McCort, In re, 93-237

• Decision Date: 02 September 1994
• Docket Number: No. 93-237,93-237
• Citation: 650 A.2d 504,162 Vt. 481
• Parties: Grievance of Gene V. McCORT.
• Court: Vermont Supreme Court

Page 504

650 A.2d 504

162 Vt. 481

Grievance of Gene V. McCORT.

No. 93-237.

Supreme Court of Vermont.

Sept. 2, 1994.

Gene V. McCort, pro se, plaintiff-appellee.

Jeffrey L. Amestoy, Atty. Gen. and Michael Seibert, Asst. Atty. Gen., Montpelier, for defendant-appellant.

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

DOOLEY, Justice.

The State of Vermont appeals from a decision of the Vermont Labor Relations Board rescinding grievant Gene McCort's dismissal, reducing the penalty to a six work-week suspension without pay, and ordering him reinstated to his position as an auditor with the Agency of Transportation. With the exception of a September 6, 1991 written reprimand of grievant, which we reverse and remand for further proceedings, we affirm.

Grievant originally filed three separate grievances with the Vermont Labor Relations Board (Board), alleging that the Agency of Transportation (AOT or employer) had violated various provisions of the collective bargaining agreement between the State and the Vermont State Employees' Association (VSEA) in effect for the period July 1, 1990 through June 30, 1992. The Board consolidated the three grievances for hearing. See In re McCort, 16 V.L.R.B. 70 (1993) (Docket Nos. 91-57, 92-9, 92-26).

Grievant began his career with the AOT in July 1989 in the position of Auditor B. He was a member of a four-person staff of "external auditors" responsible for reviewing the records of companies having contracts with AOT to determine whether the companies were in financial and contractual compliance. This position, and the position of Auditor C to which grievant was promoted after six months, required grievant to have a great deal of direct contact with contractors. During his three-year career with AOT, with the exception of one interim appraisal, AOT rated grievant's work performance as "Satisfactory" in each of his annual performance appraisals. Following a series of disputes with AOT management dating back to just over a year after grievant began his job, however, AOT dismissed grievant in May 1992.

I.

A.

Employee's first grievance arose out of his conduct on May 24, 1991. This grievance was covered by Board Docket No. 91-57, and we will refer to it later as the No. 91-57 grievance. On May 24th, grievant had completed an audit of Company A, in which he expressed serious concerns to AOT management concerning certain company reporting practices and the company's unwillingness to provide grievant access to what he considered necessary financial documents. As discussed in more detail below, grievant believed that his superiors improperly intervened in this audit and prevented him from pursuing an important line of inquiry. On the day in question, grievant improperly took from his supervisor's desk a confidential memo from the AOT Assistant Director for Financial Services which criticized grievant's audit. In a meeting that day, grievant made inappropriate remarks to the AOT Director of Administration. In another meeting, he made derogatory remarks about Jewish businessmen. As a result of grievant's conduct on the 24th, his supervisor issued him a written reprimand on May 31st.

Grievant challenged this decision on June 20th, and it went through the grievance process. ¹ Some time prior to August 26, 1991, grievant informed his supervisors that he intended to appeal the denial of the grievance to the Board, which he did on September 10, 1991.

This grievance is significant primarily because the Board found later State actions were motivated, at least in part, by response to the Board appeal in this grievance. The State prevailed on this grievance and, as a result, did not include it in its appeal. Although grievant did not file a cross-appeal, he has argued in his brief that the Board should have upheld his grievance, and this Court should reverse the Board's failure to do so. Since this decision is not before us in the State's appeal, we are unable to consider it. See Miller v. A. N. Deringer, Inc., 146 Vt. 59, 60, 498 A.2d 501, 503 (1985). This is not a case where appellee is content with the judgment but seeks to raise additional claims if it is reversed.

B.

