In re Gregoire

Annotate this Case

In re Gregoire (95-228); 166 Vt. 66; 689 A.2d 431

[Filed 13-Dec-1996]

ENTRY ORDER

SUPREME COURT DOCKET NO. 95-228

MAY TERM, 1996

In re Cynthia Gregoire } APPEALED FROM:
}
}
} Labor Relations Board
}
}
} DOCKET NO. 94-17

In the above-entitled cause the Clerk will enter:

Upon consideration of grievant's motion for reargument, filed on
October 18, 1996, the opinion of the Court issued on October 11, 1996, is
withdrawn and replaced with the following new opinion. The result remains
unchanged, and the entry order is not affected. In all other respects, the
motion for reargument fails to identify points of law or fact overlooked by
this Court, and is therefore denied.

BY THE COURT:

_______________________________________
Frederic W. Allen, Chief Justice

_______________________________________
Ernest W. Gibson III, Associate Justice

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
James L. Morse, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

-----------------------------------------------------------------------------

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. 95-228

In re Cynthia Gregoire Supreme Court

On Appeal from
Labor Relations Board

May Term, 1996

Charles H. McHugh, Chair

Samuel C. Palmisano and Mark Heyman, VSEA Legal Counsel, Montpelier,
for grievant-appellee

Jeffrey L. Amestoy, Attorney General, David K. Herlihy, Assistant
Attorney General, and F. Michael Seibert, General Counsel, Department of
Personnel, Montpelier, for appellant State of Vermont

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

MORSE, J. The State appeals from a decision of the Vermont Labor
Relations Board granting reinstatement with back pay to grievant Cynthia
Gregoire following her dismissal as a state employee. It claims the Board
erred in concluding Gregoire's dismissal violated her constitutional right
to due process of law and a contract right under Article 14 of the Vermont
State Employees Association (VSEA) collective bargaining agreement. The
State further contends that the Board erred by reinstating grievant, and in
awarding full back pay despite her failure to mitigate damages. We
reverse.

At the time of her dismissal on March 14, 1994, Cynthia Gregoire was a
Delinquent Tax Compliance Officer for the Department of Employment and
Training (DET). Her primary duty was to collect delinquent unemployment
tax contributions. As the most senior officer, Gregoire had responsibility
for about 1,000 accounts.

Gregoire had read and signed a copy of Section 8 of DET's Internal
Security Policy,

which provides:

In order to avoid any possible conflict of interest, cases involving
a close friend or relative should be reassigned to another staff
member. If this is not possible due to location, time, etc., then
supervisory approval is to be granted before starting the
assignment and reviewed by the supervisor after completion.

In the spring of 1993, Gregoire's husband was preparing to open an
auto body shop. A coworker of Gregoire's had contributed startup money for
the venture, which became the subject of discussions during work at DET.
Gregoire's supervisor, David Tucker, cautioned her in March 1993 about
using work time for such discussions and advised her to be careful about
her involvement with the business venture. He also provided Gregoire with
DET's Conflicts of Interest Policy, which states, in part:

[A]n employee of the department shall not use his/her position to
secure special privileges or exemptions for himself/herself or
others.
. . . .

This policy shall include but not be limited to the following:

. . . .

3a: An employee shall not process or otherwise handle any
transaction (e.g., claims processing, employer contributions, on the
job training contracts, adjudication) between the Department and
his/her relatives or business entities in which he/she and/or his/her
relatives have a pecuniary interest. . . .

. . . .

4. An employee shall not engage in any activity which might
damage the effectiveness of the programs of the Department of
Employment and Training or malign the public image of the
Department and its programs.

. . . .

If an employee is unsure as to whether or not a particular
situation does indeed represent a conflict of interest, he/she should
submit the facts, in writing, to the division Director who will
render a written decision on the matter after consultation with legal
staff.

