationary period, Butler again received an overall rating of "2." This
time her supervisors recommended that she be dismissed, citing deficiencies
in several areas. Butler, in response, consulted with counsel and set
forth her allegations of sexual
harassment in a meeting with the Commissioner of Public Safety and state
police officials. Following an investigation, the Commissioner informed
Butler that the commander of the St. Albans barracks was unwilling to take
her back, but that the Middlebury barracks had expressed an interest in her
transfer there. The Commissioner assured her that Middlebury "could
provide a good opportunity for [Butler] to succeed because it had
assimilated women into the barracks" and had a "progressive manager."
Butler, who lived in St. Albans with her three children, was in the
process of obtaining a divorce and was told by her attorney that a move
could adversely affect her obtaining custody of the children. Accordingly,
she informed the Commissioner that she could not transfer to Middlebury. A
temporary transfer to the Williston barracks was arranged, and Butler's
probation was extended another seven months. At the Williston barracks
Butler's overall performance was rated as good in several areas and overall
as satisfactory. When she failed to report to Middlebury as ordered,
however, her employment was terminated.
She filed two grievances, which were consolidated for hearing and
decision by the Board. Butler alleged that her adverse performance
evaluation, transfer, and dismissal were the result of discrimination on
account of her sex, in violation of 3 V.S.A. §§ 312(b)(5) & 1001 and the
collective bargaining agreement. She pursued her discrimination claims
under both hostile-work-environment and disparate-treatment theories.
Following a hearing, the Board issued a lengthy opinion (in excess of 100
pages) holding in favor of Butler, and ordering her reinstatement as a
tenured officer and reimbursement of back pay and benefits. Based upon an
exhaustive review of the record and extensive findings of fact, the Board
concluded the Department had maintained a work environment hostile to
women, and -- consistent with that environment -- Butler's performance
evaluation, transfer, and dismissal were the result of intentional sex
discrimination. The Board concluded that Butler was held to a different
and higher standard than male officers, and that except for this
discriminatory treatment she would have received an overall satisfactory
performance evaluation, would have become a permanent
state trooper, and would not have been forced to choose between a transfer
or dismissal. It therefore ordered her reinstatement as a permanent state
trooper, with full back pay and benefits. This appeal followed.
The State first attempts to undermine the Board's conclusion that
Butler was subjected to a "hostile environment." Allen v. Department of
Employment & Training, 159 Vt. 286, 290, 618 A.2d 1317, 1319 (1992); see
Harris v. Forklift Sys., Inc, 510 U.S. 17, 21 (1993) (workplace "permeated
with `discriminatory intimidation, ridicule, and insult'" constitutes
abusive working environment) (quoting Meritor Sav. Bank v. Vincent, 477 U.S. 57, 65 (1986)). Although not controlling, federal decisions dealing
with hostile environment claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e to 2000e-17, provide useful analytical guides.
See Lavalley v. E.B. & A.C. Whiting Co., 8 Vt. L. W. 3, 4 (1997); Graff v.
Eaton, 157 Vt. 321, 324, 598 A.2d 1383, 1384 (1991).
We note, at the threshold, that Butler was not required to establish a
hostile environment claim per se. Her claim for relief centered on being
treated differently and ultimately on being forced out of the Vermont State
Police because she was a woman. The environment in which she worked, and
the attitude of her colleagues and supervisors towards her as a woman, were
relevant to establishing whether she was judged differently and more
harshly than her male colleagues. As the Board noted, we cannot divorce
the environment from the inappropriate conduct; the claim of a hostile
environment is inextricably linked with the claim of disparate treatment.
