In re Ryan

Decision Date29 October 2021
Docket NumberNo. 21-117,21-117
Parties IN RE Grievance of Patrick RYAN
CourtVermont Supreme Court

Thomas J. Donovan, Jr., Attorney General, and Alison L.T. Powers, Assistant Attorney General, Montpelier, for Appellant/Cross-Appellee.

Pietro J. Lynn of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Appellee/Cross-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

PER CURIAM.

¶ 1. The State of Vermont appeals a decision of the Vermont Labor Relations Board concluding that the State as employer lacked just cause to terminate grievant Patrick Ryan on account of actions he took as a member of the State workforce, and reducing grievant's discipline to a fifteen-day suspension. Grievant cross-appeals, contending that the Board erred in imposing the fifteen-day suspension. We conclude that the Board's findings are inadequate to enable informed appellate review. For that reason, we reverse and remand to the Board for further factfinding.

I. The Board's Decision

¶ 2. After a two-day hearing, the Board made the following findings.1 Grievant began working at the Department for Children and Families (DCF) in 2004 as a social worker; he was promoted to Social Services Supervisor in 2012. While he was a supervisor, grievant served with Employee A on a committee of community entities working together to provide funding for families in need. At the time, Employee A worked for a social services agency that sometimes worked with DCF. Grievant and Employee A had professional communications via text messaging, email, and telephone, and their workplaces were next door to one another. They did not have a social relationship outside of work. During the summer of 2013, grievant and Employee A exchanged some text messages that were not work related and were flirtatious. Using his state-issued cell phone during work hours, grievant would compliment her on some aspect of her appearance or clothing, sometimes while watching her through the window. Employee A could not describe or recall the specific details of the text messages she received from grievant but viewed the texts as "awkward" because she was married.

¶ 3. In March 2015, grievant was promoted to District Director of the Family Services Division (FSD) at the Newport office. In that capacity, he participated in hiring decisions, evaluated staff performance, and was responsible for various personnel matters. In August 2015, DCF hired Employee A as a social worker. As District Director, grievant participated in Employee A's interview, and made the final hiring decision. During the hiring process, grievant did not disclose to his supervisors his prior nonwork-related communications with Employee A.

¶ 4. Upon employment, Employee A was in grievant's chain of command; she reported directly to a supervisor who reported directly to grievant. After she was hired, the flirtatious messages continued between grievant and Employee A. Employee A said to grievant during casual conversations words to the effect of "I'm not sure this [texting] should be happening anymore." Several months into the job, Employee A initiated a conversation with grievant in which she told him that she was more sexually aroused during pregnancy and that her breasts were getting larger and were sore. Grievant asked whether her breasts hurt when they were touched, and she responded that they did not.

¶ 5. Shortly thereafter, just before she went on maternity leave, Employee A told grievant that a coworker had asked her if she was sleeping with grievant. Employee A told Grievant that the text messages had to stop because she wanted her work to be judged based on her abilities, and not her relationship with grievant. From that point onward, all flirtatious communications between the pair ceased. There is no evidence that grievant retaliated against Employee A due to her request.

¶ 6. The Board's findings recount in detail the content of grievant's performance evaluations in the spring of 2016, 2017, 2018, and 2019. The ratings were all "satisfactory." The accompanying narratives reflect ongoing concerns that office morale was suffering under grievant's leadership, and acknowledge his efforts to address the perceptions that he did not foster a safe and supportive workplace environment.

¶ 7. The Board found that in the fall of 2019, DCF initiated an investigation into why so few employees from the FSD Newport office had participated in an office culture and climate survey. During the investigation, several staff members expressed various concerns about grievant. As a consequence, Department of Human Resources (DHR) investigator Peter Canales was assigned to conduct an investigation of grievant. The investigator's report documented his interview with Employee A. Per the investigator's report, Employee A described grievant's text messages as at "the low end of lewd and lascivious," including comments about her appearance and descriptions of things "of a sexualized nature" that he wanted to do to her. She cited as an example of the type of message he would send: "What if I had kissed you?" Although Employee A acknowledged that there were times when "possibly" she participated, there were multiple occasions when she told grievant, "We can't be doing this." She reported that she told him a dozen times during the first two years she worked at DCF to stop sending her sexualized text messages and emphasized that he was the director and she was the "low man on the totem pole," but he continued sending the messages. Employee A did not save any of the messages.