In June of 1993, Gregoire and her husband formed a corporation called
GFC, Inc., which

operated as Downtown Auto. Her husband was company president, and she was
named as secretary. By November 1, 1993, Downtown Auto owed about $150 in
unemployment insurance contributions. Gregoire prepared and submitted to
DET, on behalf of Downtown Auto, a form indicating that Downtown Auto's tax
payment was delinquent. No payment was forthcoming. Downtown Auto was
subsequently designated a delinquent account. This account appeared on
Gregoire's delinquency list on November 18, 1993. By mid-December,
Gregoire was aware that Downtown Auto had appeared on her delinquency list.
The business appeared on Gregoire's list in January and February, yet she
never told her supervisors that her own business had been assigned to her
for collection purposes. On January 31, 1994, Gregoire prepared and
submitted, on behalf of Downtown Auto, a DET form for the fourth quarter of
1994 indicating that Downtown Auto owed about $135. Again, Gregoire noted
on the form that no payment had been made.

In late December 1993, Tucker learned that the delinquent Downtown
Auto account had been assigned to Gregoire. After making an investigation,
Tucker sent Gregoire a memorandum in February 1994 entitled "Investigative
Meeting," stating that he was "contemplating disciplinary action" in
accordance with Article 14. The memorandum stated the reasons for the
contemplated disciplinary action and informed Gregoire that an
investigative meeting would be held on the matter, that she would have the
opportunity to speak on her behalf, and that she had the right to be
represented by VSEA. The memorandum read:

As a result of your action described below, I am contemplating
disciplinary action in accordance with Article 14 . . . You have the
right to be represented by VSEA during the proceedings connected
with this action . . . .

. . . .

If you do not participate in this investigation, a decision will be
finalized based on the information available.

You are provided this opportunity to respond so that you can
present points of disagreement with what appears as facts such as
why and when did you plan to deal with the case, and why you

didn't turn this case over to your supervisor as Department policy
and rules require. During this meeting, you may want to identify
any circumstances the Department should consider or arguments
you wish to offer. In other words, you may present your side of
the issue. We want to take all of the facts into consideration
before deciding what appropriate actions should be taken.

The letter tracked the language of Article 14(4) of the contract,
which provides:

Whenever an appointing authority contemplates dismissing an
employee, the employee will be notified in writing of the reason(s)
for such action, and will be given an opportunity to respond either
orally or in writing. The employee will normally be given 24 hrs.
to notify the employer whether he or she wishes to respond in
writing or meet in person to discuss the contemplated dismissal.
The employee's response, whether in writing or in a meeting,
should be provided to the employer within four days of receipt of
written notification of the contemplated dismissal. Deadlines may
be extended at the request of either party, however if the extension
is requested by the employee, the employee will not be carried on
the payroll unless it is charged to appropriate accrued leave
balances. At such meeting the employee will be given an
opportunity to present points of disagreement with the facts, to
identify supporting witnesses or mitigating circumstances, or to
offer any other appropriate argument in his or her defense.

Section 1(d) of Article 14 lists "dismissal" as a form of discipline for
misconduct. V V

In accordance with Tucker's memorandum a meeting was held on February
28, 1994. Gregoire was represented by VSEA Senior Field Representative
Richard Lednicky. At the meeting Gregoire was given an opportunity to
dispute the charges against her and submit evidence in her defense.
Approximately two weeks later Gregoire received a dismissal notice from DET
Commissioner Susan Auld.

Gregoire appealed her dismissal to the Board, claiming that her
constitutional right to due process had been violated and that the February
memorandum from Tucker failed to comply with the requirements of Article
14(4). Specifically, Gregoire claimed that, because the memorandum did not
explicitly state that she faced the possibility of dismissal, the February
28 meeting was not a pretermination meeting, and thus that her subsequent
dismissal was invalid. This challenge was not brought to the attention of
DET and was made for the first time at the Board level. Nevertheless, in a
divided opinion, the Board ruled that the dismissal was precluded based on

the alleged procedural defect in the termination process. Accordingly, the
Board reinstated Gregoire with back pay and imposed an alternative penalty
of a thirty-day suspension without pay.