The State contends the Board's conclusion that Butler was subjected to
such an environment is flawed because it was based in part upon certain
incidents that occurred at the Vermont Police Academy, a statutorily
separate body administered by the Criminal Justice Training Council and not
controlled by the Department. The distinction is not as clear as the State
avers. Training at the Academy is mandated by law for all state police
officers. 20 V.S.A. § 2358. The Commissioner of Public Safety not only
sits on the Council, but is
statutorily obligated to develop and conduct training programs for the
Academy. "Basic training programs for Vermont state police officers,
including curriculum, location, duration, and selection of instructors and
other personnel, shall be developed and conducted by the commissioner of
public safety . . . ." 20 V.S.A. § 2364. The plenary control that the
Department thus exercises over the training program may be, depending on
the claim and the circumstances, sufficient to hold it liable for the
incidents that occurred at the Academy. See Allen, 159 Vt. at 291, 618 A.2d at 1320. Butler's Academy experience did not, however, play a large
role in the Board's decision. It was cited primarily to explain her
subsequent reluctance to complain of the sexual harassment she endured in
the barracks. Thus, the Board's conclusion would not be undermined even
without consideration of the Academy incidents.
The State also asserts the Board erred in considering certain evidence
the State characterizes as "gender-neutral." The evidence included
frequent comments to Butler by male officers that they should be careful
around her or she would report them for sexual harassment, vulgar and
derogatory remarks about her appearance, cursing at her, comments about her
personal relationships, and an incident in which Officer Lucas demonstrated
his kick-boxing skills by assaulting her and warning, "[I]f you can't take
it in here, you're not going to take it in the streets." To demonstrate a
hostile environment the conduct need not be of an explicitly sexual nature
so long as it is directed against women because of their sex. Stahl v. Sun
Microsystems, Inc., 19 F.3d 533, 538 (10th Cir. 1994). Although the State
dismisses many of the challenged remarks as mere "trooper room banter" and
notes that Lucas also kicked male officers, the incidents in question went
further; they were directed at or about Butler -- her sensitivity to
discrimination, her sex life, her personal relationships, her physical
"toughness" -- precisely because she was a woman in a male-dominated
environment. "[T]he pervasive use of derogatory and insulting terms
relating to women generally and addressed to female employees personally
may serve as evidence of a hostile environment." Andrews v. City of
Philadelphia, 895 F.2d 1469, 1485 (3rd Cir. 1990).
Similarly, the State contends the Board erred in considering as
evidence of a hostile environment a poster in the barracks of a woman in a
skimpy bikini and a photograph of a woman wearing only a bikini bottom.
These "benign" pictures, the State argues, fall short of the kind of hard
pornography necessary to demonstrate a hostile environment. The law does
not establish a minimal level of tastelessness for material to be relevant
to a discrimination claim. On the contrary, the posting or display of any
sexually oriented materials in common areas that tend to denigrate or
depict women as sexual objects may serve as evidence of a hostile
environment. Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 879-80 (D.
Minn. 1993). The Board properly relied on the pictures in assessing
whether Butler labored in an environment hostile toward women.
The State also contends the Board erred in considering several
derogatory comments about Butler that she did not witness but were later
reported to her during her employment. Even if the statements were not made
in Butler's presence, they are relevant to the issue of on-the-job
harassment as further evidence of an atmosphere of discrimination. Edwards
v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir. 1995).
The State further contends the findings are insufficient to support
the Board's ultimate conclusion that Butler faced a hostile work
environment. Viewed in the light of the record as a whole, Meritor, 477 U.S. at 69, we are satisfied that the findings support the Board's
conclusion. This is not a case of outright and blatant discrimination
based on gender; hostile environment cases seldom are. They are based, as
this case demonstrates, upon the accretion of seemingly small incidents --
of being criticized more harshly, scrutinized more closely, ridiculed for
lack of aggression, or diminished for one's appearance, that in the
aggregate create an environment of hostility and discrimination. It is
revealing, in our view, that notwithstanding Butler's less than
satisfactory evaluation in St. Albans, the Commissioner judged that rather
than a dismissal, a transfer to Middlebury, a barracks with a more
"progressive" manager that had already "assimilated" women, was warranted.
His observation that Butler would have a good
opportunity to succeed in such an environment was tacit acknowledgment that
her difficulties in St. Albans lay largely in the attitudes of her
supervisors and colleagues toward women, and not in herself.
Finally, the State contends the Board's disparate treatment analysis
-- the core of the dispute -- was flawed by comparing Butler's conduct to
persons and conduct that were not similarly situated. To establish a
disparate treatment claim, "it is the plaintiff's task to demonstrate that
similarly situated employees were not treated equally." Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 258 (1981); see also Hodgdon v.
