Baldwin v. Upper Valley Services, Inc.

BALDWIN_V_UPPER_VALLEY_SERVICES_INC.93-375; 162 Vt. 51; 644 A.2d 316

[Opinion Filed May 6, 1994]


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-375


 Mark Baldwin                                 Supreme Court

                                              On Appeal from
      v.                                      Orange Superior Court

 Upper Valley Services, Inc.                  March Term, 1994


 Alan W. Cook, J.

 Harry A. Black and Joanne M. Ertel of Black Black & Davis, White River
   Junction, for plaintiff-appellant

 Peter G. Anderson, Kimberly R. Elia and Alison Cole-Hadley of Diamond &
   Associates, P.C., Montpelier, for defendant-appellee


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.   Following termination of his employment, plaintiff Mark
 Baldwin sued his employer, defendant Upper Valley Services, Inc. (UVS), on
 numerous grounds.  He appeals from an order granting defendant a directed
 verdict on a claim of wrongful discharge, and granting summary judgment to
 defendant on claims of intentional infliction of emotional distress and
 failure to compensate for work performed.  We affirm in part and reverse in
 part.
      UVS is a private, nonprofit organization providing residential services
 to mentally retarded individuals in Orange County.  In March 1989,
 defendant hired plaintiff as a substitute staff member to work in several of
 its facilities.  In July 1989, plaintiff was made a full-time residential

 

 trainer, which required him to supervise clients directly in an assigned
 residential facility.  Defendant worked three and one-half days per week and
 remained at a residential facility overnight for three nights, a customary
 schedule for residential trainers.
      Between 11:00 p.m. and 7:00 a.m., hours known as "sleep time,"
 residential trainers are not paid unless a client requires attention and
 keeps them awake.  The compensation rules for sleep time are not in dispute.
 To be paid for spending time with a client during this period, a trainer
 must:  (1) record the time on a time sheet, and (2) complete an incident
 report.  If a client keeps a trainer awake a total of three hours or more
 during sleep time, federal law requires that the trainer be paid for all
 eight hours.
      Plaintiff alleges that UVS wrongfully deprived him of sleep-time
 compensation.  He contends that defendant, contrary to established rules,
 never informed him of the right to compensation during sleep-time periods
 and never explained the time sheet and incident report requirements.  On
 March 9, 1990, plaintiff filed a complaint with the United States
 Department of Labor, alleging that defendant never compensated him for sleep
 time in violation of 29 U.S.C. { 207(a)(1).(FN1)  A Labor Department

 

 representative conducted an investigation with respect to the complaint and
 concluded that defendant was not required to pay plaintiff for the hours in
 question.  He did find, however, that defendant had been improperly applying
 a regulation concerning "on-call" time.  Consequently, defendant sent each
 employee affected by the error, including plaintiff, a check for unpaid
 wages in amounts determined by the Department.
      On June 28, 1990, plaintiff delivered a written complaint to the
 program director at the facility where he worked, alleging that his
 co-workers had sexually harassed and verbally abused him based on their
 perception that he was homosexual.  Defendant's program director thereafter
 informed him that he would no longer have to work with the individuals in
 question, other than for a ten-minute shift overlap, due to a decrease in
 staffing requirements at the facility.  After his meeting with his
 supervisor and the program director, plaintiff did not report any further
 sexual harassment.
      On August 1, 1990, plaintiff met with his supervisor concerning
 allegations that plaintiff had attempted to purchase illegal drugs, during
 working hours, in the presence of a client.  Because plaintiff's account
 differed from the allegations, his supervisor decided to suspend him
 pursuant to the terms of the personnel manual, pending further
 investigation and a final decision by the executive director on the merits
 of the allegations.  About two weeks later, the executive director
 scheduled a meeting with plaintiff to discuss the allegations and his
 suspension.  Plaintiff cancelled the meeting and declined to meet until he
 received a written response to his sexual harassment complaint and a written
 notice concerning the circumstances of his suspension.  Plaintiff contends

