In re Towle

IN_RE_TOWLE.94-207; 164 Vt 145; 665 A.2d 55

[Filed 25-Aug-1995]

       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. 94-207


Grievance of David Towle                          Supreme Court

                                                  On Appeal from
                                                   Labor Relations Board

                                                  May Term, 1995


Charles H. McHugh, Chair

       David C. Sleigh and David J. Williams of Sleigh & Williams, St.
  Johnsbury, for appellant

       Jeffrey L. Amestoy, Attorney General, and Timothy B. Tomasi and F.
  Michael Seibert, Assistant Attorneys General, Montpelier, for State of
  Vermont


       PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ., and Cook,
  Dist. J., Specially Assigned


       GIBSON, J.  Grievant David Towle appeals a decision of the Labor
  Relations Board upholding his dismissal from employment with the Department
  of Corrections for engaging in gross misconduct.  We affirm.

                                I.

       On August 27, 1991, J.P., a female probation and parole officer, filed
  a sexual harassment complaint against grievant.  At that time, J.P. told
  District Director Greg MacDonald that grievant had physically forced her to
  masturbate him and perform fellatio on him on August 22 while he drove her
  and her two children to a doctor's appointment.  Grievant, a probation and
  parole field supervision officer, was not on duty at the time of this
  incident.  J.P. also complained that grievant sexually harassed her at work
  by fondling and kissing her, and that she was afraid of him.  Following
  J.P.'s complaint, MacDonald and Area Manager James Spinelli began an
  investigation and suspended grievant with pay.

 

       Spinelli and MacDonald interviewed grievant on September 13, 1991. 
  Grievant admitted the acts but claimed that he did not force J.P. to
  perform them.  He told the investigators that there were five other
  occasions between fall 1990 and late spring 1991 when he and J.P. had
  engaged in fellatio while he was on duty.  Two of the incidents occurred in
  a state office building and three took place in a state vehicle while
  grievant was supposed to be performing field checks on parolees.

       When the investigators interviewed J.P., she maintained that she did
  not consent to the sexual acts.  J.P.'s therapist, Michael Watson, was
  present during the interview.  He told Spinelli and MacDonald that J.P. had
  post-traumatic stress disorder (PTSD) caused by childhood sexual abuse and
  that it prevented J.P. from being able to effectively refuse to engage in
  sexual acts when pressured.  Watson stated that J.P. also suffered from
  dissociative disorder, which caused her to disassociate herself mentally
  from sexual acts performed under pressure even though yielding physically. 
  Based upon the evidence obtained from grievant, J.P. and others, Spinelli
  concluded that grievant had engaged in sexual acts while on duty, that the
  acts were not mutually consensual, and that grievant had sexually harassed
  J.P.  Spinelli further concluded that J.P.'s PTSD and dissociative disorder
  plausibly explained her apparent inability to rebuff grievant's repeated
  advances.  Spinelli reported these conclusions in writing to his superior,
  Richard Turner, Director of Corrections Services.

       On November 4, 1991, Turner told grievant that he was contemplating
  dismissing him for three reasons: (1) on five occasions, grievant had oral
  sex either in the office or a state vehicle while on duty, (2) his behavior
  represented a pattern of sexual harassment of J.P., and (3) he had made
  sexual advances toward another woman, T.H., while he was on duty.  Pursuant
  to the notice of potential dismissal, Turner met with grievant to give him
  an opportunity to respond to the allegations.  At this meeting, Turner
  refused grievant's request to view J.P.'s mental health diagnosis,
  maintaining that those records were confidential.

       By letter of December 16, 1991, Turner notified grievant that he was
  dismissed from

 

  employment effective December 17, 1991.  The discharge letter stated
  that grievant was fired for "engag[ing] in sexual acts, and/or sexually
  inappropriate behavior with a female Department of Corrections employee,
  during the period from about October 1990 to August of 1991, while either
  in a state office or a state vehicle."(FN1)  The letter stated that such acts
  were considered "gross misconduct and sufficient cause to warrant
  [grievant's] dismissal."  Because it was unclear that grievant knew J.P.
  did not consent to the advances, Turner did not base his decision on J.P.'s
  allegations of sexual harassment.