Mt. Mansfield Co., 160 Vt. 150, 159, 624 A.2d 1122, ___ (1992). The United
States Supreme Court has noted that in comparing employment discipline
decisions, "precise equivalence in culpability between employees" is not
required. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11
(1976). Rather, the plaintiff must show that the employees were engaged in
misconduct of "comparable seriousness." Id. "The test is whether a
prudent person, looking objectively at the incidents, would think them
roughly equivalent and the protagonists similarly situated." Dartmouth
Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989).
The Board compared Butler's reported deficiencies to several incidents
involving Trooper Lucas while both were on probation. These included:
Lucas abusing his authority by threatening to cite a woman on behalf of his
roommate's parents; calling in sick to work during an evening shift because
he had been drinking the night before; and submitting inadequate reports.
The State argues that the first and second incidents, unlike Butler's
deficiencies, were not performance related and were dissimilar from any of
Butler's alleged shortcomings. Although this may be true, we are inclined
to agree with the Board that they "constitute more serious deficiencies"
than Butler's. In any event, "precise equivalence" is not required.
McDonald, 427 U.S. at 283 n.11. The State further notes that the incident
involving Lucas's use of alcohol occurred after he had passed probation.
Had Lucas been a seasoned veteran at the time we might be inclined to agree
that the comparison was questionable. In fact, however, he had
attained tenured status within the year, and was thus in a "roughly"
similar position. See Dartmouth Review, 889 F.2d at 19.
The State also challenges the Board's comparison of Butler to Trooper
Todd Chisolm, who had been assigned to the St. Albans barracks since
becoming a trooper approximately five years earlier. While on probation,
Chisolm had followed a woman home while on duty to ask her on a date, and
was involved in an incident with the Burlington police while intoxicated.
Although he was suspended and his probation was extended, Chisolm -- unlike
Butler -- was promoted to a tenured position. Again, although dissimilar
from Butler's alleged performance deficiencies, these incidents are of
comparable or greater seriousness and thus provide a valid basis of
comparison. The fact that Chisolm completed his probation several years
before Butler does not significantly undermine the comparison. Lastly,
although the State complains that the Board improperly limited Trooper
Chisolm's testimony concerning the incidents in question, a review of the
record reveals that he was afforded the opportunity to explain his conduct.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
--------------------------------------------------------------------------
Dissenting
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. 95-044
In re Grievance of Deborah Butler Supreme Court
On Appeal from
Labor Relations Board
March Term, 1996
Charles H. McHugh, Chairman
Samuel C. Palmisano, VSEA Legal Counsel, Montpelier, for appellee
Deborah Butler
Jeffrey L. Amestoy, Attorney General, and David K. Herlihy, Assistant
Attorney General, Montpelier, for appellant State of Vermont Department of
Public Safety
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
ALLEN, C.J., dissenting. I believe that the Vermont Labor Relations
Board's (Board) determination that a hostile environment sufficient to
support an inference of discrimination on the basis of sex existed was
flawed.
First, its decision was based in part upon incidents that occurred at
the Vermont Police Academy (Academy), a statutorily separate body
administered by the Criminal Justice Training Council and not maintained or
controlled by the Department of Public Safety (Department). The Board did
not find that the Academy was authorized to act for the Department or that
the Department exercised any control over the Academy. While it recognized
that the Director of the Academy was not in the Department chain of command
and was not grievant's supervisor, it nevertheless attributed his actions
to the Department because they occurred during employer-mandated training.
The proper inquiry should have been whether his acts were attributable to
the Department under agency principles. See Meritor Sav. Bank v. Vinson,
477 U.S. 57, 72 (1986) (for employer liability, courts should look to
agency principles for guidance). There is no finding or conclusion that
would support a holding that an agency relationship sufficient to
impute the Academy's acts or omissions to the Department existed. Nor does
the suggestion in the majority opinion that the Department exercises
"plenary control," see ante, at 6, over the training program suffice to
make it liable for the Academy incidents. The Commissioner of Public
Safety is but one member of a twelve-member council that adopts rules
respecting training, and conducts and administers training schools for all
law enforcement officers. See 20 V.S.A. § 2355(a), (b). The requirement
that the Commissioner develop and conduct training programs for state
police officers, which must be approved by the council, see id. § 2364,
does not create an agency relationship.
