In re Grievance of Patrick Ryan

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

2021 VT 82

No. 2021-117

In re Grievance of Patrick Ryan Supreme Court

On Appeal from
Labor Relations Board

September Term, 2021

Robert Greemore, Acting Chair

Thomas J. Donovan, Jr., Attorney General, and Alison L.T. Powers, Assistant Attorney General,
Montpelier, for Appellant/Cross-Appellee.

Pietro J. Lynn of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Appellee/
Cross-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. PER CURIAM. The State of Vermont appeals a decision of the Vermont Labor

Relations Board concluding that the State as employer lacked just cause to terminate grievant

Patrick Ryan on account of actions he took as a member of the State workforce, and reducing

grievant’s discipline to a fifteen-day suspension. Grievant cross-appeals, contending that the

Board erred in imposing the fifteen-day suspension. We conclude that the Board’s findings are

inadequate to enable informed appellate review. For that reason, we reverse and remand to the

Board for further factfinding.
I. The Board’s Decision

¶ 2. After a two-day hearing, the Board made the following findings.1 Grievant began

working at the Department for Children and Families (DCF) in 2004 as a social worker; he was

promoted to Social Services Supervisor in 2012. While he was a supervisor, grievant served with

Employee A on a committee of community entities working together to provide funding for

families in need. At the time, Employee A worked for a social services agency that sometimes

worked with DCF. Grievant and Employee A had professional communications via text

messaging, email, and telephone, and their workplaces were next door to one another. They did

not have a social relationship outside of work. During the summer of 2013, grievant and Employee

A exchanged some text messages that were not work related and were flirtatious. Using his state-

issued cell phone during work hours, grievant would compliment her on some aspect of her

appearance or clothing, sometimes while watching her through the window. Employee A could

not describe or recall the specific details of the text messages she received from grievant but

viewed the texts as “awkward” because she was married.

¶ 3. In March 2015, grievant was promoted to District Director of the Family Services

Division (“FSD”) at the Newport office. In that capacity, he participated in hiring decisions,

evaluated staff performance, and was responsible for various personnel matters. In August 2015,

DCF hired Employee A as a social worker. As District Director, grievant participated in

Employee A’s interview, and made the final hiring decision. During the hiring process, grievant

did not disclose to his supervisors his prior nonwork-related communications with Employee A.

¶ 4. Upon employment, Employee A was in grievant’s chain of command; she reported

directly to a supervisor who reported directly to grievant. After she was hired, the flirtatious

messages continued between grievant and Employee A. Employee A said to grievant during

1
We have accepted the Board’s characterization of the following as findings. As set forth
more fully in our analysis, we conclude that many of these findings relating to the salient issues in
this appeal are mere recitations of the evidence that do not themselves advance the analysis.
2
casual conversations words to the effect of “I’m not sure this [texting] should be happening

anymore.” Several months into the job, Employee A initiated a conversation with grievant in

which she told him that she was more sexually aroused during pregnancy and that her breasts were

getting larger and were sore. Grievant asked whether her breasts hurt when they were touched,

and she responded that they did not.

¶ 5. Shortly thereafter, just before she went on maternity leave, Employee A told

grievant that a coworker had asked her if she was sleeping with grievant. Employee A told

Grievant that the text messages had to stop because she wanted her work to be judged based on

her abilities, and not her relationship with grievant. From that point onward, all flirtatious

communications between the pair ceased. There is no evidence that grievant retaliated against

Employee A due to her request.

¶ 6. The Board’s findings recount in detail the content of grievant’s performance

evaluations in the spring of 2016, 2017, 2018, and 2019. The ratings were all “satisfactory.” The

accompanying narratives reflect ongoing concerns that office morale was suffering under

grievant’s leadership, and acknowledge his efforts to address the perceptions that he did not foster

a safe and supportive workplace environment.

