Grievance of Towle, In re, 94-207

• Decision Date: 25 August 1995
• Docket Number: No. 94-207,94-207
• Citation: 164 Vt. 145,665 A.2d 55
• Court: Vermont Supreme Court
• Parties: In re Grievance of David TOWLE.

Page 55

665 A.2d 55

164 Vt. 145

In re Grievance of David TOWLE.

No. 94-207.

Supreme Court of Vermont.

Aug. 25, 1995.

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 appellee.

Before ALLEN, C.J., GIBSON, DOOLEY and JOHNSON, JJ., and COOK, District Judge, Specially Assigned.

GIBSON, Justice.

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." ¹ 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 Vermont 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. In re 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 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." Id. 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." In re 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 In re Colleran, 6 V.L.R.B. 235, 268-69 (1983); stating:

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...