¶ 8. The Board quoted extensively from the investigator's report, which also described the investigator's exchange with grievant concerning grievant's communications with Employee A. Grievant described the relationship he had with Employee A as "jokey," and reported that when Employee A came to work at DCF they had a couple of conversations about making sure that they not joke like that anymore. Grievant acknowledged that the communications between him and Employee A had been "flirty," but indicated that they had stopped, probably within her first year at DCF, after she brought up to him that she wanted it to stop. Grievant did not recall whether some of the messages could be characterized as "sexualized," and when asked whether they were "appropriate," he said he didn't know what that meant.2

¶ 9. As a result of the investigation into his conduct, in January 2020 DCF sent Grievant a Loudermill letter, notifying him that DCF was contemplating "serious disciplinary action, up to and including dismissal."3 The letter recounted Employee A's report that his "kind of lewd" sexualized texts to her from his work-issued cell phone continued after he hired her to work at DCF, that he did not stop the texts even after she asked him to, and that she was definitely targeted for having asked him to stop. It included reports from various Newport FSD staff that grievant was "intimidating," "bullying," and sometimes communicated with staff in a demeaning or belittling way. And it parsed in some detail the arguable inconsistencies among some of grievant's responses to the investigator during the investigative interview. The letter concluded that grievant's ongoing intimidating conduct toward staff violated State of Vermont Personnel Policy 11.11 (Workplace Safety and Security); that his sending sexualized texts to a subordinate staff member on his work-issued cell phone even after a number of pleas to stop violated Personnel Policy 3.1 (Sexual Harassment) and 5.6 (Employee Conduct); and that his answers in the investigative interview "may not have been entirely truthful" in violation of Personnel Policy 17.0 (Employment Related Investigations).

¶ 10. The Board found that in the ensuing Loudermill meeting, grievant described their text exchanges before Employee A came to work at DCF as welcome. He indicated that Employee A initiated the text message exchange about how being pregnant caused her to be more aroused and gave her sore breasts. And he indicated that as soon as she told him that they needed to stop the flirtatious behavior he did not send any more flirtatious text messages. Grievant acknowledged that the messages were inappropriate, especially after Employee A came to work at DCF, and apologized for his lapse in judgment.

¶ 11. DCF Deputy Commissioner Johnson subsequently dismissed grievant. In the termination letter, the Deputy Commissioner cited grievant's inappropriate sexualized text messages to a subordinate, using a state-issued cell phone, as well as his hostile, intimidating, bullying, and demeaning interactions with staff. The Deputy Commissioner emphasized that the sexualized text messages were the most significant misconduct driving the dismissal decision, and indicated that grievant's actions had destroyed the confidence of DCF management in his ability to continue effectively in the Director position.

¶ 12. Based on the above, the Board concluded that the State lacked just cause to dismiss grievant. With respect to the allegations relating to grievant's communications with Employee A, the Board stated that the State's charge was hampered by the fact that none of the alleged inappropriate sexualized messages were admitted into evidence, and neither Employee A nor grievant recalled the specific content of the messages they had exchanged, with the exception of the exchange involving grievant asking a pregnant Employee A if her breasts hurt to be touched after she initiated a conversation in which she reported that she was more sexually aroused during her pregnancy and that her breasts were getting larger and were sore. The text messages were characterized generally as "flirtatious," but the Board concluded that the seriousness of grievant's misconduct was somewhat tempered by the fact that the State had not established that the text messages were unwelcome to Employee A.4 The Board indicated that once Employee A indicated that they...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT