2009 VT 67


In re Jewett (2008-138)
 
2009 VT 67
 
[Filed 19-Jun-2009]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections may be made before
this opinion goes to press.
 

 
2009 VT 67

 

No. 2008-138

 

In re Grievance of Dennis Jewett


Supreme Court


 


 


 


On Appeal from


   


Labor Relations Board


 


 


 


October Term, 2008


 


 


 


 


Edward
  R. Zuccaro, Chair
 
William H. Sorrell, Attorney
  General, and Julio A. Thompson, Assistant Attorney General,
  Montpelier, for Appellant.


 
Norman R. Blais, Burlington, for Appellee. 
 

 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess,
JJ.
 
 
¶ 1.            
JOHNSON, J.   The State of Vermont, on behalf of the Department
of Corrections (DOC), appeals a Labor Relations Board decision that ordered DOC
to reinstate grievant, Dennis Jewett, whom DOC had dismissed for serious
misconduct.  The Board agreed that grievant committed misconduct for failing to
intervene when an inmate repeatedly cut himself with a razor blade fragment,
but found that this conduct did not warrant dismissal.  The State argues that the
Board exceeded its authority by substituting its own judgment for that of DOC. 
We agree.  We conclude that DOC’s decision to dismiss grievant was reasonable
and, therefore, we vacate the Board’s decision and reinstate grievant’s
dismissal. 
¶ 2.            
Grievant was dismissed from his position as a correctional officer at
the Chittenden Regional Correctional Facility (CRCF) for failing to intervene
when an inmate under his supervision produced a razor blade fragment and
repeatedly cut his wrist.  Grievant filed a grievance with the Board.  
¶ 3.            
The following facts were either found by the Board or are not disputed. 
Grievant began working at CRCF in March 1998 as a temporary employee.  He
completed correctional officer training at the Vermont Correctional Academy in April 1998.  In August 1998, grievant became a permanent Correctional Officer I (CO
I) and was promoted to Correctional Officer II (CO II) in March 2001.  Prior to
his dismissal, grievant had not been disciplined at work.  He received two
overall satisfactory evaluations, and one excellent evaluation.  
¶ 4.            
At the Academy, grievant received training in conflict resolution,
physical intervention and suicide prevention.  The suicide prevention training
materials used at the Academy provide that “[a]ctions should be taken as soon
as it is possible to stop [people attempting suicide] from harming themselves,
but safety of staff and bystander[s] must also be consider[ed].”  During his
employment, grievant also received Advanced Communications Techniques (ACT) training,
which instructs officers on how to respond to inmate behavior with active
listening and communications skills.  ACT training teaches officers to verbally
deescalate an agitated offender and avoid physical intervention unless inmates
are harming others or themselves.  DOC directives explain that “[w]hen an
offender’s behavior represents a danger to people or the safe operation of the
facility, staff have [sic] a responsibility to respond. . . .  Dangerous
behavior includes . . . self-mutilation.”  In addition, CFRC’s directives state
that “Correctional Staff has the responsibility to protect inmates from harming
themselves.”  DOC considers ACT and suicide prevention to be core competencies
of correctional officers.  
¶ 5.            
On December 19, 2005, grievant was working in the booking area at CRCF
as a transport officer, preparing to transport several inmates to a different
facility.  Also in the booking area were CO I Edgerly, who had recently
completed his probationary employment period, and CO II Giddings.  One of the
inmates scheduled for transport, K.D., entered the booking area and announced
he was not going to be transported anywhere.  He then displayed two razor blade
fragments, one in his hand and one in his mouth.  At the time, K.D. was not
restrained in any manner.  He sat on a wooden pallet in the booking area.  The
shift supervisor, Michael Miller, was summoned to the scene.  Miller began
speaking with K.D., explaining that he would have to surrender the razor
blades, submit to a strip search, and be restrained and transported.  After
fifteen minutes of speaking with K.D., Miller instructed Edgerly to videotape
the incident.  Before the videotaping began, K.D. made a single cut with a
razor above his left elbow that began to bleed visibly, but not profusely.  A
mental health worker arrived at the scene, and joined Miller in conversing with
K.D.  After forty-five minutes of discussion, K.D. agreed to comply, and
dropped the blade.  Grievant was present during the entire discussion.  
¶ 6.            
K.D. submitted to a strip search.  Grievant checked K.D.’s clothes, and
Giddings searched K.D.’s person, including his mouth.  Grievant then put K.D.
