Grievance of Butler, In re

• Decision Date: 23 May 1997
• Docket Number: No. 95-044,95-044
• Citation: 697 A.2d 659,166 Vt. 423
• Parties: In re GRIEVANCE OF Deborah BUTLER.
• Court: Vermont Supreme Court

Page 659

697 A.2d 659

166 Vt. 423

In re GRIEVANCE OF Deborah BUTLER.

No. 95-044.

Supreme Court of Vermont.

May 23, 1997.

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.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

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) and 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, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (workplace "permeated with 'discriminatory intimidation, ridicule, and insult' " constitutes abusive working environment) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (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., 166 Vt. 205, ----, 692 A.2d 367, 369 (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...