Vermont Constitutional law. Employee cannot rely on Article 4 to create a property interest in claimed employment rights because employee has no state law right to overtime wages.

 Flint v. Department of Labor,  2017 VT 89 [filed 10/06/2017]

A former employee of the Vermont Department of Labor appeals from a judgment on the pleadings denying his suit against the Department seeking unpaid overtime pay. Employee argues that he is entitled to overtime pay for hours worked in excess of forty hours per and that that state employees have a private right of action to enforce those claimed rights through Article 4 of the Vermont Constitution. Vt. Const. ch. I, art. 4. We affirm.

Chapter I, Article 4 of the Vermont Constitution provides: 

Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; comformably to the laws.

Vt. Const. Ch. I, Art 4

 We have held that Article 4 is “the equivalent to the federal Due Process Clause.” Quesnel v. Town of Middlebury, 167 Vt. 252, 258, 706 A.2d 436, 439 (1997). However, we have also held that Article 4 “does not create substantive rights,” but rather “ensure[s] access to the judicial process.” Shields v. Gerhart, 163 Vt. 219, 223, 658 A.2d 924, 928 (1995).

Article 4 provides a remedy only if employee can show that he has a pre-existing property interest in those employment rights. See Quesnel, 167 Vt. at 258, 706 A.2d at 439 (“There being no statutory or common-law cause of action for plaintiffs’ injuries resulting from their son’s death, plaintiffs have not been denied due process of law or their rights under Article 4.”); see also Hallsmith v. City of Montpelier, 2015 VT 83, ¶ 10, 199 Vt. 488, 125 A.3d 882 (“To show a  violation of procedural due process, an individual must (1) identify a protected property right, (2) show that the state or a state actor has deprived the individual of that right[,] and (3) show that the deprivation was effected without due process.”).

Employee asserts that those pre-existing property rights have a statutory basis—that they come from § 384(b)(7). But § 384(b)(7) explicitly excludes state employees from its protections because state employees’ minimum wage and overtime rights are already covered by FLSA.

Employee therefore has no state law right to overtime wages..

SCOVT NOTE. Compare Nelson v. Town of St. Johnsbury, 2015 Vt. 5, where the Court held a town manager who alleged wrongful termination was entitled to procedural due process under Article 4 and that Article 4 is self executing.

That Article 4 protects only recourse to the judicial process and does not create substantive rights see also Gallipo v. City of Rutland, 2005 VT 83; USGenNew England, Inc. v. Town of Rockingham, 2003 VT 102, 176 Vt. 104, 838 A.2d 927; Levinsky v. Diamond, 151 Vt. 178, 197, 559 A.2d 1073, 1086 (1989).

That access to courts is not absolute see State v. de Macedo Soares, 2011 VT 56 (requiring litigant to incur costs for filing fees and a transcript does not violate Article 4 ); Handverger v. City of Winooski, 2011 VT 130. ¶ 13 (Article 4 does not provide relief from explicit provisions of a city charter precluding appeal from termination of employment); Carter v. Fred's Plumbing & Heating Inc., 174 Vt. 572, 816 A.2d 490 (2002)( five-year statute of limitations in the Occupational Disease Act does not violate Article 4.).

Vt. Constitution, Chapter I, Article 4 is a self-executing clause that protects against deprivation of property rights without due process.

Nelson v. Town of St. Johnsbury, 2015 VT 5 [Filed January 16, 2015]

DOOLEY, J. Plaintiff, the former town manager of St. Johnsbury, appeals from a trial court decision granting partial summary judgment to defendants, the Town of St. Johnsbury and its individual selectboard members, on his claims of violation of Chapter I, Article 4 of the Vermont Constitution. We reverse and remand.

Plaintiff sought a preliminary injunction reinstating him as town manager; compensatory and punitive damages; and attorney's fees and costs. After a hearing, the trial court refused to grant a preliminary injunction. On summary judgment the court held that plaintiff has no legal interest in his employment because his employment was at will; the selectboard members are entitled to qualified immunity for their alleged violation of the Civil Rights Act, 42 U.S.C. § 1983; plaintiff has no private right of action for a violation of Chapter I, Article 4 of the Vermont Constitution; and plaintiff failed to satisfy all the required elements of promissory estoppel. This appeal followed.

Chapter I, Article 4 of the Vermont Constitution provides:

Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; conformably to the laws.

Vt. Const., ch. I, art. 4.