The majority then suggests that the Academy experience did not play a
large role in the Board's decision and was cited only to explain grievant's
reluctance to complain. It is clear from the Board's findings and
conclusions that the occurrences at the Academy entered into its
determination that grievant was the victim of intentional sex
discrimination. The Board stated that it was necessary to examine
grievant's entire work history, including the incidents at her Academy
training, and concluded from the other occurrences at the Academy that
"inferences of discriminatory animus" had been raised.
The Board's inclusion of the Academy experience in reaching its
conclusions was error for another reason. The Board opined that the
employer could be held liable for co-worker harassment only where the
employer provided no reasonable avenue for complaint, or the employer knew,
or should have known, of the harassment and failed to take remedial action.
A reasonable avenue for complaint existed. The Board found that the
Department had a detailed sexual harassment policy with reporting
procedures that required an employee believing himself or herself to be
sexually harassed to immediately report the harassment to the immediate
supervisor, or, if the complaint involved that supervisor, then to the
supervisor's supervisor. It further provided that if the employee was
uncomfortable about complaining through the chain of command he or she
could complain to the Department's Personnel Officer, the Employee
Assistance Coordinator, the Commissioner, or any member of the Employee
Relations staff. The policy prohibited sexual harassment and did not suffer
from the reporting deficiency found
in Meritor. See Meritor, 477 U.S. at 73 (bank's grievance procedure
required employee to complain first to her supervisor, employee's alleged
perpetrator). The Board simply excused grievant's failure to avail herself
of the procedures designed to eliminate harassment because she had received
"a powerful message" from the Director of the Academy not to complain. The
Board was thus able to avoid deciding what consequences should result from
the failure to follow the reporting requirements. Such failure should
weigh heavily against imposing liability on the Department. See Hartleip
v. McNeilab, Inc., 83 F.3d 767, 776 (6th Cir. 1996) (grievant's failure to
avail herself of company policy for reporting harassment weighs strongly
against imposing liability on company). Grievant should not have been
relieved of the reporting requirements because of the remarks of the
Director at the Academy.
Second, while the Board recognizes that different rules apply where
the hostile environment is created by supervisors as opposed to co-workers,
there is no analysis of their proper application in this case. The
Department is held liable for the actions of the Sergeant and the
Lieutenant because they were using their supervisory authority to further
the alleged harassment. Their own harassment, however, consisted only of
disparaging remarks concerning grievant's relationship with a former
trooper, which can hardly be equated with a workplace permeated with such
"`discriminatory intimidation, ridicule, and insult' that is `sufficiently
severe or pervasive'" to change the conditions of the grievant's
employment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting
Meritor, 477 U.S. at 65, 67). How this criticism of grievant's
relationship with a former trooper could be found to be a use of
supervisory authority to further the alleged harassment is not explained.
See Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir.) (knowledge of
"low-level supervisor" is not imputed to employer where supervisor does not
rely on supervisory authority to carry out harassment), cert. denied, 512 U.S. 1213 (1994). Furthermore, the Sergeant's knowledge of co-worker
harassment consisted of grievant's complaint about being asked for a kiss
by "one of the guys" and the comment about her size. The Lieutenant had no
knowledge of co-worker harassment. The Board assumes the knowledge of the
Sergeant to be the knowledge of the Department without
discussion. For the knowledge of a supervisor to be imputed to the
employer, the supervisor must be "at a sufficiently high level in the
hierarchy" of the employer. Kotcher v. Rosa & Sullivan Appliance Ctr.,
Inc., 957 F.2d 59, 64 (2d Cir. 1992). The Board did not find or conclude
that the Lieutenant or Sergeant was of a sufficiently high level to impute
knowledge to the Department. In fact, the only relevant finding of the
Board lists the Lieutenant and Sergeant last in the chain of command.
Because the claim of hostile environment was improperly attributed to
the Department and, as the Board found, was "inextricably intertwined" with
the claim of disparate treatment, I would reverse.
_______________________________________
Chief Justice
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