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                                            2016 VT 129

                                            No. 2016-123

In re Grievance of John Lepore                                    Supreme Court

                                                                  On Appeal from
                                                                  Labor Relations Board

                                                                  October Term, 2016


Richard W. Park, Acting Chair

William H. Sorrell, Attorney General, and Bridget C. Asay, Solicitor General, Montpelier, for
 Appellant.

Timothy Belcher and Kelly A. Everhart, Vermont State Employees’ Association, Montpelier, for
 Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


       ¶ 1.     SKOGLUND, J. The State appeals from a decision by the Labor Relations Board

that reversed its dismissal of grievant John Lepore and instead suspended him for thirty days

without pay. The Board agreed with the State that grievant committed serious offenses and

demonstrated “poor judgment and dishonesty related to his fitness for state employment” while

serving as a juror in a capital murder trial. It concluded, however, the State could not dismiss

grievant given its delay in imposing discipline and its failure to restrict grievant’s job duties during

the investigation into grievant’s misconduct. The State argues that neither ground undermines its

conclusion that grievant’s serious misconduct warranted dismissal, particularly because grievant

suffered no prejudice from the delay. We agree, and we therefore reverse the Board’s decision.
       ¶ 2.    The Board found as follows. Grievant worked as an environmental biologist for

the Vermont Agency of Transportation (AOT) from 1992 until his dismissal in July 2015. In this

position, grievant evaluated the potential impact of proposed transportation projects, created

reports, and coordinated with others to apply for and prepare environmental permits. Grievant

interacted with numerous other state and federal employees, and it was important that he gain and

keep the trust and respect of his peers.

       ¶ 3.    In 2005, grievant served as a juror in the federal criminal trial of Donald Fell and

engaged in conduct that eventually led to his dismissal from State employment. Fell was charged

with two capital offenses, and prosecutors sought the death penalty. In direct contravention of the

federal court’s repeated instructions to the jury, grievant and his then-girlfriend traveled to Rutland

during trial to view the crime scene and the home and neighborhood where Fell’s mother lived.

Grievant then shared his observations with other jurors during deliberations. The jury found Fell

guilty of all charges, and sentenced him to death on the capital counts.

       ¶ 4.    Five years later, grievant told Fell’s post-conviction attorneys about his actions

during trial. The attorneys drafted a statement for grievant to sign. Grievant made changes and

additions to the statement, and reviewed and initialed each paragraph before signing it. Fell’s

attorneys then sought to vacate Fell’s convictions, alleging juror misconduct. In sworn testimony

before the federal court, grievant denied visiting the crime scene during trial, or telling other jurors

about his observations.

       ¶ 5.    In a July 2014 ruling, the federal court concluded that grievant violated the

fundamental integrity of Fell’s trial by deliberately undertaking an independent investigation. The

court found this definitively established by grievant’s sworn declaration, the testimony of his then-

girlfriend who traveled with him to the crime scene, and the testimony of a later girlfriend with

whom he shared his plans. The court explained that grievant had traveled over two hours to view

the crime scenes in knowing violation of the court’s orders. While there, he viewed extra-record

                                                   2
information that was highly relevant to the aggravating and mitigating factors presented at trial.

After breaching his oath as a juror, he returned to the courtroom where he purposely neglected to

inform the court of his transgressions. And years later, during a post-trial proceeding convened

specifically to assess the fairness of Fell’s trial, grievant openly lied to the court about whether he

had committed these acts. The court concluded that grievant’s “extraordinary and continuous

defiance of the [c]ourt’s directives . . . tainted the integrity of Fell’s trial and violated his

constitutional right to an unbiased jury.” Despite the significant resources that had been invested

in Fell’s trial, grievant’s behavior required the court to vacate Fell’s convictions and schedule a

new trial.

       ¶ 6.    In August 2014, a Vermont newspaper article identified grievant as the juror

responsible for Fell’s conviction being overturned and described him as an AOT employee. The

article recounted the federal court’s findings and conclusions, including its statement about

grievant’s “brazen disobedience, dishonesty, and unwillingness to decide the case based upon the

evidence presented at trial.” AOT officials learned of the article, and during the second week of

August 2014, a Department of Human Resources (DHR) investigator was assigned to look into

grievant’s actions. Additional newspaper reports referring to grievant’s misconduct and his status

as a state employee followed. Other state employees expressed concern to grievant’s supervisor

about grievant’s judgment and disregard of protocol in connection with his service as a juror, and

its potential effect in the workplace. Grievant’s supervisor had similar concerns, although she did

not limit grievant’s job duties in any way.

       ¶ 7.    While working on grievant’s case, the DHR investigator had twenty-six other active

investigations, an unusually high number. His investigation included reviewing the ninety-three-

page federal court decision, gathering documents related to a timesheet issue, contacting the U.S.

Attorney’s Office to obtain a copy of grievant’s testimony before the federal court, reviewing the



                                                  3
transcript of that testimony, and collecting media reports involving the Fell trial and grievant’s role

in it. The investigator issued his report to AOT on March 23, 2015.

       ¶ 8.    A month later, on April 30, 2015, Richard Tetreault, AOT’s Director of Highways,

informed grievant in writing that AOT was contemplating imposing serious disciplinary action

against him including dismissal. The disciplinary charges were based almost exclusively on

grievant’s conduct in connection with the Fell trial.* Grievant did not realize he was under

investigation for alleged misconduct until he received the letter. Grievant had an opportunity to

respond to the charges on June 10, 2015. He did not appear at the meeting, but a union

representative attended on his behalf.

       ¶ 9.    On July 22, 2015, Tetreault terminated grievant’s employment based on his finding

that grievant committed misconduct and gross misconduct. In reaching his decision, Tetreault

evaluated the Colleran factors. See In re Jewett, 2009 VT 67, ¶ 23, 186 Vt. 160, 978 A.2d 470

(identifying and endorsing use of factors articulated in In re Colleran, 6 V.L.R.B. 235, 268-69

(1983), in considering appropriate disciplinary action).        Tetreault concluded that grievant’s

offenses of dishonesty and unethical behavior were unacceptable and intolerable, and constituted

serious misconduct. He expressed concern about grievant’s credibility in interactions with other

state and federal employees. Tetreault considered the fact that grievant had no record of discipline

and had been viewed as a satisfactory employee, although he noted that grievant had a history of

needing to correct his behavior with coworkers. He determined that grievant’s misconduct

undermined his supervisors’ and coworkers’ trust in him, and that grievant’s credibility could not

be restored given the severity of his actions and dishonesty. As to the remaining factors, Tetreault

found that: the penalty of dismissal was consistent with that imposed on other employees who had


       *
          The letter also included a charge that grievant had falsified a timesheet by claiming sick
time while he was testifying in federal court. The Board concluded that the State did not establish
this charge by a preponderance of the evidence, and the State does not challenge this ruling on
appeal.
                                                  4
committed such serious dishonesty; grievant’s offenses had been reported in the media and were

well-known across the AOT and other state and federal agencies that interacted with AOT;

grievant’s behavior exposed the State to serious potential liability; AOT’s reputation could be

severely undermined if it did not dismiss grievant; grievant had fair notice that he should not

engage in dishonest and unethical behavior, and he did not demonstrate good potential for

rehabilitation given his pattern of behavior.        Tetreault found no mitigating circumstances

diminishing the seriousness of grievant’s misconduct, and he concluded that dismissal was the

only acceptable action.

       ¶ 10.   The Vermont State Employees’ Association (VSEA) filed a grievance with the

Board, arguing in relevant part that the State violated the collective bargaining agreement (CBA)

by failing to impose discipline within a reasonable time and dismissing grievant without just cause.

       ¶ 11.   Following a hearing, the Board concluded that the State abused its discretion in

dismissing grievant. At the outset, it agreed with grievant that the State did not “act promptly to

impose discipline . . . within a reasonable time of the offense” as required by the CBA. It found

that although AOT became aware of the bulk of grievant’s alleged misconduct from an August

2014 newspaper article, it took seven months to complete an investigative report, and several more

months elapsed before grievant was dismissed.          The Board rejected the argument that the

investigator’s heavy workload justified the State’s violation of the prompt-discipline requirement.

It also rejected the State’s assertion that it should not find a violation of this provision because

grievant failed to show that he was prejudiced by the delay. The Board found that grievant suffered

some inherent prejudice from the delay because he was entitled to rely on AOT’s inaction, and it

was unfair and prejudicial for an employee to have to defend against a stale charge of misconduct.

The Board also found an “obvious prejudice” to the collective bargaining relationship between the

State and VSEA due to the State’s flagrant violation of this procedural due process provision.



                                                 5
       ¶ 12.     Turning to the merits, the Board evaluated whether the State had just cause to

dismiss grievant. It found that the State had established all of its charges against grievant, with

the exception of a timesheet charge. It concluded that a nexus existed between grievant’s off-duty

conduct and his employment, linking grievant’s disregard for the integrity of legal processes and

his disrespect and dishonesty toward legal authorities with his job duties contributing to the

enforcement of transportation and environmental laws and regulations. The Board also found that

grievant’s misconduct and dishonesty in a high profile criminal trial, which received media

attention in which grievant was identified as a state employee, brought discredit to the State in

violation of State personnel policies and procedures. The Board considered grievant’s misconduct

to be serious.

       ¶ 13.     Nonetheless, in reviewing the Colleran factors, a majority of the Board questioned

whether AOT truly considered grievant’s actions to be serious misconduct given its delay in

imposing discipline. For the same reason, the majority questioned the sincerity of AOT’s findings

as to the notoriety of grievant’s misconduct and its impact on AOT’s reputation, as well as its

effect on grievant’s credibility and on his ability to perform his duties. Had AOT truly distrusted

grievant and viewed his conduct as egregious, the majority reasoned, it would have suspended him

during the investigation or restricted his duties in some fashion. Because he stayed on the job

during the lengthy investigation, the majority found that AOT must have believed that grievant

had some potential for rehabilitation and that his offenses had not completely compromised

grievant’s ability to perform his job. Based on its analysis, the majority concluded that the State

abused its discretion in dismissing grievant, and it determined that a thirty-day suspension without

pay was an appropriate sanction.

       ¶ 14.     A dissenting Board member concluded that the State had just cause to dismiss

grievant. While not condoning the State’s significant violation of the CBA, the dissenting member

argued that this violation did not override in importance the misconduct underlying grievant’s

                                                 6
dismissal, particularly given that grievant demonstrated no prejudice as a result of the violation.

The State appealed from the Board’s decision.

       ¶ 15.   The State argues that it acted within its discretion in analyzing the Colleran factors

and concluding that dismissal was appropriate. While the State concedes for purposes of appeal

that the delay in imposing discipline violated the CBA, it contends that grievant suffered no

prejudice from the delay, and that this delay did not warrant reducing the appropriate sanction. In

a similar vein, the State argues that its decision not to suspend grievant during the investigation

does not undermine its disciplinary decision. The State maintains that the Board overstepped its

role in reversing grievant’s dismissal.

       ¶ 16.   We agree. With respect to the merits of this dismissal case, “[i]n a grievance

proceeding, the Board’s role is limited to determining whether the State met its burden of

demonstrating by a preponderance of the evidence that there was just cause for dismissal.” In re

Jewett, 2009 VT 67, ¶ 23. “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 . . . dismissal.” In re Goddard, 142 Vt. 437, 443, 457 A.2d 637, 641 (1983) (quotation omitted).

The “ultimate criterion of just cause” is reasonableness. Id.