We have considered Article 4 the equivalent to the federal Due Process Clause. It does not create substantive rights; it merely provides access to the courts. Where a substantive right—e.g., a property interest—already exists, conferred by statute or common law, Article 4 can protect a plaintiff against deprivation of that right without due process.

Plaintiff claims that when the selectboard allegedly deprived him of his employment without due process, that deprivation offended the guarantees of Article 4. The Town contends that Article 4 does not provide a private right of action. The trial court agreed with the Town and granted its motion for summary judgment. We disagree with the trial court and reverse the grant of summary judgment to the Town.

The question of whether a private right of action can be based on a provision of the Vermont Constitution may be bifurcated into two questions. The first is whether the constitutional provision is self-executing—that is, whether a plaintiff can bring an action for a violation of the provision without implementing legislation. The second is whether the remedy that a plaintiff seeks, typically damages, exists for the violation.

A Vermont constitutional provision is self-executing "if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, . . . and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given force of law.” That is, "a self-executing provision should do more than express only general principles; it may describe the right in detail, including the means for its enjoyment and protection.” We have concluded that Article 7, and Article 13 are self executed because each "expresses a ... fundamental right" and that right is "so certain and definite in character as to form rules for judicial decisions."

Article 4 is about access to the judicial branch to enforce the law. We recognize that we are dealing with a very broad concept, stated in language from an earlier century. To say that the language is too vague and general to enforce ignores the immense body of law that has developed and applied the principles of due process. We find Article 4 no more broad or general than Article 7, which we held as self-executing.

We therefore hold that Chapter I, Article 4, of the Vermont Constitution is self-executing and that plaintiff properly invoked the Article in his complaint.

We stress that we have not addressed the remedy plaintiff might receive if he proves a violation of the provision. We have almost no precedents in which Article 4, rather than the Fourteenth Amendment to the United States Constitution, is the primary basis for decision and none in which the party invoking Article 4 is seeking relief within or because of an administrative process. The trial court will have to address how it meets the claims and facts before it. We reverse the trial court's grant of summary judgment to the Town and hold that plaintiff is entitled to due process under Chapter I, Article 4 of the Vermont Constitution.

We remand to the trial court to decide if the selectboard furnished plaintiff with adequate notice and hearing upon termination.

Employment. Town not liable for tortious iterference with Town treasurer’s contract.

 Stone v. Irasburg, Town of 2014 VT 43 (25-Apr-2014)

CRAWFORD, J. Plaintiff Linda Stone sued the Town of Irasburg alleging tortious interference with office. The trial court granted the Town summary judgment. Plaintiff appealed. We affirm.

Tortious interference generally refers to interference with performance of an existing contract or a prospective contractual relationship. See Restatement (Second) of Torts § 766 (2013). Under this tort, a person is liable if he “intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract.” Id.

While plaintiff styles her claim as one for “tortious interference with performance of office,” there is no such enumerated tort in our case law, or in the law of other jurisdictions. The closest analogy, although imperfect, is tortious interference in the employment context, which has been recognized in some states. While the elements are described by courts in various ways, under any definition of this tort, the interference with the contract or prospective advantage must come from a third party.

Here, to the extent that we can apply tortious interference with an employment relationship to plaintiff’s allegation of tortious interference with performance of her office, we conclude that plaintiff has failed to meet the elements of that tort. Plaintiff alleges that selectboard members interfered with plaintiff’s performance of her duties as treasurer. Because the selectboard members are agents of the Town and not third parties, plaintiff has failed to allege interference by a third party, and has not pled a prima facie case for tortious interference.

Therefore, the court was correct to grant judgment to the Town on this count.

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Note: Vermont precedent not cited in this opnion says the tort of interference with contract is applicable in limited situations against other employees or officers of the plaintiff's employer who act outside the scope of their employment to further their own interests. Murray v. St. Michael's College, 667 A.2d 294, 164 Vt. 205 (1995) (summary judgment in favor of supervisor appropriate in the absence of any allegation by plaintiff that supervisor acted outside the scope of his employment or in his own personal interest in dealing with plaintiff); Lyon v. Bennington College Corp., 137 Vt. 135, 138-39, 400 A.2d 1010, 1012-13 (1979) (claim against officers of college for inducing college to break its contract with plaintiff presented viable tort claim because the gravamen of the complaint was that the individual defendants acted in their individual capacities, and was not an attempt to impose liability for good faith acts within the scope of corporate duties). See generally Annotation, Liability of Corporate Director, Officer, or Employee for Tortious Interference with Corporation's Contract with Another, 72 A.L.R. 4th 492 (1989) (stating circumstances in which courts have allowed plaintiffs to bring contractual interference suits against other employees of plaintiffs' employer); Restatement (Second) of Torts § 767 (1979) (stating circumstances in which courts have allowed plaintiffs to bring contractual interference suits against other employees of plaintiffs' employer); Restatement (Second) of Torts § 767 (1979) (stating factors for court's consideration in determining whether defendants' actions are "improper" so as to make defendants liable under contractual interference claim); e.g. Shea v. Emmanuel College, 425 Mass. 761, 682 N.E.2d 1348 (1997), (court properly granted summary judgment against terminated college employee's interference of contract action against her former supervisor because employee failed to create genuine issue of material fact as to whether former supervisor had acted with actual malice in arranging for her discharge); Hickman v. Winston County Hosp. Bd., 508 So.2d 237 (Ala.1987), (courts have held that claim of tortious interference with former employee's contract of employment cannot be maintained against officers or employees of a corporation unless those persons were acting outside their scope of employment and were acting with actual malice); Murray v. Bridgeport Hosp., 40 Conn.Supp. 56, 480 A.2d 610 (1984),(although an agent acting legitimately within the scope of agent's authority cannot be held liable for interfering with or inducing principal to breach a contract between principal and a third party, an agent can be held liable for such interference or inducement if agent did not act legitimately within the agent's scope of duty but used the corporate power improperly for personal gain); Holloway v. Skinner, 898 S.W.2d 793 (Tex.1995), (on an interference with contract claim a plaintiff must show that the officer of a corporation defendant acted in a fashion so contrary to the corporation's best interests that the officer's actions could only have been motivated by personal interests).

SCOVT affirms summary judgment for employer in discrimination case.

Brown v. State, 2013 VT 119 (13-Dec-2013)

BURGESS, J. Plaintiff Daniel Brown appeals from a superior court decision granting summary judgment in favor of the State on plaintiff’s claim of employment discrimination in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311. He contends that summary judgment was improper because genuine material issues of fact remained as to whether his membership in the Vermont National Guard was a motivating factor in the State’s decisions not to promote him, and ultimately to terminate him from his position. We affirm.

Plaintiff adduced no evidence to show that his non-promotion was motivated by his membership in the Vermont National Guard or his possible deployment. He did not show that his qualifications were similar, equal, or superior to those of the individuals selected for regular positions at Southern State. Certain stray remarks by supervisors, coupled with the fact that none of the soon-to-deployed applicants was promoted, was not sufficient to raise a genuine factual dispute as to discriminatory motive. There is no evidence that these supervisors played any role in the employment decisions at issue. The mere fact of non-promotion does not support an inference of discrimination.

ROBINSON, J., dissenting. The summary judgment analysis in a case like this, in which the critical disputed fact is the employer’s motives for failing to promote, and then for subsequently terminating plaintiff, is particularly challenging. On the one hand, a plaintiff must have some evidence of discrimination other than an adverse action and membership in the protected class in order to establish a legally sufficient case. On the other hand, circumstantial evidence will often be a factor in these cases, for discrimination is seldom open or notorious. The ultimate assessment of the inferences to be drawn from the facts is for the jury rather than the court, unless reasonable minds could not differ on the question of knowledge. Given the record before us, I conclude that reasonable minds could well differ on the question of whether plaintiff’s anticipated deployment was a substantial factor in Southern State’s decisions to: (1) not promote plaintiff and (2) subsequently terminate plaintiff’s employment.

Under the Vermont Parental and Family Leave Act, an employee does not continue earning paid leave during unpaid parental leave.

Vermont Human Rights Commission v. State of Vermont, (2011-081) (08-Jun-2012)(Burgess, J.)

Plaintiffs Vermont Human Rights Commission (HRC) and Ursula Stanley, an employee of the State Agency of Transportation, appeal the Washington Civil Division’s decision to grant the State’s motion to dismiss her complaint for failure to state a claim upon which relief can be granted.  Ms. Stanley complains that, under the Vermont Parental and Family Leave Act (VPFLA), 21 V.S.A. § 472(c), which requires continuation of certain “employment benefits” during family leave, she was entitled to accrue, but was denied, paid vacation and sick time during the course of an unpaid parental leave.  The trial court held that under § 472(c) an employee does not continue earning paid leave during unpaid parental leave. We affirm.