       Grievant filed a grievance with the Board.  The Board found that the
  State acted reasonably in dismissing grievant and upheld the disciplinary
  action.  In grievant's appeal to this Court, he contends that: (1) the
  State did not have just cause for dismissing him; (2) firing him but not
  J.P. was discriminatory treatment proscribed by the state employees'
  collective bargaining agreement; (3) the Board erred by allowing hearsay
  testimony; and (4) the State did not afford him an adequate opportunity to
  defend himself prior to his termination.

                               II.

       We treat the Board's decisions with deference.  See In re Grievance of
  Vt. State Employees Ass'n, 139 Vt. 501, 506, 431 A.2d 474, 477 (1981).  We
  presume that the Board's actions are correct and reasonable, see
  International Ass'n of Firefighters Local 2287 v. City of Montpelier, 133
  Vt. 175, 178, 332 A.2d 795, 797 (1975), and we will uphold the Board's
  order if it is supported by the findings.  Grievance of Merrill, 151 Vt.
  270, 273, 559 A.2d 651, 653 (1988).

       The primary issue presented by this case is whether engaging in sexual
  acts while at work is just cause for immediate dismissal.  Grievant argues
  that performing sexual acts with a co- worker during his shift and in a
  state office building or state vehicle is not gross misconduct,

 

  and therefore, the State lacked just cause for terminating his
  employment.  We disagree.

       Under the state employees' collective bargaining agreement, permanent
  state employees, such as grievant, may not be fired without just cause.  In
  most misconduct cases, the State is required to follow a course of
  progressive discipline prior to dismissal.  The agreement provides that, in
  cases of gross misconduct, the State may bypass progressive discipline.  As
  we have stated, "[P]rogressive discipline is not inherent in the concept of
  just cause."  In re Grievance of Brooks, 135 Vt. 563, 569, 382 A.2d 204,
  208 (1977).

       "Just cause" is "some substantial shortcoming detrimental to the
  employer's interests, which the law and a sound public opinion recognize as
  a good cause for . . . dismissal." Brooks, 135 Vt. at 568, 382 A.2d  at 207
  (citation omitted).  A discharge for just cause will be upheld if it meets
  two criteria: (1) it is reasonable to discharge the employee because of
  misconduct, and (2) the employee had notice, express or fairly implied,
  that such conduct would be grounds for discharge.  Id. at 568, 382 A.2d  at
  207-08.  In discipline cases, the just cause analysis "should center upon
  the nature of the employee's misconduct."  Grievance of Morrissey, 149 Vt.
  1, 13, 538 A.2d 678, 686 (1987).

       To evaluate the reasonableness of grievant's dismissal, the Board
  applied the factors laid out in Grievance of Colleran, 6 V.L.R.B. 235,
  268-69 (1983):

        1) the nature and seriousness of the offense, and its relation to the
        employee's duties, position and responsibilities, including whether
        the offense was frequently repeated; 2) the effect of the offense
        upon supervisors' confidence in the employee's ability to perform
        assigned duties; 3) the clarity with which the employee was on
        notice that the conduct was prohibited by the employer; 4) the
        consistency of the penalty with those imposed upon other
        employees for the same or similar offenses; 5) mitigating
        circumstances surrounding the offense; 6) the employee's past
        disciplinary and work record; 7) the potential for the employee's
        rehabilitation; and 8) the adequacy and effectiveness of alternative
        sanctions to deter such conduct in the future by the employee or
        others.

  Focusing on factors (1) through (3), the Board found that the State's
  decision to fire grievant constituted fair punishment for the type of
  malfeasance involved.

 

       Grievant's misconduct was serious.  Performing sexual acts while at
  work violates any reasonable definition of acceptable employee behavior. 
  Grievant knew that his behavior was inappropriate.  The acts were
  significantly detrimental to the employer's interest.  Field officers such
  as grievant spend much of their work time in the community checking on
  parolees who are under the Department's supervision.  The officers have a
  great deal of independence because their work is performed with little
  direct oversight. Grievant's behavior destroyed the trust grievant's
  superiors had placed in him that he could properly perform his assigned
  duties. Further, his actions risked the reputation of the Department of
  Corrections.  As grievant concedes, public knowledge that Corrections
  employees engage in sexual conduct while on duty could damage the
  Department's reputation in the community.  Though one incident of gross
  misconduct may create just cause for summary dismissal, the fact that
  prohibited acts are repeated compounds the seriousness of the offense.  See
  Brooks, 135 Vt. at 568, 382 A.2d  at 207.  Here, the repetition of the
  prohibited acts showed grievant's disregard for his employer's credibility
  with the public.

