In re Scott

In re Scott (99-544); 172 Vt. 288; 779 A.2d 655

[Filed 29-Jun-2001]


       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. 99-544


In re Grievance of Kevin Scott	                 Supreme Court

                                                 On Appeal from
    	                                         Labor Relations Board


                                                 March Term, 2001


Catherine L. Frank, Chair

David W. Stewart, Mark Heyman and Samuel C. Palmisano, VSEA Counsel, Montpelier, 
  for Appellant.

William H. Sorrell, Attorney General, and William B. Reynolds, Assistant 
  Attorney General, Montpelier, for Appellee.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   State trooper Kevin Scott appeals the Vermont Labor
  Relations Board's  dismissal of his grievances challenging disciplinary
  actions imposed upon him for his failure to pass  the Vermont State Police
  physical fitness examination.  On appeal, Scott claims that: 1) the 
  Department of Public Safety's untimely investigation and notice procedures
  should result in the  disciplinary actions being dropped; 2) the fitness
  policy discriminates against him because of his age  and gender; and 3)
  mandatory physical fitness standards must be related to specific job
  requirements,  and his job does not require the ability to run 1.5 miles
  within a specific time limit.  We affirm.

 

       Appellant was hired as a Vermont State Trooper in 1988 when he was 26
  years old.  At that  time, he signed an employment agreement in which, as a
  condition of his employment, he agreed to  maintain minimum physical
  fitness standards as established by his employer, the Department of  Public
  Safety (the Department).  The fitness requirements are also set forth in
  Article 51 of the  collective bargaining agreement between the Vermont
  State Employees Association, Inc. (VSEA)  State Police Bargaining Unit and
  the Department. 

       The goal of the Department's fitness program is to improve the overall
  health and physical  fitness of the Department.  It is also "the
  Department's philosophy that physical fitness is vital to  satisfactory job
  performance."  The fitness standards are based on those developed by the
  Cooper  Institute for Aerobics Research, and measure overall physical
  fitness, rather than the ability to  perform specific tasks.  The minimum
  passing standard constitutes the fitness ability of the 50th  percentile of
  the general population.  Given that an estimated 85 percent of the
  population is fairly  unfit, the standards are not considered difficult. 
  The Vermont State Police conducted a study of the  periods prior to (1982 -
  1986) and after (1987 - 1991) the implementation of the mandatory fitness 
  program.  The study revealed a steady improvement of employees' fitness
  levels, and a decrease in  the number of lost workdays due to workers'
  compensation claims.  Other recognized benefits of  cardiovascular fitness
  include: greater emotional stability, decreased absenteeism, decreased
  health  problems, improved pulmonary function, decreased lower back pain
  and lower incidence of the  common cold.

       The State Police mandatory fitness test takes place twice annually,
  and has six parts: a 1.5  mile run, a one-minute sit-ups test, a one-minute
  push-ups test, bench press, a sit-and-reach test and a  body fat percentage
  test.  Passing scores are established by age and gender, due to
  physiological

 

  differences between men and women, and the body's physical deterioration
  with age.  For example,  the minimum passing standards for the run are
  designed to hold men and women to the same level of  fitness based on their
  aerobic capacity, though the absolute time standards require men to run
  faster.   Conversely, the absolute sit-and-reach standards are greater for
  women, because on average women  are more physically flexible than men. 
  Similarly, absolute standards are adjusted for age.

       The passing times for the 1.5 mile run are:  men (age 20-29) - 12:18
  minutes; women (20 - 29) - 14:55 minutes; men (30-39) - 12:51 minutes;
  women (30-39) - 15:26 minutes; men (40-49) - 13:53 minutes; women (40-
  49) - 16:27 minutes.  As an incentive to improve performance,  officers are
  eligible to receive awards of personal leave or monetary payment in amounts
  specified in  the State Police Bargaining Unit contract.  An employee's
  repeated failure of any part of the physical  fitness standard may lead to
  disciplinary action, including dismissal.  

