In Re Grievance of David Roos

VERMONT SUPREME COURT Case No. 24-AP-116
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

DECEMBER TERM, 2024

In re Grievance of David Roos* } APPEALED FROM:
} Labor Relations Board
} CASE NO. 22-34

In the above-entitled cause, the Clerk will enter:

Grievant, a former sergeant with the Vermont State Police (VSP), appeals the Vermont
Labor Relations Board’s order upholding his termination for misconduct. On appeal, grievant
argues that the State did not prove by a preponderance of the evidence that grievant committed
sexual harassment, acted in a manner unbecoming an officer, or was untruthful during the
investigation, and that there was no just cause for termination. We affirm.

The Board made the following findings. Grievant began employment with the VSP in
2007 as a trooper. Throughout his employment he received positive performance evaluations.
He was, however, disciplined for misconduct on two prior occasions for failing to enter
information about a missing teenage girl into the Amber Alert system and for failing to log into
evidence a seized firearm, which went missing and was ultimately recovered from his garage. At
the time of the conduct relevant to this proceeding, grievant was a sergeant supervising other
troopers at the St. Johnsbury state police barracks. He received extensive training on policies,
procedures, and rules regarding sexual harassment, discrimination, and unprofessional conduct.
Grievant received the VSP Code of Conduct, which requires officers to answer questions “fully
and truthfully” during internal affairs investigations, prohibits discrimination, and prohibits
officers from acting in a manner unbecoming an officer.

In December 2021, a coworker filed a complaint with the Office of Internal Affairs
indicating that grievant “had potentially sexually harassed three female troopers under his
charge.” Internal affairs opened three investigations regarding three different female troopers
supervised by grievant. The troopers described situations in which grievant made sexualized
comments, acted inappropriately, and made them feel uncomfortable. In December 2021,
grievant was suspended from duty. Following an investigation and a Loudermill hearing1 at
which grievant appeared with counsel, the Department of Public Safety terminated grievant in
May 2022 for misconduct and gross misconduct. The Department found grievant engaged in
sexual harassment against three female subordinates, Troopers P., H., and F., discriminated
against one of them based on national origin, engaged in conduct unbecoming a state police
officer, and failed to answer questions fully and truthfully during the internal affairs
investigation.

Grievant appealed to the Board, which held hearings over several days. The Board heard
testimony from several witnesses. Grievant testified and generally denied any wrongdoing. He
did not remember some of the instances, and as to other alleged circumstances he explained that
no one complained at the time and that he did not intend to make anyone uncomfortable. The
Board found that the State proved by a preponderance of the evidence that grievant engaged in
sexual harassment, was not truthful in the investigation, and engaged in conduct unbecoming a
police officer, but did not meet its burden of proving that grievant discriminated based on
national origin.

Based on the evidence, the Board made findings as to each female trooper. In December
2020, Trooper F. ripped her pants while on duty and returned the barracks. Both Trooper F. and
another officer present testified that after seeing the ripped pants, grievant commented on
Trooper F.’s body and referred to her sister. Trooper F. felt awkward and was offended by
grievant’s comment. Grievant recalled a comment being made about Trooper F.’s body and an
awkward request about whether she had a sister the speaker could date, but claimed the statement
was made by someone else. The Board credited the testimony of Trooper F. and the other
trooper, finding that grievant made a comment about Trooper F.’s body shape and made
reference to her sister.

The Board also credited the testimony of Trooper P. and found that grievant questioned
her about her past romantic and sexual experiences with a new recruit. The conversation was in
front of other staff, and was inappropriate and offensive. Grievant denied using the term virgin
or virginity in the conversation but acknowledged asking about the extent of the relationship.

As to Trooper H., grievant approached her from behind, placed an item in her back
pocket, and then removed it. Trooper H. testified that she did not consent to this action.
Grievant admitted he placed an item in her pants and then removed it, but believed there was
some form of communication or gesture between them. The Board found that grievant’s act was
unwelcome, offensive, and failed to respect Trooper H.’s autonomy.

The Board concluded that in each instance grievant engaged in unwelcome conduct or
actions of sexual nature which unreasonably interfered with the troopers’ work performance and
created a hostile work environment. Grievant’s actions caused all three troopers to avoid him,
and his actions interfered with their ability to perform their jobs. Therefore, the Board concluded
that grievant engaged in sexual harassment.

1
State employees are entered to a pretermination opportunity to respond to charges of
misconduct, similar to a Loudermill hearing. See In re Towle, 164 Vt. 145, 153 (1995) (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)).
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The Board also found that grievant was not truthful when discussing the events about
Trooper F.’s ripped pants. During the internal affairs interview, grievant claimed it was another
officer who made the statement about Trooper F.’s sister. Even after it was clear the other
officer was not there at the time, grievant continued to assert that someone else made the
comments.

Finally, the Board found that grievant engaged in conduct unbecoming a state police
officer because his sexual harassment of his subordinates in front of other employees
demonstrated poor judgment, was improper, and negatively impacted their ability to do their
jobs.

The Board considered the twelve Colleran factors2 and concluded that dismissal was a
reasonable discipline for the violations. The Board considered grievant’s position of trust and
authority over the troopers in the barracks, the seriousness of the sexual harassment, his past
discipline, his failure to maintain professional boundaries and his poor judgment, the penalty
associated with grievant’s misconduct, the clarity of the notice prohibiting harassment, and
grievant’s response of minimizing the incidents. Ultimately, the Board concluded that grievant’s
actions constituted just cause for dismissal. Grievant appeals to this Court.

Grievant first challenges the sufficiency of the evidence as to each violation. He argues
that the testimony of the female subordinates was inconsistent, that no one complained until
another female officer met with the women, and that the evidence was insufficient to show that
his acts unreasonably interfered with their work performance or created an intimidating, hostile,
or offensive work environment. On appeal, “[w]e treat the Board’s conclusions with deference,
and do not overturn them when they are supported by the findings.” In re Brown, 2004 VT 109,
¶ 13, 177 Vt. 365 (citation omitted).

As to the sexual harassment, the evidence supports the Board’s findings regarding each
trooper. The Board found that grievant sexually harassed Trooper P. by asking whether she lost
her virginity to another trooper and at what age. This finding is supported by the testimony of
Trooper P. and another trooper who overheard the conversation. In addition, grievant admitted
that he asked a series of questions regarding Trooper P.’s first love. While grievant testified that
he did not remember asking about Trooper P.’s virginity, the Board acted well within its role as
factfinder in crediting other testimony over his. As to Trooper H., the Board found that grievant
sexually harassed her by placing an item in her back pants pocket and then removing it. Grievant
testified that he removed an item from Trooper H.’s pocket but was careful to retrieve it without
making contact with Trooper H. The Board credited Trooper H.’s testimony that she did not
consent to this action, and that the action was unwelcome and offensive. Finally, the Board
found that grievant sexually harassed Trooper F. by alluding to her body or body shape when
commenting on her ripped pants and asking whether she had a sister he could date. Again,
although grievant denied making the statement, the testimony of Troper F. and the other trooper
present support the Board’s findings.

2
To determine the appropriate discipline, the Board has routinely used the factors
articulated in a Board decision entitled In re Colleran. See In re Merrill, 151 Vt. 270, 274-75
(1988) (discussing Board’s use of factors).
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In each instance, grievant emphasizes countervailing evidence, including his own
testimony, and asserts that the incidents were innocent misunderstandings, were jokes, did not
occur, or were misinterpreted. This Court does not reweigh the evidence on appeal. In re Vt.
State Colls. Fac. Fed’n, AFT Loc. 3180, 2019 VT 50, ¶ 47, 210 Vt. 476 (explaining that it is not
Court’s “role to reweigh the evidence”). The Court “will uphold the Board’s findings so long as
credible evidence fairly and reasonably supports them,” and will reverse “only if the Board’s
findings of fact are clearly erroneous.” In re VSEA, 2014 VT 56, ¶ 22, 196 Vt. 557 (quotation
omitted). The evidence supports the Board’s findings and there are no grounds to disturb them.

Grievant next argues that the State failed to prove that his conduct fell within the
definition of sexual harassment or rose to the level of violating the State’s directive regarding
sexual harassment. The VSP sexual harassment directive indicates that harassment includes
“verbal or physical conduct of a sexual nature” that “has the purpose or effect of unreasonably
interfering with an individual’s work performance or of creating an intimidating, hostile, or
offensive work environment.” Grievant contends that the evidence does not support the Board’s
findings that his behavior unreasonably interfered with the work performance of the troopers
involved or created a hostile work environment. He highlights testimony minimizing the impact
of his comments and points to the fact that the troopers did not immediately complain about his
behavior. The Board’s findings were well supported by the evidence, including the troopers’
testimony that they were concerned about reporting or complaining about grievant’s conduct,
and to avoid further interactions they changed their own behaviors, such as avoiding the barracks
unless there was a group of people, waiting for a different sergeant to sign paperwork, and not
returning to the barracks to use the bathroom.