¶ 7. The Board found that in the fall of 2019, DCF initiated an investigation into why

so few employees from the FSD Newport office had participated in an office culture and climate

survey. During the investigation, several staff members expressed various concerns about

grievant. As a consequence, Department of Human Resources (DHR) investigator Peter Canales

was assigned to conduct an investigation of grievant. The investigator’s report documented his

interview with Employee A. Per the investigator’s report, Employee A described grievant’s text

messages as at “the low end of lewd and lascivious,” including comments about her appearance

and descriptions of things “of a sexualized nature” that he wanted to do to her. She cited as an

example of the type of message he would send: “What if I had kissed you?” Although Employee A

acknowledged that there were times when “possibly” she participated, there were multiple
3
occasions when she told grievant, “We can’t be doing this.” She reported that she told him a dozen

times during the first two years she worked at DCF to stop sending her sexualized text messages

and emphasized that he was the director and she was the “low man on the totem pole,” but he

continued sending the messages. Employee A did not save any of the messages.

¶ 8. The Board quoted extensively from the investigator’s report, which also described

the investigator’s exchange with grievant concerning grievant’s communications with

Employee A. Grievant described the relationship he had with Employee A as “jokey,” and

reported that when Employee A came to work at DCF they had a couple of conversations about

making sure that they not joke like that anymore. Grievant acknowledged that the communications

between him and Employee A had been “flirty,” but indicated that they had stopped, probably

within her first year at DCF, after she brought up to him that she wanted it to stop. Grievant did

not recall whether some of the messages could be characterized as “sexualized,” and when asked

whether they were “appropriate,” he said he didn’t know what that meant.2

¶ 9. As a result of the investigation into his conduct, in January 2020 DCF sent Grievant

a Loudermill letter, notifying him that DCF was contemplating “serious disciplinary action, up to

and including dismissal.”3 The letter recounted Employee A’s report that his “kind of lewd”

sexualized texts to her from his work-issued cell phone continued after he hired her to work at

DCF, that he did not stop the texts even after she asked him to, and that she was definitely targeted

2
The Board described Employee A’s and grievant’s conflicting documented statements to
the investigator; it did not attempt to reconcile those statements with each other or with the hearing
testimony, and did not explain whether and how these statements informed the Board’s
understanding of the underlying facts.
3
In Cleveland Board of Education v. Loudermill, the U.S. Supreme Court held that oral
or written notice of the charges, an explanation of the employer’s evidence, and an opportunity for
the employee to present their own side of the story before terminating a tenured government
employees satisfied due process where the terminated employee was then entitled to a full
administrative hearing and judicial review post termination. See Hallsmith v. City of Montpelier,
2015 VT 83, ¶¶ 13-14, 199 Vt. 488, 125 A.3d 882 (citing Loudermill, 470 U.S. 532, 546 (1985)).
A Loudermill notice or letter is a writing through which the government employer provides the
notice and explanation; a Loudermill meeting is a meeting in which the employee has an
opportunity to respond before the government employer terminates the employee.
4
for having asked him to stop. It included reports from various Newport FSD staff that grievant

was “intimidating,” “bullying,” and sometimes communicated with staff in a demeaning or

belittling way. And it parsed in some detail the arguable inconsistencies among some of grievant’s

responses to the investigator during the investigative interview. The letter concluded that

grievant’s ongoing intimidating conduct toward staff violated State of Vermont Personnel Policy

11.11 (Workplace Safety and Security); that his sending sexualized texts to a subordinate staff

member on his work-issued cell phone even after a number of pleas to stop violated Personnel

Policy 3.1 (Sexual Harassment) and 5.6 (Employee Conduct); and that his answers in the

investigative interview “may not have been entirely truthful” in violation of Personnel Policy 17.0

(Employment Related Investigations).

¶ 10. The Board found that in the ensuing Loudermill meeting, grievant described their

text exchanges before Employee A came to work at DCF as welcome. He indicated that

Employee A initiated the text message exchange about how being pregnant caused her to be more

aroused and gave her sore breasts. And he indicated that as soon as she told him that they needed

to stop the flirtatious behavior he did not send any more flirtatious text messages. Grievant

acknowledged that the messages were inappropriate, especially after Employee A came to work at

DCF, and apologized for his lapse in judgment.

¶ 11. DCF Deputy Commissioner Johnson subsequently dismissed grievant. In the

termination letter, the Deputy Commissioner cited grievant’s inappropriate sexualized text

messages to a subordinate, using a state-issued cell phone, as well as his hostile, intimidating,

bullying, and demeaning interactions with staff. The Deputy Commissioner emphasized that the

sexualized text messages were the most significant misconduct driving the dismissal decision, and

indicated that grievant’s actions had destroyed the confidence of DCF management in his ability

to continue effectively in the Director position.

