Gallipo v. City of Rutland
Annotate this Case
Gallipo v. City of Rutland (2004-041); 178 Vt. 244; 882 A.2d 1177
2005 VT 83
[Filed 29-Jul-2005]
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.
2005 VT 83
No. 2004-041
Raymond Gallipo Supreme Court
On Appeal from
v. Rutland Superior Court
City of Rutland February Term, 2005
Richard W. Norton, J.
Andrew Jackson, Middlebury, for Plaintiff-Appellant.
Joseph A. Farnham and Kevin J. Coyle of McNeil, Leddy & Sheahan,
Burlington, for Defendant-Appellee/Cross-Appellant.
PRESENT: Reiber, C.J., Dooley, J., and Grearson, D.J., Allen, C.J. (Ret.),
and Gibson, J. (Ret.), Specially Assigned
¶ 1. DOOLEY, J. Plaintiff, Raymond Gallipo, appeals a superior
court order granting summary judgment to defendant, City of Rutland, on
plaintiff's retaliatory discrimination claims, and defendant appeals the
court's order dismissing its unjust enrichment counterclaim. Plaintiff
argues that the court erred in (1) accepting defendant's requests to admit
as fact and denying plaintiff a renewed chance to respond; (2) admitting
defendant's statement of undisputed facts in its summary judgment motion
for plaintiff's failure to comply with Rule 56(c)(2); and (3) determining
that collateral estoppel applied to the workers' compensation proceedings.
Defendant argues that the trial court erred in precluding it from
recovering temporary workers' compensation benefits paid to plaintiff. We
affirm both appeals.
¶ 2. The parties appear before this court for the sixth time. See
Gallipo v. City of Rutland, 173 Vt. 223, 225-26, 789 A.2d 942, 945 (2001)
[hereinafter Gallipo V] (chronicling facts and procedural history of
dispute). They have been involved in litigation for over fifteen years
surrounding plaintiff's claims of discrimination against his former
employer, the City of Rutland, where he worked as a firefighter. In 1995,
a jury rendered a verdict in plaintiff's favor, finding that the City
discriminated against plaintiff by refusing to promote him because of his
religious practices and a learning disability. After this verdict,
plaintiff continued to work for the City's fire department and in 1998
began this action.
¶ 3. This litigation is best viewed in two phases. The first
began when plaintiff filed a complaint under the Vermont Fair Employment
Practices Act, 21 V.S.A. §§ 495-496, (VFEPA) naming as defendants the City
of Rutland and its fire chief, Gerald Lloyd, and claiming that, in response
to his success in the previous trial, the City engaged in unlawful
retaliatory employment practices. Plaintiff alleged that these practices
included subjecting him to heightened scrutiny, resentment, withholding of
computer privileges and training, denial of funeral leave, videotaping him
at a training class, denial of workers' compensation, denial of sick leave
credits and constant criticism and shunning.
¶ 4. Plaintiff particularly complained of an incident on September
13, 1996, when a fire department trainer attempted to videotape a training
session at which plaintiff was present. Following a heated exchange with
the person who was instructed to video the session, plaintiff left the
training and did not return to work. Plaintiff claims that he was being
targeted by the taping and that the incident caused him great stress.
Defendant counters that the taping was routine, done for the benefit of
those who could not attend, and not personally aimed at plaintiff.
¶ 5. Plaintiff never returned to work after the taping incident and
on the day of the incident filed a workers' compensation claim alleging
that he suffered anxiety and depression as a result of his treatment at the
fire department. He articulated four stressors that caused his mental
injury: ongoing ridicule from fellow firefighters; use of profane language
by other employees; lack of a computer password to perform his role as
computer specialist; and the confrontation over the videotaping. The
Commissioner of Labor and Industry awarded interim benefits to plaintiff
while his claim was pending. Ultimately, the Commissioner denied this
claim, concluding that "plaintiff had failed to prove that the mental
injury he alleged was caused by work-related stresses from any of the four
specified events." Gallipo V, 173 Vt. at 226, 789 A.2d at 945.
¶ 6. During discovery, defendants deposed plaintiff on January 19,
1999 and thereafter served requests for admission on March 1, 1999.
V.R.C.P. 36. Defendants then filed a motion for summary judgment on March
3, 1999. Although plaintiff responded to the summary judgment motion, he
never submitted answers to the requests to admit. The superior court
granted summary judgment on April 19, 2000, concluding that the Fire Chief
was immune from suit and that the workers' compensation action exclusivity
clause prevented plaintiff from bringing his employment discrimination
action. Plaintiff appealed, and we affirmed the first ground and reversed
the second. Gallipo V, 173 Vt. at 239, 789 A.2d at 954. As a result of
our decision, fire chief, Gerald Lloyd, was dismissed as a defendant, and
the action proceeded solely against the City. This ended the first phase
of the litigation.
¶ 7. The second phase commenced with the remand to the superior
court. Plaintiff sought successfully to amend his complaint to allege that
he was terminated by defendant as part of its retaliatory actions against
him. The motion to amend was ultimately granted in October 2002.
Meanwhile, defendant filed three motions for summary judgment as follows:
(1) the first alleged that based on the undisputed facts-particularly those
shown by defendant's requests to admit in phase one of the litigation and
its statement of undisputed facts in support of its summary judgment
motion-defendant was entitled to judgment as matter of law on plaintiff's
discrimination claims; (2) the second alleged, as discussed below,
plaintiff's claims were barred by the preclusive effect of the Commissioner
of Labor and Industry's decision; and (3) the third sought reimbursement
for temporary workers' compensation benefits the City paid to plaintiff.
¶ 8. Defendant's issue preclusion argument was based on the fact
that on July 12, 2000, the Commissioner of Labor and Industry denied
plaintiff's workers' compensation claim because she found that none of the
alleged stressors created stress greater than that for other employees.
Following the Commissioner's decision, defendant counterclaimed against
plaintiff seeking reimbursement of temporary workers' compensation benefits
paid to plaintiff under an interim order requiring the City to pay benefits
while plaintiff's claim was pending. Defendant argued that reimbursement
was appropriate under a theory of unjust enrichment and moved for summary
judgment, the third motion described above, for the return of $67,413 plus
interest in August 2002.