 

 that his request for a written response to his sexual harassment complaint
 was not a condition precedent to this meeting.  The executive director
 perceived plaintiff's response as an act of gross insubordination, and she
 terminated his employment on such grounds by letter dated August 16, 1990.
      On January 28, 1991, plaintiff sued UVS alleging retaliatory discharge,
 rights to damages on a promissory estoppel theory arising from reliance on
 alleged promises made by UVS, intentional infliction of emotional distress,
 and failure to compensate for sleep time.  The trial court granted
 defendant's motion for summary judgment as to the last three claims, and
 after the close of evidence granted a directed verdict on the first.
 Plaintiff has waived appeal on the issue of promissory estoppel.
                                     I.
      We first consider the directed verdict for UVS on plaintiff's wrongful
 discharge claim.  At trial, plaintiff offered evidence of a personnel manual
 to prove the existence of an implied contract between UVS and him.  The
 trial court ruled that the manual could not serve as the basis for a
 contractual relationship.  Pending appeal of this case, this Court decided
 Taylor v. National Life Ins. Co., 4 Vt. L.W. 371, 373 (Dec. 17, 1993),
 holding that "personnel manual provisions inconsistent with an at-will
 relationship may be used as evidence that the contract of employment
 requires good cause for termination."  The parties have requested remand of
 the discharge claim in light of Taylor, which applies retroactively to this
 case as a case pending on direct review.  See American Trucking Ass'n v.
 Conway, 152 Vt. 363, 377, 566 A.2d 1323, 1332 (1989).  Viewed most favorably
 to plaintiff's claim of an implied contract, the proffered employee manual
 represents evidence that could fairly and reasonably support the claim;

 

 therefore, a directed verdict cannot stand.  See Lussier v. North Troy
 Engineering Co., 149 Vt. 486, 490, 544 A.2d 1173, 1176 (1988).  The trial
 court's directed verdict on the issue of wrongful discharge is reversed.
                                     II.
      Plaintiff also appeals the trial court's grant of summary judgment on
 the claims of intentional infliction of emotional distress and compensation
 for work during sleep time.  Summary judgment is appropriate only where the
 moving party establishes that there is no genuine issue of material fact and
 that the party is entitled to judgment as a matter of law.  Murray v. White,
 155 Vt. 621, 628, 587 A.2d 975, 979 (1991); V.R.C.P. 56(c).  In determining
 whether a genuine issue of fact exists, the nonmoving party receives the
 benefit of all reasonable doubts and inferences.  Pierce v. Riggs, 149 Vt.
 136, 139, 540 A.2d 655, 657 (1987).  Opposing allegations must have
 sufficient support in specific facts to create a genuine issue of material
 fact.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
      To establish a claim for intentional infliction of emotional distress,
 plaintiff must show "'outrageous conduct, done intentionally or with
 reckless disregard of the probability of causing emotional distress,
 resulting in the suffering of extreme emotional distress, actually or
 proximately caused by the outrageous conduct.'"  Crump v. P & C Food Markets
 Inc., 154 Vt. 284, 296, 576 A.2d 441, 448 (1990) (quoting Birkenhead v.
 Coombs, 143 Vt. 167, 174-75, 465 A.2d 244, 247 (1983)).  Plaintiff argues
 that the trial court erred in granting summary judgment on the question of
 intentional infliction of emotional distress, because plaintiff's affidavit
 regarding the circumstances of his termination created a genuine issue of
 material fact as to whether defendant's conduct was outrageous.  However,

 

 plaintiff's contentions, taken as fact, fall short of the legal standard
 for "outrageous conduct" articulated in Crump.  In his response to
 defendant's motion, plaintiff alleges that defendant's complaints about his
 services did not arise until after he had filed his complaint with the
 Department of Labor and his sexual harassment complaint.  Plaintiff also
 denies that he refused to meet with a superior.  He then concludes:
         To sum up, Plaintiff was discharged under suspicious
         circumstances for reasons that do not stand up under
         scrutiny.  The Plaintiff was never charged, much less
         convicted, of any criminal offense in regard to the
         supposed attempt to buy marijuana from Clayton Wilbur,
         and Mr. Wilbur's affidavit as to this occurrence is
         absent from the Defendant's motion.  The Plaintiff
         completely denies the supposed attempt to purchase
         marijuana but does say that Mr. Wilbur, the son of
         another employee of Upper Valley Services, had attempted
         to sell him drugs in downtown Randolph.

           The Plaintiff respectfully submits that under the
         circumstances a jury might reasonably find a pattern of
         conduct on the part of the Defendant and its employees
         amounting to a conspiracy against the Plaintiff.  In any
         event, the conduct of the people involved is so
         outrageous that it meets the standards of [Crump].

      Even in his own words, the foregoing account of plaintiff's treatment
 at the hands of defendant does not add up to "outrageous conduct."  He
 alleges "suspicious circumstances" in his dismissal, but supports his
 suspicions by citing only the timing of the charges against him, which
 followed his own Labor Department and sexual harassment complaints.  He
 denies that he purchased or attempted to purchase marijuana, and concludes
 with the suggestion of a conspiracy, the members and purpose of which
 plaintiff leaves to speculation.
      Plaintiff's deposition testimony on "outrageousness" is similarly
 vague, referring principally to a letter from defendant's executive director
 dated August 16, 1990, informing him that his refusal to meet with her was

 

 insubordination warranting termination.  He further testified that this
 letter was the only interaction between himself and the executive director
 regarding termination.
      We held in Crump that "if the manner of termination evinces
 circumstances of oppressive conduct," sufficient grounds may be present for
 intentional infliction of emotional distress.  Id. at 296, 576 A.2d  at 448.
 But unlike the facts in Crump, here there was no interrogation, threats, or
 badgering by a superior -- simply a letter.  Plaintiff has failed to
 identify any conduct that would meet the legal standard for outrageousness.
 See Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350-51 (Colo. 1988)
 (affirming summary judgment against plaintiff on claim of outrageous
 conduct, where allegations were based on failure to follow company's
 personnel policies); Staples v. Bangor Hydro-Electric Co., 561 A.2d 499, 501
 (Me. 1989) (humiliation at staff meetings and demotion without cause fell
 short of conduct that exceeds "all possible bounds of decency" and that must
 be regarded as "atrocious and utterly intolerable in a civilized
 community"); Petty v. Rogue Federal Credit Union, 809 P.2d 121, 124 (Or. Ct.
 App. 1991) (assigning plaintiff to position that guaranteed her failure was
 not outrageous conduct, in absence of abusive tactics, false accusations,
 threats, or even raised voices).
      The trial court concluded that "[plaintiff] cannot point to a single
 example of oppressive or outrageous conduct by his employer or its agents to
 warrant submitting this claim to a jury."  Plaintiff argues that the court,
 in ruling on the summary judgment motion, inappropriately assessed the
 perceptions and motivations of UVS.  In effect, plaintiff suggests a purely
 subjective test for outrageousness, based not on what defendant's agents or

 

 employees did or said, but on what plaintiff personally believed motivated
 their conduct.  Established law, however, posits an objective test for
 outrageousness:  a plaintiff must demonstrate legal harm resulting from
 inflicted distress so severe that no reasonable person could be expected to
 endure it.  Layne v. Builders Plumbing Supply Co., 569 N.E.2d 1104, 1109
 (Ill. App. Ct. 1991) (citing Restatement (Second) of Torts { 46 comment d
 (1965)).  Plaintiff has not alleged particular susceptibility to stress.
 Cf. Pavilon v. Kaferly, 561 N.E.2d 1245, 1252 (Ill. App. Ct. 1990) ("Conduct
 which might not ordinarily be actionable may be considered outrageous if the
 defendant knows that a plaintiff is particularly susceptible to emotional
 distress.").  Plaintiff here does little more than recite the facts
 preceding his termination, and they do not suffice to create a genuine issue
 of material fact.  The grant of summary judgment on the claim of intentional
 infliction of emotional distress was proper.
                                    III.
      Plaintiff argues next that the court erred in granting summary judgment
 on the issue of lack of payment for sleep time.  The court rested its
 judgment on the undisputed fact that plaintiff failed to make the required
 entry of sleep-time hours on time sheets, thereby waiving his claim to
 compensation.  Plaintiff argues that a genuine issue of material fact exists
 with respect to the question of waiver.  In his affidavit, plaintiff claims
 he was never told he had a right to compensation for sleep time, and
 therefore he could not have waived a right of which he was not aware.
      In the affidavit in question, plaintiff states that "I was never told
 by Upper Valley Services that under the Fair Labor Standards Act I had a
 right to be paid for any night in which I did not get five hours of sleep."