       ¶ 17.   In reviewing the State’s disciplinary decision, the Board may not “substitute its own

judgment for that of the State.” In re Jewett, 2009 VT 67, ¶ 24. “In other words, if the State

establishes that management responsibly balanced the relevant factors in a particular case and

struck a balance within tolerable limits of reasonableness, its penalty decision will be upheld.” Id.

(quotation and alterations omitted). The Board must defer to the State’s decision because

controlling and directing the work force “is an inherent management function.” Id. (quotation

omitted). Thus, as long as the exercise of its management function is “reasonable,” the State’s

decision must be sustained. Id. (quotation omitted).



                                                 7
        ¶ 18.   This Court affords deference to the Board’s decision on review, but “we also must

ensure that the Board has not overstepped its authority by substituting its own judgment for that

of the State.” Id. ¶ 25. While we will uphold the Board’s judgment “absent an abuse of discretion,”

that “does not mean . . . that any remedy [for a contract violation] is acceptable without regard to

whether it is reasonable or tied to actual harm.” In re Rosenberger, 2009 VT 18, ¶ 20, 185 Vt. 343,

970 A.2d 1257 (citation omitted). We conclude that the Board overstepped its authority here in

questioning the State’s rationale, and that its remedy for the prompt-discipline violation was not

reasonable or tied to actual harm.

        ¶ 19.   First, as the Board found, grievant committed serious misconduct that related to his

fitness as a state employee. He defied a federal court’s instructions in a capital murder case,

conducted an improper outside investigation, informed fellow jurors about his discoveries, and

then lied about his actions under oath. He exhibited extremely poor judgment and brazen

dishonesty. He refused to admit wrongdoing either to the federal court or to AOT officials. His

misconduct and his status as a state employee were well-known throughout AOT and other state

and federal agencies that interacted with AOT. Grievant lost the trust of his coworkers and peers,

and his actions brought discredit to the State. The facts, as found by both the State and the Board,

support the State’s conclusion that based on grievant’s serious misconduct, his credibility could

not be restored and that the State’s reputation would be severely undermined absent his dismissal.

It was objectively reasonable for the State to conclude on these facts that it had just cause to dismiss

grievant.

        ¶ 20.   Despite the Board’s findings, which largely mirrored those made by the State, the

Board questioned if the State sincerely believed its own analysis given its delay in imposing

discipline and the fact that the State allowed grievant to continue working during its investigation.

The Board overstepped its authority in second-guessing the State’s rationale. Neither the delay

nor the decision not to suspend grievant undermine the objective reasonableness of the State’s

                                                   8
disciplinary decision. We have stated in a slightly different context that “[i]n reviewing a

disciplinary action, the Board does not look beyond the reasons given by the employer in the

disciplinary letter for the action taken.” In re Hulburt, 2003 VT 2, ¶ 29, 175 Vt. 40, 820 A.2d 186.

Just as the Board cannot create its own rationale for disciplining an employee, so too must it refrain

from questioning the State’s rationale where the State’s evaluation of the Colleran factors is

objectively reasonable and supported by the record.

       ¶ 21.   In any event, even if the subjective beliefs of grievant’s superior were relevant, the

evidence does not support the Board’s inferences as to the State’s “true” beliefs about grievant’s

misconduct. Mr. Tetreault testified that he believed that grievant was innocent until proven guilty,

and that it would be inappropriate for him to discipline grievant based solely on information

reported in a newspaper article. He stated that, before acting, he needed to perform his “due

diligence” and obtain an investigative report. Thus, after learning of the allegations against

grievant in the newspaper, he considered it his role to request an investigation and to await a

completed investigative report.

