In re Grievance of Brown

• Decision Date: 22 October 2004
• Docket Number: No. 2002-460.,2002-460.
• Citation: 865 A.2d 402
• Court: Vermont Supreme Court
• Parties: In re GRIEVANCE OF Leslie BROWN.

865 A.2d 402

In re GRIEVANCE OF Leslie BROWN.

No. 2002-460.

Supreme Court of Vermont.

October 22, 2004.

Michael P. Casey, Associate General Counsel, Vermont State Employees' Association, Montpelier, for Appellant Cross-Appellee.

William H. Sorrell, Attorney General, and William B. Reynolds, Assistant Attorney General, Montpelier, for Appellee Cross-Appellant.

Present: AMESTOY, C.J.,¹ DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

DOOLEY, J.

¶ 1. This is an appeal from an order of the Vermont Labor Relations Board (the Board), dated September 12, 2002, denying grievant Leslie Brown's request that a Board order made on October 24, 2001, reinstating grievant and awarding him back pay be modified to include lost overtime wages. The State of Vermont Agency of Transportation (VAT) cross-appeals the order claiming the Board abused its discretion when it reinstated grievant because the Board's determination that grievant's dismissal was not justified was unsupported by the record. As to the September 2002 order, we reverse and remand; as to the October 2001 order, we affirm.

¶ 2. Prior to his dismissal, grievant had worked for the State of Vermont for over thirty years. He began his career as a summer worker in 1968 and worked in various positions, with increasing responsibility, over the next twenty-four years. In 1992, grievant was promoted to transportation area maintenance supervisor in District 9, a position he occupied until his dismissal.

¶ 3. VAT employees, such as grievant, are subject to VAT's work rules. Relevant here, section four prohibits employees from using state equipment or tools for any purpose other than state-related work. As a matter of practice, however, District 9 employees did not follow this rule, and it was common for employees to borrow state tools and equipment for personal use.

¶ 4. In May and June 1999, grievant took a two-month leave from work to build a new house and garage. During this time, he borrowed a state-owned tamper. In May 1999, District 9 employees were performing work where a tamper was required. One of the employees was sent to grievant's home to retrieve the tamper. When the employee told grievant the tamper was needed for state work, grievant told the employee he should go rent a tamper. The employee then contacted grievant's supervisor who stated that if VAT was forced to rent a tamper, grievant would be responsible for the expense. Grievant subsequently relinquished the tamper.

¶ 5. When grievant returned to work in July 1999, he met with two of his supervisors. The supervisors informed him that he had to ask permission before he borrowed state-owned equipment, but if he did so it would not be a problem. Prior to this meeting, grievant was unaware he had to ask permission before borrowing state equipment. Shortly after this meeting, grievant took state equipment for use on his home without asking permission. The supervisors again met with grievant and told him he must stop borrowing state equipment without asking permission. Grievant explained that he thought that if the equipment was under his supervision, he did not have to ask permission. Grievant was informed this was not the case, and was told that he had been warned about this before and the next time it happened things would be handled differently.

¶ 6. In the ensuing months, grievant borrowed numerous pieces of state equipment without asking his supervisors' permission. By April 2000, grievant had the following state-owned equipment in his home: a nail gun, a chop saw, a ladder, two doors, an air compressor, a wood furnace, and one set of torch heads. He had many of these items in his possession for several months. He borrowed some of the equipment to complete the work on his house and garage, while he took other items home to repair for later use either by the state or an individual. In early April 2000, grievant's supervisors investigated a report that the above equipment was missing and in grievant's possession. On April 26, 2000, after concluding their investigation, grievant's supervisors filed a theft complaint with the Vermont State Police. A week later, a police officer went to grievant's home and informed him about the complaint. Grievant showed the officers the state equipment he had in his home and stated that he would return the items the following day. The next day grievant returned the items and then went to the police office where he was charged with grand larceny.

