Stone v. DOC: Vermont Supreme Court Confirms Employer’s Right to Bypass Progressive Discipline for Repeated Discriminatory Language

Introduction

In In re Grievance of Jonathan Stone, the Vermont Supreme Court addressed whether the Department of Corrections (DOC) had “just cause” to discharge a long-time correctional officer for repeatedly using sexist, homophobic, and other derogatory slurs in the workplace. Jonathan Stone, a Correctional Officer II at Southern State Correctional Facility (SSCF), was terminated after internal investigations established a pattern of abusive language despite prior warnings. Stone brought his grievance to the Vermont Labor Relations Board, which upheld the dismissal. He then appealed to the Supreme Court, contending among other things that DOC unreasonably bypassed the collective bargaining agreement’s progressive-discipline ladder, that other employees engaged in similar conduct with impunity, and that his language was mere “jail speak” endemic to the corrections culture.

The Supreme Court affirmed the Board, crystallising a significant principle: a Vermont public employer may bypass progressive discipline and summarily discharge an employee where the employee’s repeated discriminatory language seriously undermines agency interests, even in a workplace historically tolerant of such language.

Summary of the Judgment

Relying on extensive factual findings by the Labor Relations Board, the Court held that:

• Stone’s admitted use of terms such as “faggot,” “wetback,” “cunt,” “retard,” and similar epithets violated state personnel policies (sections 3.1 and 5.6) and DOC Work Rules 1, 6, and 9.
• Under the Colleran factors, the DOC responsibly balanced the seriousness of the misconduct, Stone’s position as a senior officer and role-model, his disciplinary history, notice, impact on agency reputation, and limited rehabilitation potential, all of which justified dismissal.
• The collective-bargaining agreement expressly allows bypassing progressive discipline in “appropriate cases”; no showing of “gross misconduct” is required, and Stone’s behaviour met the threshold for immediate discharge.
• Claims of “double jeopardy,” equitable estoppel, and selective enforcement were rejected: disciplinary proceedings are civil, Stone had notice, and the Board found no inconsistent treatment of similarly situated employees.
• Because the Board’s findings were supported by credible evidence, the Court deferred to its conclusions. The termination was affirmed in full.

Analysis

A. Precedents Cited

1. In re Colleran (1983) – Introduced the multifactor test (now canonical) for assessing the reasonableness of a disciplinary penalty. The Court and Board applied these factors exhaustively.
2. In re Jewett (2009) – Reaffirmed that if the employer’s penalty choice “falls within tolerable limits of reasonableness”, the Board must uphold it. The Court quoted this standard directly.
3. In re Brown (2004) – Clarified “just cause” and established the deference owed to Board fact-finding. Here, the Court treated the Board’s determinations with identical deference.
4. In re Graves (1986) & In re Gorruso (1988) – Upheld immediate dismissal (bypassing progressive discipline) where misconduct was egregious and rehabilitation unlikely. These cases provided direct analogues supporting DOC’s approach.
5. Jones v. Dep’t of Forests, Parks & Recreation (2004) & In re Letourneau (1998) – Described stringent requirements for equitable estoppel against the government, under which Stone’s argument failed.
6. Donley v. Donley (1996) – Cited to dismiss the “double jeopardy” analogy because administrative discipline is civil, not criminal.
7. Additional supportive decisions: In re Lilly (2002) on deference to findings despite conflicting evidence; In re Vt. State Colls. Faculty Fed’n (2019) on appellate courts not re-weighing evidence.

B. Legal Reasoning

1. Just Cause & Colleran Factors. The Board found — and the Court accepted — that Stone’s slur-laden language constituted a “substantial shortcoming detrimental to the employer’s interest,” i.e., just cause. The Court walked through each Colleran factor:

• Nature and seriousness: Discriminatory and harassing language, repeated over months.
• Position and responsibilities: Stone was a senior officer and mentor for juniors.
• Prior discipline: A 30-day suspension in 2019 showed prior serious misconduct.
• Work record: Fourteen years of service could not outweigh conduct severity.
• Impact on performance and agency reputation: Harm to morale, safety, and DOC’s recruitment/retention goals.
• Notice & clarity: Annual sexual-harassment training, signed Work Rules, and supervisor feedback.
• Consistency: No evidence of harsher treatment versus similarly situated staff.
• Rehabilitation potential: Stone’s refusal to accept fault signaled low potential.

2. Progressive Discipline. The collective bargaining agreement (CBA) lists a stepwise discipline model but expressly authorises bypass “in appropriate cases.” The Court ruled that egregious, repeated discriminatory language fits this exception; thus DOC need not first issue written reprimands or suspensions pertaining to the same misconduct. Importantly, the Court clarified that no independent finding of "gross misconduct" is a precondition for bypassing the ladder — adding doctrinal clarity for future disputes.

3. Rejection of Procedural Defenses.
Double jeopardy claims floundered because administrative discipline is non-criminal.
Equitable estoppel/waiver failed because Stone knew (and had been warned) that the language contravened policy, preventing any showing of ignorance or detrimental reliance.
Selective enforcement lacked evidentiary support in the record.

C. Impact of the Decision

• Workplace Culture in Corrections: The ruling signals a judicial endorsement of DOC’s effort to eradicate discriminatory “jail speak” despite entrenched culture and staffing stressors like COVID-related overtime.
• Public-Sector Discipline: Vermont agencies may confidently bypass progressive discipline when conduct undermines anti-discrimination policies and agency mission, reducing litigation risk so long as they apply the Colleran factors.
• Collective Bargaining Interpretation: The decision clarifies that contractual language allowing bypass in “appropriate cases” is broad; “gross misconduct” is not a prerequisite unless explicitly bargained for.
• Deterrent Effect: Employees are on heightened notice that discriminatory epithets — even if historically tolerated — can lead to immediate dismissal.
• Litigation Strategy: Future grievants will face difficulty arguing cultural tolerance or widespread practice when clear policies and training exist.

Complex Concepts Simplified

Just Cause

A legally sufficient reason for discipline or discharge: a “substantial shortcoming” harming the employer’s legitimate interests.

Colleran Factors

A multi-factor balancing test used by Vermont tribunals to gauge whether the penalty imposed is reasonable.

Progressive Discipline

A step-by-step corrective process (oral reprimand → written reprimand → suspension → dismissal) aimed at rehabilitation. Contracts can allow skipping steps in serious cases.

Bypass

When an employer moves directly to a severe penalty like discharge without completing earlier steps of progressive discipline.

Equitable Estoppel

A doctrine preventing a party (even the government) from asserting a right when its own actions reasonably led another party to rely to their detriment on a contrary belief.

Double Jeopardy

Constitutional protection against being tried twice for the same crime; not generally applicable in civil/administrative contexts.

Conclusion

Stone v. DOC stands as a robust affirmation that Vermont public employers may, in “appropriate cases,” summarily discharge employees whose conduct flagrantly violates anti-harassment policies, even where a permissive culture once existed. The Supreme Court’s unwavering deference to Board findings, its explicit endorsement of bypassing progressive discipline without a prerequisite “gross misconduct” label, and its treatment of cultural tolerance arguments collectively fortify management prerogatives to protect safe, respectful workplaces.

Practitioners should heed two key takeaways: (1) diligent documentation, clear notice, and a Colleran-factor analysis will likely insulate a termination decision from reversal; and (2) employees cannot shield themselves behind informal workplace norms when those norms conflict with codified anti-discrimination policies repeatedly reinforced through training.