In re Grievance of Lawrence Rosenberger
| Decision Date | 31 August 2011 |
| Docket Number | DOCKET NO. 2010-473,DOCKET NO. 05-034 |
| Court | United States State Supreme Court of Vermont |
| Parties | In re Grievance of Lawrence Rosenberger |
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
Labor Relations Board
In the above-entitled cause, the Clerk will enter:
Grievant Lawrence Rosenberger appeals from a decision of the Labor Relations Board upholding his dismissal from employment with the Department of Fish and Wildlife. We affirm.
This is the second appeal to the Court in this matter. In the first, we reversed the Board's decision to reinstate grievant, holding that the Board erred in excluding certain evidence from the administrative hearing. In re Rosenberger, 2009 VT 18, 185 Vt. 343. On remand, the Board heard additional testimony from grievant, and based on that testimony, the previously excluded evidence, and the record as a whole, issued a new decision upholding grievant's dismissal. This appeal followed.
Most of the material facts are set forth in detail in the first opinion, and may be summarized for our purposes here as follows. Grievant was employed as a game warden for the Department of Fish and Wildlife for about eighteen years before his dismissal in August 2005. The incident that triggered the discipline occurred that spring. On the morning of March 26, 2005, grievant responded to a report of a dead deer on the Circumferential Highway in Essex, picked up the deer, and decided to give it to Joe Gaudette, an acquaintance of many years. Joe declined the deer but suggested that grievant drop it off with his brother, Bob, which grievant did that morning. Id. ¶ 4.
Later that evening, at approximately 8:32 p.m., grievant called a public safety dispatcher to report that he was responding to a report of an injured deer on the Circumferential Highway in Essex. Grievant identified the complainant as someone named Gaudette although the first name was not clear from the dispatch recording. A subsequent transmission shows grievant calling at about 9:00 p.m. to report that he had completed the call. Under Department rules at that time, off-duty wardens who responded to a report of an injured deer, referred to as a "call out," were entitled to four hours of overtime compensation. Wardens were not entitled to call-out pay for responding to a report of a dead deer. Id. ¶¶ 3-5.
About a week later, on April 2, 2005, grievant submitted a time report claiming compensation for the call-out. Two days later, on the morning of April 4, 2005, grievant's supervisor, Lieutenant Lutz, was reviewing the time report when he noticed that the timeframes set forth in grievant's report did not appear to be sufficient to respond to a call-out and deal with an injured deer in the location reported, and he spoke with grievant about the matter that afternoon. Grievant appeared nervous and emotional during the conversation, and was unable toprovide consistent details about the call-out. Lutz ultimately asked grievant directly whether he had responded to a call-out on March 27, and grievant admitted that he had not done so. Lutz, in response, told grievant that he would not be paid for the call-out, but that he would not report the incident. Later, however, Lutz had a change of heart and reported the matter to his superior, who ordered a preliminary investigation. After speaking with Joe and Bob Gaudette and reviewing the dispatch tapes, Lutz concluded that grievant had fabricated the call-out. He assigned another officer, Lieutenant Denton, to conduct an internal investigation. Id. ¶¶ 6-7.
Denton conducted two tape-recorded interviews with grievant in April 2005. A representative of the Vermont State Employees Association (VSEA) was present during the interviews. Based on the investigation, grievant was dismissed effective August 22, 2005. Grievant appealed to the Board, which concluded that Lutz had violated a provision of the collective bargaining agreement by failing to inform grievant during the initial interview of his right to a VSEA representative when Lutz became suspicious and asked whether the call-out was legitimate. The Board determined that the proper remedy for the violation was to exclude grievant's admission to Lutz as well as his subsequent admissions to Denton, because they could not be considered independent of the original admission. Id. ¶ 11. Based on the limited evidence before it, the Board concluded that the State had failed to prove the charged misconduct.
We reversed, concluding that the evidence and findings failed to support the Board's conclusion that grievant's later statements were tainted by the initial violation. We concluded that, in fact, the record demonstrated "unequivocally . . . that, before the improper question, the employer already had developed suspicions of [grievant's] wrongdoing, and thus surely would have investigated the matter further and required grievant to respond to questions concerning the suspicious March 27 call-out claim." Id. ¶¶ 23-24. We thus held that the Board erred in disallowing evidence resulting from the State's investigation following the April 4 meeting, and remanded for further proceedings. Id. ¶ 35.
On remand, the Board heard additional testimony from grievant. Grievant testified that a man who identified himself as Gaudette came to his house on the evening in question to report a deer on the Circumferential Highway and that grievant assumed the deer was injured and called dispatch to report the "call out." Grievant then claimed to have a subsequent conversation with the man in his driveway. Although grievant acknowledged that the light was clear, he was still unable to identify the man. Grievant testified that the man clarified that the deer was not injured but, in fact, was dead, and was not in Essex but rather Burlington. Grievant claimed that he then decided not to retrieve the deer immediately but instead to check on bullhead fishermen at another location; that he drove there and observed a man and a boy fishing; that he then parked and cleaned out his truck; and that he then returned home, having forgotten about the dead deer.
Grievant acknowledged that when he called dispatch to "clear" his call at 9:01 p.m., about half an hour after the initial report, he gave the code for a dead adult male deer although he had never seen a deer that evening. He also acknowledged asking for the last four digits of the call so that he could later report it on his time sheet. He further acknowledged that he never corrected his dispatch reports and that he submitted a time sheet for four hours of overtime compensation for an injured-deer call-out that he knew had not occurred.
A majority of the Board found that grievant's version of the events in question was not credible, and that he fabricated the injured-deer report to receive call-out compensation. The Board concluded that grievant's dishonesty warranted dismissal. In a separate concurring opinion, one Board member found grievant's factual account to be credible, but agreed with the penalty of dismissal based on grievant's admissions that he failed to correct the original report of an injured deer, falsely reported responding to an adult male deer when he cleared the call, and knowingly submitted a false time report. This appeal followed.
Grievant first contends the Board failed to make certain "critical" findings and that other findings are not supported by the evidence. Our review in this regard is limited. Board decisions are generally presumed to be "correct and reasonable." In re Towle, 164 Vt. 145, 148 (1995). Thus, we will not disturb the Board's findings if they are supported by credible evidence. In re VSEA, 162 Vt. 277, 280 (1994). Furthermore, "[t]he assessment of a witness's credibility is a matter for the special expertise of the Board." Id.
Grievant asserts the Board erroneously found that he lied to his supervisor, Lieutenant Lutz, about his actions on the night in question and failed to make critical findings concerning Lutz's initial interview with grievant on April 4, 2005, about which Lutz later testified that grievant ultimately "was honest with me." The assertions are unpersuasive. The Board's findings acknowledge that grievant ultimately...
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