in a blue plastic chair near the booking desk and placed K.D. in leg irons,
handcuffs and a waist chain.  The leg irons significantly reduced K.D.’s
ability to move his legs and kick.  The handcuffs resulted in K.D. being able
to move his hands only six to eight inches away from his waist.  A nurse arrived,
cleaned K.D.’s cut, and determined that it would not require sutures.  Miller
and the mental health worker left the booking room to discuss whether K.D.
could still be transported that evening.  According to the Board, “Miller did
not announce that he was leaving the booking room, and did not tell Grievant he
was now in charge.”  On the videotape of the incident, Miller can be heard
saying, “I’ll be back.”  Miller had the only canister of pepper spray and left
with it.  The staff remaining in the room was the nurse, grievant, Giddings and
Edgerly, who continued to operate the video camera.  Grievant was the most
senior officer in the room and agreed at the hearing that after Miller left he
was in charge of the situation.  
¶ 7.            
Shortly after Miller left the room, K.D. got up from a blue chair and
moved over to the wooden pallet.  Neither grievant nor Giddings attempted to
prevent K.D. from moving.  K.D. said, “I know you guys would try to trick me if
I’m sitting right there.”  Grievant responded, “Who’s going to trick you?”  K.D.
sat down on the pallet, bent his head over and spat out a razor blade into one
of his hands.  K.D. then stood up and commented that Miller was not as smart as
he thought he was, stating: “You think I’d give up my only weapon?  Ha.  I’m
not giving up my only f-----g weapon, dude.”  
¶ 8.            
Grievant did nothing to respond.  Grievant did not radio for assistance,
did not ask K.D. to drop the razor blade, and did not attempt to intervene.  Using
his right hand, K.D. began slicing his left wrist several times over the next thirty-five
to forty-five seconds.  An offender in a booking area holding cell called out
to grievant, “What are you going to do?”  Grievant replied, “Nothing, not if he’s
got another razor,” and made a nervous laughing sound.  The nurse said, “This
is so against everything.”  Grievant took a couple of steps forward, but did
not get closer than ten feet to K.D. and did not enlist Giddings to assist him
in getting the razor blade from K.D.
¶ 9.            
K.D. continued cutting and on his eleventh cut opened a vein that began
to bleed profusely.  K.D. yelled, “Yeah, that’s the one I was looking for the
whole f-----g time,” and “pump baby pump.”  K.D. then dropped the razor blade
to the floor.  At this point, the video shows grievant lift a radio to his
mouth.  Grievant claims he radioed Miller to return to the scene, but there is
no audio of him speaking and Miller did not receive any broadcast.  Giddings,
who was standing by the booking desk, contacted the control room and summoned
Miller to the scene.  Grievant walked to the booking desk to retrieve gauze. 
He then approached K.D. and pressed the gauze to K.D.’s wound.  This took place
approximately 100 seconds after K.D. began cutting himself.  
¶ 10.        
Miller arrived at the scene and using verbal intervention persuaded K.D.
to return to the blue chair.  Once seated, the nurse examined K.D.’s wounds and
determined that he required a trip to the hospital.  Paramedics transported him
to the hospital where he received treatment.  Upon his return to CRCF, K.D. was
again prepared for transportation.  Two officers loaded K.D. into a transport
van that already contained other offenders.  At the time, K.D. was restrained
with leg irons, handcuffs, a belly chain and a seatbelt.  In the van, K.D.
produced another razor blade.  K.D. was instructed to drop the blade, and when
he did not comply with the command, Miller authorized use of pepper spray on
K.D.  After being sprayed, K.D. dropped the blade.  K.D. was then transported
without further incident.
¶ 11.        
On the following day, a superintendent viewed video footage from both
the hand-held video camera and a fixed security camera in the booking area.  Based
on the incident, the superintendent placed grievant, Giddings and Edgerly on
temporary relief from duty with pay, and requested an investigation of their
conduct.  
¶ 12.        
Peter Canales, Investigations Unit Chief at the Agency of Human Services,
conducted the investigation.  On February 3, 2006, Canales interviewed
grievant.  During the interview, grievant claimed that after K.D. produced the
razor blade, he was talking with K.D.  In response to Canales’ direct question
of whether grievant had instructed K.D. to drop the razor blade, grievant unequivocally
responded that he had.  Because the video did not support these claims, Canales
played the video for grievant and asked grievant to indicate where in the
sequence of events he had spoken with K.D.  Grievant was unable to pinpoint any