¶ 9. In response to defendant's first summary judgment motion,
plaintiff relied upon a statement of contested facts filed in 1999 and
attached new affidavits, and an "additional statement of contested material
facts" based upon the affidavits. He also requested permission to submit
untimely answers to the March 1, 1999 requests to admit. The court denied
plaintiff's request to allow a renewed chance to respond and further held
that plaintiff had failed to file a proper statement of disputed material
facts as required by Rule of Civil Procedure 56(c)(2). Because of the
civil rule violation, the court deemed defendant's statement of undisputed
material facts as admitted. It did not, however, grant summary judgment on
this record alone, instead the court combined this first motion with the
second one.
¶ 10. The court's decision on the second summary judgment motion
parallels its decision on the first. Again, it held that plaintiff had
failed to comply with Rule 56(c)(2) when he filed new material in response
to the motion and held, as a result, that defendant's statement of
undisputed facts was deemed admitted. It also ruled that the Commissioner
of Labor and Industry's decision on plaintiff's claim for workers'
compensation preclusively established the same facts.
¶ 11. Combining the undisputed facts established by plaintiff's
admissions, and those submitted in support of the two motions, the court
held that defendant was entitled to judgment as a matter of law on all of
plaintiff's claims. Specifically, the court held that since "plaintiff did
not suffer a compensable stress-related injury arising out of the course of
his employment and that his perceived mistreatment was subjective,"
plaintiff's discrimination claim could not go forward.
¶ 12. The court denied the third summary judgment motion, under
which defendant sought return of the amounts paid as temporary workers'
compensation benefits based on a theory of unjust enrichment. The court
concluded that, even if defendant's claim could be maintained on a theory
of unjust enrichment, the facts did not support application of the theory
because defendant failed to file medical evidence in opposition to
plaintiff's supported motion for interim benefits. Thus, the court
reasoned that defendant slept on its rights, and plaintiff was not unjustly
enriched. This appeal and cross-appeal followed.
I.
¶ 13. We first address plaintiff's argument that the court erred in
granting defendant summary judgment on plaintiff's retaliation claim. On
appeal, we review summary judgment de novo and use the same standard as the
trial court. Springfield Terminal Ry. Co. v. Agency of Transp., 174 Vt.
341, 344, 816 A.2d 448, 451 (2002). We will affirm if "the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any
material fact and that any party is entitled to a judgment as a matter of
law." V.R.C.P. 56(c)(3); Springfield Terminal Ry. Co., 174 Vt. at 344, 816 A.2d at 451. All reasonable doubts and inferences are resolved in favor of
the nonmoving party, and "[s]ummary judgment is required when, after
adequate time for discovery, a party fails to make a showing sufficient to
establish the existence of an element essential to her case upon which she
has the burden of proof." Doe v. Forrest, 2004 VT 37, ¶ 9, 176 Vt. 476,
853 A.2d 48.
¶ 14. Although there are some differences over the applicable
substantive law, the main issues before us involve the factual record on
which the court based its summary judgment decision. Plaintiff asserts on
appeal that the factual record should include the affidavits, documents and
statements of contested material facts he submitted in opposition to
defendant's motions for summary judgment, and that these show conclusively
that there are disputed issues of material fact that prevent grant of
summary judgment. Defendant counters that the only facts that can be
considered are those in its request to admit of March 1, 1999, its two
statements of undisputed facts of July 31 and September 2, 2002, and the
decision of the Commissioner of Labor and Industry of July 12, 2000.
Defendant further asserts that these facts show that there are no
undisputed material facts and it is entitled to summary judgment as a
matter of law. The trial court agreed with both of defendant's assertions
in its grant of summary judgment.
¶ 15. Before we delve into the questions about the proper
composition of the record we put these questions in context by examining
the underlying substantive law. To survive summary judgment, plaintiff
must present facts sufficient for a prima facie case that the City
retaliated against him after he won the discrimination law suit. VFEPA
makes it unlawful for an employer "to discharge or in any manner
discriminate against any employee because such employee has lodged a
complaint of discriminatory acts or practices." 21 V.S.A. § 495(a)(5).
Under VFEPA, the standard and burdens of proof are identical to those under
Title VII and, thus, plaintiff "bears the initial burden of establishing,
by a preponderance of the evidence, a prima facie case of retaliation."
Beckman v. Edson Hill Manor, Inc., 171 Vt. 607, 608, 764 A.2d 1220, 1222
(2000) (mem.). To establish a prima facie case for retaliatory
discrimination, plaintiff must show that: (1) he was engaged in a protected
activity; (2) his employer was aware of that activity; (3) he suffered
adverse employment action; and (4) there was a causal connection between
the protected activity and the adverse employment action. Robertson v.
Mylan Labs., Inc., 2004 VT 15, ¶ 42, 176 Vt. 356, 848 A.2d 310; see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (outlining prima
facie elements for a discrimination claim under Title VII). Plaintiff's
burden at this stage is relatively light. Carpenter v. Cent. Vt. Med.
Ctr., 170 Vt. 565, 566-67, 743 A.2d 592, 596 (1999) (mem.).
¶ 16. Both parties agree that plaintiff engaged in a protected
activity and that defendant was aware of that activity. Defendant disputes
that there was an adverse employment action attributable to it, and if so,
that there was a causal connection between the adverse action and the
protected activity. Plaintiff claims that he suffered an adverse
employment action when he was criticized, shunned and scrutinized by other
firefighters, denied funeral leave and computer training, threatened to be
videotaped, and ultimately terminated. (FN1) He asserts that defendant is
responsible for these adverse employment actions and they were taken to
retaliate against him for his victory in his first employment
discrimination suit.
¶ 17. Under Title VII, an adverse employment action for retaliation
is generally an "act or harassment [that] results in an adverse effect on
the 'terms, conditions, or benefits' of employment." Von Gunten v.
Maryland, 243 F.3d 858, 866 (4th Cir. 2001). Such actions may include
"refusal to hire or rehire, a delay in reinstatement, a disadvantageous
transfer or assignment, . . . a demotion, refusal to promote, refusal to
transfer or to give a deserved pay raise or bonus, a suspension, discharge,
[or] constructive discharge." 2 L. Larson, Employment Discrimination §
34.04, at 34-53 to 34-56 (2d ed. 2004) (footnotes omitted) (citing cases).
Some courts recognize that "unchecked retaliatory co-worker harassment, if
sufficiently severe, may constitute adverse employment action." Richardson
v. N.Y. State Dep't of Corr. Servs., 180 F.3d 426, 446 (2d Cir. 1999). We
have never explicitly adopted this view, but, if applicable, we have noted
that it would require more than derogatory comments by co-workers.