¶ 12. Based on the above, the Board concluded that the State lacked just cause to dismiss

grievant. With respect to the allegations relating to grievant’s communications with Employee A,
5
the Board stated that the State’s charge was hampered by the fact that none of the alleged

inappropriate sexualized messages were admitted into evidence, and neither Employee A nor

grievant recalled the specific content of the messages they had exchanged, with the exception of

the exchange involving grievant asking a pregnant Employee A if her breasts hurt to be touched

after she initiated a conversation in which she reported that she was more sexually aroused during

her pregnancy and that her breasts were getting larger and were sore. The text messages were

characterized generally as “flirtatious,” but the Board concluded that the seriousness of grievant’s

misconduct was somewhat tempered by the fact that the State had not established that the text

messages were unwelcome to Employee A.4 The Board indicated that once Employee A indicated

that they were unwelcome, grievant sent no further text messages.

¶ 13. The Board considered the State of Vermont’s Personnel Policies and Procedures

3.1 concerning sexual harassment, which provides, in part, as follows:

DEFINITION OF SEXUAL HARASSMENT

The prohibition of sexual harassment is found in the Vermont
Statutes at Title 21 § 495h. Sexual harassment is a form of
discrimination based on sex (and/or gender identity), and is defined
in Title 21 § 495d(13). Sexual harassment means unwelcome sexual
advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature, when:

a) submission to such conduct is made either explicitly or
implicitly a term or condition of employment; or
b) submission to or rejection of such conduct by an individual is
used as a component of the basis for employment decisions affecting
that individual; or
c) the conduct has the purpose or effect of unreasonably interfering
with an individual’s work performance or of creating an
intimidating, hostile, or offensive work environment.

Sexual harassment can be verbal, physical, auditory, and/or visual.
It can be either subtle or overt. Sexual harassment refers to behavior
that is not only unwelcome, but can also be personally offensive,
fails to respect the rights of others, lowers morale and interferes with
work effectiveness, or violates a person’s sense of well-being.

4
Significantly, the Board did not find that the text messages were welcome; it simply
found that the State had not established that they were not.
6
¶ 14. Applying this definition, the Board first considered caselaw relating to “hostile

environment” sexual harassment under Title VII, which the Board described as harassment

involving “ ‘discriminatory intimidation, ridicule, and insult’ that ‘is sufficiently severe or

pervasive to alter the conditions of the victim’s employment.’ ” The Board concluded that the

State had not established “actionable sexual harassment” of this type, both because of the lack of

specificity concerning the text messages and because the State had not established that the

messages were unwelcome.

¶ 15. However, the Board explained that “[a]nother category of sexual harassment under

the policy is behavior that is ‘personally offensive, fails to respect the rights of others, lowers

morale and interferes with work effectiveness, and violates a person’s sense of well-being.’ ” The

Board concluded that grievant’s conduct fell within this category. It concluded that as a supervisor,

it was inappropriate for grievant to engage in flirtatious messages with a subordinate employee in

his chain of command; that a perception of favoritism very well may result from such a

relationship; that the subordinate employee may not be evaluated on the merits of her work

performance; and that the inherent power a supervisor has over a subordinate employee looms over

such interactions. The Board noted that grievant’s behavior would tend to lower morale, and could

interfere with work effectiveness, and emphasized that his inquiry about whether Employee A’s

breasts hurt when touched was clearly beyond the bounds of appropriate supervisor-subordinate

dialogue and was offensive. The Board concluded that grievant’s misconduct also violated Policy

5.6, relating to employee conduct, because he used his State-issued cell phone for inappropriate

private use and conducted himself in a manner that brought discredit or embarrassment to the State.

¶ 16. With respect to the claim that grievant violated Policy 17.0, the Board determined

DCF was unable to establish by a preponderance of the evidence that grievant violated State policy

through evasiveness while answering investigatory questions. The Board attributed the generality

and vagueness of some of grievant’s answers in the investigative interview to difficulty

7
recollecting distant communications that he did not know he would be questioned about, rather

than dishonesty.

¶ 17. Finally, the Board stated that the charge that grievant engaged in intimidating,

bullying and demeaning behaviors in interacting with staff should have been addressed through

the performance evaluation process, not treated as misconduct. Accordingly, the Board declined

to consider this charge in evaluating the propriety of the State’s dismissal of grievant.

