This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter.
Appeal from: Superior Court, Wash. Civ. Division. DOCKET NO. 163-3-13 Wncv. Trial Judge: Helen M. Toor.
Reiber, C.J., Dooley, and Robinson, JJ.
In the above-entitled cause, the Clerk will enter:
Plaintiff George Kingston III appeals from the trial court's order granting summary judgment to defendant Montpelier Public School System in this wrongful termination case. He argues that the court erred in concluding that he was required to exhaust his administrative remedies before filing this lawsuit. We affirm.
The record indicates the following. Kingston worked as a special education instructional assistant for defendant in an elementary school. In September 2011, the school principal observed Kingston use what he considered excessive force with a student. Kingston claimed that the principal misunderstood what he saw. Kingston was terminated from his position in September 2011. In March 2013, Kingston filed a complaint alleging that defendant breached its contract with him by failing to follow the progressive discipline steps set forth in the collective bargaining agreement (CBA). The CBA provided that defendant could bypass the progressive steps for just cause if warranted by the severity of the offense. Kinston argued, however, that there was no just cause to bypass the procedures here. In May 2014, defendant moved for summary judgment, asserting that Kingston's failure to grieve and then arbitrate his termination as required by the CBA precluded him from pursuing his lawsuit.
The court agreed with defendant and granted its motion. It found the following facts undisputed. Kingston was employed during the 2011-2012 school year according to the terms of a Letter of Agreement that he signed on May 30, 2011. The agreement provided that Kingston's employment was " further governed by the terms of the Collective Bargaining Agreement between the District and the Montpelier Educational Support Staff Association." Under the CBA, Kingston's employment was protected from discipline or termination by a just cause provision. CBA § 22.6. Any such discipline or termination was subject to the CBA's grievance procedure. Id.
The grievance procedure has four steps. First, the employee must file a written grievance with the principal. The principal then must meet with the employee and the Association's representative and then issues a written decision. Id. § 9.2(B). If unsatisfied, the employee must file the written grievance with the superintendent. The superintendent then meets with the employee and anyone relevant to the grievance and issues a written decision. Id. § 9.2(C). If still unsatisfied, the employee may appeal the superintendent's decision to the school board. Id. § 9.2(D). The fourth and final step is arbitration. Id. § 9.2(E). The arbitrator's decision is " final and binding and not subject to appeal." Id. § 9.2(E)(4).
On September 19, 2011, Kingston was walking hand-in-hand with a student who commonly exhibited challenging behaviors. The principal was in the hallway and believed that he saw Kingston yank the child's arm using excessive force. Later that day, the principal called Kingston into his office. The Association's representative was present and took detailed notes. The special educator was also present. The principal confronted Kingston with what he had observed and informed Kingston that he was being put on administrative leave pending further investigation. On September 21, 2011, the principal and Kingston again met. The Association representative was also present and taking notes. The principal confirmed that, in his view, Kingston's conduct was inappropriate and inconsistent with Kingston's training and the child's needs. The principal said that he was recommending the termination of Kingston's employment to the superintendent and offered to copy the employee rights section of the CBA for Kingston.
The next day, the principal sent a letter to Kingston reiterating that he was recommending termination of his employment and the basis for that decision. A copy of the letter was sent to the superintendent and to the Association's representative. The letter stated, " Consider this letter to be your formal notification of termination." Kingston responded with a letter to the principal in which he objected to the principal's characterization of his conduct. He asked to continue his employment with defendant.
On October 4, 2011, Kingston met with the director of special education. The superintendent was present. The Association's representative again was present taking detailed notes. Kingston said that he understood that the superintendent and the director " naturally" would support the principal's decision and asked if he would be eligible for future employment opportunities or a letter of recommendation. By email to the Association's representative, the principal, and the director of special education, the superintendent later confirmed that the school board's approval was not needed and that Kingston's termination was effective September 22, 2011, the date that the principal gave formal written notice of Kingston's termination. That was the end of the matter until Kingston filed this lawsuit.
Defendant argued below that Kingston's remedy was to pursue a grievance and binding arbitration under the terms of the CBA and that the availability of this process foreclosed his lawsuit. See Furno v. Pignona, 147 Vt. 538, 541, 522 A.2d 746 (1986) (recognizing, as general rule, that employee subject to collective bargaining agreement, who has grievance within scope of that agreement, must exhaust remedies available under that agreement before suing his or her employer). Kingston maintained that he was not obligated to pursue the grievance policy given defendant's breaches of its obligations under the CBA. In support of his position, Kingston relied on Furno, where this Court stated that:
[A] recognized exception to the exhaustion requirement exists when the conduct of the employer amounts to a repudiation of those contractual [grievance] procedures. When an employer fails or refuses to perform actions required of it under contract and thus prevents the employee from complying therewith, the employer is estopped ...