We first address the constitutional issue. The State contends that the
Board erred in concluding that due process, as construed in Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532 (1985), requires the employer to give
explicit notice of contemplated dismissal, and that a mere statement that
"disciplinary action" is contemplated is inadequate.

"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
Towle, ___ Vt. ___, ___, 665 A.2d 55, 61 (1995). The essential
requirements of due process are notice and an opportunity to be heard.
Loudermill, 470 U.S. at 546. In Loudermill, the Supreme Court held that
due process requires a hearing in advance of termination. Id. at 542. The
hearing serves as an initial check against mistaken decisions,
"essentially, a determination of whether there are reasonable grounds to
believe that the charges against the employee are true and support the
proposed action." Id. at 545-46. The hearing must be preceded by adequate
notice and must afford the employee a meaningful opportunity to speak. In
particular, Loudermill held: "The tenured public employee is entitled to
oral or written notice of the charges against him, an explanation of the
employer's evidence, and an opportunity to present his side of the story."
Id. at 546.

A strict reading of Loudermill thus does not require the employer to
state that disciplinary action is contemplated, much less dismissal.
While it refers to the hearing as a chance to determine whether the
"proposed action" has a factual basis, it does not render unconstitutional
an employer's failure to include in the notice of the charges an explicit
statement of what that "proposed action" will be. "Notice," under
Loudermill, requires no more than notice of the charges, not, as the Board
found, notice of potential dismissal. In its effort to

balance the competing interests at stake in the termination process, the
Court held that to require more than notice of the charges, an explanation
of the evidence, and an opportunity for the employee to present evidence,
"would intrude to an unwarranted extent on the government's interest in
quickly removing an unsatisfactory employee." Id. at 546. A number of
courts have since interpreted Loudermill to require that the notice be
sufficient to alert employees that their job is in jeopardy. See Calhoun
v. Gaines, 982 F.2d 1470, 1476 (10th Cir. 1992); Post v. Harper, 980 F.2d 491, 494 (8th Cir. 1992).

In this case, the memorandum of February 18 notified Gregoire that she
was charged with failing to notify her supervisor of the apparent conflict
of interest, and that, as a result of that failure, disciplinary action
under Article 14 was contemplated. The memorandum further informed
Gregoire that a meeting would be held to discuss the allegations, stating
that she was entitled to assistance of VSEA counsel, and that she would be
allowed to "present points of disagreement with what appears as facts . . .
. In other words, you may present your side of the issue. We want to take
all of the facts into consideration before deciding what appropriate
actions should be taken." In accordance with the memorandum a hearing was
held, and Gregoire was given an opportunity to present her side of the
story and offer evidence that would demonstrate a lack of just cause to
dismiss her. The employer and, on appeal, the Board each found just cause.
Furthermore, the Board found that Gregoire "had fair notice that her
conduct could result in dismissal." See Towle, ___ Vt. at ___, 665 A.2d at
60 ("Knowledge that certain behavior is prohibited and subject to
discipline is notice of the possibility of dismissal."). That knowledge,
coupled with the notice of charges, opportunity to respond and subsequent
hearing, was sufficient to satisfy the Loudermill requirements of due
process of law.

II.

We turn now to the contract issue. The Board found that the plain
language of Article 14(4) of the contract requires that when an appointing
authority is contemplating dismissal it must "explicitly let the employee
know of that potential."

Substantial deference must be accorded the Board's construction of
collective bargaining agreements. In re Gorruso, 150 Vt. 139, 143, 549 A.2d 631, 634 (1988). We are obligated, however, to avoid constructions
that are "unequal, unreasonable, and improbable, if this can be done
consistently with the words of the contract." Id. at 143-44, 459 A.2d at
634.