particular moment when he had spoken, and agreed that no statements were
audible on the video, but continued to insist that he had spoken to K.D. 
¶ 13.        
Based on the investigation, the superintendent sent grievant a letter notifying
grievant that he was contemplating dismissal for violations of DOC work rules
and policies.[1] 
The letter charged grievant with committing gross neglect of duty, and engaging
in conduct that jeopardized the life and health of an offender.  This charge
was based on DOC’s assertion that grievant did nothing to prevent K.D. from
leaving the chair in the booking room and took no verbal or physical action to
stop K.D. from harming himself until after an inexcusable delay.  The letter
explained that one of the most important duties of a correctional officer is to
“protect the health and safety of offenders,” and that grievant’s failure to
intervene exhibited “utter indifference for the health and safety of offender
K.D.”  DOC also charged grievant with giving dishonest responses during the
investigation.  This charge was based on grievant’s statements to Canales that
he had spoken with K.D. during the incident and had instructed K.D. to drop the
blade, neither of which was supported by the video.  
¶ 14.        
Grievant and his attorney attended a hearing.  The attorney provided a
written response on grievant’s behalf.  The letter asserted that verbal
intervention with K.D. was futile because Miller’s previous interaction with
K.D. demonstrated that K.D. was not amenable to reasoning.  Grievant
acknowledged no deficiency in his conduct, and insisted on the propriety of his
response, claiming he had behaved properly given the dangerousness of the
situation.  On July 11, 2006, superintendent sent grievant a letter notifying
him of his dismissal.  
¶ 15.        
Grievant appealed his dismissal to the Board, claiming that there was no
just cause to warrant discipline and, in the alternative, that there was no
reason to bypass progressive discipline.  Following a hearing, the Board issued
a written order.  The Board found grievant committed serious misconduct, but did
not find that all of DOC’s allegations were supported by the evidence.  The
Board found that grievant did not commit misconduct by failing to prevent K.D.
from leaving the blue chair and going to the wooden pallet.  The Board did
find, however, that once K.D. moved, grievant “should have engaged in more
verbal interaction with [K.D.] to attempt to have him return to the chair in
the booking room.”  The Board also found that grievant’s failure to physically prevent
K.D. from harming himself was not misconduct because “[a]ny physical actions
taken by Grievant during this period would have endangered his safety and
perhaps the safety of others.”  But, the Board found that “Grievant should have
asserted himself more vigorously by verbally interacting with [K.D.] to attempt
to get him to stop harming himself.”  In sum, the Board found that grievant
committed serious misconduct by (1) failing to engage K.D. in verbal
interaction to attempt to persuade him to return to the blue chair, and (2)
failing to verbally interact with K.D. to attempt to get him to stop harming
himself.  The Board did not find that grievant’s misconduct exhibited an utter
indifference to the health and safety of K.D. because grievant’s “unwarranted
passivity” was “caused by indecision and caution in a volatile situation,
rather than indifference for [K.D.]’s health and safety.” 
¶ 16.        
The Board also did not find any basis to support DOC’s claims that
grievant lied to the investigator.  The Board explained that while several of
grievant’s statements regarding his actions during the incident were not
supported by the videotape, “these comments made by Grievant resulted from
faulty memory on Grievant’s part arising from the confusion and commotion of a
fast-moving incident along with a 46 day delay between the incident and the
interview.”  
¶ 17.        
Even though DOC proved only some of the charges against grievant, the
Board found that the proven conduct was “serious.”  The Board concluded that
grievant acted contrary to his responsibility to ensure the safekeeping of
inmates by “failing to engage in more verbal interaction with [K.D.]”  The
Board further found that grievant’s conduct was sufficient to bypass
progressive discipline and that grievant had fair notice that his offenses
could result in dismissal.  
¶ 18.        
Nonetheless, the Board concluded: “In weighing all of the relevant
factors and examining all the circumstances, we ultimately conclude that just
cause did not exist for Grievant’s dismissal.”  The Board concluded that DOC
did not act reasonably in concluding that grievant was not a good candidate for
rehabilitation and in imposing dismissal.  The Board based its decision on the
following factors: grievant’s conduct was not as severe as DOC charged;