Beckman, 171 Vt. at 609, 764 A.2d at 1223-24. The City contends that
plaintiff's own admissions establish that none of the alleged harmful acts
are specific enough to constitute an adverse employment action and,
further, none are traceable to the City.
¶ 18. We return to defining the proper record for defendant's
summary judgment motions on plaintiff's claims. The issue is somewhat
confusing because there are four separate statements from which defendant
gleans undisputed facts-the two statements of undisputed facts, the
requests to admit and the Commissioner's decision-and three different
rationales for relying upon them. Further, it appears that no individual
statement deals with all of plaintiff's claims. Finally, none deal
directly with plaintiff's termination from employment with defendant.
¶ 19. The three rationales for considering the fact record
defendant submits are: (1) the factual statement is contained in a request
to admit which is deemed admitted because plaintiff failed to respond to it
in time; (2) the factual statement is contained in defendant's statement of
undisputed facts, which must be accepted because plaintiff failed to
properly respond; and (3) the factual statement is in the Commissioner's
workers' compensation decision and is binding on plaintiff through
collateral estoppel. We address each rationale in order, summarizing how
each establishes which facts. Because of our disposition of the first two
rationales, we do not reach the third.
¶ 20. The first rationale arises from requests to admit filed on
March 1, 1999 during the first phase of the litigation. The requests were
filed shortly after defendant took the deposition of plaintiff to further
bind plaintiff to responses defendant viewed as concessions that most of
plaintiff's claims lacked merit. The requests asked, among other items,
that plaintiff admit the following:
[Aside from the videotaping incident] you are unable to offer any
specific incident of retaliatory discrimination attributable to
any specific individual, that occurred subsequent to the jury
trial . . . .
[Aside from the videotaping incident] you are unable to offer any
specific incident of job information being withheld from you
attributable to any specific individual, that occurred subsequent
to the jury trial . . . .
[Aside from the videotaping incident] you are unable to offer any
specific incident of denial of funeral leave to you attributable
to any specific individual, that occurred subsequent to the jury
trial . . . .
The other items subject to the same general language were "any specific
incident of heightened scrutiny," "any specific incident of criticism or
shunning of you for your religious beliefs," "any specific incident of
resentment displayed toward you;" and "any specific incident of berating or
criticizing you for your civil rights claim." (FN2)
¶ 21. Rule of Civil Procedure 36 provides that a matter for which
an admission is requested "is admitted unless, within 30 days after service
of the request . . . the party to whom the request is directed serves upon
the party requesting the admission a written answer or objection addressed
to the matter." V.R.C.P. 36(a). Further, a matter admitted pursuant to
Rule 36 is "conclusively established unless the court on motion permits
withdrawal or amendment of the admission." V.R.C.P. 36(b). It is
undisputed that plaintiff never submitted responses to defendant's requests
to admit. Due to plaintiff's nonresponse, the trial court admitted the
requests as fact. Plaintiff contends that the requests should not be
deemed admitted because the grant of summary judgment in phase one of this
litigation mooted the requests, the requests were not renewed following
remand, and there is no prejudice to defendant if plaintiff responds now.
¶ 22. We find plaintiff's arguments without merit and agree with
defendant that the requests must be deemed admitted due to plaintiff's
failure to respond. We initially note that courts may grant summary
judgment based on unanswered requests to admit. Freed v. Plastic Packaging
Materials, Inc., 66 F.R.D. 550, 552 (E.D. Pa. 1975). In this case,
plaintiff presents no valid reason that his failure to respond should not
be deemed an admission. The record does not support plaintiff's argument
that the requests were moot because summary judgment was granted. Over a
year passed between the date the requests were first served on plaintiff,
March 1, 1999, and the date that the trial court granted defendant summary
judgment, April, 19, 2000. Thus, plaintiff had a full opportunity to
respond within the thirty-day time limit, and during that year he had no
reason to believe that the requests would be mooted by a grant of summary
judgment. Further, although a request to delay making a response pending
resolution of the summary judgment motion may have been reasonable,
plaintiff was required to make such a request to the trial court, and he
did not do so. See V.R.C.P. 36(a); United States v. Kasuboski, 834 F.2d 1345, 1349-50 (7th Cir. 1987) (rejecting the defendant's argument that
failure to respond to requests for admission should be excused as parties
were close to settlement because the defendant failed to file a motion to
toll the response period).
¶ 23. In addition, the law does not support plaintiff's contention
that defendant had a duty to renew the requests after remand. Once
defendant served the requests, it remained plaintiff's obligation to
respond. See Freed, 66 F.R.D. at 553 (noting that responding party has "an
affirmative duty" to respond to motion for requests to admit). Neither
Rule 36 nor any of our decisions supports plaintiff's burden-shifting
argument.
¶ 24. Finally, we conclude that the court did not abuse its
discretion in denying plaintiff an opportunity to amend his admissions.
Although Rule 36 empowers the court to grant a party leave to amend
admissions, we review a trial court's decision to "permit the withdrawal or
amendment of an admission for abuse of discretion." Am. Automobile Assoc.
v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1119 (5th
Cir. 1991). Plaintiff did not respond to defendant's initial requests for
over three years and even after defendant filed for summary judgment on
September 5, 2002, based on the admissions, plaintiff did not request
permission to respond until October 9, 2002, more than thirty days later.
Under these circumstances, it was well within the court's discretion to
deny plaintiff a renewed opportunity to refute the statements in the
admissions.
¶ 25. Plaintiff argues that the court should have granted him leave
to withdraw the admissions because defendant would not be prejudiced. This
statement misconstrues the court's obligations under the Rule. See
V.R.C.P. 36(b) ("[T]he court may permit withdrawal or amendment when the
presentation of the merits of the action will be subserved thereby and the
party who obtained the admission fails to satisfy the court that withdrawal
or amendment will prejudice that party in maintaining the action or defense
on the merits." (Emphasis added.)). The court is obligated to examine
prejudice only if it exercises discretion to allow untimely answers, not,
as here, where it declines to do so. See Weva Oil Corp. v. Belco Petroleum
Corp., 68 F.R.D. 663, 666 (N.D.W. Va. 1975) (articulating rule that where
courts grant leave to amend, "the court must consider whether permitting
answers out of time would prejudice the requesting party"). Furthermore,
in this case, requiring defendant to now prove matters in those admissions,
especially when defendant relied on them for summary judgment, would result
in prejudice. See id. at 666-67 (noting that the language and spirit of
the rules of civil procedure require courts to consider the burdens on
litigants that have properly complied with the rules to advance a quick and
inexpensive result).
