Grievance of Brileya

515 A.2d 129, 147 Vt. 280, 1986 Vt. LEXIS 400
Supreme Court of Vermont·Decided July 25, 1986·No. 82-501·Published·Cited by 3 cases

Opinion

Peck, J.

This is an appeal from an order of the Vermont Labor Relations Board dismissing the grievance of Donald Bishop (grievant). We affirm.

Grievant was employed as an aide at Brandon Training School (BTS) working with the mentally retarded and developmentally disabled residents of that institution. He was dismissed by the Commissioner of Mental Health on January 8, 1982, for several reasons. The Vermont State Employees’ Association, on behalf of grievant, appealed the dismissal to the Board, which upheld the dismissal on one of the grounds alleged: that grievant had abused a Brandon resident, W. E., by striking him in the foot with the resident’s shoebrace, thereby fracturing his foot. This abuse constituted just cause for dismissal.

Before we address the arguments grievant makes on appeal, a review of the pertinent facts is necessary. The resident that grievant allegedly abused is a 34-year-old man who suffers from cerebral palsy and athetosis. He is unable to walk but can stand with assistance. He wears boots with braces attached to them. W. E. has osteoporosis, which means his bones are very brittle and weak. He is confined to a wheelchair. W. E. is unable to speak but does communicate by means of a word board, which allows him to spell or point out various words.

On the morning of October 12, 1981, grievant’s duties at BTS included assisting W. E. in dressing. Grievant woke W. E. around 7:00 a.m., laid out his clothes, and left the room to attend to other residents. He returned a few minutes later and found W. E. had put on his shirt and pants. Grievant then attempted to put on W. E.’s shoes and braces which are one unit. W. E. was uncooperative and grievant was unable to get the braces on. W. E. then *282 wheeled himself to the dining room. Another BTS employee was present and observed W. E. having a tantrum. In accordance with W. E.’s habilitation plan, this employee isolated W. E. by taking him out of the dining room and into a day room where he remained unsupervised for half an hour. At 8:00 a.m., W. E.’s mother arrived and found him alone in the day room. She took him back to his room where she noticed that W. E. could not stand as usual. He seemed to be in pain when she tried to put his right shoe on. W. E. was taken to a physician who examined him but did not take x-rays. W. E.’s mother took him home for a visit. She noted during his visit that he could not bear weight on the foot and that he reacted as if in pain when she accidentally hit his foot. The next day W. E. was seen again by the doctor and x-rays were taken. Subsequently, he was diagnosed as having a fracture of his right talus bone. On October 13 and 14, W. E., through the use of his word board, told several staff members that grievant had hit his foot with his brace. This information, and other allegations not pertinent to this appeal, triggered an investigation which ultimately led to grievant’s dismissal.

On appeal of the Board’s affirmance of the dismissal, grievant first argues that the Board shifted the burden of proof by taking into account the fact that grievant denied he injured W. E. and offered no explanation of how the injury occurred. This argument is without merit. There is no error in the Board’s weighing grievant’s credibility.

The grievant next attacks four of the Board’s findings as unsupported by the evidence. “Findings of fact of an administrative agency will not be set aside unless clearly erroneous . . . .” Monro-Dorsey v. Department of Social Welfare, 144 Vt. 614, 616, 481 A.2d 1055, 1057 (1984). The evidence is viewed in the light most favorable to the prevailing party and modifying evidence is excluded. Beyel v. Degan, 142 Vt. 617, 619, 458 A.2d 1137, 1138 (1983). If supported by credible evidence fairly and reasonably supporting them, the findings must stand. In re Muzzy, 141 Vt. 463, 470, 449 A.2d 970, 973 (1982).

Because grievant attacks findings closely intertwined with W. E.’s testimony, we produce the pertinent parts: *

Q. How did your foot get hurt?

*283 A. Braces.

Q. How did the braces hurt your foot? What happened with the braces?

A. Hit, yes.
Q. Did someone hit you with the braces?
A. Yes.
Q. Can you spell the name of the person who hit you with the braces?

Can you point to the letters of that person’s name?

A. D-O-N, yes.
Q. The person that hit you, his name was Don?
A. Yes.
Q. Can you remember the last name of the person who hit you? A. —

Q. Let me ask you another question? Do you see the person who hit you in this room?

A. No.
Q. Did Don Bishop hit you with the braces?
A. Yes.
Q. Do you see Don Bishop in the room?
A. No.
Q. What was that?
A. No.

Q. Was the person — why did the person who hit you with the braces, why did he hit you?

A. —
Q. Can you find a word?
A. —
Q. Was the person that hit you angry at you when they hit you?
A. Yes.
Q. When you got hit and your foot got hurt, was it an accident?
A. Yes.
Q. Do you think that Don meant to hit you?
A. No.
Q. Would you repeat that answer. Did Don mean to hit you? A. No.
Q. Did he tell you it was an accident?
A. No.

*284 The first finding grievant attacks is that he was angry on the morning of October 12. He alleges that this finding is unsupported by the evidence because of inconsistencies in W. E.’s testimony which contradict this statement. However, when evidence is conflicting the trier of fact has the sole responsibility for determining the weight of the evidence and credibility of witnesses. Whipple v. Lambert, 145 Vt. 339, 340-41, 488 A.2d 439, 440 (1985).

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Grievance of Brileya, 515 A.2d 129, 147 Vt. 280, 1986 Vt. LEXIS 400 (Vt. 1986).

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