grievant had a good work record; DOC imposed a comparatively harsh penalty on
grievant compared to DOC’s choice not to discipline supervisor Miller; and DOC lacked
effective policies to deal with razor blades.  Thus, the Board imposed a
fifteen-day suspension, and ordered grievant’s reinstatement with back pay.  
¶ 19.        
DOC filed a motion requesting that the Board reconsider its ruling on
the appropriate level of discipline.  In its motion, DOC argued that there was no
evidence to demonstrate that Miller’s conduct was subject to discipline or that
lack of a razor policy contributed to grievant’s misconduct.  DOC also asked
the Board to reconsider its decision that grievant was a good candidate for
rehabilitation in light of grievant’s failure to accept responsibility for his
misconduct.  The Board denied the motion, and DOC filed a notice of appeal.
¶ 20.        
On appeal, DOC claims that the Board exceeded its authority by
substituting its own judgment for that of DOC.  DOC argues that the Board’s
assessment of the reasonableness of DOC’s discipline was flawed because: (1) the
Board based its analysis upon irrelevant and factually unsupported factors,
namely, DOC’s decision not to discipline supervisor Miller and DOC’s razor
blade policy; and (2) the Board erred in concluding that grievant was a good
candidate for rehabilitation given that grievant had continually refused to
accept responsibility for his misconduct.  
I.
¶ 21.        
Because this case involves two layers of review, it is particularly
critical to outline the role that the Board plays in overseeing the State’s
disciplinary decisions and, in turn, our role in analyzing the Board’s
assessment of the discipline.  Thus, we begin by examining the relevant
standards of review.  
¶ 22.        
Pursuant to article 14, § 1 of the collective bargaining agreement
governing grievant’s employment with the State, a state employee may be
disciplined only when just cause exists.[2] 
The State as employer must demonstrate just cause by a preponderance of the
evidence.  In re Brown, 2004 VT 109, ¶ 12, 177 Vt. 365, 865 A.2d 402.  Ultimately,
just cause is a question of reasonableness and to demonstrate such the employer
must show: first, that the conduct was sufficient to warrant dismissal, and
second, that the employee had fair notice that such conduct could result in
dismissal.  In re Brooks, 135 Vt. 563, 568, 382 A.2d 204, 207-08
(1977).  In this case, the parties agree that grievant had notice, therefore
the case turns on whether grievant’s acts warranted dismissal.  We have
described just cause for dismissal as “some substantial shortcoming detrimental
to the employer’s interests, which the law and a sound public opinion recognize
as a good cause for his dismissal.”  In re Brooks, 135 Vt. at 568, 382
A.2d at 207 (citations omitted).  
¶ 23.        
In 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.  See id. at 570, 382
A.2d at 209.  As mentioned, this determination is a question of
reasonableness.  In assessing the reasonableness of an employer’s decision, we
have endorsed the Board’s use of the factors articulated in In re Colleran,
6 V.L.R.B. 235, 268-69 (1983), available at http://www.state.vt.us/vlrb/NDecisions1983.htm. 
See In re Brown, 2004 VT 109, ¶ 12 (upholding use of Colleran
factors); In re Towle, 164 Vt. 145, 149-50, 665 A.2d 55, 59-60 (1995)
(applying the Colleran factors).  These twelve factors are: the nature
and seriousness of the offense, the employee’s job level and type of
employment, the employee’s past disciplinary record, the employee’s work
record, the effect of the offense on the employee’s ability to perform
satisfactorily, the consistency of the penalty with those imposed upon other similarly
situated employees, the consistency of the penalty with any applicable agency
table of penalties, the notoriety of the offense or its impact on the
reputation of the agency, the clarity of notice, the potential for the employee’s
rehabilitation, mitigating circumstances surrounding the offense, and the
adequacy and effectiveness of alternative sanctions to deter such conduct in
the future.  In re Colleran, 6 V.L.R.B. at 268-69.  The factors do not comprise
an exhaustive list, and not every factor may be relevant in each case.  “Management
need not prove that each factor supports its decision as reasonable, only that
on balance the relevant factors support management’s judgment.”  Id. at 269.
¶ 24.        
If, in light of these factors, the Board determines that just cause
exists and the State was warranted in bypassing progressive discipline, the
Board does not have authority to substitute its own judgment for that of the
State.  In re Gage, 137 Vt. 16, 19, 398 A.2d 297, 299 (1979).  In other
words, “[i]f 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.”  In re
