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


                                    ENTRY ORDER
                           SUPREME COURT DOCKET NO. 2010-473

                                          JULY TERM, 2011

 In re Grievance of Lawrence Rosenberger               }    APPEALED FROM:
                                                       }
                                                       }    Labor Relations Board
                                                       }
                                                       }    DOCKET NO. 05-034

                          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 to
provide 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.




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         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 admitted to Lutz that the call-out never occurred,
but only after Lutz had questioned him several times about the incident and, according to Lutz,
received evasive and non-responsive answers. Moreover, grievant admitted that he submitted a
false time sheet to his supervisor, claiming compensation for a call-out that never occurred.
Accordingly, we find no error in the Board’s finding that grievant misled his supervisor.

        Grievant further asserts that the evidence and findings fail to support the Board’s
conclusion that grievant was not credible and that he had fabricated the call-out. The Board
relied on numerous inconsistencies and implausible features in grievant’s story, including his
inability to identify the man who came to his door that evening, his changing story on the
location of the deer from Essex to Burlington, the absence of any corroborating evidence of a
dead deer in Burlington that night, his claim that he simply forgot to return for the deer after
investigating fishing licenses, inconsistencies in his story as to whether he saw any fisherman
when he supposedly went to check on their licenses, and the overall absence of any persuasive
evidence corroborating his claimed actions on the evening in question. As noted, the Board is
the sole determinant of a witness’s credibility, and we will affirm its findings if they are
reasonably supported by credible evidence. In re VSEA, 162 Vt. at 280. This standard was
amply met in this case.

        Grievant’s related claim that the Board improperly shifted the burden of proof on this
point is equally unpersuasive. In support, grievant cites the Board’s finding that claimant
offered no “corroborating” evidence to support his version of the events. Merely citing points in
grievant’s story that were unsupported or inconsistent does not, however, evince an improper
shifting of the burden of proof. See In re Chase, 2009 VT 94, ¶ 9, 186 Vt. 355 (rejecting claim
that Medical Board has improperly shifted burden of proof simply by noting absence of evidence
to support respondent’s claims).




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        Grievant further contends that the Board erred in failing to require clear and convincing
evidence that he fabricated the call-out rather than proof by a preponderance of the evidence.
We have repeatedly held, however, that preponderance of the evidence “is the usual standard of
proof in state administrative adjudications.” In re Smith, 169 Vt. 162, 168 (1999); accord In re
Brown, 2004 VT 109, ¶ 12, 177 Vt. 365 (stating that burden of proof to establish just cause for
dismissal of state employee “must be met by a preponderance of the evidence”); In re VSEA.,
162 Vt. at 280 (holding that Labor Relations Board “must employ a ‘preponderance of the
evidence’ standard”). Grievant relies on two cases in which we affirmed agency decisions
applying a clear and convincing evidence standard. See Harrington v. Dep’t of Emp’t &
Training, 152 Vt. 446 (1989); Garber v. Dep’t of Soc. Welfare, 139 Vt. 487 (1981). In neither
case, however, did we endorse or require the higher standard. Indeed, in Harrington we observed
that the agency’s action was a clear “deviation from the preponderance of the evidence standard
normally applied in administrative proceedings,” noting that the United States Supreme Court
had upheld the preponderance standard even in “a securities fraud disciplinary case . . . despite
the fact the proceeding could result in an order permanently barring the licensee from practicing
his profession.” 152 Vt. at 448-49 (citing Steadman v. SEC, 450 U.S. 91, 102 (1981)). Thus,
neither decision, nor any other authority cited by grievant, supports the requirement of a higher
standard in cases involving allegations of employee fraud. We find no error.

        Grievant next asserts that the Board overlooked substantial evidence of disparate
treatment and discrimination. Concerning the claim of differential treatment, grievant testified
that his supervisors had responded to problems with another warden’s call-outs by striking his
time sheets rather than imposing discipline. The evidence showed, however, that the supervisors
struck the call-outs for procedural violations such as the failure to include the complainant’s
name and telephone number. They denied having ever struck a time sheet where there was
evidence of a false report, as in grievant’s case, and there was no evidence that this had ever
occurred. As for the claim of discrimination, grievant testified that his service as a member of
VSEA and as an officer of the Wardens’ Association had brought him into conflict with his
supervisors in the past, and that he had been actively critical of his supervisors for failure to
address time-sheet abuses by the other wardens. The Board concluded, however, that there was
no evidence from which to infer any connection between grievant’s protected activities and the
misconduct charges, and the record supports the finding. Cf. In re Rosenberg, 2004 VT 42, ¶ 11,
176 Vt. 641 (mem.) (holding that employer’s unlawful motive may be inferred from contextual
circumstances where direct evidence is lacking, such as when evidence shows “climate of
coercion” or temporal proximity between protected activity and discipline). The Board found no
contextual evidence to suggest that the discipline was suspiciously timed, or grew out of a
coercive climate, or was related to grievant’s criticisms of his supervisors in the past.
Accordingly, we find no basis to disturb the ruling.

        Finally, grievant contends that the Board erred in rejecting his claim that his dismissal
constituted an improper increase in punishment. Grievant argued that his supervisor’s initial
decision to strike the call-out and merely warn him that in the future all call-outs would be “strict
SOP” was an exercise of disciplinary action; thus, the later decision to dismiss him for the false
call-out was an improper increase in punishment for the same offense. The Board noted that the
collective bargaining agreement recognizes four forms of punishment—oral reprimand, written
reprimand, suspension, and dismissal—and found that the supervisor’s response was not
disciplinary action triggering protection against further discipline.


                                                 4
        The Board’s decision was sound. Although grievant suggests that the supervisor’s
statement was in the nature of an “oral reprimand,” none of the surrounding circumstances
support a finding that this was the parties’ intent or understanding. On the contrary, the
supervisor’s actions were in the nature of preliminary “corrective action” rather than formal
discipline. This conclusion is supported by the absence of any notice to grievant of his right to
representation at the meeting with his supervisor, which would have been required under the
collective bargaining agreement if discipline had been contemplated. See In re VSEA., 2005 VT
129, ¶ 12, 179 Vt. 228 (holding that it was unreasonable for employee to believe that disciplinary
action was contemplated in light of rule requiring that State notify employee of right to
representation or forego discipline); see also VSEA v. State, 2009 VT 21, ¶ 11, 185 Vt. 363
(noting use of “progressive corrective action” under State employees collective bargaining
agreement prior to discipline). Accordingly, we find no error, and no basis to disturb the
judgment.

  Affirmed.

                                            BY THE COURT:


                                            _______________________________________
                                            John A. Dooley, Associate Justice

                                            _______________________________________
                                            Denise R. Johnson, Associate Justice

                                            _______________________________________
                                            Marilyn S. Skoglund, Associate Justice




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