¶ 26. The second rationale for accepting defendant's factual
statement is that plaintiff failed to comply with Rule 56(c)(2) and, as a
result, defendant's statements of undisputed facts must be accepted and
plaintiff's contrary assertions must be ignored. The trial court invoked
this rationale with respect to two separate statements of undisputed facts.
The first was submitted, along with the requests to admit considered above,
in connection with defendant's first summary judgment motion. See supra
¶ 7. While the statement of undisputed facts included the admitted facts
pursuant to the request, it went further and included other facts defendant
alleged were undisputed. For example, the statement included facts with
respect to the videotaping incident, specifically that plaintiff objected
to the videotaping because the fire chief was out to get him "and this was
something that he could put on film," other training events not involving
plaintiff could have been videotaped, and plaintiff had no basis for
believing that he would have to do anything at the training session other
than sit and listen to the instructor. It included that "[p]laintiff could
not think of any incident or conversation that allegedly occurred after the
verdict in the first trial in which Chief Lloyd influenced or attempted to
influence any fire department personnel to not associate with or talk to
plaintiff."
¶ 27. The second statement was submitted in connection with
defendant's second summary judgment motion, and presented the court with
the findings of the Commissioner of Labor and Industry. Defendant argued
that plaintiff was bound by the findings by collateral estoppel, but also
included these findings in a statement of undisputed material facts. Among
the findings were the following:
24. Plaintiff's perception that his coworkers were shunning him
seems to be intertwined with his allegation that their use of
profanity was designed to harass him. . . . [N]either plaintiff
nor [his witness] . . . could identify specific firefighters'
names or particular instances when "shunning" occurred. Without
more specificity and objectivity, plaintiff cannot sustain his
burden of proving that his sense of being ostracized was
significant and objectively real. The facts amply support [the
independent psychologist's ] . . . conclusion that any
mistreatment plaintiff felt was from his subjective perception,
not objective facts.
25. Similarly, the plaintiff fails to offer any conclusive proof
that the profane language was directed specifically at him, was a
conscious effort to harass him, or was an objectively real stress.
. . . It cannot be concluded . . . that the profane language was
anything more than a normal, routine, albeit distasteful,
practice. Even when the language was not directed at him,
plaintiff interpreted its use as criticism and being shunned for
his religious beliefs, when that was clearly not the case. . . .
26. The problem plaintiff had with the computer is less clear. .
. . [T]he work was not central to plaintiff's work as a
firefighter and no adverse consequences followed his lack of
computer access. . . .
27. . . . Despite the plaintiff's protestations and objections,
however, there was no objective evidence that as a student in the
class he would have been videotaped. He reacted to a perceived,
not an objective, stressor. Furthermore, the credible evidence
shows that the confrontation between [the employee operating the
videotape equipment] and the plaintiff was no more than typical
firehouse banter that became heated. Once again, that the
situation was perceived as stressful stemmed from plaintiff's
personal worries, not from objective facts. The videotaping
incident was one that is typical in today's work world, including
the Rutland Fire Department, where a lesson needs to be preserved
for future viewing. All those in the class were to sit in a room
where the instructor was to be videotaped. . . .
. . . .
29. The facts and medical opinions prove that plaintiff believes
that he suffered a mental injury as a result of work place
stresses that were of a greater dimension than the daily stresses
encountered by all employees. However, the expert opinions in
support of his claim raise no more than a possibility, surmise or
speculation that this is so. The more probable hypothesis is that
plaintiff's mental injury is a result of forces independent of the
work place and not from work-related stresses that were of a
significantly greater dimension than the daily stresses
encountered by other firefighters.
¶ 28. Plaintiff responded to the two statements of undisputed
material facts with the same approach. In response to the first summary
judgment motion, plaintiff relied upon a statement of contested facts filed
in April 1999 in phase one of the litigation, three new affidavits,
testimony in another proceeding and an excerpt from a deposition. The
statement of contested material facts made no mention of defendant's
statement of uncontested material facts, was not organized to respond to
defendant's filing, and cited only to the attachments to the response to
defendant's motion. The use of the April 1999 statement as a response
particularly raised a red flag because at the time of its filing in phase
one of this litigation, the trial judge rejected it as not complying with
Rule 56(c)(2) as follows:
There is such a discrepancy between the manner in which the
respective statements of (un)disputed facts are laid out that the
court cannot reasonably determine whether or not there are
disputes over material facts related to the claims in defendant's
motion . . . . Plaintiff shall have until September 24, 1999 to
file a responsive, amended statement of disputed facts that tracks
the facts set forth in defendants' statement of undisputed facts,
using the same paragraph numbers for the same subject matter, and
clarifying whether or not the facts are disputed. Failure to do
so will result in defendants' statement of facts to be deemed to
be admitted. V.R.C.P. 56(c)(2).
At the second phase of litigation, defendant responded to plaintiff's
attempt to resubmit this statement by arguing that plaintiff again failed
to comply with Rule 56(c)(2) and defendant's statement of undisputed facts
must be deemed admitted. It also argued that plaintiff had violated his
discovery obligations, plaintiff was bound by his deposition statements,
plaintiff was raising new claims not contained in his complaint, and the
new "facts" were "conclusory or speculative." Plaintiff never filed a
response to the City's arguments.
¶ 29. Plaintiff's response to the second summary judgment motion
followed the same pattern. Again, the statement of material disputed facts
did not reference defendant's statement of undisputed facts. It also
raised new issues. For example, four paragraphs described how defendant
processed plaintiff's workers' compensation claim including a general claim
that the fire chief "handled plaintiff's workers' compensation claim with
an intent to discriminate." Defendant filed a response urging that its
statement of undisputed facts must be deemed admitted for failure to comply
with Rule 56(c)(2), and that plaintiff was improperly raising new claims
not covered by its complaint. Plaintiff also did not file a response to
these arguments.
¶ 30. The law underlying the dispute over the statements of facts
related to the summary judgment motion is contained in Rule 56(c)(2), which
provides:
Additional Material to be Filed by Moving and Opposing Parties.