       ¶ 22.   The DHR investigator had twenty-six other active investigations, and it took him

seven months to complete the report. There is nothing in the record that links this investigative

delay with the State’s level of concern about grievant. Indeed, Mr. Tetreault testified that it was

only after receiving the report and using it to work through the Colleran factors that he could

ascertain for himself the level of risk that grievant posed. Mr. Tetreault testified in detail how he

reached his conclusions as to each factor. He emphasized the importance of credibility, honesty,

and accountability in his organization’s ability to do its work. He expressed his concern for AOT’s

reputation if grievant remained employed, and explained how grievant’s supervisors and

coworkers had questioned grievant’s credibility. Mr. Tetreualt also described why he did not think

that grievant could be rehabilitated, citing the seriousness of grievant’s misconduct and his failure

to acknowledge any wrongdoing.

                                                  9
       ¶ 23.   In sum, the record evidence provided reasonable grounds for AOT’s decision not

to suspend grievant during the investigation, and reasonable grounds—wholly divorced from

AOT’s beliefs about the seriousness of grievant’s misconduct—why there was a delay in imposing

discipline. The Board erred in speculating, contrary to the evidence, that AOT did not actually

believe its own rationale for dismissing grievant. As the State points out, moreover, the Board’s

approach runs contrary to sound public policy. It would essentially require an employer to

discipline an employee immediately, even based on incomplete information, in order for it to prove

that it had serious concerns about an employee’s conduct. This approach would encourage a rush

to judgment, with negative repercussions for employees, especially in cases where dismissal

results from the conduct.

       ¶ 24.   The Board had a second reason for its decision—a violation of the prompt discipline

clause of the contract—but it also erred in concluding that the State should be precluded from

dismissing grievant as a remedy for this violation. In determining the appropriate remedy for a

contract violation, “the Board has consistently examined whether procedural contract violations

have prejudiced the aggrieved employee.” Rosenberger, 2009 VT 18, ¶ 29. In this case, the Board

found “inherent prejudice” to grievant based on the delay, and “obvious prejudice” to the collective

bargaining relationship. Neither ground is supported by the record, and neither supports the

remedy imposed by the Board.

       ¶ 25.   The evidence does not establish that grievant relied on this delay to his detriment.

Grievant continued to work and receive his salary during the investigation, and he did not suffer

any monetary loss from the delay in imposing discipline. Although the delay was lengthy, grievant

did not allege that it had any effect on the preservation of facts or testimony, or any other adverse

effect on his ability to defend against the State’s charges. No such effect is discernable on this

record. Given this, the Board’s concern about the unfairness of having to defend against a stale

charge of misconduct is unfounded here. As to the “obvious prejudice” to the collective bargaining

                                                 10
relationship, the Board failed to explain exactly how the collective bargaining relationship was

prejudiced, or why, absent any showing of actual prejudice to grievant, it was meaningful here in

ascertaining an appropriate remedy. As in Rosenberger, there was no evidence here that the State

“intentionally violated” a procedural due process provision in the CBA “so as to place itself in a

better position with respect to its investigation of grievant,” nor was there any “evidence of a recent

pattern of similar violations, which might suggest such an intention.” Id. ¶ 30.

       ¶ 26.   In Rosenberger, we concluded that “[t]he principles of protecting individual

employees’ rights and deterring employers from engaging in unreasonable discipline are

adequately addressed by assuring that employers do not exploit contract violations to obtain unfair

advantages over employees.” Id. ¶ 31. Like Rosenberger, there is no evidence here that the State

either sought to, or did, obtain any unfair advantage over grievant through the delay in disciplining

him. There is no showing of prejudice. In the absence of any actual harm, the Board acted

unreasonably in seeking to remedy this procedural violation by precluding the State from

dismissing grievant.     As reflected above, the touchstone of the Board’s review is the

“reasonableness” of the State’s decision, and the facts here objectively demonstrate that this

standard is satisfied. In light of grievant’s extremely serious misconduct and the deference that

the Board must afford to the State in exercising its management function, the State’s disciplinary

decision must be upheld.

       The Board’s decision is reversed, and the State’s dismissal of grievant is reinstated.


                                                 FOR THE COURT:



                                                 Associate Justice




                                                  11
