Grievance of Gadreault

564 A.2d 605, 152 Vt. 119, 1989 Vt. LEXIS 135, 1989 WL 115597
CourtSupreme Court of Vermont
DecidedJuly 14, 1989
DocketNo. 85-253
StatusPublished
Cited by1 cases

This text of 564 A.2d 605 (Grievance of Gadreault) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grievance of Gadreault, 564 A.2d 605, 152 Vt. 119, 1989 Vt. LEXIS 135, 1989 WL 115597 (Vt. 1989).

Opinion

Allen, C.J.

Grievant appeals from an order of the Vermont Labor Relations Board (Board) affirming his dismissal from employment as a correctional officer. We affirm.

[120]*120Grievant was continuously employed as a correctional officer at the St. Johnsbury Community Correctional Center (SJCCC) from April 1980 until his dismissal, effective May 29, 1984. At all times relevant to this appeal, grievant was a permanent-status employee. Prior to the performance evaluation forming the background of this appeal, grievant had been consistently evaluated as unfailingly meeting the standards and requirements associated with his position, an overall rating of “3” on a scale of one to five.

On February 23, 1984, grievant received a performance evaluation covering the time period between February 3, 1983 and February 3, 1984. This evaluation, unlike his earlier ones, gave grievant an overall rating of “2,” or not consistently meeting his job requirements or standards. The evaluation cited several incidents as evidence of grievant’s poor judgment, including unauthorized work crew stops, threatening to kill the assistant superintendent, ordering an inmate to clean a garbage can in the inmate shower, failing to submit a work crew time report and backing a van over an embankment without reporting the incident. Grievant was placed on probation for six months, effective on the date the evaluation was reviewed with him. Issues to be addressed during the probationary period included his communication with the supervisory staff, timely filing of required reports, appearance, rapport with peers and inmates and compliance with all rules set forth in the SJCCC Facility policies and procedures.

Along with the performance evaluation, grievant also received a letter from the SJCCC superintendent informing him that he was being placed in a six month warning period during which time he was obligated to meet on a monthly basis with the chief of security and operations regarding his performance. Both the performance evaluation and the warning letter were presented to grievant at a meeting with his supervisors and “[a]s a result of the meeting, Grievant understood that if he did not live up to management’s expectations ... he could be dismissed.”

Three months later, grievant was presented with a letter dismissing him from employment, effective May 29, 1984, “for accumulated incidents of misconduct since [his] last performance evaluation, which demonstrate a serious lack of professional judgment.” Incidents cited in the letter as a basis [121]*121of grievant’s dismissal included three episodes of co-worker harassment, one of which involved sexual harassment, his refusal to give an inmate a towel and to follow a supervisor’s instructions, and finally several telephone calls to Boston, characterized by the letter as “ ‘misuse of State property, theft of services, neglect of duty’ and in violation of SJCCC Rules and Regulations #3, 6, 14 and 26.” The letter also noted grievant’s failure to improve in three of the five areas which were to be addressed during his probationary period.

Along with the dismissal letter, grievant received a “separation performance evaluation” listing as additional, and admittedly more minor, grounds for his dismissal a variety of events occurring during the period between February 3, 1984 and May 2, 1984. In the letter, the Board described these incidents as revealing “a general pattern of poor judgment, neglect of duty, and [an] inability or unwillingness to conduct [oneself] in an appropriate manner toward other staff.”

The Board concluded that while most of the charges against grievant had been established by the employer, some of the charges were not supported by the evidence. The Board determined, however, that most of the events charged had occurred and that “[g]rievant’s relatively ‘minor’ derelictions accumulated to the point where he became an undependable employee who was unable to sustain an effective working relationship with his peers and supervisors.” According to the Board, grievant’s dismissal was for just cause and not inappropriate or excessive in light of the circumstances.

On appeal, grievant argues that: (1) he lacked fair notice that his conduct would be grounds for discharge, (2) his employer violated the terms of his warning period, and (3) the Board’s conclusion that he was dismissed from employment for just cause lacks a reasonable basis in its findings.

I.

Grievant argues first that he never received prior warning that his conduct was placing his job in jeopardy, on the theory that it was only after the February 23, 1984 performance evaluation that he received fair notice that certain conduct would be grounds for dismissal, while the May 25, 1984 dismissal letter relied on events occurring after the close of the evaluation period on February 3, 1984 but before his [122]*122evaluation conference on February 23, 1984. His argument fails for two reasons. First, most of the grounds relied on by the Board related to events occurring after February 23, 1984. Second, the Board’s reliance on events before that date was not improper.

Of the events stated in the dismissal letter itself, two clearly occurred after February 23, 1984; a sexual harassment charge on April 21, 1984 and harassment of a co-worker on April 25, 1984. The date of a third event — threats against a co-worker who was allegedly writing reports unfavorable to grievant— occurred “approximately three months” prior to the date of the letter, which would have been shortly before or shortly after February 23, 1984. Of the twelve incidents documented in the final evaluation report, covering the period between February 3,-1984 and May 2, 1984 and incorporated by reference into the dismissal letter, seven were alleged to have occurred after the February 23, 1984 evaluation conference and five between the end of the evaluation period, February 3, 1984, and the date of the conference. Four of the post-conference events, and part of a fifth, were found not to be violations, leaving two post-conference incidents and part of a third, in addition to the two, and possibly three, post-conference incidents enumerated in the dismissal letter itself. Even if the pre-February 23,1984 events are disregarded, the remaining incidents are sufficient in number and seriousness to sustain the decision below.

The essence of the letter dismissing grievant was his general pattern of poor judgment, neglect of duty, and inappropriate behavior toward other staff. Assuming arguendo that only the post-February 23, 1984 events were relevant, it would be grievant’s burden to demonstrate that the charges remaining, that were alleged to have occurred after that date, were insufficient to support the decision of the Board and that its judgment was clearly erroneous. In re Carlson, 140 Vt. 555, 560, 442 A.2d 57, 60 (1982). Grievant argues that none of the incidents were serious, but he does not demonstrate that the Board erred in regarding the totality of the incidents to warrant dismissal.

Moreover, the Board was correct in considering the events after the close of the evaluation period but before the evaluation conference on February 23, 1984. Had the evalu[123]*123ation been the first signal of conduct which was otherwise unwarned, these intervening incidents could not have been chargeable to grievant until he was made aware that such conduct would jeopardize his position.

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Bluebook (online)
564 A.2d 605, 152 Vt. 119, 1989 Vt. LEXIS 135, 1989 WL 115597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grievance-of-gadreault-vt-1989.