Board Docket No. 92-9 represents five consolidated grievances. The first of the five grievances arose out of events which occurred in late August 1991. On August 23, grievant returned from a week-long audit in New Jersey to find that his supervisor had removed grievant's personal audit reference files from his office. These consisted of copies of audits grievant had done in the past. Grievant found them in the supervisor's unlocked office, retrieved them and locked them in his car. When the supervisor found the files missing, he ordered grievant to return them by 10:30 a.m. Grievant requested and was given permission to attempt to contact his attorney prior to returning the files. Due to a delay in reaching his attorney, grievant did not return the files until 11:00 a.m. The following day the supervisor suspended grievant for one day without pay for failing to follow his direct order. The grievance Step III hearing officer, the Human Resources Director for the Department of Personnel, ordered this suspension reduced to a written reprimand.

The second incident occurred on September 6. Grievant was issued a written reprimand for a comment he made the previous March to an officer of a company he was auditing. He said to the officer, who had a southern accent, that Vermonters might be ignorant but Southerners were stupid. Grievant's supervisor became aware of this comment in late August, and asked the officer to send him a letter detailing the incident, which arrived on August 27th. The supervisor also directed grievant to send a letter of apology and was displeased when grievant's letter disputed that the incident occurred as alleged. The Step III hearing officer upheld this reprimand.

The third grievance in this series also arose in September. On September 10, with several grievances pending, grievant requested of his supervisor office time during which to work on his grievances. The supervisor agreed but, by memorandum to grievant, limited such activities to one hour per workday. The grievance over this time restriction was also upheld by the Step III hearing officer.

The fourth grievance was related to the third. To resolve the third grievance issue, in part, grievant was allowed by an acting supervisor to use personal and leave time to work on his grievances. Up to this time, grievant had been using AOT computers to draft his grievances. On September 11, the acting supervisor informed grievant that he was not allowed to use the state computer for personal business, and in particular, when on leave time. Grievant refused to stop until the order was put in writing and the acting supervisor produced the written policy on which the order was based. He then ceased using the computer.

On Friday, September 13, grievant's supervisor informed grievant that he had prepared a disciplinary action, and that grievant had the right to have his attorney present when the supervisor presented the action to him. On Monday, September 16, grievant requested that the supervisor delay his disciplinary action until Wednesday as grievant's attorney would not be available until that time. The supervisor refused and issued grievant a five-day suspension without pay for using state property to conduct personal business and for ignoring the acting supervisor's order to cease such use. The Step III hearing officer ordered this suspension expunged because of ambiguity regarding the acting supervisor's orders.

The fifth and final grievance in this series developed one month later. On October 11, 1991, grievant was given an interim performance evaluation covering the period January 1 to September 30, 1991. His rating was "Unsatisfactory," and he was placed on a three-month prescriptive period of remediation. The Step III hearing officer upheld the remediation period.

Grievant completed the prescriptive period and was given a "Satisfactory" evaluation in his January 1992 annual appraisal. During the prescriptive period, grievant was suspended for one day without pay for remarking to the Executive Director of the Human Rights Commission, "Do you want a piece of candy little girl?" Grievant did not grieve this suspension.

Following the Step III hearing officer's decision in February 1992, grievant appealed the five individual grievances to the Board in Docket No. 92-9. On appeal, the Board found the employer's actions in violation of the collective bargaining agreement, ruling that they were taken in response to grievant's grievance activities and were without just cause. The Board ordered the written reprimand, the two suspensions, and the adverse performance evaluation and prescriptive period of remediation rescinded. The Board further ordered the Agency to remove all references to all such disciplinary actions from grievant's employment file. The State has appealed this decision.

C.

In Docket No. 92-26, grievant appealed the AOT decision to terminate him. As discussed below, the AOT terminated the grievant because of the events described above and one further event. Two months after filing the Docket No. 92-9 grievance with the Board, grievant attended an April 30 hearing between AOT and Company A at which the company sought to contest the final audit report. After filing his preliminary audit, grievant had been taken off the contract, and had not seen the final audit. He had previously told his supervisor that he did not want to attend this hearing, and he did not stay long. He was given a copy of the final two-page report, which had been reduced by his supervisor from his original twelve-page submission. He stated, "[A]nyone who reduced my twelve page report to two pages is a fool." He then attempted to question Company A's representatives, its president and its attorney, directly. When the AOT Deputy Secretary,...