There shall be annexed to the motion a separate, short, and
concise statement of the material facts as to which the moving
party contends that there is no genuine issue to be tried. The
opposing party shall include with the affidavits and memorandum
filed under paragraph (1) a separate, short, and concise statement
of the material facts as to which it is contended that there
exists a genuine issue to be tried. All material facts set forth
in the statement required to be served by the moving party will be
deemed to be admitted unless controverted by the statement
required to be served by the opposing party. The statements of
material facts required to be served under this paragraph shall
consist of numbered paragraphs and shall contain specific
citations to the record.
Defendant argued, and the trial court held, that plaintiff violated the
second sentence of the subsection by not filing "a separate, short, and
concise statement of the material facts as to which it is contended there
exists a genuine issue to be tried." The trial court reasoned that "[t]he
purpose of Rule 56(c)(2) is not served if the court is required to review
not only the parties' statements of material facts, but also the entire
record, in determining whether a genuine issue of material fact exists."
This rationale is consistent with the purpose, as explained in the
Reporter's Notes to the amendment creating the requirement:
The purpose of the new provision is to focus more directly the
arguments on motions for summary judgment by requiring
specifications by the parties as to the facts that they contend
either are or are not in dispute. The rule seeks to change the
present practice under which generalized claims as to whether
material facts may be in dispute are frequently presented on
motions for summary judgment.
Reporter's Notes to 1995 Amendment, V.R.C.P. 56(c).
¶ 31. This case is similar to Schulz v. Serfilco, Ltd., 965 F.2d 516 (7th Cir. 1992), an age discrimination case decided under a local
district court rule very similar to our Rule 56(c)(2). In responding to
the defendant's motion for summary judgment in Schulz, the plaintiff failed
to controvert the defendant's proposed undisputed fact that age was not a
factor in the defendant's dealing with the plaintiff. Id. at 518. The
trial court granted summary judgment to the defendant holding that, as a
result of the plaintiff's failure, the plaintiff was bound by the fact and
it defeated the plaintiff's claim. Id. The court of appeals affirmed over
the plaintiff's objection that his statement of facts clearly showed that a
material dispute of fact existed as to the extent age was a factor in the
defendant's actions. Id. at 520. Finding that the plaintiff had not
specifically responded to the defendant's proposed fact, that the trial
courts had strictly applied the rule, and that the court of appeals had in
earlier decisions upheld strict application of the rule, the court held
that the rule required "both denial and support for that denial" and that
the district court had discretion to strictly apply the rule. Id. at 519.
¶ 32. As in Schulz, we understand from plaintiff's filings that he
is unhappy with defendant's statements of undisputed facts, but it will
take extensive work to determine what he has effectively controverted and
what he has not controverted. As in Schulz, his arguments to us stress
that his statements, independent of those submitted by defendants, show
that there are disputed issues of material fact that preclude summary
judgment against him on any of his claims. As in Schulz, he resists any
obligation to respond directly to defendant's statement of undisputed
facts. Meanwhile, as defendant's response argues, there were serious
questions about whether plaintiff met his discovery obligations under the
rules, questions that were difficult to reach with the state of the record
presented to the trial court. Further, plaintiff's claims appeared to
shift grounds and theories with each separate filing, making it difficult
for defendant and the court to address all of them.
¶ 33. We recognize that unlike the Seventh Circuit Court of Appeals
we have no history of requiring strict application of Rule 56(c)(2) to put
counsel on full and fair notice of what is expected. We have, however, in
the past precluded litigants from disputing facts that they failed to
properly dispute in a statement of undisputed facts. See Travelers Ins.
Cos. v. Demarle Inc., 2005 VT 53, ¶ ¶ 6, 9, 16 Vt. L. Wk. 134 (precluding
plaintiff from relying on a comment in the record that was not alleged in
its statement of disputed material facts); Boulton v. CLD Consulting
Eng'rs, Inc., 2003VT 72, ¶ 29, 175 Vt. 413, 834 A.2d 37 (admitting facts
from the defendant's statement of undisputed facts where the plaintiff
failed to controvert them). In addition, in this case, the trial court
gave plaintiff ample notice of what it expected and why. Not only did
plaintiff's counsel continue to file fact statements that did not comply
with the court's instructions, he continued to rely on a specific fact
statement that the trial court had earlier rejected as noncomplying. We
think that under the circumstances the court acted within its discretion in
invoking the third sentence of Rule 56(c)(2) deeming as admitted the facts
in defendant's statements because plaintiff did not controvert them.
¶ 34. Finally on this point, we are mindful of the Schulz court's
advice:
Still, all need not have been irretrievably lost. Schulz, through
his attorney, might have asked the district court for leave to
amend or, perhaps, supplement his response; a motion could have
been brought under Fed. R. Civ. P. 59(e) to alter the court's
order granting summary judgment . . . . We have not been advised
that any such resuscitation was attempted; certainly, no such
relief was granted.
965 F.2d at 520. Over fifteen months went by between the time when
defendant first raised plaintiff's noncompliance with Rule 56(c)(2) and the
date of the court's summary judgment decision. At no time during this
lengthy period did plaintiff ever respond to the allegation that he failed
to comply with the rule or amend his filing to respond. He has argued to
us that if the rule provided as defendant argued he "would be happy to
follow it," but he never made that argument to the trial court. Thus,
defendant's position that plaintiff did not comply with Rule 56(c)(2) was
unopposed. Further, after the summary judgment was granted he did not file
a motion to amend. Even if the result can be deemed harsh in this case, we
must conclude that plaintiff forewent the opportunity to avoid a harsh
result.
¶ 35. Because we have ruled that the facts contained in defendant's
statements of undisputed facts must be taken as admitted pursuant to Rule
56(c)(2), we do not need to reach the alternative ground that some of the
facts are binding upon plaintiff because they were found by the
Commissioner of Labor and Industry in the workers' compensation proceeding
to which plaintiff was a party. As we stated above, defendant included
each of the Commissioner's findings of fact in its statement of undisputed
facts filed with its second motion for summary judgment.
¶ 36. Before we consider the effect of the factual record on the
issue of whether plaintiff has established a prima facie case, we must
address the loose end of plaintiff's complaint amendment alleging that
plaintiff was ultimately terminated from employment with defendant in
retaliation for his successful VFEPA judgment. The court allowed the
complaint amendment on October 10, 2002, after defendant had filed its
three summary judgment motions and plaintiff had responded to them. The
complaint as amended stated in paragraph 30 that defendant's discriminatory
and retaliatory conduct made plaintiff's return "to employment impossible."