Gorruso, 150 Vt. 139, 146 n.4, 549 A.2d 631, 635 n.4 (1988) (quotation omitted). 
The State is afforded deference in deciding an appropriate sanction because “it
is an inherent management function to control and direct the work force;” thus,
as long as “the exercise of that function is reasonable it will be sustained.” 
  Id. (quotation omitted).
¶ 25.        
On appeal from the Board’s decision, we defer to the Board’s
construction of the collective bargaining agreement, given the Board’s
expertise in that area.  Id. at 143, 549 A.2d at 634.  We treat the
Board’s conclusions with deference and will affirm if they are supported by the
findings.  In re Brown, 2004 VT 109, ¶ 13.  In addition, we will not
disturb the Board’s findings of fact unless they are clearly erroneous.  Brooks,
135 Vt. at 567, 382 A.2d at 207.  While the Board is afforded deference in
these areas, we also must ensure that the Board has not overstepped its authority
by substituting its own judgment for that of the State.
II.
¶ 26.        
The State argues that the Board did exactly that in this case.  The
State contends that its decision to dismiss grievant was supported by the
evidence and reasonable under the circumstances, and thus the Board exceeded
its authority by substituting its own judgment for that of DOC.  As explained, the
parties agree that grievant had notice that his behavior could result in
dismissal; therefore, the sole question is whether grievant’s conduct was sufficiently
egregious to warrant dismissal.  See In re Gorruso, 150 Vt. at 146, 549 A.2d at 636 (just cause requires notice and action sufficient to warrant
discipline).
¶ 27.        
In answering this question, the Board employed the Colleran
factors.  The Board acknowledged that grievant committed “serious” misconduct,
that grievant’s “offenses had an adverse effect on his ability to perform at a
satisfactory level and on supervisors’ confidence in his ability to perform
assigned duties,” and that “[h]e performed unsatisfactorily in the important
duty of preventing and stopping inmates from harming themselves.”  Nonetheless,
the Board concluded that the State’s decision to dismiss grievant was excessive
given: (1) DOC’s inconsistency in the penalty imposed on grievant compared
to his supervisor, (2) DOC’s lack of effective policies to deal with razor
blades, and (3) grievant’s satisfactory work record and lack of prior
discipline.  
¶ 28.        
We examine each of these contentions in turn, beginning with the Board’s
concern that DOC’s decision to dismiss grievant resulted in unequal treatment. 
The Board found that DOC punished grievant overly harshly compared to its decision
not to discipline supervisor Miller, despite what the Board termed “deficiencies
[Miller] exhibited in this incident.”  According to the Board, Miller did not
appropriately follow through on the strip search of K.D., and failed to
properly announce that he was leaving the booking area and that grievant was in
charge.
¶ 29.        
The relevant Colleran factor that the Board seemed to be employing
was the “consistency of the penalty with those imposed upon other employees for
the same or similar offenses.”  In re Colleran, 6 V.L.R.B. at 268.  This
factor is related to the State’s obligation under article 14, § 1(b) of
the collective bargaining agreement to apply discipline “with a view toward
uniformity and consistency.”  In applying this factor in the past, we have
explained that “[a]s a general rule, the State should treat like cases alike.” 
In re Towle, 164 Vt. at 151, 665 A.2d at 60.
¶ 30.        
In this case, we conclude there is no logical reason why DOC’s decision
not to discipline Miller is in any way relevant to DOC’s decision to dismiss
grievant because Miller did not commit a similar offense or any offense.  The
Board faulted Miller for failing to properly oversee a strip search and for not
announcing that he was leaving the booking room.  Grievant was not disciplined for
any act related to the strip search; he was disciplined because after K.D. exposed
the concealed razor blade and began to cut himself repeatedly, grievant failed
to take any steps to prevent K.D. from harming himself.  Thus, grievant
acted contrary to his responsibility to ensure the safekeeping of inmates
within his custody—a serious offense that goes to the core of grievant’s duty
as a correctional officer.  On the other hand, as it relates to inmate safety,
the Board did not find that any of Miller’s conduct relative to protecting
inmate K.D. was inadequate.  In fact, the Board found that “Miller did a good
job using verbal communication skills to persuade [K.D.] to agree to a strip
search and use of restraints.”  Because there is no similarity between Miller’s
allegedly improper actions and grievant’s misconduct, we conclude that the
Board improperly considered this factor in deciding whether DOC’s choice of
discipline was reasonable.[3] 

