Gallipo v. City of Rutland

Annotate this Case

GALLIPO_V_CITY_OF_RUTLAND.91-320; 163 Vt 83; 656 A.2d 635

[Filed 16-Dec-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. 91-320

Raymond F. Gallipo Supreme Court

On Appeal from
v. Rutland Superior Court

City of Rutland, Fire Chief February Term, 1994
Gerald Lloyd, and Gerald Lancour

Richard Walsh Norton, J.

Andrew Jackson, Middlebury, for plaintiff-appellant

Samuel Hoar, Jr., and Susan J. Flynn of Dinse, Erdmann & Clapp, Burlington, for
defendants-appellees

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.), Specially
Assigned

GIBSON, J. Plaintiff Raymond F. Gallipo appeals a grant of summary
judgment in favor of defendants City of Rutland and Rutland Fire Chief Gerald
Lloyd, and the denial of his motion to disqualify the trial judge. We affirm
summary judgment in part and reverse in part, and we affirm the decision of
the administrative trial judge denying the motion to disqualify.

Plaintiff joined the Rutland Fire Department in 1962. In November 1985,
when plaintiff was the most senior firefighter, a lieutenant's position
opened up in the department. Chief Gerald Lloyd posted a notice of
requirements for the position, which included responsibility for

supervision of the fire alarm and traffic system -- a responsibility not
included in the job description set forth in the personnel manual. Plaintiff
was not selected for the position, nor was he selected for two subsequent
promotions, notices for which also included job requirements not listed in
the personnel manual.

In September 1987, plaintiff filed a complaint under the Vermont Fair
Employment Practices Act, 21 V.S.A. 495-496, alleging handicap
discrimination because the department had not promoted him due to his known
reading problem. Plaintiff subsequently was assigned to menial tasks at the
firehouse, and for the first time in his career, received disciplinary
memoranda in his personnel file. In January 1988, plaintiff filed a
complaint in superior court, alleging that defendants' failure to promote him
deprived him of a property right under 42 U.S.C. 1983, was an unlawful
employment practice under 21 V.S.A. 495, violated provisions of the City
charter and the City's personnel regulations, interfered with his contractual
and business relations, and intentionally inflicted emotional distress upon
him. An additional count alleging that a fellow firefighter assaulted
plaintiff has been stayed by stipulation of the parties pending resolution of
this appeal.

Defendants moved for summary judgment, which the trial court granted on
all counts. Plaintiff thereafter filed a motion to disqualify Judge Richard
W. Norton, who had heard the summary judgment motion, and for a rehearing of
the summary judgment motion. Administrative Judge Stephen B. Martin denied
the motion, and this appeal followed.

Summary judgment will be granted if, after an adequate time for
discovery, a party fails to make a showing sufficient to establish an
essential element of the case on which the party will bear the burden of
proof at trial. Poplaski v. Lamphere, 152 Vt. 251, 254-55, 565 A.2d 1326,

1329 (1989). In reviewing a grant of summary judgment, we will affirm if
there is no dispute as to a genuine issue of material fact and if the moving
party is entitled to judgment as a matter of law. See Cavanaugh v. Abbott
Laboratories, 145 Vt. 516, 520, 496 A.2d 154, 157 (1985) (Supreme Court will
apply same standard as trial court in considering correctness of disposition
of summary judgment motion).

Plaintiff's major contention is that the standard practice in the
Rutland Fire Department was to promote the most senior candidate unless that
person did not want the job or had an alcohol problem. He contends that this
policy established a property right protected under 42 U.S.C. 1983,(FN1)
which the department violated when it passed him over for promotion in favor
of persons less senior than he. The trial court found that plaintiff had not
established such a protected property right. We agree.

Section 1983 does not create substantive rights -- "it merely provides
remedies for deprivations of rights established elsewhere." Oklahoma City v.
Tuttle, 471 U.S. 808, 816 (1985). Further, "[t]o have a property interest in
a benefit, a person clearly must have more than an abstract need or desire
for it. He must have more than a unilateral expectation of it. He must,
instead, have legitimate claim of entitlement to it." Board of Regents v.
Roth, 408 U.S. 564, 577 (1972). A legitimate entitlement may arise from
existing rules or understandings

that come from an independent source such as state law. Id.; see also Perry
v. Sindermann, 408 U.S. 593, 601 (1972) (benefit may be property interest
under due process if rules or mutually explicit understandings support claim
of entitlement to benefit that party may invoke at hearing). Cf. Roth, 408 U.S. at 578 (where one-year employment contract was not renewed, there was no
deprivation of property interest).

Plaintiff has not cited, nor do we find, any cases holding that, absent
statutory or regulatory provisions, a right to promotion is a property right.
See Bigby v. City of Chicago, 766 F.2d 1053, 1056-57 (7th Cir. 1985) (where
statute provided for promotion of police officers based on merit, seniority
and examination, choice between highest-ranking candidates remained
discretionary and was not a matter of right); Burns v. Sullivan, 619 F.2d 99,
104 (1st Cir. 1980) (police officer's expectation of promotion not a property
interest where state law permitted consideration of subjective factors).

Plaintiff contends that a genuine issue of material fact exists as to
whether it was the department's policy to promote solely on the basis of
seniority. He asserts in his deposition that such was the case, while Chief
Lloyd, himself a firefighter since 1974, asserts in an affidavit that this
was not the case. These assertions alone, however, are insufficient to raise
a question of fact regarding the department's policy, particularly when they
are considered in light of the entire record.

Relevant documents contained in the record include the City's personnel
manual and the City Charter. Section IV of the personnel manual provides:

1. Promotion Policy
A. Vacancies in positions above the lowest rank in any
category in the classified service shall be filled as far as
practical by the promotion of employees in the service.
Promotion in every case must involve a

definite increase in duties and responsibilities and shall
not be made merely for the purpose of effecting an increase
in compensation.

City of Rutland, Vermont, Personnel Rules & Regulations (1978). The City
Charter sets forth the powers of the fire chief in appointing subordinates:

The [fire chief] shall appoint . . . two (2) Lieutenants.
The Chief may make such other appointment of subordinate
Officers as he or she deems necessary. All qualifications
being equal, the Chief shall appoint senior Officers in the
time of service to said subordinate offices. Revised Charter
of the City of Rutland 23-1 (1987) (emphasis added).

Thus, under the charter, seniority serves only as a tie-breaker, "[a]ll
qualifications being equal." The job description for the position of fire
lieutenant, as set forth in the personnel manual, includes a list of
educational and other minimum requirements in addition to five years of
successful experience as a firefighter. We conclude that plaintiff had no
property right to promotion based on seniority alone.

Nor is plaintiff's evidence sufficient to raise a genuine issue of an
implied contractual provision justifying an expectation of promotion based on
seniority. An implied contractual provision may arise through "established
past practices," Burlington Pub. Employees Union v. Champlain Water Dist.,
156 Vt. 516, 521, 594 A.2d 421, 424 (1991), where "`the conduct of the
parties . . . encompass[es] a continuity, interest, purpose and understanding
which elevates a course of action to an implied contractual status,'" id. at
525, 594 A.2d at 426 (Dooley, J., concurring) (quoting General Comm. of Adj.
v. Burlington Northern, Inc., 620 F.2d 161, 163 (8th Cir. 1980)).

Here, plaintiff offers the deposition of former Fire Chief Gerald Moore,
who, when asked if officers had been appointed on the basis of seniority,
replied: "In a general way. Not

necessarily all the time." Plaintiff acknowledges that on more than one
occasion within his memory the most senior firefighter at the department was
passed over for promotion. He attributes these exceptions to the candidates'
alcohol problems or their lack of desire for the promotion, but he fails to
demonstrate a course of conduct on the part of defendants that an implied
contractual provision existed for promotion based solely upon seniority. A
bare allegation that seniority was routinely the determining factor in
promotions will not suffice. See Id. Plaintiff's evidence does not raise a
genuine issue of material fact precluding judgment for defendants as a matter
of law.

II.

Plaintiff also asserts that Chief Lloyd interfered with his implied
contract with the City for promotion according to seniority. We have held
that interference with a contractual relation may be found even where the
contract itself is unenforceable. Mitchell v. Aldrich, 122 Vt. 19, 23, 163 A.2d 833, 836 (1960). Nevertheless, the plaintiff must have a reasonable
expectancy of gain, a "rightful interest in having the . . . promise
performed free from other outside interference." Id. As stated above,
plaintiff's evidence is insufficient to show a property interest or an
implied contract, or even to show a reasonable expectancy that he would be
promoted solely on the basis of his seniority. Plaintiff's claim must
therefore fail.

III.

Plaintiff next alleges violations of Vermont's Fair Employment Practices
Act (VFEPA). 21 V.S.A. 495-496. Specifically, plaintiff claims that he
suffered religious and disability discrimination, and that the Department
retaliated against him for filing a VFEPA complaint with the attorney
general. The standards and burdens of proof to be applied under the VFEPA
are

the same as those under Title VII of the federal Civil Rights Act of
1964. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 161, 624 A.2d 1122, 1128
(1992); see 42 U.S.C. 2000e. To withstand summary judgment, plaintiff
must present a prima facie case of discrimination. If plaintiff presents
evidence that an impermissible factor played a motivating part in the
employment decision, then the burden shifts to, and remains with, the
employer, who must show that it would have made the same decision even if it
had not considered the impermissible factor. See Hodgdon, 160 Vt. at 161, 624 A.2d at 1128-29.(FN2) "Unless the trial court finds that the plaintiff's
evidence is insufficient to make this preliminary showing as a matter of law,
under Vermont law, the issue must go to the jury." Id. at 162, 624 A.2d at
1129.

Plaintiff claims defendants discriminated against him because of his
religious practices, a violation of 21 V.S.A. 495(a)(1). Cf. 42 U.S.C.
2000e(j) (religion defined as all aspects of religious observance, practice,
and belief). He alleges that his viewing of the religious television program
"700 Club" was a factor in Chief Lloyd's decision not to promote him. He
also claims discrimination based upon his dyslexia, a reading disability.
See 21 V.S.A. 495d(5) (defining handicapped individual) & (6) (defining
qualified handicapped individual).

In support of his claim of religious discrimination, plaintiff submitted
the deposition of Rutland City Alderman John Cassarino, who testified to a
conversation with Chief Lloyd:

[Cassarino]: I asked [Chief Lloyd] what was going on with
Ray, and [he] told me that there was some problems with Ray.
. . . And Ray was involved in his religion. He was watching
PTL or 700 Club all the time, and the guys were sort of
making fun of that, and he wasn't really commanding. He
didn't say it in so many words, but he insinuated it. He
wasn't going to get any respect because of this he also told
me at that time.

Q. Can you recall exactly what was said about his religion
or about his --

A. Well, that he was watching that on TV down there, and I
understand that, and I did say that part of the reason Ray
was watching it on TV is because of his reading problem . . .

In addition, plaintiff submitted Chief Lloyd's answers to plaintiff's
interrogatories. In those answers, Chief Lloyd recounted the same
conversation:

Chief Lloyd informed Chairman Cassarino that the most
qualified applicant had been appointed to the posted
officer's position and that the plaintiff had not
demonstrated he had developed the leadership knowledge and
qualifications necessary to assume this position. . . . It
was also explained to Mr. Cassarino that the plaintiff had a
great deal of free time at the station, and most of his free
time was spent watching TV. Chief Lloyd further stated that
the free time could be used in a more constructive manner by
the plaintiff if he were to . . . prepare himself for future
officer vacancies.

The trial court found Mr. Cassarino's testimony to be insufficient evidence
of religious discrimination, but that it did call into question plaintiff's
ability to assume an effective leadership position if other fire department
employees did not respect him. Notwithstanding other possible inferences
that could be drawn from this testimony, it does support plaintiff's
contention that Chief Lloyd unlawfully took into account plaintiff's
religious practices in evaluating plaintiff for promotion and created a
genuine issue of fact sufficient to go to a jury.

Chief Lloyd's interrogatory answers indicate that "leadership" was one
qualification for the officer's position. One could readily infer from the
Chief's interrogatory answers and Cassarino's testimony that the Chief
believed plaintiff lacked leadership qualities and was unsuitable for the
lieutenant's position because the other firefighters would not respect
plaintiff because of his religious practices. An employer may not consider
its employees' animosity toward a protected class in making an employment
decision. This is precisely the kind of discriminatory decision-making VFEPA
was enacted to prevent. The deposition testimony and interrogatory answers
create a genuine issue of fact regarding whether Chief Lloyd considered
plaintiff's religious practices or beliefs in passing over plaintiff for
promotion.

With respect to the claim of disability discrimination, Alderman
Cassarino testified that he had discussed plaintiff's dyslexia with Chief
Lloyd. When asked by counsel whether Chief Lloyd mentioned anything about
plaintiff's ability to read, Cassarino replied:

We discussed that specifically, and I think this is the part
that's really got me a little bit, because I asked Chief
Lloyd, and he told me that he was going to pick a lieutenant
and that the next lieutenant would be the chief -- or the
assistant chief in time . . . so he felt it was very
important that the next person he pick[ed] would be his
person. And one of the reasons he wasn't going to pick Ray
was because of that. . . . [T]his person would have to be
able to have the ability to do a lot of book work . . . and
[Chief Lloyd's] comment was that he would hate to see Ray
because of his learning disability, his inability to read,
on the spot . . . .

(Emphasis added.) Cassarino's testimony creates a strong inference that
Chief Lloyd considered plaintiff's dyslexia in making the promotion decision.
Although Chief Lloyd may have considered plaintiff's disability for
benevolent reasons, VFEPA makes such consideration impermissible in most
instances.

The VFEPA defines a handicapped individual as one who "has a physical or
mental impairment which substantially limits one or more major life
activities." 21 V.S.A. 495d(5)(A). To prove discrimination under the
Act, plaintiff must show he is a "qualified handicapped individual," that is,
one "who is capable of performing the essential functions of the job or jobs
for which he is being considered with reasonable accommodation to his
handicap." Id. 495d(6); see also id. 495d(12) (defining reasonable
accommodation).

Plaintiff submitted the deposition of Patricia Stone, an expert in
evaluating reading disabilities, who testified that plaintiff has dyslexia
and reads unfamiliar words at a second-grade level. She testified that
plaintiff has a higher ability to recognize common words, probably due to
memorization. Stone testified that, with accommodations, plaintiff could
qualify to perform a job requiring high-school-level reading skill.
Plaintiff also submitted the affidavit of Chester Brunell, a retired deputy
chief of the Burlington Fire Department, who stated that in his experience,
the occasions necessitating reading are rare. Plaintiff contends, therefore,
that he is a "qualified handicapped individual," and able, with reasonable
accommodations, to perform the tasks required of a fire lieutenant.

On both the religious and disability discrimination claims the trial
court found that plaintiff had failed to demonstrate that his lack of
promotion was due to discrimination, and that he possessed the minimum
qualifications required for the position of lieutenant. We disagree.
Plaintiff has provided sufficient evidence to support a prima facie case of
discrimination on both claims. There being deposition, affidavit and other
evidence advanced by plaintiff to create genuine issues of fact on his claims
of religious and disability discrimination, we reverse summary judgment on
these issues.

Plaintiff need not succeed on the merits of his discrimination claims in
order to be protected from retaliatory action by defendants. See Davis v.
State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986) (finding of unlawful
retaliation not dependent on merits of underlying discrimination charge). A
prima facie case for retaliatory discrimination requires plaintiff to show
that (1) he was engaged in protected activity, (2) his employer was aware of
that activity, (3) he suffered adverse employment decisions, and (4) there
was a causal connection between the protected activity and the adverse
employment action. Manoharan v. Columbia Univ. College of Physicians &
Surgeons, 842 F.2d 590, 593 (2d Cir. 1988).

The filing of a complaint under the VFEPA with the Attorney General is a
protected activity. See 21 V.S.A. 495(a)(5) (employer may not retaliate
against employee for filing discrimination complaint with attorney general);
see also E.E.O.C. v. Locals 14 and 15, Int'l Union of Operating Eng'rs, 438 F. Supp. 876, 881 (S.D.N.Y. 1977) (filing of EEOC charges alleging
retaliation is "protected participation" under Title VII). The Attorney
General notified defendants of the VFEPA complaint shortly after it was filed
in September 1987.

Plaintiff commenced his lawsuit on January 22, 1988, and was first
assigned to "detail" on January 29, 1988. The reprimand letters came in
April, May and September of 1988. On "detail," plaintiff performed menial
chores, such as trash-hauling and taking coffee orders, that he had not
performed in ten or more years. