SC0VT affirms summary judgment dismissing FEPA, contract and promissory estoppel claims by employee fired for lying, holding FEPA protections apply only to governmental investigations, that handbook by its terms did not create a contract, and that employee did not have evidence of a “specific” promise needed to support promissory estoppel claim.

 

Westcott v. Mack Molding, Co. , 2024 VT 85 [12/20/2024]

WAPLES, J.   Employee Paul Westcott surreptitiously recorded conversations at work and employer Mack Molding Co., Inc. fired him for lying about it.  Employee sued employer.  The trial court concluded at summary judgment that employee’s recording activities were not protected by Vermont’s Fair Employment Practices Act (FEPA) or Worker’s Compensation Act (WCA).  The trial court further concluded that employee could not sustain his breach-of-contract or promissory-estoppel claims.  We affirm.

 

FEPA and WCA Retaliation Claims

 

Employee does not dispute that employer terminated him for lying.  However, he contends that lying in support of a protected activity is itself protected activity. 

Assuming arguendo that being fired for lying about a protected activity would make the firing improper, we first consider whether his covert recording of workplace conversations is protected by the FEPA or the WCA, which incorporates by reference the provisions against retaliation under the FEPA.  21 V.S.A. § 710(f)

 

 The FEPA provides, in relevant part: “An employer . . . shall not discharge . . . any employee because the employee: . . .  (b) has lodged a complaint or has testified, assisted, or participated in any manner with the Attorney General, a State’s Attorney, the Department of Labor, or the Human Rights Commission in an investigation of prohibited acts or practices;   (c) is known by the employer to be about to . . . testify, assist, or participate in any manner in an investigation of prohibited acts or practices.}21 VSA § 495(a)(8).

 

Employee points us to a dictionary definition of the word “investigation” and argues that employee’s actions fall into it.  Employer instead argues that “investigation” means an investigation by the “Attorney General, a State’s Attorney, the Department of Labor, or the Human Rights Commission,” as specified in 21 VSA § 495(a)(8)(B). 

 

We think employer’s interpretation is correct. The Legislature intended the “investigation” referred to in subdivision (c) to mean the sort of investigation it defines immediately beforehand.  Because employee does not contend that his actions were in any way related to a government investigation as described in subdivision (b), his covert recording does not fall within the scope of the FEPA’s participation clause.

Similarly, employee’s actions do not fall within the scope of the WCA’s protections against retaliation. 21 V.S.A. § 710(d).

 

Breach of Contract

  Employee contends that employer breached a contract with him, created by the employee handbook 

 

Within the disciplinary process section, the handbook expressly provides that employees “should not assume that any or all of the steps outlined below will be followed in every situation” and that the stated “process does not create a binding obligation to follow these steps in every situation.” 

 

 The situation created by the handbook here is not like that of Dillon v. Champion Jogbra, Inc., 175 Vt. 1, ¶ 15, where despite an “at will” disclaimer, the disciplinary policy “require[d] management” to follow certain steps in the process -- a “promise for . . . specific treatment in a specific situation” because here the handbook stated that “the Company expressly reserves the right to terminate the employment relationship at will” and the handbook did not make any promises modifying that status.

 

Promissory Estoppel   

 

Employee argues that he “had a legitimate expectation that he would be permitted to return to work” after his period of short-term disability because of statements made by, the human resources directo in a letter explaining his disability benefits, providing: “[i]f you . . . recover after you have used 12 weeks of FMLA but before the maximum benefit (time away from work) of twenty-six (26) weeks is exhausted, you will still be considered” an employee and will “be reinstated to the first available position for which you are qualified.”

To sustain a promissory estoppel claim, employee must “[1] demonstrate that the termination was in breach of a specific promise made by the employer, [2] that the employer should have reasonably expected to induce detrimental reliance on the part of the employee, and [3] that the employee did in fact detrimentally rely on the promise.”  Dillon v. Champion Jogbra, Inc., 175 Vt. 1, ¶ 19 (2002). 

 

Even if we viewed this statement as a promise, employee’s termination was not “in breach of a specific promise made by the employer”.  Employee was merely promised that he would be able to return to “the first available position” not that the employer would refrain from terminating his employment for any other reasons.

Affirmed.

 How cited