The plain language of § 4 of Article 14 says nothing about explicit
notice of contemplated dismissal. Section 4 provides in part, "Whenever an
appointing authority contemplates dismissing an employee, the employee will
be notified in writing of the reason(s) for such action . . . ." The Board
would have this read as, "the employee will be notified in writing [that
dismissal is contemplated, and] of the reasons for such action . . . ." We
find nothing in the contract as a whole, in the intent of the parties, or
in the law, to warrant such an amendment of the plain language. See
Vermont State Colleges Staff Fed'n, AFL Local 4023 v. Vermont State
Colleges, 157 Vt. 645, 646, 596 A.2d 355, 357 (1991) (mem.) (where contract
language is clear, parties are presumed to be bound by plain and ordinary
meaning).

The Board's construction emphasizes formalism at the expense of the
evidentiary purpose of § 4 of Article 14. Section 4 ensures that the
factual bases of the charges are laid out so the employee can respond, thus
providing an "initial check" against dismissal without just cause. See
Loudermill, 470 U.S. at 545. The agreement, to be sure, contemplates that
employees will be made aware their job is in jeopardy so that they may
"respond in writing or . . . meet in person to discuss the contemplated
dismissal." Again, however, nothing in the contract states how such notice
must be conveyed. While it may be better practice to track the precise
text of Article 14, we perceive no reason why such notice may not
adequately be communicated by other means. That is precisely what occurred
here.

Tucker's memorandum of February 18 notified Gregoire that he was
"contemplating disciplinary action in accordance with Article 14." Article
14 lists dismissal as a form of discipline. Indeed, the notice procedure
outlined in § 4 of Article 14 is required only when dismissal of the
employee is contemplated. There was no mistaking the letter as anything
other

than a notice of contemplated dismissal. From its first sentence notifying
Gregoire that disciplinary action was "contemplat[ed]," to its subsequent
recitation of the various due process rights to which she was entitled,
including the right to be represented, to respond to the allegations in
writing or in person, to "present points of disagreement" with the facts,
and to "identify any circumstances the Department should consider or
arguments you wish to offer," the letter tracked point-by-point the
contract language of § 4.

The unmistakable affinity between the memorandum and the
pretermination contract language, coupled with Gregoire's own knowledge
that her conduct could result in dismissal, leave no room for doubt.
Gregoire could not have failed to understand that her job was in jeopardy.
The Board's findings that neither Gregoire nor her counsel at the hearing
was aware that dismissal was contemplated, based on their own self-serving
testimony, are not credible in light of fact that they knew the
consequences of the charges and the import of letters of the kind that
Gregoire received. In re Muzzy, 141 Vt. 463, 470, 449 A.2d 970, 973 (1982)
(findings will be upheld where credible evidence fairly and reasonably
supports them). Moreover, the issue is not what the employee claims to
have known, but what a reasonable employee in Gregoire's circumstances
would have known about her job security. The constitutional and the
contractual prerequisites were satisfied.

III.

Having determined that Gregoire had adequate notice that she could be
discharged, the only remaining question is whether to reinstate Gregoire's
dismissal. The Board clearly imposed a lesser discipline (thirty-day
suspension) not because it concluded that dismissal was too severe, but
rather because it believed the pretermination notice was defective and
precluded dismissal as a legal option. That issue aside, the Board may
impose a lesser discipline only where it finds "there was no just cause for
the choice of discipline imposed by the State." In re Gorruso, 150 Vt.
139, 145, 549 A.2d 631, 635 (1988). Here, the evidence and the Board's
findings amply support the State's original disciplinary decision, and
leave no doubt that "just cause for

grievant's dismissal existed as a matter of law." Id. at 146, 549 A.2d at
636.