¶ 18. Considering the charges, the State did establish against grievant, the Board applied

the standards set forth in Colleran determining whether the State exercised its discretion within

tolerable limits of reasonableness. See In re Colleran, 6 V.L.R.B. 235, 268-69 (1983). The Board

concluded that grievant’s actions were serious but reiterated that they were not as serious as alleged

because the lack of specificity concerning the messages blunted the level of proven misconduct

and the State did not establish that the communications were unwelcome. The Board concluded

that grievant had fair notice that the inappropriate text messages with Employee A could result in

his dismissal, and that his misconduct had an adverse effect on his ability to perform at a

satisfactory level and on supervisors’ confidence in his ability to perform assigned duties.

However, the Board concluded that the adverse effect was mitigated somewhat by the fact that the

misconduct occurred several years earlier and had stopped once it was clear the messages were

unwelcome. The Board concluded that grievant’s past work and disciplinary record weighed in

his favor. Considering these factors, the Board concluded that the State did not have just cause to

dismiss grievant, and that a fifteen-day suspension would be an adequate and effective sanction.

The State and grievant both appealed the Board’s decision.

II. Analysis on Appeal

¶ 19. The State does not directly challenge the Board’s factual findings, but argues that

the Board’s conclusions are not supported by its findings. In particular, it argues that the Board

did not adequately analyze whether the text messages were unwelcome by Employee A; applied

the incorrect legal analysis by considering sexual harassment cases decided under Title VII of the
8
Civil Rights Act of 1964 rather than focusing on the Personnel Policy; failed to give adequate

weight to the inherent power a supervisor has over a subordinate employee in assessing the severity

of the conduct; and substituted its judgment for the State’s as employer. Ultimately, the State

argues that it established just cause for dismissal, and the Board erred in concluding otherwise. In

his cross-appeal, grievant asks this Court overturn the fifteen-day suspension imposed by the

Board, arguing that the findings do not support it.

¶ 20. Our review is shaped by the two layers of review involved when this Court reviews

the Board’s review of the State’s dismissal decision. In re Jewett, 2009 VT 67, ¶¶ 21-25, 186 Vt.

160, 978 A.2d 470. With respect to the Board’s findings and conclusions, our review is generally

deferential; we will not disturb the Board’s findings of fact unless they are clearly erroneous, and

we will treat the Board’s conclusions with deference if they are supported by the findings. Id. 25.

¶ 21. But our review with respect to the ultimate “just cause” determination is not

deferential, as this Court is responsible for ensuring that the Board does not overstep its authority

by substituting its own judgment for that of the State. Id. As we explained in Jewett, 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.” Id.

¶ 23. 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. ¶ 24 (citation omitted). Because directing the work force is “an inherent

management function,” as long as the State exercises its management prerogatives reasonably its

determination will be sustained.” Id. (citation omitted). In determining whether the State’s

dismissal decision fell “within the tolerable limits of reasonableness,” we do not defer to the

Board’s assessment.

¶ 22. Neither party challenges the Board’s findings; both argue that the Board’s

conclusions are not supported by its findings. We cannot readily evaluate the connection between

the Board’s findings and its conclusions for at least two reasons. First, many of the Board’s factual
9
findings were simply recitations of evidence. Second, the Board offered little analysis of the

evidence so we cannot discern how the Board assessed the weight and credibility of the evidence

and reached its factual findings and conclusions of law. We elaborate on these concerns below.

¶ 23. For at least the past forty-five years we have recognized that the mere recitation of

evidence is “immaterial and . . . not for consideration.” Krupp v. Krupp, 126 Vt. 511, 515, 236

A.2d 653, 656 (1967) (stating recitations of evidence are not findings of fact and cannot be

considered so); In re Muzzy, 141 Vt. 463, 471, 449 A.2d 970, 973 (1982) (explaining Board is

supposed to “be the detached and impartial finder of fact” rather than appellate body reviewing

findings of fact). We have long disfavored Krupp findings and have emphasized “that when the

court is sitting as a finder of fact, it should determine the facts rather than merely recite the

testimony offered by the parties.” In re M.E., 2019 VT 90, ¶ 20 n.3, 211 Vt. 320, 225 A.3d 633.