It went on in paragraph 31 to state that plaintiff was terminated eighteen
months after he last worked, and in paragraph 32 that the termination was
wrongful in that it was done in furtherance of defendant's discrimination
and retaliation against plaintiff. The complaint further stated in
paragraph 30 that plaintiff suffered "losses, damages, emotional harm,
embarrassment, [and] humiliation" as a result of the termination. (FN3) The
termination is not mentioned in any of the factual statements that we have
held must be deemed to have been admitted by plaintiff. The only
explanation in the record for the termination is in a letter dated March
11, 1998, and attached to plaintiff's statement of disputed facts for
defendant's second summary judgment motion. That letter indicates that
plaintiff was laid off because he did not return to work after eighteen
months and remained on workers' compensation status. It also indicates
that under the union contract plaintiff could return to work within six
months of the layoff if he provided a doctor's certificate that he was fit
for regular duty.
¶ 37. Plaintiff raised no issue with respect to the termination
count in his brief. Apparently out of concern that the termination count
will remain despite the superior court's summary judgment decisions,
defendant has urged us to address it and hold that plaintiff has impliedly
abandoned the claim. In his reply brief, plaintiff responded that the
termination count is covered by the judgment of the superior court and has
not been abandoned, but he made no argument that its coverage in the final
judgment is improper. Consistent with plaintiff's position, we conclude
that the superior court intended to end this case in its entirety and cover
the termination count in its final judgment. This conclusion is
particularly logical given plaintiff's presentation of the termination.
Plaintiff stated that he cannot return to work as a result of defendant's
action up to and including the videotape injury and the subsequent handling
of the workers' compensation claim. Thus, plaintiff's complaint amendment
appears to mention the termination not as a separate act of discrimination
or retaliation, but as a consequence of defendant's alleged retaliation and
discrimination. Consequently, it was consistent for the superior court to
dismiss this count along with the others.
¶ 38. In view of our rulings on the factual record, we reach the
question of whether plaintiff has made out a prima facie case of
retaliation and discrimination. As we stated above, defendant contested
that plaintiff could show that he suffered an adverse employment action or
that there was a causal connection between the adverse employment action,
if it existed, and the protected activity. Although the trial court did
not specify the grounds for its decision, it apparently agreed with
defendant's position. In fact, plaintiff has appealed the rulings on the
requests to admit, statements of facts and collateral estoppel, but has not
argued that if we affirm on these issues the summary judgment decision is
nevertheless erroneous. We agree that based on the facts in the requests
for admission and statements, plaintiff cannot support a prima facie case
for retaliatory discrimination.
¶ 39. Plaintiff's case is based on inferences to be drawn from a
number of incidents, coupled with a climate of hostility in reaction to
plaintiff's earlier discrimination judgment. The second statement of
undisputed facts, based on the workers' compensation decision, particularly
deprives plaintiff of the ability to draw favorable inferences in support
of his case from three incidents or series of incidents. These are
incidents on which plaintiff has especially relied: (1) the videotaping
incident, (2) the pervasive use of profanity by other firefighters, and (3)
the denial of the computer password. As to the more general, and less
emphasized, allegations, plaintiff's inferences are blocked in large part
by his admissions that he was unable to offer "any specific incident" of
the following: "retaliatory discrimination," "heightened scrutiny,"
"criticism or shunning," "resentment," "job information being withheld,"
"denial of funeral leave," or "berating or criticizing" any of which was
"attributable to any specific individual." Also his case is greatly
impeded by the statement of undisputed facts, which states that, other than
the taping, plaintiff cannot describe any incident, after the trial, of
retaliatory discrimination attributable to any specific individual and
"[p]laintiff could not think of any incident or conversation that allegedly
occurred after the verdict in the first trial in which Chief Lloyd
influenced or attempted to influence any fire department personnel to not
associate with or talk to plaintiff." Plaintiff is left with evidence that
the mayor and fire chief, and many firefighters, still believed that
plaintiff's discrimination judgment was wrong, and they were unrepentant.
He cannot show, however, that he suffered any adverse employment action as
a result of retaliation for his protected activity. Because plaintiff is
unable to establish a prima facie case under the facts by which he is
bound, the court properly granted defendant summary judgment on the merits
of plaintiff's case.
II.
¶ 40. Next we address defendant's claim that the court erred in
dismissing its counterclaim for unjust enrichment. Defendant argues that
interim workers' compensation benefits and a supplemental salary it paid to
plaintiff during the pendency of his claim should be returned because the
Commissioner found plaintiff's claim was without merit. The trial court
found that although defendant conferred a benefit upon plaintiff, defendant
also caused the delay that prompted the Commissioner to grant interim
benefits. Thus, the court concluded that defendant could not bring an
equitable claim for compensation because "the results complained of [were]
induced by [the City's] own conduct."
¶ 41. Under the doctrine of unjust enrichment, a party who receives
a benefit must return the payment if retention would be inequitable.
Brookside Memorials, Inc. v. Barre City, 167 Vt. 558, 559, 702 A.2d 47, 49
(1997) (mem.). Unjust enrichment applies if "in light of the totality of
the circumstances, equity and good conscience demand" that the benefitted
party return that which was given. Id. at 560, 702 A.2d at 50. Defendant
alleges that it conferred a benefit upon plaintiff when it made interim
workers' compensation payments and that it would be unjust to allow
plaintiff to retain that benefit because the Commissioner ultimately found
plaintiff's claim was without merit.
¶ 42. We initially point out that, as defendant notes, the workers'
compensation statute does not address the question of interim-payment
reimbursement. Under our statutory scheme, if an employer denies benefits
and the employee applies for a hearing, the Commissioner "may review the
evidence upon which denial is based and if the evidence does not reasonably
support the denial, the commissioner may order that payments be made until
a hearing is held and a decision is rendered." 21 V.S.A. § 662(b). In
this case, when the Commissioner examined defendant's opposition to paying
plaintiff benefits, defendant had not submitted any medical documentation
supporting denial and, consequently, the only medical evidence was the
report from plaintiff's doctor. Not surprisingly, the Commissioner found
that this evidence did not "reasonably support the denial," and ordered
defendant to pay interim benefits. At the formal hearing, defendant did
produce medical expert testimony which the Commissioner found credible, and
the Commissioner concluded that plaintiff was not entitled to benefits.
