Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-406

                                        MARCH TERM, 2015

 George Kingston III                                   }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Washington Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Montpelier Public School System                       }    DOCKET NO. 163-3-13 Wncv

                                                            Trial Judge: Helen M. Toor

                          In the above-entitled cause, the Clerk will enter:

       Plaintiff George Kingston III appeals from the trial court’s order granting summary
judgment to defendant Montpelier Public School System in this wrongful termination case. He
argues that the court erred in concluding that he was required to exhaust his administrative
remedies before filing this lawsuit. We affirm.

        The record indicates the following. Kingston worked as a special education instructional
assistant for defendant in an elementary school. In September 2011, the school principal
observed Kingston use what he considered excessive force with a student. Kingston claimed that
the principal misunderstood what he saw. Kingston was terminated from his position in
September 2011. In March 2013, Kingston filed a complaint alleging that defendant breached its
contract with him by failing to follow the progressive discipline steps set forth in the collective
bargaining agreement (CBA). The CBA provided that defendant could bypass the progressive
steps for just cause if warranted by the severity of the offense. Kinston argued, however, that
there was no just cause to bypass the procedures here. In May 2014, defendant moved for
summary judgment, asserting that Kingston’s failure to grieve and then arbitrate his termination
as required by the CBA precluded him from pursuing his lawsuit.

        The court agreed with defendant and granted its motion. It found the following facts
undisputed. Kingston was employed during the 2011-2012 school year according to the terms of
a Letter of Agreement that he signed on May 30, 2011. The agreement provided that Kingston’s
employment was “further governed by the terms of the Collective Bargaining Agreement
between the District and the Montpelier Educational Support Staff Association.” Under the
CBA, Kingston’s employment was protected from discipline or termination by a just cause
provision. CBA § 22.6. Any such discipline or termination was subject to the CBA’s grievance
procedure. Id.

        The grievance procedure has four steps. First, the employee must file a written grievance
with the principal. The principal then must meet with the employee and the Association’s
representative and then issues a written decision. Id. § 9.2(B). If unsatisfied, the employee must
file the written grievance with the superintendent. The superintendent then meets with the
employee and anyone relevant to the grievance and issues a written decision. Id. § 9.2(C). If
still unsatisfied, the employee may appeal the superintendent’s decision to the school board. Id.
§ 9.2(D). The fourth and final step is arbitration. Id. § 9.2(E). The arbitrator’s decision is “final
and binding and not subject to appeal.” Id. § 9.2(E)(4).

        On September 19, 2011, Kingston was walking hand-in-hand with a student who
commonly exhibited challenging behaviors. The principal was in the hallway and believed that
he saw Kingston yank the child’s arm using excessive force. Later that day, the principal called
Kingston into his office. The Association’s representative was present and took detailed notes.
The special educator was also present. The principal confronted Kingston with what he had
observed and informed Kingston that he was being put on administrative leave pending further
investigation. On September 21, 2011, the principal and Kingston again met. The Association
representative was also present and taking notes. The principal confirmed that, in his view,
Kingston’s conduct was inappropriate and inconsistent with Kingston’s training and the child’s
needs. The principal said that he was recommending the termination of Kingston’s employment
to the superintendent and offered to copy the employee rights section of the CBA for Kingston.

       The next day, the principal sent a letter to Kingston reiterating that he was recommending
termination of his employment and the basis for that decision. A copy of the letter was sent to
the superintendent and to the Association’s representative. The letter stated, “Consider this letter
to be your formal notification of termination.” Kingston responded with a letter to the principal
in which he objected to the principal’s characterization of his conduct. He asked to continue his
employment with defendant.