¶ 7. Following this incident, a state personnel administrator was assigned to investigate the allegations against grievant. In the administrator's report, which was submitted to the Human Resources Chief, the administrator concluded that grievant's actions should be viewed as "constituting gross misconduct, and rises to the level justifying that serious discipline or dismissal action are considered by the Agency." After receiving this report, the Human Resources Chief sent grievant a letter informing him that his actions constituted gross misconduct and that removal from state employment would be justified. The letter stated that grievant had "misappropriated state owned property for . . . personal use" and listed the items found at grievant's home. The letter went on to say that on at least two occasions grievant "refused to follow direct and lawful instructions" given by his supervisors and that grievant "removed tools, equipment and material from state property with the purpose and intent to retain these items in [his] possession for [his] personal use." Following receipt of this letter, grievant and his Vermont State Employees Association (VSEA) representative met with the chief to discuss grievant's situation. After this meeting, the State dismissed grievant.

¶ 8. In relevant part, the termination letter stated:

This letter is to notify you that you are terminated from your employment with the State of Vermont, for the reasons specified below and as outlined in my June 29, 2000 letter. . . . This action is taken after considering all aspects of your employment and taking into account factors including the nature of the job and the potential impact your continued presence can have on the State, public and your co-workers. It also takes into account your seniority with the State and the fact that you had full and clear knowledge of the seriousness of your misconduct. In my opinion, there is sufficient cause to warrant your dismissal.

Grievant was given two weeks' pay in lieu of notice.

¶ 9. Grievant then appealed his dismissal to the Board. The Board considered each item found in grievant's possession. With respect to each item, the Board found, contrary to the employer's finding, that while grievant took state property without asking permission, he did not do so with the intent to permanently deprive the state of this property. Although the Board found grievant's misconduct serious, it found it more significant that grievant "showed a disrespect for supervisory authority by disregarding instructions given to him on more than one occasion by his supervisors." The Board also noted that it was common practice for District 9 employees to borrow state equipment for personal use and that grievant had a long and successful work history with VAT. Considering all these circumstances together, the Board concluded that the employer "inappropriately bypassed progressive discipline and just cause did not exist for Grievant's dismissal."

¶ 10. Consequently, the Board found that grievant should have received a thirty-day suspension and ordered that grievant be reinstated. The Board awarded grievant back pay, benefits, and interest "from the date commencing 30 working days from the effective date of his dismissal until his reinstatement, for all hours of his regularly assigned shift, minus any income (including unemployment compensation received and not paid back) received by Grievant in the interim." By its cross-appeal, VAT has appealed the Board's decision reinstating grievant. We begin with this issue.

¶ 11. VAT argues that the Board abused its discretion when it found that grievant did not misappropriate state property and ordered grievant reinstated. Specifically, VAT contends reversal is warranted because the Board erroneously concluded that the wood furnace found at grievant's home was not taken for personal use.

¶ 12. To dismiss a state employee, the employer must establish that just cause exists. "Just cause means some substantial shortcoming detrimental to the employer's interests, which the law and a sound public opinion recognize as a good cause for his dismissal." In re Brooks, 135 Vt. 563, 568, 382 A.2d 204, 207 (1977) (citations omitted). The burden of proof to establish just cause existed is on the employer, and that burden must be met by a preponderance of the evidence. See In re Merrill, 151 Vt. 270, 276, 559 A.2d 651, 654 (1988). The Board has routinely used the factors articulated in In re Colleran, 6 V.L.R.B. 235, 268-69 (1983), to determine whether dismissal is justified, and we have upheld the use of these factors. See, e.g., Merrill, 151 Vt. at 275, 559 A.2d at 654. In this case, the Board found the following factors pertinent under Colleran:

1) the nature and seriousness of the offenses and their relation to the grievant's duties and position, 2) the grievant's job level, including supervisory role, 3) the effect of the offenses upon other supervisors' confidence in the grievant's ability to perform assigned duties, 4) the clarity with which the grievant was on notice of any rules that were violated in committing the offenses, 5) the grievant's past disciplinary record, 6) the grievant's past work record, 7) the consistency of the penalty with those imposed upon other employees for the same or similar offenses, 8) mitigating circumstances surrounding the offenses, 9) the potential for the grievant's rehabilitation, and 10) the adequacy and effectiveness of

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