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

SCOVT affirms summary judgment dismissing FEPA and promissory estoppel claims for lack of evidence, refusing to consider any supporting facts not presented by plaintiff in a required Rule 56 “statement of additional facts”.

 Caldwell v.Champlain College Inc., 2025 VT 17 [4/11/2025]

WAPLES, J.   Employee Robert Caldwell contends that the trial court erred in granting summary judgment on his Fair Employment Practices Act (FEPA) disability discrimination and promissory-estoppel claims against his former employer Champlain College because genuine issues of material fact precluded summary judgment.  We affirm. 

In opposing Champlain’s motion for summary judgment, employee did not file his own statement of additional material facts.  A separate statement of material facts has been required by Rule 56 since at least 1995, and amendments to the rule in 2003 made clear that attorneys must include “in their Rule 56(c)(2) statements all of the facts that they have relied on ... [because] facts that are omitted from their statements will not be considered by the court in ruling on the motion.” Reporter's Notes—2003 Amendment, V.R.C.P. 56; see also Reporter's Notes—1995 Amendment, V.R.C.P. 56. The 2022 Amendments also explicitly clarify that “statements of additional facts ... are to be submitted in a separate statement, with numbered paragraphs.” Reporter's Notes—2022 Amendment, V.R.C.P. 56.

 

Employee’s failure to file a statement of additional material facts means the Court need not consider any facts outside of Champlain’s statement of undisputed material facts in ruling on the summary judgment motion.  V.R.C.P. 56(c)(5). Unless otherwise noted, all facts presented in the analysis below are facts that employee did not dispute in his response to Champlain’s statement of undisputed material facts.

 

Without direct evidence of unlawful discrimination, which employee has not offered, we apply the three-step framework adopted by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Hammond, 2023 VT 31, ¶ 25. Assuming that employee can establish a prima facie case of discrimination, the burden shifts to Champlain to articulate a “legitimate, nondiscriminatory reason for the challenged conduct.”  Hammond, 2023 VT 31, ¶ 25 (quotation omitted).  Champlain’s explanation that employee was being fired “based on [his] fundraising number.”  suffices to meet Champlain’s burden. Employee thus must show that the “proffered reason was a mere pretext for discrimination.”  Id

 

Employee offered no evidence to raise even the barest suggestion that Champlain’s decision to terminate him was not for exactly the reasons it stated: employee, who was chief fundraiser, failed to meet his fundraising expectations.  Summary judgment was warranted because employee bore the burden of proof to show that Champlain’s reason for termination was pretextual, and he failed to make a showing sufficient to establish the existence of this element essential to  his case.

 

To establish his promissory estoppel claim, employee must “demonstrate that the termination was in breach of a specific promise made by the employer that the employer should have reasonably expected to induce detrimental reliance on the part of the employee, and that the employee did in fact detrimentally rely on the promise.”  Dillon v. Champion Jogbra, Inc.175 Vt. 1, 9, (2002).  “ ‘Courts have generally required a promise of a specific and definite nature before holding an employer bound by it.’ ”  Pettersen v. Monaghan Safar Ducham PLLC, 2021 VT 16, ¶ 13, 214 Vt. 269, 256 A.3d 604 (quoting Dillon, 175 Vt. at 10, 819 A.2d at 710).  A mere “ ‘expression of intention, hope, desire, or opinion, which shows no real commitment’ ” does not suffice.  Id. (quoting Nelson v. Town of St. Johnsbury Selectboard, 2015 VT 5, ¶ 56, 198 Vt. 277, 115 A.3d 423).  ¶ 27. Employee cites no evidence at all in support of his promissory estoppel claim.  His brief in opposition to summary judgment before the trial court similarly cited no evidence.  Because employee did not introduce evidence of any promise, much less one “of a specific and definite nature,” his claim for promissory estoppel fails.

Affirmed.

How cited

Divided Court affirms Rule 12(b)(6) dismissal of wrongful termination complaint alleging retaliation for whistleblowing.

Dawn Boynton v. ClearChoice MD, MSO, LLC and ClearChoiceMD, PLLC, 2019 VT 49 [filed August 2, 2019]

CARROLL, J. Plaintiff appeals the trial court’s dismissal of her wrongful termination complaint against her former employer. In her amended complaint, plaintiff alleges that she was terminated from her employment as a medical assistant at defendants’ medical office in Rutland in September 2017 in violation of the covenant of good faith and fair dealing and contrary to whistleblower protections. We affirm.

Because plaintiff was an at-will employee and she has admitted on appeal that the handbook does not modify her status as an at-will employee, her argument that defendants violated the covenant of good faith and fair dealing by terminating her for a pretextual reason fails.

An at-will employee may not be terminated for reasons that violate “a clear and compelling public policy.” Payne v. Rozendaal, 147 Vt. 488, 492, 520 A.2d 586, 588 (1986) An employee seeking to invoke the public-policy exception to at-will employment must demonstrate that her employer’s conduct was “ ‘cruel or shocking to the average [person’s] conception of justice.’ Whether an activity violates public policy is a question of law. Madden v. Omega Optical, Inc., 165 Vt. 306, 314 n.3, 683 A.2d 386, 391 n.3 (1996). Here, the allegations in the complaint do not demonstrate that defendants’ conduct was “cruel or shocking to the average [person’s] conception of justice.” Payne, 147 Vt. at 493, 520 A.2d at 589 (quotation omitted).

Plaintiff cannot state a claim grounded in the facts and allegations of the complaint that defendants violated the handbook’s whistleblower provision, which protects an employee who, in good faith, reports threats to patient safety. The employer’s’ alleged comment cannot reasonably be viewed as having endangered anyone’s health or safety given the timing of the statement. Plaintiff did not f make such an allegation in her complaint.

We conclude that plaintiff has not stated a claim for a violation of a clear and compelling public policy. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 82, 807 A.2d 390, 397 (2002) (affirming summary judgment in favor of employer where plaintiff failed to show that termination was “so contrary to society’s concern for providing equity and justice that there is a clear and compelling public policy against it”). Nor has she stated a claim under the handbook’s whistleblower policy. The trial court therefore properly dismissed this claim as well. Affirmed.

ROBINSON, J., dissenting. I conclude that the allegations in plaintiff’s complaint, and the fair inferences from those allegations, are sufficient to survive a motion to dismiss with respect to plaintiff’s claims that defendants breached the covenant of good faith and fair dealing and wrongfully terminated her in violation of public policy. First, I believe the framework applied by the majority—based on its understanding that plaintiff has not argued that her at-will status has been modified to any degree—overlooks that plaintiff’s claim based on the implied covenant of good faith and fair dealing arises from defendants’ alleged violation of a specific no-retaliation provision in the handbook. Second, given the standards applicable at this stage of litigation, I believe the complaint alleges sufficient facts to support plaintiff’s claims based on retaliatory discharge under a theory based on public policy. Because I conclude that the allegations, considered in their proper light, could support the claims that plaintiff has made, I would deny the motion to dismiss and remand for further proceedings. Accordingly, I respectfully dissent.

PEARSON, Supr. J. (Ret.), Specially Assigned, dissenting. I agree with almost all of what Justice Robinson has written as to why the dismissal of the amended complaint, as a matter of law under Vermont Rule of Civil Procedure 12(b)(6), was premature at this early stage of the litigation. I write separately to emphasize the narrow claims actually made by plaintiff, and also because I believe that (a) it is unnecessary to analyze her public-policy assertions to determine whether those allegations alone state a cause of action, and (b) it is unnecessary for plaintiff to ultimately prove that the physician assistant’s remark presented any actual risk of harm (whether present or future) to defendants’ patient

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.