       The State did consider grievant's record of satisfactory work
  performance and that he had not been disciplined before; however, the Board
  found the State was reasonable to conclude that these facts did not
  outweigh the other factors.  Repetition of acts that grievant knew to be
  forbidden justified the State's judgment that grievant was not a good
  candidate for either rehabilitation or alternative forms of discipline, and
  justified his discharge.

       Grievant claims he had no notice that consensual relationships between
  employees could be cause for dismissal, but he mischaracterizes the grounds
  for his dismissal.  He was not fired for fraternizing with a co-worker.  He
  was dismissed for having sex while at work, both at his place of employment
  and in a state vehicle.

       Grievant also complains he had no notice because the State had no
  written policy proscribing the acts in which he engaged.  Notice need not
  be explicit but may be fairly implied. Brooks, 135 Vt. at 568, 382 A.2d  at
  208.  We follow an objective standard for implied notice:

 

  whether the employee should have known the conduct was prohibited. 
  Id.  Having sex on the job is an activity employees should know is
  prohibited by employers absent explicit warnings. While the Department did
  not have a written rule proscribing sexual acts while on duty, the State
  could fairly expect its employees to know such conduct is forbidden, and
  grievant testified that he knew it was misconduct for which he could be
  disciplined.  Grievant argues that, because he did not know the discipline
  might be dismissal, the State could not fire him but could impose only
  another sanction.  Knowledge that certain behavior is prohibited and
  subject to discipline is notice of the possibility of dismissal.  Grievance
  of Gorruso, 150 Vt. 139, 148, 549 A.2d 631, 636-37 (1988) (notice
  proscribed sexual harassment of co-worker); see also In re Carlson, 140 Vt.
  555, 560, 442 A.2d 57, 60 (1982) (notice that fraud is proscribed can never
  be vitiated). Because grievant knew the behavior was forbidden, he had fair
  notice that he risked dismissal for engaging in these acts.


       We conclude that the Board's finding that just cause existed for
  grievant's dismissal is supported by the record.

                               III.

       Grievant contends that, even if the State had just cause to dismiss
  him, the Board erred in failing to find that the State violated its
  employment agreement because it treated J.P. differently from him, although
  they had engaged in the same acts.2  The Board found, however, that
  mitigating circumstances justified treating the cases differently.  We
  agree.

       As a general rule, the State should treat like cases alike.  We have
  defined discrimination as the "`unequal treatment of individuals in the
  same circumstances under the applicable rule.'" Fairchild v. Vermont State
  Colleges, 141 Vt. 362, 367, 449 A.2d 932, 935 (1982) (quoting Nzomo v.
  Vermont State Colleges, 136 Vt. 97, 102, 385 A.2d 1099, 1102 (1978)). 
  Article 14,

 

  Section 1(b) of the state employees' contract reflects a concern for
  fairness by providing that the State will apply discipline "with a view
  toward uniformity and consistency."  While this language does not require
  absolute consistency, it does reflect an important factor for the State to
  consider when dispensing discipline.

       Corrections Department managers did consider disciplining J.P., but
  determined that mitigating circumstances warranted no discipline.  J.P.
  contended that she was not a willing participant in the sex acts; her
  contention was supported by her therapist.  The State sought independent
  verification of J.P.'s condition from a psychiatrist specializing in the
  treatment of sexual abuse.  The psychiatrist concluded that the diagnosis
  of J.P.'s mental condition was consistent with the events described in the
  investigative report.  While grievant was not discharged for any offense
  related to a nonconsensual sexual act, the Board found that the evidence
  showing that J.P. did not consent was sufficient mitigation to justify the
  State's decision not to discipline her.  Thus, the State had reasonable
  grounds for concluding that J.P. and grievant were subject to different
  circumstances, and these differences justified the State's actions.  See
  Fairchild, 141 Vt. at 367, 449 A.2d  at 935.

                               IV.

       J.P. did not testify before the Board.  Grievant objected to
  third-party testimony recounting J.P.'s description of the sexual acts. 
  Grievant argues that, by adopting V.R.C.P. 43(a) via Board Rule 12.1, the
  Board must follow the Vermont Rules of Evidence, which limit the use of
  hearsay.