¶ 31.        
The deficiency of the Board’s reasoning in this case is similar to that
in In re Carlson, in which the Board found the bulk of the State’s
charges against the grievant were true, but found dismissal was unreasonable
due in part to an alleged pattern of abuse in the department where the grievant
worked.  140 Vt. 555, 557-58, 442 A.2d 57, 58-59 (1982).  We held that the
Board’s decision to mitigate the grievant’s punishment on this basis was
erroneous because “whatever the abuses engaged in by the grievant’s superiors,
they cannot mitigate all of the grievant’s acts, as most were not done in
concert with superiors.  Indeed, the grievant himself was a supervisor in an
important position, and utilized that very power to defraud the State.”  Id. at 559, 442 A.2d at 59.  Similarly, in this case, even accepting the Board’s
assumption that Miller acted improperly, Miller’s conduct in no way furthered
or contributed to grievant’s acts of misconduct.  Miller was not even present
during the critical period of time.  The Board seemed to reason that Miller was
at fault for creating the hazardous situation in the first place and that this
should mitigate the punishment of grievant.  We disagree.  Even with adequate
and appropriate procedures, DOC cannot ensure that dangerous situations will
not arise, but DOC must ensure that its employees are ready and prepared to
respond properly if an incident occurs.  How the dangerous situation was
created is wholly separate from how grievant responded to the situation once it
unfolded.  
¶ 32.        
We also conclude that the Board erred in mitigating grievant’s
discipline based on its perception of DOC’s policies regarding razor blades. 
The Board found that 
the lack of
effective policies by the Employer to deal with inmates who had a practice of
inappropriately producing razor blades contributed to the events resulting in
Grievant’s dismissal.  The Employer was aware that [K.D.] had inappropriately
produced razor blades on past occasions.  Nonetheless, there was no policy in
place to regulate access to razors for inmates such as [K.D.].  On the day in
question, he was able to successfully conceal three razor blades on his person
and produce them on three separate occasions.  The failure of Employer to have
policies in place to prevent this from happening placed correctional officers
such as Grievant in a position to fail.
 