The Board found that the evidence sustained the charge that Gregoire
had "intentionally violated the Employer's Internal Security Policy and the
Conflict of Interest Policy by shielding the delinquent account of Downtown
Auto from the normal procedural collection path." As the Board noted,
Downtown Auto was a business primarily owned by Gregoire's husband and also
one in which she had some involvement, yet she handled the account for over
two months without notifying her supervisors, and no payments were made by
the business on the amounts owed during this period. The Board further
found that Gregoire was aware of the policy prohibiting such conduct and
"had fair notice that such conduct could result in dismissal." Indeed, she
"had been specifically warned by [her] supervisor . . . to review the
Conflict of Interest policy due to the potential problems that could arise
from the Downtown Auto business."

The offense of shielding her family's business from the normal
collection process was, as the Board found, "serious," and betrayed "a
position with a high degree of trust given the large amounts of monies that
she was responsible for collecting." The offense, moreover, "had a
substantial adverse effect on [her] supervisors' confidence in [Gregoire's]
responsibly performing her duties." Gregoire's conduct, the Board
concluded, was "in clear violation of conflict of interest policies which
were known to her, compromised her integrity and the trust placed in her."
Although its hands were seemingly tied as far as affirming Gregoire's
dismissal was concerned, the Board nevertheless concluded that her conduct
warranted the "most severe disciplinary penalty short of dismissal." As
the Board explained: "The seriousness of [Gregoire's] offense, the breach
of trust she committed given her position, and the clear notice she had
that such conduct could result in discipline, weigh heavily towards the
imposition of a severe disciplinary penalty."

To warrant dismissal, an employee's conduct must constitute "`some
substantial shortcoming detrimental to the employer's interests which the
law and sound public opinion recognize as good cause for dismissal.'"
Gorruso, 150 Vt. at 147, 549 A.2d at 636 (quoting

In re Gage, 137 Vt. 16, 18, 398 A.2d 297, 298 (1979)). As summarized
above, Gregoire's conscious and prolonged violation of departmental policy
and the public trust was sufficiently egregious to undermine both her
employer's and the public's confidence in her continued ability to perform
her duties. Although the Board noted that her years of service and
potential for rehabilitation were mitigating factors, we are not persuaded
that these significantly undermine the State's disciplinary decision.
"`The ultimate criterion of just cause is whether the employer acted
reasonably in discharging the employee because of misconduct.'" Id. at
145, 549 A.2d at 635 (quoting In re Brooks, 135 Vt. 563, 568, 382 A.2d 204,
207 (1977)). Judged in the light of this standard, we have no doubt that
just cause for Gregoire's dismissal existed as a matter of law.

Reversed.

FOR THE COURT:

_______________________________________
Associate Justice

---------------------------------------------------------------------------
Dissenting

No. 95-228

In re Cynthia Gregoire Supreme Court

On Appeal from
Labor Relations Board

May Term, 1996

Charles H. McHugh, Chair

Samuel C. Palmisano and Mark Heyman, VSEA Legal Counsel, Montpelier,
for grievant-appellee

Jeffrey L. Amestoy, Attorney General, David K. Herlihy, Assistant
Attorney General, and F. Michael Seibert, General Counsel, Department of
Personnel, Montpelier, for appellant State of Vermont

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

GIBSON, J., dissenting. I believe the Labor Relations Board
correctly concluded that the State did not comply with Article 14(4) of the
collective bargaining agreement in dismissing Cynthia Gregoire as a state
employee. Accordingly, I dissent from the Court's reversal of that
decision.

Article 14(4) of the collective bargaining agreement provides:

On February 18, 1994, Cynthia Gregoire received a memorandum entitled
"Investigatory Meeting" from her supervisor, David Tucker, stating that he
was "contemplating disciplinary

action in accordance with Article 14" in connection with her handling of
the delinquent account of her husband's business. The memorandum invited
her to attend the "investigatory meeting" on February 23 (later rescheduled
to February 28), but did not state that the appointing authority, or Tucker
as the authorized representative, was contemplating dismissal as a possible
disciplinary action. Tucker was not, in fact, contemplating dismissal at
the time he sent the memorandum, and he had not discussed the possibility
of dismissal with the Department's appointing authority, Commissioner Susan
Auld. Neither Gregoire nor her VSEA representative was aware before or
during the February 28 meeting or prior to her dismissal that dismissal was
contemplated. Tucker ended his February 18 memorandum, "After reviewing
any new information, I will conduct further inquiry as is appropriate, and
then contact you." The next communication Gregoire received was the letter
of termination from Commissioner Auld.

