Saturday, February 11, 2017

You’re Fired

In re Lepore, 2016 VT 129

By Amy E. Davis

Mr. Lepore, or as the SCOV calls him “Grievant,” worked as an environmental biologist for the Vermont Agency of Transportation from 1992 to July 2015. Mr. Lepore evaluated the potential environmental impact of potential transportation projects, created reports, and applied for and prepared environmental permits. He worked with state and federal employees. That is, until he got sacked.

The fact that Grievant was fired is not particularly interesting in my opinion. But the reason for his termination is fascinating and worthy of a Lifetime movie. In 2005, Grievant served as a juror in the criminal trial of Donald Fell. Fell, as you may recall from the news and/or internet, was convicted of all criminal charges and sentenced to death. Five years after his conviction, a juror came forward and informed Fell’s attorneys that the juror had visited the crime scene and shared their observations with the other jurors.

I’ll give you three guesses, and the first two don’t count. Guess who the juror was? Yes, indeed, it was Grievant.

Grievant gave a sworn statement to Fell’s attorney that he had gone to the crime scene and shared the findings of his field trip with the other jurors. When Grievant went in front of the federal judge, he denied these two pieces of information. But, as the federal court found, his sworn written statement and the testimony of his then-girlfriend who tagged along, and the testimony of a subsequent girlfriend with whom he talked about the field trip contradicted his testimony.

A few take-aways if you are a juror (and judges, feel free to use these while empaneling a jury):
#1. Do not do your own research into a case. I know that since Gil Grissom made his CSI debut, we’re all equipped to tell you who-dunnit in under 50 minutes (90 minutes if it’s really complicated), but leave the digging to the professionals.
#2. If you decide to ignore #1, do not bring your girlfriend along with you. Those she-wolves will turn on a moment’s notice and rat you out just for spite.
#3. Do not tell later girlfriends of what you did. See #2.
#4. Do not lie to the court about doing this if you signed something saying you did, and especially if there are two people who are willing to point out your flaming undergarments to the judge.
So if this wasn’t bad enough, in August 2014, a newspaper ran an article that identified Grievant as the juror responsible for this mess. The newspaper also described him as an AOT employee. The newspaper also quoted the federal court’s findings, which threw around words like, “brazen disobedience,” and “dishonesty.”

The AOT’s Department of Human Resources looked into Grievant’s case. The investigator read the 93-page federal court decision, reviewed the transcript of Grievant’s testimony, and collected media reports involving Fell’s trial and Grievant’s role in it. The DHR investigator issued a report in March 2015.

A month later, the AOT’s Director of Highways told Grievant that the AOT was considering firing him and/or other serious disciplinary actions. The reasoning was based almost entirely on Grievant’s conduct in the Fell trial. Grievant sent a union representative to a meeting in June to respond to the charges.

In July 2015, AOT terminated him on the basis of his conduct, or should I say, misconduct, during the Fell trial. AOT concluded that Grievant’s dishonesty and unethical behavior were unacceptable and intolerable. AOT was concerned about Grievant's credibility when interacting with state and federal employees. AOT thought that dismissal fit the offense, was fitting for Grievant’s behavior, and was in line with the other dismissals for dishonesty within the Agency.

So then the Vermont State Employees’ Association (VSEA) gets involved saying that the State violated the collective bargaining agreement (CBA) by not giving Grievant a slap on the wrist first. VSEA also claimed there was no just cause for the dismissal.

The Labor Relations Board reversed the dismissal saying that State abused its discretion in firing Grievant. The Board said that even though the investigator had a heavy workload, the investigation should have been done sooner, and the misconduct charge was stale. Despite this, the Board thought that Grievant’s misconduct was rather serious, but because AOT never suspended him during the investigation, the misconduct couldn’t have been that bad. The Board decided that dismissal was not proper, and that thirty days’ suspension without pay was more suitable. A lone dissenter on the Board concluded that although the State had significantly violated the CBA, Grievant’s misconduct was great enough to warrant dismissal. The State appeals, admitting that the delay in the dismissal violated the CBA, but Grievant suffered no harm from the delay.

In reviewing the merits of a dismissal, the Board 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. Preponderance of the evidence means, “more likely than not.” Or, if one were to assign a numerical value, it’s 50.1% likely there is just cause for dismissal. It’s a pretty low bar to meet. “Just cause” means there is some shortcoming that is detrimental to the employer’s interest. The other important piece is that the Board cannot substitute its own judgment for the State’s. The Board has to defer to the State if the state shows that it responsibly balanced the factors in the case.

The Board found that Grievant committed serious misconduct that related his his fitness as a state employee. The Board and the State made similar findings, but the Board questioned whether the State really believed its own analysis. This second-guessing was an overstep on the Board’s part. The Board cannot create its own rationale for disciplining an employee, and it cannot question the State’s rationale, either.

The SCOV also concludes that the delay in the investigation did not cause any prejudice to Grievant. The investigator was only able to assess the risk after finishing the report. The investigator testified as to the importance of honesty, credibility, and accountability in the AOT’s work. Thus, the record showed reasonable ground for AOT to not suspend Grievant during the investigation. This also supports public policy in that to hold otherwise might cause some employers to suspend employees immediately, and based on incomplete information. The record also does not support the Board’s finding that Grievant relied on this delay to any sort of detriment. After all, he worked and got paid this entire time.

The Board is reversed and Grievant is fired, again.

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