       Appellant was successful in meeting all of the physical fitness
  standards from 1988 until  1996.  Beginning in October 1996, when he was 34
  years of age, appellant repeatedly failed the  running requirement.  In
  October 1996, appellant finished the 1.5 mile run in 16:00 minutes; the 
  passing time for men aged 30-39 is 12:51 minutes.  In April 1998, appellant
  took the spring physical  fitness assessment, which counted as his first
  retest of his failure to pass the test in 1996.  Appellant's  time on the
  run was 14:44 minutes, which again failed to meet the standard.

       In a memorandum, fitness coordinator Sgt. Robert Casey, who maintains
  responsibility for  conducting all physical fitness testing for the state
  police, notified appellant of his failure to pass the  test, and of the
  date of the second retest.  Appellant also received a memo from Lt. James
  Dimmick,  appellant's station commander, indicating the seriousness of the
  failure.  The memo stated, "You can  lose time over this matter and could .
  . . lose your job."  The memo offered appellant "on the clock" 

 

  time to "do some cardiovascular work."  On July 15, 1998, appellant
  performed his second retest of  the run, and was clocked at 14:29 minutes. 
  In September 1998, appellant participated in the fall  physical fitness
  assessment, which served as his third retest of the October 1996 failure,
  and the first  retest of the spring 1998 failure.  Appellant completed the
  run in 15:58 minutes, again failing to meet  the standard.

       In October 1998, in a memo to appellant, Sgt. Casey again informed him
  of his failure to pass  the cardiovascular portion of the test, and advised
  him to prepare for the retest by beginning a  cardiovascular workout
  program.  The memo also offered assistance in formulating an individual 
  exercise program. During the fall of 1998, appellant did not take advantage
  of his employer's offers  to train on work time, nor for assistance in
  formulating an individual exercise program. Appellant  took the test again
  in December 1998, completing the run in 15:37 minutes.

       The Department conducted internal affairs investigations into
  appellant's September and  December 1998 failures (his third and fourth
  failed retests).  Article 14 of the State Police Bargaining  Unit contract
  which addresses disciplinary action states, "Non-criminal internal
  investigations should  normally be completed within 30 work days, and
  notice of disposition should normally be given  within 30 work days after
  completion of the investigation." 

       In November 1998, Sgt. Casey submitted an internal investigation
  report regarding  appellant's failure to pass his third retest of the run
  in September 1998, which subsequently went out  for a "chain-of-command
  review."  The chain-of-command review was completed in 33 work days; 
  appellant was notified of the disposition of the investigation, including
  "preferral of charges" against  him, 31 work days later.  The Department
  disciplined appellant with the loss of four days of annual  leave.   
 
 

       In January 1999, Sgt. Casey submitted an internal affairs
  investigation report regarding  appellant's failure of the fourth retest in
  December 1998.  The investigation was completed in 13  work days. 
  Appellant was notified 37 work days after its completion.  As a result of
  the failure of  this fourth retest, the Department suspended appellant for
  five days without pay.  

       Appellant appealed both disciplinary actions to the Vermont Labor
  Relations Board, alleging  that: 1) the Department did not meet the
  requirements set forth in the contract which require it to  complete
  investigations within 30 days, and therefore the disciplinary charges
  against him should be  dismissed; and 2) the fitness standard impermissibly
  discriminated against him based on his age and  gender.

       The Board issued its decision in October 1999, dismissing both of
  appellant's grievances.   The Board observed that the Department
  "demonstrated a disregard for negotiated contractual  provisions" by
  failing to complete its first investigation within 30 work days, and by
  failing to notify  appellant within 30 work days of the dispositions in
  both investigations.  The Board declined,  however, to sustain either
  grievance. It stated:

    We do not condone the Employer's actions in this regard, but we do 
    not believe it would be appropriate to sustain these grievances
    based  on the Employer's failures.  Grievant has not demonstrated
    any  prejudice to him due to the Employer exceeding contractual 
    timeliness by a small number of days.  Absent demonstrated 
    prejudice, we are not inclined to rescind Grievant's suspensions.  