 

 This statement is directly at odds with deposition testimony of April 9,
 1992, in which plaintiff admitted that his supervisor told him he would be
 paid for hours he was kept up if he noted the time on his time sheet.  The
 trial court resolved the conflicting statements by dismissing the affidavit
 as self-serving.  However, it is not the function of the court to weigh the
 probative effect of conflicting testimony; summary judgment must be denied
 if a genuine issue of material fact arises.  V.R.C.P. 56(c); see Pierce v.
 Riggs, 149 Vt. 136, 139-40, 540 A.2d 655, 657-58 (1987).  The court erred in
 using the summary judgment proceeding to find, in effect, that plaintiff's
 statement was not credible, but the error does not warrant reversal.
      The court concluded that plaintiff failed to present "any evidence,
 documentary or otherwise, to substantiate his claim that he worked hours
 during the night for which he was not paid."  His affidavit at most asserts
 that he never slept five hours per night, and that plaintiff had indicated
 on his time sheet for the period February 25 to March 3, 1990 that he
 expected that this fact would be handled according to stipulated policy.
 None of the proffered evidence supports his sleep-time claim.
      Furthermore, plaintiff's affidavit does not contest that he was
 required to file time sheets and incident reports, which might have provided
 the basis for sleep-time compensation.  Plaintiff explains that he did not
 file incident reports "because this was the rule rather than the exception.
 It was my understanding that it was the practice of other employees not to
 file such incident reports."  However, plaintiff fails to demonstrate that
 defendant was responsible for this "understanding."  Without time sheets or
 incident reports, there was no basis at all to evaluate plaintiff's claim,
 and even if there was a genuine issue of material fact as to waiver of his

 

 right to sleep-time compensation, plaintiff still had no specific factual
 support for his claim and offered no scenario under which defendant might be
 held responsible for his omissions.
      Plaintiff also relies on a supposed acknowledgement by defendant's
 executive director that plaintiff "had claimed hours for which they had
 declined to pay him."  But the executive director's affidavit simply
 referred to "Mr. Baldwin's desire to be reimbursed for all hours that he was
 present at the residential facility" -- in effect, a statement directly
 contrary to that now claimed by plaintiff.
      In sum, the court could properly conclude that there was no genuine
 issue of material fact on the question of plaintiff's failure to file time
 sheets or incident reports, which, if filed, would have offered an
 evidentiary basis for sleep-time compensation even if defendant had failed
 to advise plaintiff of his right to such compensation when he commenced his
 employment.  Consequently, the court did not err in granting summary
 judgment to defendant on the issue of sleep-time compensation.
      Judgment on the claim of an implied employment contract is reversed and
 the cause is remanded; judgment on claims of intentional infliction of
 emotional distress and wrongful failure to compensate for time worked is
 affirmed.

                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice



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                                 Footnotes

FN1.        In relevant part, { 207(a)(1) provides:

 no employer shall employ any of his employees who in any
 workweek is engaged in commerce or in the production of
 goods for commerce, or is employed in an enterprise
 engaged in commerce or in the production of goods for
 commerce, for a workweek longer than forty hours unless
 such employee receives compensation for his employment
 in excess of the hours above specified at a rate not
 less than one and one-half times the regular rate at
 which he is employed.
 29 U.S.C. { 207(a)(1).