Rule 50 motion not waived by failing to request jury instruction or by failing to object to evidence. Whether release is ambiguous so as not to bar retaliation claim must be decided by trial court in first instance.

Hall v. State, 2012 VT 43 (Skoglund, J.)
Plaintiff Frank Hall, a longtime employee of the State of Vermont Agency of Transportation (AOT), sued his employer in the fall of 2007, alleging discrimination on the basis of, among other things, a physical disability and retaliation for his having filed a workers’ compensation claim.  The jury found no disability discrimination, but awarded Hall damages based upon its finding that the State had retaliated against him as alleged.  On appeal, the State argues that Hall’s retaliation claim was precluded by a Stipulation and Agreement releasing the State from liability for any and all claims associated in any way with Hall’s reclassification and transfer stemming from hostile work environment allegations against him. At trial he State consistently and repeatedly argued that Hall waived any claims against the State based on his reclassification.  That question was for the court to evaluate in the first instance.  The failure of the court to resolve the State’s Rule 50 motion is fatal to the validity of the ensuing jury verdict because the retaliation claim was grounded on actions taken by the State pursuant to the Agreement. Accordingly, we vacate the jury verdict and remand the matter for the trial court to address the  scope of the September 2003 release.

TheAOT and Hall, with the assistance of counsel, negotiated a resolution of allegations against him and signed a Stipulation and Agreement.   Pursuant to the Agreement, AOT reclassified Hall’s job.  The critical release provision contained in the Agreement states as follows: “Frank E. Hall hereby waives any grievance, complaint, lawsuit, or other claim of legal wrongdoing or liability whatsoever against the State of Vermont, . . . associated in any way with his employment by the State of Vermont, the negotiation of this Agreement, and his reclassification as called for in this Agreement.”  At trial, Hall’s attorney testified that he wanted to make sure that the release would be limited to matters surrounding the hostile work environment allegations and would not preclude unrelated future claims, and that he insisted on adding to the end of the above-quoted sentence the following language: “specifically pertaining to the aforesaid ‘hostile work environment’ as stated, supra.”  

Upon the close of evidence  and following the vedict the State  made and renewed its Rule 50 motion.  The State argued the Agreement released the State from any liability based on his claim that the State had retaliated against him for having filed a workers’ compensation claim by demoting him. The State asserted that the Agreement plainly required him to waive any claims based on his reclassification as the result of the hostile work environment investigation.  In response, Hall argued that the Agreement was ambiguous and that the State had waived any reliance on the release contained in the Agreement.  According to Hall, the State had conceded the Agreement’s ambiguity by allowing evidence of the handwritten addition to the release language to be admitted into evidence without objection. The trial court did not reach the merits, but ruled that “the failure to seek an instruction on the issue is most equitably treated as a waiver of the claim by the State.”

The State cannot reasonably be said to have, at any time, voluntarily or knowingly waived its defense .The Agreement was raised in the State’s answer to the complaint, was asserted in its Rule 50 Motion submitted to the court at the close of Hall’s case, and was renewed after the close of evidence.  While a party generally may waive its right to a ruling by failing to proceed with the motion or by acting in a manner inconsistent with the object of the motion, in this case the court continued to inform the State that the matter was still under advisement.  Therefore, a waiver could not be implied based on the State’s failure to seek a jury instruction on the defense, given that the State reasonably assumed the defense was still under advisement by the court. Likewise, the State  did not waive any defense based on the Agreement by not objecting to evidence presented at trial concerning the circumstances surrounding the signing of the Agreement. Here, the State does not argue that the parol evidence rule precluded the admission of trial testimony concerning the Agreement.  Rather, the State argues that the Agreement Hall signed precluded his claims in this case, that it sought judgment at trial based on this argument, but the trial court never ruled on its motion.

The question not reached by the trial judge  is whether the language of the document was ambiguous as to Hall’s waiver of his retaliation claim.   Nothing in the language of the Agreement, provides the trial court with a basis for finding that, as a matter of law, the Agreement unambiguously permitted Hall’s claims in this case.  Rather, on remand, the trial court must consider whether the Agreement unambiguously precluded all or part of Hall’s remaining retaliation claim.  If the language of the Agreement is ambiguous as to its preclusive effect in light of the circumstances surrounding the making of the Agreement, thjen the  court ;must instruct a new jury to that effect.  See Isbrandtsen v. N. Branch Corp., 150 Vt. 575, 579, 556 A.2d 81, 84 (1988) (holding that trial court may consider circumstances surrounding making of agreement in determining whether agreement is ambiguous).