       The Board also rejected appellant's claims that the physical fitness
  standards impermissibly  discriminated against him on the basis of his age
  and gender.  The Board found section 2000e-2(l) of  the Civil Rights Act
  inapplicable to appellant's case as it prohibits, in the "selection or
  referral of  applicants or candidates for employment or promotion,"
  changing the standards of employment-

 

  related tests based on race, color or national origin. 42 U.S.C. §
  2000e-2(l). The Board stated,  "Grievant is not an applicant or candidate
  for employment or promotion."  

       Similarly, the Board rejected appellant's disparate impact claims
  because a "uniform facially  neutral standard" was not involved.  The Board
  noted that in the cases cited by appellant, "female  complainants claimed
  an adverse impact on them because they had to complete a 1.5 mile run in
  the  same time, 12 minutes, as males.  In the case before us, on the other
  hand, Grievant contests the fact  that he has to meet a different standard
  in the 1.5 mile run than female employees and older  employees."  The Board
  further found that appellant had failed to set forth a prima facie case of 
  discrimination on which to base his claims.  The Board stated:

    In order to do so, Grievant would have to demonstrate that the
    test in  question - the application of the 1.5 mile run standards
    - causes a  significant adverse impact upon males compared to
    females, or upon  younger employees compared to older employees. 
    He has not done  so.  The evidence does not establish that male
    troopers . . . had a  higher percentage of test failures than
    woman [sic] troopers . . . .  Grievant also has not presented
    evidence demonstrating that younger  employees had a higher
    percentage of test failures than older  employees. 

       On appeal, appellant claims that the Board's finding that the
  Department violated express  terms of the contract requires it to sustain
  his grievances, and that the fitness policy impermissibly  discriminates
  against him on the basis of  his age and gender.  Appellant also claims
  that mandatory  physical fitness standards must be related to specific job
  requirements, and that the requirements of  his job do not necessitate the
  ability to run a specific distance within a specified time limit.

       On review, the Labor Relations Board is entitled to substantial
  deference by this Court.  "We  will not reverse its conclusions where the
  findings of fact, taken as a whole, support them, nor  disturb its findings
  unless they are clearly erroneous."  In re Butler 166 Vt. 423, 425, 697 A.2d 659, 

 

  661 (1997) (citations omitted).  Because an interpretation of a collective
  bargaining agreement is  within the expertise of the Board, we review such
  interpretations with deference.  Grievance of  VSEA, 164 Vt. 214, 216, 666 A.2d 1182, 1183 (1995) (upholding Board's disparate treatment  analysis).

       Appellant first claims that the Board erred by dismissing both of his
  grievances despite  finding that the Department violated the collective
  bargaining contract in three instances: failing to  complete its first
  internal affairs investigation, and failing to notify appellant of the
  dispositions of  both internal affairs investigations, within 30 work days.  

       Although the Board found that the Department did not meet the
  timelines set forth in Article  14, and that the Department failed to
  present persuasive evidence to excuse its failure to meet these 
  guidelines, the Board did not conclude, as appellant asserts, that the
  Department violated the  contract.  There is no language in its decision
  which suggests otherwise.  A close reading of Article  14 supports the
  absence of such a finding in the Board's decision.

       Article 14 of the collective bargaining contract reads, in pertinent
  part, 

    [d]isciplinary proceedings shall be instituted within a reasonable
    time  after a violation of the Code of Conduct occurred or was
    discovered  and disciplinary action shall be taken within a
    reasonable time after  disciplinary charges have been proved or
    admitted.  Non-criminal  internal investigations should normally
    be completed within 30 work  days, and notice of disposition
    should normally be given within 30  work days after completion of
    the investigation. 