(FN4)
¶ 43. We are met first by plaintiff's argument that the
adjudication of a claim for the reimbursement or return of benefits is in
the exclusive jurisdiction of the Commissioner, and such a claim, under any
theory, cannot be adjudicated by the superior court. Plaintiff relies upon
the exclusive-remedy statute, 21 V.S.A. § 622 ("[T]he rights and remedies
granted by the provisions of this chapter to an employee on account of a
personal injury for which he is entitled to compensation under the
provisions of this chapter shall exclude all other rights and remedies of
the employee . . . ."), as interpreted in Demag v. American Ins. Cos., 146
Vt. 608, 610, 508 A.2d 697, 698 (1986). The plain language of the
provision, however, limits its application to employee claims against
employers, the fact situation present in Demag, and that is not the type of
claim that is asserted here. See Lorrain v. Ryan, 160 Vt. 202, 211, 628 A.2d 543, 549 (1993) (noting that "the exclusivity provision bars the
employee's tort recovery only with respect to claims against the
employer"); see also Reil v. State Comp. Mut. Ins. Fund, 837 P.2d 1334,
1336 (Mont. 1992) (holding that the exclusivity provision of the workers'
compensation statute does not prevent actions for restitution because it is
aimed at employee actions).
¶ 44. A better theory that closer fits the facts before us is
primary jurisdiction, which we explored in detail in the workers'
compensation context in Travelers Indem. Co. v. Wallis, 2003 VT 103, ¶ ¶
9-18, 176 Vt. 167, 845 A.2d 316. We held in Travelers that primary
jurisdiction prevented a workers' compensation carrier from challenging the
constitutionality of the Commissioner's administration of interim benefits
without first exhausting remedies available from the Commissioner. Id. ¶
8. In reaching this conclusion we used the three factors developed in C.V.
Landfill, Inc. v. Envtl. Bd., 158 Vt. 386, 610 A.2d 145 (1992), to
determine whether primary jurisdiction should be invoked: (1) whether the
question to be decided is one of law or is a mixed question of fact and
law; (2) whether an alternative tribunal with expertise is available to
adjudicate the controversy; and (3) whether the plaintiff is attacking the
validity of a statute. Id. at 389-92, 610 A.2d at 146-48. Primarily
because the issue involved a mixed question of fact and law, and that the
Commissioner had the authority under the workers' compensation statute
along with the expertise to decide the issue, we held in Travelers that
primary jurisdiction applied. 2003 VT 103, ¶ ¶ 11, 13.
¶ 45. The C.V. Landfill factors do not point consistently in the
same direction when applied to this case, but we conclude that the doctrine
of primary jurisdiction does not prevent the superior court from
adjudicating defendant's counterclaim. The main question before us is
purely one of law-whether reimbursement or return of benefits paid is
available on a theory of unjust enrichment. Even if we go beyond this
question, the standards involved are derived from the common law of unjust
enrichment, law developed by court decision and not through the expertise
of an administrative agency. See Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 305-06 (1976) (declining to refer matter to administrative board
where legal issue involved common-law principles of tort law). As noted
above, the workers' compensation statute contains no authorization for the
reimbursement of benefits paid under an interim order, and no standards for
the exercise of discretion in determining whether to allow reimbursement.
We are already in a proceeding between the parties; moving to another forum
is inefficient. See Rohr Indus., Inc. v. Washington Metro. Area Transit
Auth., 720 F.2d 1319, 1326-27 (D.C. Cir. 1983) (reversing district court's
application of primary jurisdiction because among other things it would
require further delay). These circumstances suggest that primary
jurisdiction should not apply here.
¶ 46. On the other hand, we recognize that the Commissioner has
adjudicated at least one other case where the employer sought to recoup
benefits, see Conrad v. Central Vermont Hosp., Op. No. 28 01WC, at 5 (Sept.
14, 2001), and that defendant could have raised the issue in the
compensation adjudication and chose not to do so. While the availability
of an administrative forum supports the application of primary
jurisdiction, we conclude that such a circumstance would become
determinative only if we had already ruled that reimbursement was available
and defined the standards for its exercise. Equipped with such standards,
it would be far more efficient to have the agency determine reimbursement
at the time of the compensation adjudication, particularly because the
issue would be a mixed question of law and fact even under the common-law
standards. Where we are presented with a purely legal question, we
conclude that the superior court is the proper forum for adjudication.
Particularly, as discussed infra, there is no set of facts that would
support defendant's theory in this case. See Miss. Power & Light Co. v.
United Gas Pipeline Co., 532 F.2d 412, 419 (5th Cir. 1976) (enumerating
situations when application of primary jurisdiction is inappropriate
including when no set of facts would change a clear violation of federal
law).
¶ 47. Thus, we address the question of whether defendant's theory
of unjust enrichment applies and reimbursement is available on this theory.
We note that other states are split on this issue when no statute
authorizes a right of reimbursement. Defendant cites cases from a few
jurisdictions in which, it asserts, the courts recognize an employer's
right on a theory of unjust enrichment to receive reimbursement of workers'
compensation benefits that were erroneously paid. See, e.g., Ill. Graphics
Co. v. Nickum, 639 N.E.2d 1282, 1293-94 (Ill. 1994) (allowing recovery of
voluntary payments if made because of a mistake of fact); Montgomery v.
Abex Corp., 602 A.2d 290, 291-92 (N.J. Super. Ct. App. Div. 1992) (holding
that employer entitled to determination of unjust enrichment on remand for
miscalculated overpayments); Moore v. N. Am. Van Lines, 462 S.E.2d 275, 276
(S.C. 1995) (holding that upon reversal of judgment, employer has a right
to reimbursement of benefits based on unjust enrichment). The
circumstances under which these courts allow recovery are limited, and, of
the cited cases, only Moore addresses the question of whether payments can
be reimbursed after a judgment is reversed.
¶ 48. On the other hand, many more jurisdictions hold that courts
cannot create a right to reimbursement within a wholly statutory area of
law where a legislature chose not to do so. These jurisdictions deny any
restitution for claims originally granted and then reversed on appeal.
See, e.g., Tompkins v. George Rinner Constr. Co., 409 P.2d 1001, 1004 (Kan.