       On October 4, 2011, Kingston met with the director of special education. The
superintendent was present. The Association’s representative again was present taking detailed
notes. Kingston said that he understood that the superintendent and the director “naturally”
would support the principal’s decision and asked if he would be eligible for future employment
opportunities or a letter of recommendation. By email to the Association’s representative, the
principal, and the director of special education, the superintendent later confirmed that the school
board’s approval was not needed and that Kingston’s termination was effective September 22,
2011, the date that the principal gave formal written notice of Kingston’s termination. That was
the end of the matter until Kingston filed this lawsuit.

        Defendant argued below that Kingston’s remedy was to pursue a grievance and binding
arbitration under the terms of the CBA and that the availability of this process foreclosed his
lawsuit. See Furno v. Pignona, 147 Vt. 538, 541 (1986) (recognizing, as general rule, that
employee subject to collective bargaining agreement, who has grievance within scope of that
agreement, must exhaust remedies available under that agreement before suing his or her
employer). Kingston maintained that he was not obligated to pursue the grievance policy given
defendant’s breaches of its obligations under the CBA. In support of his position, Kingston
relied on Furno, where this Court stated that:

               [A] recognized exception to the exhaustion requirement exists
               when the conduct of the employer amounts to a repudiation of
               those contractual [grievance] procedures. When an employer fails
               or refuses to perform actions required of it under contract and thus
               prevents the employee from complying therewith, the employer is


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               estopped from asserting as a defense the failure of the employee to
               comply with the contract.

147 Vt. at 541 (alteration in original) (quotation omitted).

        The trial court explained that in Furno, the employer terminated an employee but would
not provide written notice of the termination so that the employee could grieve it. The employer
maintained that the employee was not subject to the grievance policy but then argued that he was
foreclosed from a judicial remedy because he failed to grieve. This Court found the written
notice requirement critical to the employee’s rights and concluded that the failure to provide it
amounted to a repudiation of the grievance procedure. Id. at 542-43. In this case, by contrast,
Kingston had received a letter formally advising him of his termination.

        Kingston argued, however, that defendant failed to comply with other requirements of the
CBA. First, Kingston claimed that it was not clear if he had a copy of the CBA. The court found
that the only evidence on this point was the testimony of the Association’s representative, who
said that, as a general matter, all employees received copies of the CBA upon employment.
Moreover, the principal offered to give Kingston a copy of the employee rights section of the
CBA at the second meeting. Kingston questioned whether this really occurred but the court
found that it was recorded clearly in the representative’s notes of that meeting and that Kingston
expressly agreed in his deposition that there was no reason to question the accuracy of those
notes.

        Kingston also claimed that the principal did not notify him of the complaint against him
in writing. CBA § 22.4. The court concluded that this appeared to have resulted from the
circumstances that the principal was both the individual who made the complaint and the sole
eyewitness to the allegedly objectionable behavior. The principal did not receive a complaint
from anyone else. The court concluded that § 22.4 contemplated the receipt of a complaint by a
member of the administration, which would then be provided in writing to the employee so the
employee had a fair chance to rebut it. It determined that Kingston was provided a fair chance to
confront the principal here.

         Kingston also objected that the principal failed to meet with him after Kingston sent his
letter of objection to the principal in violation of CBA § 9.2(B). The court found that § 9.2(B),
the first step of the grievance policy, was an awkward fit under the circumstances. It required an
employee to file a grievance initially with the principal. Kingston claimed that his September
22, 2011 letter to the principal was that grievance filing and that the principal then failed to meet
with him. As the court explained, however, Kingston’s letter was written after two meetings
with the principal and after formal, written notice of his termination. In any event, the court
continued, the claim that Kingston was attempting to grieve his termination was undermined by
Kingston’s deposition testimony. There, Kingston stated that once he received the principal’s
termination letter, he asked for a meeting with the director of special education, hoping that he
could still substitute in the district or obtain a future position as a paraeducator in the middle or
high school. According to Kingston, that was the same request he was trying to make to the
principal of the elementary school in his September 22 letter. The court found it clear that no
one, including Kingston, believed that Kingston was pursuing a grievance. Kingston also
confirmed that he was not pursuing a grievance following his meeting with the special education
director and the superintendent. The court concluded that defendant was not responsible for
Kingston’s decision not to file a grievance.
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        The court considered and rejected several other claimed CBA breaches as well.
Ultimately, the court concluded that, whether considered individually or together, the
circumstances here did not show that defendant “repudiated” the CBA or the grievance process
in any way that prejudiced Kingston or excused him from following the grievance process. It
found no evidence in the record that defendant did anything to impede Kingston’s ability to
pursue a grievance. The court thus found that the exception to the exhaustion rule did not apply,
and it granted defendant’s motion for summary judgment. This appeal followed.

