In re Grievance of Boyde

In re Grievance of Boyde  (95-644); 165 Vt 624; 687 A.2d 1258

[Opinion Filed 10-Oct-1996]


                               ENTRY ORDER
                      SUPREME COURT DOCKET NO. 95-644
                            SEPTEMBER TERM, 1996


In re Grievance of Glenn Boyde       }     APPEALED FROM:
                                     }
                                     }
                                     }     Labor Relations Board
                                     }
                                     }
                                     }     DOCKET NO. 95-16

       In the above-entitled cause, the Clerk will enter:

       Glenn Boyde, a correctional officer at the Chittenden Regional
  Correctional Facility, appeals a Labor Relations Board decision that his
  grievance of racial discrimination against the Department of Corrections
  was untimely.  Boyde contends the Board mistakenly rejected his claim that
  the Department's allegedly discriminatory acts constituted a "continuing
  violation" which tolled the fifteen-day filing period.  We hold that the
  record does not support the contention and, therefore, affirm.

       The material facts are undisputed.  In early September 1985, Boyde, an
  African-American and veteran correctional officer, as well as a shop
  steward for the Vermont State Employees' Association (VSEA), became
  involved as a steward in the case of a probationary officer, Sandi Raymond. 
  Raymond had received a negative assessment from the Superintendent of the
  Chittenden facility, John Murphy.  Boyde sought out Murphy to discuss the
  matter, and there ensued a heated exchange which Raymond witnessed.  The
  following day, Murphy approached Raymond to apologize for the incident, and
  according to Raymond, the following conversation occurred.  Raymond asked
  the Superintendent if there was tension between the union and management,
  and Murphy acknowledged that there was, stating that the tension derived
  mainly from Boyde's aversion to "authoritative figures."  Murphy explained
  that this aversion was probably acquired when Boyde's father left his
  mother years earlier, that Boyde was a "criminal" who had spent nine days
  in jail and had "terrorized" Vermont communities on his motorcycle, and
  that he had forced his wife to lie to state troopers.  Murphy recounted
  that the Department had dismissed Boyde for his earlier offenses, but that
  the discipline had been reduced, leaving him with a feeling of
  "invincibility."  Murphy concluded that Boyde had a "dark heart."

       Raymond later reported to Boyde the substance of her conversation with
  Murphy.  She testified unequivocally that Boyde "knew everything"
  concerning the conversation by October 10.  On November 10, thirty-one
  calendar days and twenty-three work days later, Boyde filed a grievance
  against Murphy and the Department alleging discrimination based on
  membership in the VSEA, the filing of prior complaints and grievances, and
  race.  Murphy's statements to Raymond formed the sole predicate of the
  grievance.

       Under the collective bargaining contract, a grievance is required to
  be made within fifteen working days of the underlying incident.  Boyde's
  grievance was twice denied as untimely at preliminary steps in the
  grievance process, after which Boyde filed a grievance with the Labor
  Board.  Following a hearing, the Board found that Boyde "reasonably became
  aware of the occurrence of the matter which gave rise to the grievance . .
  . by October 10."  The Board therefore concluded that the grievance, filed
  on November 10, was untimely under the contractual provision requiring that
  grievances be submitted "within fifteen (15) workdays of the date upon
  which the employee could reasonably have been aware of the occurrence of
  the matter" giving rise to the complaint or grievance.  The Board rejected
  Boyde's assertion that the grievance should be treated as timely because it
  was part of a "continuing" policy or pattern of discrimination, as
  evidenced by his contemporaneous involuntary transfer from the Women's Unit
  of the Chittenden facility, a transfer that occurred in early October and
  remained in effect

 

  through the November 10 filing.  The Board ruled that the argument lacked
  merit for two reasons: first, because the grievance as filed contained no
  reference to the ban from the Women's Unit as supportive of the
  discrimination claim; and also because the Board had previously recognized
  the validity of a "continuing" violation only in cases where pay practices
  were involved.  Accordingly, the Board granted the State's motion to
  dismiss.(FN1)

       Boyde contends the Board's reasoning was erroneous in both respects. 
  Any factual omission from the grievance was cured, he asserts, when he
  raised the job reassignment without objection at the hearing on the State's
  motion to dismiss.  He also contends there is ample authority to support
  application of federal anti-discrimination law, including the continuing
  violation doctrine, to Vermont cases.  See, e.g., Allen v. Department of
  Employment & Training, 159 Vt. 286, 289-90, 618 A.2d 1317, 1319 (1992); In
  re Harrison, 141 Vt. 215, 222, 446 A.2d 366, 369 (1982).  We need not
  resolve either of these claims.  For even assuming their merit, the record
  amply supports the State's position that Boyde failed to satisfy the
  evidentiary prerequisites of a continuing violation.