       Pursuant to its statutory rulemaking authority, see 3 V.S.A. § 928(a),
  the Board promulgated Rule 12.1, which adopts as much of V.R.C.P. 43(a) "as
  [is] not inconsistent with the laws of the State of Vermont."  Rule 43(a)
  provides that "[i]n all trials the testimony of witnesses shall be taken
  orally in open court, unless otherwise provided by these rules, the Vermont
  Rules of Evidence, or other rules adopted by the Supreme Court."  The
  Board's rulemaking authority is limited, however, by 3 V.S.A. § 928(b)(3),
  which requires that all

 

  hearings of the Board be informal and not subject to the rules of
  evidence unless both parties agree otherwise.  Hence, the Board interpreted
  Rule 12.1 as "simply setting forth the general rule that during hearings,
  testimony of witnesses will be taken orally in open court."

       We give deference to the Board's interpretation of its own
  regulations; unless the Board acts unfairly to restrict one party's rights,
  its evidentiary rulings will be upheld.  Fairchild, 141 Vt. at 366-67, 449 A.2d  at 934.  To interpret Board Rule 12.1 as barring the introduction of
  all hearsay evidence, as grievant suggests, would be inconsistent with the
  mandate of the General Assembly that the Board's hearings be informal and
  not subject to the rules of evidence absent an agreement of the parties.

       Moreover, the central allegation in this case -- that grievant
  participated in sexual misconduct -- was established by the grievant's own
  admissions.  In his testimony, he described in detail the sexual acts and
  admitted that he knew it was wrong and that he could be disciplined. The
  Board's interpretation of its Rules was correct and the evidence it allowed
  did not unfairly restrict grievant's rights.

                               V.

       Finally, grievant asserts that the State's refusal to provide him with
  J.P.'s medical records hampered his defense at the pretermination hearing. 
  The Board found that the meeting with Turner afforded grievant a legally
  sufficient opportunity to present his version of the facts prior to
  dismissal.

       The collective bargaining agreement vests state employees with a
  property interest in their employment, thereby raising due process
  considerations when they are faced with the prospect of discharge.  In re
  Muzzy, 141 Vt. 463, 472, 449 A.2d 970, 974 (1982).  Due process dictates
  that public employees are "entitled to oral or written notice of the
  charges" as well as "an explanation of the employer's evidence" and an
  opportunity for the employee to present "the other side of the story" prior
  to dismissal.  Loudermill v. Cleveland Bd. of Educ., 470 U.S. 532, 546
  (1985).  To require more prior to the employee's discharge "would intrude
  to an

 

  unwarranted extent on the government's interest in quickly removing an
  unsatisfactory employee."  Id. at 546.  The state employees' collective
  bargaining agreement requires a pretermination opportunity to respond
  similar to a so-called Loudermill hearing.

       The purpose of a pretermination hearing is to determine whether
  reasonable grounds exist to believe that the charges against the employee
  are true and support the proposed actions.  Id. at 546-47.  The hearing
  need not be elaborate; in general, "something less" than a full evidentiary
  hearing is all that is required.  Id. at 545.  The Board found that the
  procedures the State followed in this case satisfied due process.  Grievant
  was notified that the State was considering terminating his employment, was
  given a description of the evidence, and had the opportunity to present
  reasons why the disciplinary action should not be taken.  This procedure
  satisfied the Loudermill requirements.

       Grievant has not shown anything that would have required the State to
  turn over another employee's medical records at the pretermination hearing. 
  Indeed, J.P.'s medical records have no bearing on the egregiousness of
  grievant's conduct.  The State was required to explain the relevant
  evidence, and that was done.  A pretermination hearing does not replace the
  full evidentiary hearing before the Labor Relations Board.  Grievant was
  given a full opportunity to conduct discovery concerning J.P.'s medical
  condition in the Board proceeding.  He can point to no prejudice from
  failing to have this opportunity earlier in the process.  The Board
  correctly ruled that due process was satisfied at the pretermination
  hearing.

       Affirmed.
                                        FOR THE COURT:



                                        ______________________________
                                        Associate Justice


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                                Footnotes

FN1.  The charge that grievant harassed T.H. was also in the
  dismissal letter.  Grievant denied that he harassed T.H. and denied he was
  on duty when that incident took place.  The State later withdrew the
  charge, and it is not relevant to this appeal. the extent grievant bases
  his discrimination claim on any theory other than the state employees'
  agreement, the argument is inadequately briefed and will not be considered
  by the Court.  See V.R.A.P. 28(a)(4); Johnson v. Johnson, 158 Vt. 160, 164
  n.*, 605 A.2d 857, 859 n.* (1992).