1966) (concluding that "in view of the provisions of the compensation act
general rules relating to 'restitution' have no application and that
'recovery back' is not to be permitted"); Am. Mutual Ins. Cos. v. Murray,
420 A.2d 251, 252 (Me. 1980) (per curiam) (explaining that court should not
create a right to restitution in a entirely statutory area of the law with
broad social policy implications); St. Paul Fire & Marine Ins. Co. v.
Treadwell, 283 A.2d 601, 605-06 (Md. Ct. App. 1971) (concluding that
because statute allows no stay of payments pending appeal and does not
contain repayment provision, it would be contrary to legislative intent for
employer to recover payments under theory of unjust enrichment); Ransier v.
State Indus. Ins. Sys., 766 P.2d 274, 276-77 (Nev. 1988) (holding that
allowing restitution would conflict with the liberal construction of the
workers' compensation law to protect workers); In re Johner, 643 P.2d 932, 935 (Wyo. 1982) (holding that the district court had no authority to order
recovery of benefits where not provided for in the statute).
¶ 49. In examining our workers' compensation statute, we cannot
find a legislative intent to grant employers such a reimbursement right.
Although we recognize that defendant did confer a benefit upon plaintiff
when it made interim payments pursuant to the Commissioner's order, we also
note that plaintiff did not commit any wrongdoing to receive these
benefits. We, therefore, decline to create this right where the
Legislature has been silent. See Gintof v. Husky Injection Molding, 2005
VT 8, ¶ 8, 16 Vt. L. Wk. 38, 868 A.2d 713 (mem.) (noting that the court
will not extend benefits beyond that which the Legislature provided). In
so holding, we echo the concerns voiced by courts in other states that, in
an area of law created entirely through statutory enactment, we are
hesitant to create rights where the Legislature chose not to do so. As the
Maine Supreme Judicial Court explained:
Whether, when the worker has lost on appeal, the beneficent
purposes of our workers' compensation law would be frustrated by a
rule requiring repayment of benefits paid pursuant to the
[statutory mandate] is a question to be addressed by the
legislature. To attempt to resolve this question by engrafting
upon the statutory scheme judicially created doctrines of
restitution would involve us in the establishment of broad social
policy in a field of law created by the legislature . . . . We are
not asked to construe the Workers' Compensation Act; rather, we
are asked to establish policy in this uniquely statutory field
when the legislature has deliberately elected to remain silent.
In the absence of an express legislative command or a clear
indication of legislative intention, we leave the parties where
the legislature left them.
Murray, 420 A.2d at 252. Denying employers a right to collect payments
under interim orders maintains the delicate balance that the Legislature
designed in the workers' compensation arena.
¶ 50. Defendant further submits that if reimbursement is not
granted in this case, it would be deprived of its right to legal recourse
under Chapter I, Article 4 of the Vermont Constitution, because the formal
hearing would be rendered useless. We find no merit to defendant's
argument. Article 4 states that "[e]very 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." Vt.
Const. ch. I, art. 4. We have explained that Article 4 "protects recourse
to the judicial process"; it does not grant substantive rights. Levinksy
v. Diamond, 151 Vt. 178, 197, 559 A.2d 1073, 1086 (1989), overruled on
other grounds by Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990).
¶ 51. The statute grants interim payments only in cases where the
evidence does not "reasonably support the denial." The statute does not
provide employers with a right to reimbursement of these payments, but
ensures access to a formal hearing where both employer and employee have a
full opportunity to litigate questions of eligibility. The hearing
determines whether payments will be made prospectively, not whether they
should have been granted in the interim period. Consequently, the hearing
has a purpose other than to provide the employer with reimbursement.
Further, this scheme provides defendant with several procedural
protections. Defendant's ability to be reimbursed for the interim payments
concerns a substantive right rather than a procedural one, and Article 4
does not convey such rights. Id. The Legislature has chosen not to grant
this right and there is no constitutional obligation to do so. See Fleury
v. Kessel/Duff Constr. Co., 149 Vt. 360, 363-64, 543 A.2d 703, 705 (1988)
(concluding that Legislature's decision to grant employee attorneys' fees
was reasonable and did not deny employer constitutional protection).
¶ 52. Finally, defendant explains that one-fourth of the money it
paid to plaintiff was disbursed pursuant to the collective bargaining
agreement, and therefore, its right to reimbursement is independent of the
workers' compensation scheme. The City does not develop this argument and
raises the issue for the first time in its responsive brief; therefore, we
conclude that it was not adequately preserved and do not address it. See
Bigelow v. Dep't of Taxes, 163 Vt. 33, 37-38, 652 A.2d 985, 988 (1994)
(reiterating that issues not raised in an original brief may not be raised
for the first time in reply brief).
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. On September 25, 2002, plaintiff filed a motion to amend his complaint
and add an allegation of discriminatory discharge. The court granted the
motion, but requested that an amended complaint be filed. Plaintiff filed
this amended complaint on January 7, 2003, and defendant filed a motion to
strike on January 21, 2003, arguing that the claim in the amended complaint
was different from that articulated in the original motion. The court
never ruled on the motion. On appeal, defendant argues that plaintiff
abandoned his unlawful termination claim by failing to raise the issue on
appeal. Because we find no merit to the claim, infra, we do not reach
whether plaintiff properly presents this issue on appeal.
FN2. The requests also requested that plaintiff admit certain facts with
respect to the videotaping incident. These admissions are relatively
unimportant because of facts about the videotaping incident considered
infra.
FN3. Defendant filed a motion to strike the amended complaint arguing that
its content differed from that contained in the motion. The superior court
never specifically acted on this motion. The court did say in its decision
that all other pending motions were either found to be without merit or
were mooted by the decision.
FN4. Defendant argues that if reimbursement of interim benefits is not
granted after an employer prevails at a formal hearing, then the right to a
hearing under 12 V.S.A. § 663 is rendered meaningless, and produces an
absurd result the Legislature could not have intended. The Legislature did
not, however, provide for reimbursement of interim benefits, but
established a guideline for granting interim benefits. This construct is
reasonable especially given the remedial purpose of the statute, and as
explained infra, we will not go beyond the statutory bounds. Further, when
interim payments are granted, a ruling for the employer after the formal
hearing removes any future payment obligation. Therefore, we cannot say
that the entire purpose of the hearings is rendered meaningless.
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