The Board's interpretations of collective bargaining agreements are
entitled to great deference because of its expertise in such matters. In
re Vermont State Employees' Ass'n, Vt. , , 666 A.2d 1182, 1183
(1995). Ordinarily, we will not disturb the Board's findings unless they
are clearly erroneous. In re Merrill, 151 Vt. 270, 273, 559 A.2d 651, 653
(1988). We will uphold the Board's order if its findings of fact, taken as
a whole, justify its ultimate conclusion. Vermont State Employees' Ass'n,
Vt. at , 666 A.2d at 1183. The expertise of the Board in construing
collective bargaining agreements is presumed, and substantial deference
must be accorded the Board's constructions. In re Gorruso, 150 Vt. 139,
143, 549 A.2d 631, 634 (1988).

"Where contract language is clear, the parties are presumed to be
bound by its plain and ordinary meaning." Vermont State Colleges Staff
Fed'n, AFL Local 4023 v. Vermont State Colleges, 157 Vt. 645, 646, 596 A.2d 355, 357 (1991) (mem.). The majority states that the plain language of
Article 14(4) says nothing about requiring explicit notice of a
contemplated dismissal. But Article 14(4) provides that an employee will
normally be given twenty-four hours to indicate to the employer whether she
wishes "to discuss the contemplated dismissal" and that

she may respond in writing or in a meeting "within four days of receipt of
written notification of the contemplated dismissal." (Emphasis added.)
This language clearly requires explicit written notice whenever dismissal
is being considered.

In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), the
United States Supreme Court "recognized the severity of depriving a person
of the means of livelihood," id. at 543, stating that the "opportunity to
present reasons . . . why proposed action should not be taken is a
fundamental due process requirement." Id. at 546 (emphasis added). The
collective bargaining agreement makes clear what is implicit in Loudermill
-- that the employer must give written notice to an employee of any
contemplated dismissal. The Board concluded that the agreement requires
such notice, and that notification simply that "disciplinary action" is
being contemplated is not sufficient.

Federal courts construing Loudermill have reached the same conclusion.
See Calhoun v. Gaines, 982 F.2d 1470, 1476 (10th Cir. 1992) (implicit in
notice required before dismissal of public employee is requirement that
employee be made aware that employment is in jeopardy); Mathews v. Harney
County, Or., 819 F.2d 889, 892 (9th Cir. 1987) (Loudermill requires notice
to employee of pendency or contemplation of dismissal action in advance of
any pretermination hearing); cf. Post v. Harper 980 F.2d 491, 494 (8th Cir.
1992) (although employer not required to tell employee that hearing is
pretermination hearing, employee needs to know that job is in jeopardy).

The majority ignores one of the major purposes of the notice
requirement in the collective bargaining agreement. The United States
Supreme Court pointed out in Loudermill that "[e]ven where the facts are
clear, the appropriateness or necessity of the discharge may not be; in
such cases, the only meaningful opportunity to invoke the discretion of the
decisionmaker is likely to be before the termination takes effect."
Loudermill, 470 U.S. at 543. Having received no notice that her job was in
jeopardy, Gregoire and her VSEA representative were deprived of an
opportunity to argue against such sanction. The Board recognized this
truth, and the majority,

in rejecting the Board's decision, is simply substituting its own opinion
for that of the Board without giving due deference to the Board's
expertise.

I respectfully dissent, and am authorized to say that Justice Johnson
joins in this dissent.