We fail to understand how DOC’s
razor blade policy, or lack thereof, was relevant in any way to grievant’s
misconduct.  As already explained, the relevant question was how
grievant responded once K.D. produced the razor blade, not why K.D.
produced a razor blade.  The Board’s assumption that a razor blade policy might
have prevented K.D. from gaining access to a cutting device, even if true,[4]
does not in any way alter grievant’s response to the situation once it arose.  The
evidence does not support the Board’s finding that grievant was “in a position
to fail.”  The first time K.D. produced a razor blade, grievant watched Miller
use ACT techniques to successfully persuade K.D. to drop the blade and submit
to a strip search.  Grievant was disciplined because he failed to employ these
techniques in accordance with the numerous hours of training he had received. 
Instead, grievant simply watched while K.D. inflicted harm on himself. 
Whatever DOC’s policy on razor blades, it did not alter or contribute to
grievant’s behavior and therefore is not relevant.  
¶ 33.        
Finally, we consider grievant’s past satisfactory work record and lack
of prior discipline.  We agree that grievant’s past work record, length of
service and lack of disciplinary record are relevant, but we are not persuaded
that these facts alone are enough to “significantly undermine the State’s
disciplinary decision.”  In re Gregoire, 166 Vt. 66, 75, 689 A.2d 431,
436 (1996).  Grievant’s past work record must be balanced against his potential
for rehabilitation.  See In re Towle, 164 Vt. at 150, 665 A.2d at 59-60
(upholding the Board’s conclusion that it was reasonable for the State to
conclude that the grievant’s record of satisfactory work and lack of discipline
did not outweigh other factors because the grievant was not a good candidate
for rehabilitation); see also In re Kerr, 28 V.L.R.B. 264, 282-83 (2006)
(concluding that the grievant’s dismissal was reasonable given the serious
nature of the misconduct and the lack of potential for rehabilitation despite
grievant’s ten years of service and excellent work record).  On this point, we
conclude that the evidence does not support the Board’s conclusion that DOC “did
not act reasonably in concluding [that grievant] was not a good candidate for
rehabilitation and that a lesser sanction than dismissal would [have been]
effective or adequate.”  
¶ 34.        
Grievant’s superintendent testified that he decided not to impose a
lower level of discipline and send grievant to training because (1) grievant
has had many hours of training and yet failed to employ any of the skills he
had learned, and (2) grievant expressed no recognition that he acted improperly
and no remorse for his actions.  The superintendent explained, “I don’t think
it’s safe for the inmates, frankly, or for [grievant] to be put back in that
situation.”  The superintendent’s testimony was uncontroverted.  Even after
viewing the videotape and with the benefit of hindsight, grievant continued to
insist that he acted appropriately during the incident and that he would
conduct himself in the same manner again.  Thus, the undisputed evidence
indicates that grievant was not a good candidate for rehabilitation given his
lack of insight and refusal to recognize any performance problem; the Board’s
finding otherwise is not supported by the evidence.  See In re Sileski,
28 V.L.R.B. 165, 195-96 (2006) (explaining that there was no potential for
rehabilitation where the employee failed to take responsibility for the
misconduct, was dishonest and disregarded authority); see also Brown v. Dep’t
of Army, 96 M.S.P.R. 232, ¶ 14 (2004) (lack of remorse supported
finding that employee did not exhibit potential for rehabilitation); Wallace
v. Dep’t of Health & Human Servs., 89 M.S.P.R. 178, ¶ 18 (2001) (upholding
finding that there was little potential for rehabilitation where the employee “was
defiant, showed no remorse, and refused to acknowledge that what she did was
wrong”).
III.
¶ 35.        
We return to the main issue in this appeal—whether the Board improperly
substituted its own judgment for that of the State when it concluded that the
State’s dismissal was not reasonable under the circumstances.  As explained,
the Board’s decision was based on its assessment that: (1) DOC’s dismissal
of grievant was overly harsh given its decision not to discipline Miller,
(2) DOC’s lack of an effective razor blade policy contributed to grievant’s
misconduct, and (3) grievant had the potential for rehabilitation.  We
have concluded that the first two factors were not relevant and that the third
was not supported by the evidence.  Without these mitigating factors, we are
left with the Board’s own assessment that grievant committed serious
misconduct, grievant’s offenses had an adverse impact on his ability to perform
his job, and grievant’s conduct was significant enough to warrant bypassing
progressive discipline.  On this record, we conclude that the State’s decision
to dismiss grievant was reasonable as a matter of law.  Thus, while the Board
may have in the first instance imposed a different sanction than dismissal, it
lacked authority to override the State’s decision to dismiss grievant.  We
therefore vacate the Board’s decision and reinstate grievant’s dismissal.  See In
re Carlson, 140 Vt. at 560, 442 A.2d at 60 (vacating board’s decision as
erroneous as a matter of law and reinstating employer’s dismissal); In re
Gage, 137 Vt. at 20, 398 A.2d at 299 (concluding that under supported
facts, just cause existed as a matter of law).
Reversed; the
order of the Vermont Labor Relations Board is vacated, and the dismissal is
reinstated.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 


[1] 
Neither Giddings nor Edgerly was sent a letter.  Prior to the investigation,
Giddings resigned.  DOC chose not to discipline Edgerly because he was an
inexperienced officer and had been following Miller’s orders to videotape K.D. 



[2] 
Article 14, § 1 of the collective bargaining agreement also sets out an order
of progressive discipline to be followed in cases of misconduct, but recognizes
that certain conduct may warrant bypassing progressive discipline.  In
addition, article 14, § 3 of the agreement states that an employee may be
dismissed immediately without two weeks’ notice or pay when the employee has
engaged in gross neglect of duty, gross misconduct, or “conduct which places in
jeopardy the life or health of . . . a person under the employee’s care.”  


[3] 
Because we conclude that DOC’s decision not to discipline Miller was not
relevant to grievant’s dismissal, we do not consider the State’s argument that
there was no evidence to indicate that any of Miller’s conduct amounted to a
violation of his duties as a correctional officer.  


[4] 
The State argues that the record does not support the Board’s finding that
DOC’s policies on razor blades were inadequate.  We do not reach this question
because even assuming the Board’s findings on the issue are supported by
adequate evidence, we conclude that the policy was not relevant to grievant’s
misconduct.