        Kingston asserts that taking the facts in the light most favorable to him, the exception to
the exhaustion requirement should apply. He first maintains that a factual dispute exists as to
whether he had constructive notice of the terms of the CBA. According to Kingston, neither the
fact that all employees generally received copies of the CBA upon employment or the fact that
the principal offered to provide him with a copy of the employee rights section of the CBA
establishes that he had notice of the terms of the CBA. If he did not have notice, Kingston
continues, then he effectively was prevented from following the terms of the CBA. Kingston
also argues that the court erred in stating that defendant was not responsible for the fact that he
had not filed a grievance. While he does not concede that a grievance was never filed, he argues
that he was never properly apprised that a grievance process was necessary for him to vindicate
his rights due to defendant’s repeated failure to follow the terms of the CBA. Kingston asserts
that the court improperly excused defendant’s “repeated violations” of the CBA.

        We review a grant of summary judgment using the same standard as the trial court.
Richart v. Jackson, 171 Vt. 94, 97 (2000). Summary judgment is appropriate when, taking all
allegations made by the nonmoving party as true, there are no genuine issues of material fact and
the movant is entitled to judgment as a matter of law. Id.; V.R.C.P. 56(a). We conclude that
summary judgment was properly granted to defendant here.

        First, we reject Kingston’s notice argument. He is properly charged with knowledge of
the CBA’s terms. The collectively bargained contract was binding on its signatories, here, the
School Board and the Montpelier Educational Support Staff Association. The Association is the
exclusive negotiating representative for instructional assistants like Kingston. As such, the
Association bound Kingston to the terms of the CBA. The letter of agreement Kingston signed
upon his employment expressly stated this as well. See Morton v. Essex Town Sch. Dist., 140
Vt. 345, 349 (1981) (engaging in similar analysis and concluding that teacher was bound by
terms of CBA, and that his failure to use grievance procedure available to him under CBA
precluded him from suing employer for dismissing him without just cause); see also Spears v.
Carhartt, 215 S.W.3d 1, 9 (Ky. 2006) (holding that employee was properly charged with
knowledge of terms of grievance procedure in CBA where her labor union, acting in its capacity
as her collective bargaining agent, agreed to provision, and employee’s assent to provision could
properly be inferred from fact that she continued her employment after provision took effect).
Kingston’s claimed ignorance of the terms of the CBA is no excuse. See Miller v. Local 50, Am.
Fed. of Grain Millers, 468 F. Supp. 193, 201 (D. Neb. 1979) (“[I]gnorance of the terms of the
collective bargaining agreement is not a defense to the exhaustion requirement.”); Smith v. Gen.
Elec. Co., 388 P.2d 550, 552 (Wash. 1964) (holding that plaintiff’s professed ignorance of
requirements of CBA regarding grievances did not excuse plaintiff’s noncompliance with CBA’s
terms; evidence showed that copies of CBA were available to plaintiff and there was no evidence
to show that employer denied plaintiff access to contents of agreement). Even aside from this,
the undisputed evidence establishes that the Association generally provided copies of the CBA to
employees at the commencement of their employment and the principal here expressly offered to
                                                4
copy the CBA for Kingston. Kingston did not provide contrary evidence, such as affidavit or
deposition testimony that he did not receive a copy of the CBA. These facts establish, as a
matter of law, that Kingston had constructive notice of the terms of the CBA.