Grievant also argues that the record does not support the Board’s findings that he
engaged in conduct unbecoming an officer and that he was untruthful during the investigation.
Again, grievant presents his own view of the evidence to support these arguments. Although
there may have been conflicting testimony, the evidence supports the Board’s finding that
grievant engaged in conduct unbecoming an officer by making inappropriate comments and
engaging in the sexual harassment of his subordinates as outlined above. As to grievant’s
untruthfulness, the Board found that grievant was dishonest when he attributed the comments
about Trooper F. to another officer. On appeal, grievant claims that he made a simple error in
recollection because the interview happened more than thirteen months after the incident, and he
lacked advance notice of the allegation. The Board acted well within its role as factfinder in
determining that his incorrect statements during the investigation were more than mere
forgetfulness, especially given that grievant attributed the statement to a different officer and
then continued to claim someone else made the comment even after it was clear that that officer
was not present at the time.

Finally, grievant argues that the Board erred in determining there was just cause for
dismissal. “To dismiss a state employee, the employer must establish that just cause exists.”
Brown, 2004 VT 109, ¶ 12. Just cause is “some substantial shortcoming detrimental to the
employer’s interests, which the law and a sound public opinion recognize as a good cause for his
dismissal.” Id. (quotation omitted). 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.” In re Jewett, 2009 VT 67, ¶ 23, 186 Vt. 160. To assess the reasonableness
of the State’s decision, the Board uses twelve factors. See id. (explaining that this Court has

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“endorsed the Board’s use of the factors articulated in In re Colleran, 6 V.L.R.B. 235, 268-69
(1983)”).

These twelve factors are: the nature and seriousness of the offense,
the employee’s job level and type of employment, the employee’s
past disciplinary record, the employee’s work record, the effect of
the offense on the employee’s ability to perform satisfactorily, the
consistency of the penalty with those imposed upon other similarly
situated employees, the consistency of the penalty with any
applicable agency table of penalties, the notoriety of the offense or
its impact on the reputation of the agency, the clarity of notice, the
potential for the employee’s rehabilitation, mitigating
circumstances surrounding the offense, and the adequacy and
effectiveness of alternative sanctions to deter such conduct in the
future.

Id. The factors are not exhaustive and may not all be relevant in each case.

Grievant contends that the Board did not properly weigh the factors. Grievant makes his
own assessment of the factors, reiterating his version of the allegations. As outlined above, we
do not reweigh the evidence on appeal and we accept the Board’s assessment of the facts. In
addition, grievant claims that the Board should have placed more weight on the good rapport he
had with other troopers, taken into account that his prior discipline was remote in time and did
not involve sexual harassment, found that there was limited and uncorroborated testimony about
the impact of the incidents on the female troopers, distinguished his case from other dismissals
for dishonesty that involved more egregious conduct, given more weight to his positive
performance evaluations for seventeen years, and taken into account the fact that the events
occurred during the pandemic. He also asserts that the Board incorrectly found that grievant
blamed the alleged victims.

There was no error. The Board considered the factors in turn. As to the seriousness of
the offense and grievant’s job level, the Board weighed the serious nature of sexual harassment,
grievant’s betrayal of his position of trust and authority, and the fact that grievant’s subordinates
changed their work behavior to avoid interactions with him. The Board noted grievant’s positive
performance evaluations but found that grievant’s past discipline in 2014 and 2018 weighed in
favor of termination. The Board found that grievant’s failure to maintain professional
boundaries and his poor judgment impacted his ability to perform his duties and created a hostile
work environment, which weighed in favor of termination. The Board found that termination
was reasonable for these offenses, noting that this Court had upheld dismissals for dishonesty
and the Board has upheld termination for sexual harassment. The Board also found that
dismissal was within the range of penalties for a first offense of sexual harassment, a second
offense for conduct unbecoming, and a first offense of untruthfulness. The Board found grievant
had clear notice that this type of behavior was not permitted through training and access to
policies and procedures. Finally, the Board found there was little potential for rehabilitation
given grievant’s failure to take responsibility and his attempts to minimize the incidents. The
Board noted that the events took place during the COVID-19 pandemic but found that this did
not excuse or explain grievant’s conduct. Based on this assessment the Board concluded that the
State’s decision to dismiss grievant was reasonable. Grievant’s arguments essentially ask us to

5
make a second, independent assessment of the factors, which is beyond the standard of review.
VSEA, 2014 VT 56, ¶ 22.

As explained above, the Board’s findings regarding grievant’s misconduct were
supported by the evidence, and the Board properly assessed the relevant factors regarding the
State’s decision to terminate grievant for his misconduct. Therefore, there are no grounds to
disturb its decision.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

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