       A judicially developed equitable exception to the timely filing
  requirements of Title VII, 42 U.S.C. § 2000e-5(e), the continuing violation
  doctrine allows an employee to pursue a claim "for discriminatory conduct
  that began prior to the filing period if [the employee] can demonstrate
  that the act is part of an ongoing practice or pattern of discrimination of
  the defendant."  West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3rd Cir.
  1995).  To rely on the theory, "the plaintiff must do two things.  First,
  he must demonstrate that at least one act occurred within the filing period
  . . . .  Next, the plaintiff must establish that the harassment is `more
  than the occurrence of isolated or sporadic acts of intentional
  discrimination.'"  Id. at 754-55 (quoting Jewett v. International Tel. and
  Tel. Corp., 653 F.2d 89, 91 (3d Cir. 1981)). "[M]ultiple incidents of
  discrimination, even similar ones, that are not the result of a
  discriminatory policy or mechanism do not amount to a continuing
  violation."  Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993).

       Viewed in the light of the foregoing principles, the flaws in Boyde's
  continuing violation claim are patent.  Boyde hinges his claim upon a
  decision by the Department to temporarily suspend his work assignment to
  the Women's Unit pending an investigation of allegations of misconduct. 
  Boyde produced no evidence, however, of any pattern or departmental policy
  of discrimination of which these incidents -- the Murphy comments and the
  work reassignment -- formed an integral part.  At most, he alleged
  specific, unrelated instances of alleged discrimination which, standing
  alone, are insufficient to establish a continuing violation. Furthermore,
  to render his grievance timely Boyde must demonstrate that at least one
  related act occurred within the fifteen-working-day grievance period. 
  West, 45 F.3d  at 754-55.  Boyde's reassignment took place on October 10,
  well before the fifteen-day filing period.  He attempts to sidestep this
  problem by characterizing the reassignment as a "continuing act," since the
  reassignment remained in effect from October 10 until the end of November. 
  It is well settled, however, that "[c]ompleted acts, such as termination
  through discharge or resignation, a job transfer, or discontinuance of a
  particular job assignment are not acts of a `continuing' nature."

 

  McPartland v. American Broadcasting Co., 623 F. Supp. 1334, 1338 (S.D.N.Y.
  1985) (citations omitted); see also Bradley v. Consolidated Edison Co. of
  New York, 657 F. Supp. 197, 203 (S.D.N.Y. 1987).  Thus, Boyde's
  reassignment constituted a completed act when it occurred on October 10; it
  fails, accordingly, to qualify as an act "within the filing period" for
  purposes of the continuing violation doctrine.  West, 45 F.3d  at 754.

       Boyde's additional assertion that the filing period was tolled because
  the Department maintained a hostile work environment, see Harris v.
  Forklift Sys., Inc., 510 U.S. 17, 21 (1993), which itself represented a
  continuing violation, fails for the reasons discussed above. He cites no
  evidence to demonstrate either a pattern of discrimination or a series of
  acts "sufficiently severe or pervasive `to alter the conditions of [the
  victim's] employment and create an abusive working environment.'"  Meritor
  Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (quoting Henson v. City of
  Dundee, 682 F.2d 897, 904 (11th Cir. 1982)); see also West, 45 F.3d  at 755
  ("Hostile work environment and continuing violation claims have similar
  requirements of frequency or pervasiveness.").  The evidence is
  insufficient to establish a continuing violation that would render the
  grievance timely.(FN2)

       Affirmed.

     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




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                                  Footnotes



       FN1.  Boyde raised an alternative theory of timeliness with the Board
  which he has apparently abandoned on appeal.  He asserted that the filing
  period should have commenced on October 12, when Raymond memorialized her
  recollection of the Murphy conversation in a memorandum to Boyde, and that
  the grievance should have been deemed filed on November 2 (exactly fifteen
  days later) when Boyde's union representative sent a letter of complaint to
  the Corrections Commissioner.  The Board rejected the argument, finding, as
  noted, that Boyde became reasonably aware of the basis of the grievance on
  October 10, and further that the letter of November 2 did not qualify as a
  complaint or grievance within the meaning of the employment contract.


FN2.  Two days before oral argument, the State moved to dismiss the
  appeal as moot on the ground that Boyde had been permanently reassigned to
  a different facility and therefore that no actual controversy existed
  between the parties.  "`A case is moot if the reviewing court can no longer
  grant effective relief.'"  In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063,
  1064 (1991) (quoting Sandidge v. Washington, 813 F.2d 1025, 1025 (9th Cir.
  1987)).  Unlike in Moriarty, where the grievant had left State service,
  here Boyde remains employed by the same Department which allegedly condoned
  Murphy's discriminatory acts and from which he seeks remedial action. 
  Therefore, the motion to dismiss is denied.