        We thus turn to Kingston’s remaining arguments. As indicated above, an employee
subject to a collective bargaining agreement, who has a grievance within scope of that
agreement, generally must exhaust the remedies available under that agreement before suing his
or her employer. Furno, 147 Vt. at 541. This exhaustion requirement serves important policy
goals. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 653 (1965) (explaining that employee
must afford union opportunity to act on his or her behalf, and such activity complements union’s
status as exclusive bargaining representative by permitting it to actively participate in the
continuing administration of contract; employer interests also served by limiting choice of
remedies available to aggrieved employees). If individuals were allowed to “completely sidestep
available grievance procedures in favor of a lawsuit,” it would not only cut across these interests,
but it would also “deprive employer and union of the ability to establish a uniform and exclusive
method for orderly settlement of employee grievances.” Id. “If a grievance procedure cannot be
made exclusive,” the Supreme Court explained, “it loses much of its desirability as a method of
settlement. A rule creating such a situation would inevitably exert a disruptive influence upon
both the negotiation and administration of collective bargaining agreements.” Id. (quotation
omitted).

        To be entitled to the limited exception to the exhaustion requirement, a party must show
that the employer’s failure or refusal to perform actions required of it under contract “prevent[ed]
the employee from complying” with the contract himself. Furno, 147 Vt. at 541. Thus, in
Furno, we found this exception applied where the employer refused to provide an employee with
written notice of his termination or the reasons therefor, as required by the contract, and the
employer told the employee that he was not entitled to the grievance procedure. Id. at 541 & n.3.
This obviously prevented the employee from following the grievance procedure.

        This case is not like Furno. There was no violation of the grievance procedure by
defendant that deprived Kingston of the ability to follow the contractual grievance procedure.
There is nothing to show that defendant “repudiated” this procedure. To the contrary, the
undisputed facts show that the principal met with Kingston several times with an Association
representative present. Contrary to Kingston’s assertion, the facts show that Kingston had both
adequate notice of the principal’s concern that Kingston had “yanked” a child’s arm with
excessive force and the opportunity to offer his version of events. The principal orally informed
Kingston of his concern, and then informed him again in writing. Even if the agreement required
the principal to meet with Kingston yet a third time after Kingston wrote a letter expressing his
difference of opinion, assuming arguendo that his letter constituted a grievance of the principal’s
decision, it was only logical for Kingston to proceed to step two of the grievance process and
meet with the superintendent and the special educator. Kingston took no action after this
meeting to further pursue any grievance. He admitted to this in his deposition testimony. Any
departure by defendant from the requirements of the contractual grievance procedure in this case
did not rise to the level of a repudiation of that procedure depriving Kingston of his ability to
pursue it.

       As one court has explained, “the employer’s exhaustion defense and the employee’s
contractual obligation to grieve and arbitrate both contemplate a persistent attempt to fully
exhaust the available dispute-resolution procedures established by the bargaining agreement.”
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Robbins v. George W. Prescott Publ’g Co., 457 F. Supp. 915, 920 (D. Mass. 1978) (citing Vaca
v. Sipes, 386 U.S. 171, 184 (1966)), rev’d, 614 F.2d 3 (1st Cir. 1980). Kingston failed to exhaust
his administrative remedies here, and he cannot blame his failure on defendant. Kingston knew,
or should have known, that he could file a grievance of the superintendent’s decision with the
School Board, and then seek arbitration if he continued to be unsatisfied. He simply chose not to
do so. Kingston seeks “to obtain the benefits of a contract while avoiding the obligations which
it imposed upon [him],” and he “has shown no valid reason why this attempt should succeed.”
Smith, 388 P.2d at 552. Summary judgment was properly granted to defendant.

       Affirmed.

                                               BY THE COURT:

                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




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