¶ 24. Although the Board’s decision is lengthy, there are very few true factual findings

to support it. Much of what the Board relies on is merely a recitation of the testimony and

statements made to the DHR investigator. This is insufficient. Roughly seventeen of the

approximately twenty-five pages of findings reproduce portions of interviews and letters from the

investigation and from employee evaluations. These are all Krupp findings that do not advance

our analysis. Three-and-a-half pages collect relevant provisions from the State of Vermont

Personnel Policies and procedures as well as a collective-bargaining-agreement provision. These

policies may guide the legal analysis, but tell us nothing about the operative facts in this case.

Most of the remaining pages consist of the Board’s summaries of the conclusions of others,

including grievant’s employee evaluations and the employer’s basis for dismissing him. When the

Krupp findings are stripped away, we are unable to determine the Board’s actual findings, and thus

the basis for its decision.

¶ 25. In addition, the Board provides no insight by way of factual findings into what

evidence it found to be credible to support its conclusions. For example, the Board seemed to find

that grievant stopped texting Employee A once she asked him to stop, but then described
10
Employee A’s statements to the investigator that she asked grievant to stop texting her repeatedly

over a significant period of time before he finally did, as well as grievant’s statements to the

contrary. To the extent that the Board did make a factual finding on this point, it does not explain

the analysis or credibility determination that underlies its finding in the face of conflicting

evidence. The Board has jurisdiction to “hear and make . . . final determination[s] on the

grievances of all employees who are eligible to appeal grievances to the board.” 3 V.S.A. § 926(a).

In doing so, it “acts as a quasi-judicial body, determining questions of law and fact.” In re Brooks,

135 Vt. 563, 565, 382 A.2d 204, 206 (1977). It is the factfinder’s obligation to weigh the credibility

of evidence. In re N.H., 168 Vt. 508, 512, 724 A.2d 467, 470 (“We rely on the factfinder’s

assessment of the credibility of the witnesses and weighing of the evidence.”). Without insight

into the Board’s credibility determinations, we cannot meaningfully review the Board’s decision

on the record provided. See Richard v. Richard, 146 Vt. 286, 287, 501 A.2d 1190, 1190-91 (1985)

(“The purpose of findings is to provide a clear statement as to what was decided and why; where

no indication appears of the method employed and weight accorded various factors, remand is

necessary.”).

¶ 26. In Muzzy, we declined to allow the Board to use “fallacious legal principles to

avoid its duty to find the facts.” 141 Vt. at 468, 449 A.2d at 972. Likewise, we decline to allow

the Board to “avoid its duty to find the facts” by merely reciting evidence, no matter how extensive

that recitation may be. Id. The proper remedy where findings are absent is to remand for

factfinding to take place. See Amiot v. Ames, 166 Vt. 288, 294, 693 A.2d 675, 678 (1997) (stating

proper recourse for insufficient findings of fact for Court to determine questions of law is to

remand for findings of fact to be made); see also In re Berlin Health & Rehab., Inc., 2006 VT 109,

¶ 14, 180 Vt. 432, 912 A.2d 449 (remanding case to Division of Rate Setting that involved mixed

question of fact and law when Court could not discern facts based on record available); In re

Muzzy, 141 Vt. at 476, 449 A.2d at 976 (remanding case to Board for further factfinding when

Board failed to use proper evidentiary standard). This remedy is particularly appropriate when a
11
decision relies on Krupp findings because the Court “cannot review fact-based conclusions without

the necessary underlying findings of fact.” See In re Rumsey, 2012 VT 74, ¶¶ 11-14, 192 Vt. 290,

59 A.3d 730 (remanding to Human Services Board for proper findings when decision relied on

Krupp findings).

¶ 27. For these reasons, we remand to the Board for it to make proper findings and any

additional conclusions as may be necessary to support its decision, and to enable this Court to

conduct our review with an adequate record of what the Board decided and why.5

Reversed and remanded for further proceedings consistent with this opinion.

BY THE COURT:

Paul L. Reiber, Chief Justice

Beth Robinson, Associate Justice

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

5
On October 1, 2021 this Court entered a partial stay of “any requirement that the State
restore grievant to the responsibilities of his position in the workplace pending resolution of this
appeal.” Because this appeal does not resolve the merits of the underlying claim, the partial stay
is extended until a final determination on the merits about the lawfulness of the dismissal.
12