_______________________________________
Associate Justice

---------------------------------------------------------------------------
Dissenting

No. 95-228

In re Cynthia Gregoire Supreme Court

On Appeal from
Labor Relations Board

May Term, 1996

Charles H. McHugh, Chair

Samuel C. Palmisano and Mark Heyman, VSEA Legal Counsel, Montpelier,
for grievant-appellee

Jeffrey L. Amestoy, Attorney General, David K. Herlihy, Assistant
Attorney General, and F. Michael Seibert, General Counsel, Department of
Personnel, Montpelier, for appellant State of Vermont

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

JOHNSON, J., dissenting. I agree with Justice Gibson that the Labor
Relations Board correctly interpreted the notice requirements of Article
14(4) of the collective bargaining agreement. I write separately to
emphasize my disagreement with the majority's ultimate conclusion: that the
existence of just cause to discipline an employee eliminates the State's
obligation to comply with the demands of procedural due process.

The majority emphasizes what appears to be undisputed: that Gregoire
was aware that her conduct violated the policies of the Department of
Employment and Training (DET), and that the violation was serious enough
possibly to result in dismissal. Indeed, the Board specifically found that
Gregoire "had fair notice that her conduct could result in dismissal."
This finding supports the Board's conclusion that just cause existed to
discipline Gregoire. An employee may not be disciplined for certain
conduct unless the employee had fair notice, express or implied, that the
conduct could be grounds for discipline. See In re Towle, ___ Vt. ___,

___, 665 A.2d 55, 59 (1995) (discharge for just cause will be upheld if
discharging employee for misconduct is reasonable and employee had express
or implied notice that such conduct would be grounds for discharge).

This basic requirement of fairness -- that employees may not be fired
or otherwise punished unless they know or should know that their "behavior
is prohibited and subject to discipline," id. at ___, 665 A.2d at 61 -- is
separate from the procedural requirements imposed by the collective
bargaining agreement. The agreement spells out the notice that must be
given to an employee whose job is actually in jeopardy -- that is, an
employee who is accused of misconduct and may be fired as a result. I
share Justice Gibson's opinion that the agreement requires such notice to
specifically inform the employee that the State is contemplating dismissal.
The majority, however, rejects this straightforward rule, and instead holds
that notice may "be communicated by other means." Ante, at 7.

What "other means" are appropriate? The answer in this case is that,
because Gregoire knew her actions violated DET policy, she must have known
that the State was contemplating dismissal. Put another way, because
Gregoire was in fact "guilty" of the alleged misconduct, she was not
entitled to the procedural protections of the contract. The finding of
just cause obviates the need for procedural protections; since Gregoire
knew that her misconduct could be grounds for discharge, according to the
majority she "could not have failed to understand," ante, at 8, that the
State was in fact considering firing her.

This conclusion directly conflicts with the Board's finding that
Gregoire was not aware before or during the meeting that the State was
contemplating dismissal. Although the majority disregards this finding, it
is supported by credible evidence and should not be disturbed on appeal.
See P.F. Jurgs & Co. v. O'Brien, 160 Vt. 294, 300, 629 A.2d 325, 329 (1993)
(findings of fact will be set aside only when clearly erroneous, with due
regard to opportunity of trial court to judge credibility of witnesses and
weight of evidence). In fact, Gregoire's supervisor was not considering
dismissal at the time he sent the memorandum, and none of the

State's representatives at the meeting mentioned that they were considering
firing Gregoire.

What is much worse, however, is that the majority has constructed a
double standard under the collective bargaining agreement. "Guilty"
employees are no longer entitled to the procedural protections that state
employees bargained for and won. Their very misconduct is now sufficient
notice that the State is considering firing them. Only innocent employees,
who presumably cannot be fired anyway, must be given explicit notice that
dismissal is contemplated. This is little different from holding that only
innocent defendants in criminal cases are entitled to constitutional
protections.

I respectfully dissent. I am authorized to state that Justice Gibson
joins in this dissent.

_______________________________________
Associate Justice

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