       (Emphasis added)  The mandatory language in the first sentence of the
  selection above, "shall,"  requires that disciplinary proceedings and
  actions, generally, be done "within a reasonable time."   The thirty day
  timelines, which appear in the second sentence, apply more specifically to
  non-criminal internal investigations and notices of dispositions.  The
  language in the second sentence 

 

  suggests that such investigations and notices of disposition "should
  normally" be completed in thirty  days. There is no mandatory language in
  reference to the thirty-day timelines.   Rather, "30 days"  appears to be a
  guideline for what constitutes "a reasonable time."    

       Ultimately, the Board decided not to rescind appellant's disciplinary
  suspensions on the basis  of the Department's failure to meet the
  thirty-day timelines because appellant suffered no prejudice  due to the
  delay of "a small number of days." In sum, the Board found no violation of
  contract  provisions, nor any prejudice to appellant due to the
  Department's de minimus delay, and "[w]e will  not reverse [the Board's]
  conclusions where the findings of fact, taken as a whole, support them." 
  Butler, 166 Vt. at 425, 697 A.2d  at 661.

       Appellant next contends that the Department's physical fitness
  standards impermissibly  discriminated against him.  Appellant claims that
  the fitness requirements, which are based on age  and gender, hold him to
  higher standards than female or older troopers who are required to perform 
  the same job-related duties.  Although appellant appeals the Board's
  conclusions that the standards  were not discriminatory, he does not
  dispute the Board's findings of fact upon which its decision is  based.
  Thus, we begin by noting that appellant challenges as discriminatory a test
  which the Board  found to "hold males and females to the same level of
  fitness based on their aerobic capacity" and to  similarly "hold older
  persons to the same level of fitness as younger persons based on their
  aerobic  capacity." (Emphasis added).

       Appellant concedes that he is bound by findings of fact that the
  discrepancies in time  standards for the 1.5 mile run accurately adjust for
  aerobic capacity measurements in determining  troopers' cardiovascular
  fitness irrespective of age or gender.  Yet, he claims to have clearly 
  established a prima facie case of disparate treatment because he was held
  "to a higher standard than 

 

  other employees, with respect to the 1.5 mile run, based solely on his age
  and gender."   In assessing  claims of discrimination based on disparate
  impact, we apply the burden-shifting analysis employed  in McDonnell
  Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).  State v. Whitingham
  Sch. Bd.,  138 Vt. 15, 19, 410 A.2d 996, 998-99 (1979); see also 42
  U.S.C.A. § 2000e-2(k)(1)(A)(i) (requiring  a complaining party to
  demonstrate that "a particular employment practice . . . causes a disparate 
  impact").  Under this framework, a complainant demonstrates a rebuttable
  inference of employment  discrimination, "by making out a prima facie case
  that (1) he was in the protected age [and gender]  group; (2) he was
  qualified for the job; (3) he was denied the promotion [or job]; and (4)
  the  circumstances permit an inference of age [or gender] discrimination." 
  Carpenter v. Central Vermont  Med. Ctr., 170 Vt. 565, 566, 743 A.2d 592,
  594-95 (1999) (mem.).  The burden is a light one.   Hogdon v. Mt. Mansfield
  Co., 160 Vt. 150, 159, 624 A.2d 1122, 1127 (1992).

       We agree with the Board that the appellant failed to establish a prima
  facie case of  discrimination.  Appellant asserts that he was disciplined
  on two occasions as "the Department held  him to a higher standard than
  other employees . . .  based solely on his age and gender." (Emphasis 
  added).  In order to make out a disparate impact claim, however, appellant
  must demonstrate  discrimination against himself as a member of a protected
  class. 

       The inapplicability of appellant's disparate impact argument to the
  facts of this case is best  demonstrated by comparison to a case in which a
  test for a 1.5 mile run was found to have a  disparate impact.  For
  example, in Lanning v. Southeastern Pennsylvania Transp. Auth., 181 F.3d 478, 482-84 (3d Cir. 1999), five women, each of whom satisfied all
  administrative requirements for  employment as transit police officers,
  were not hired because they failed a similar 1.5 mile run.   These women
  were found to have established a prima facie case of disparate impact by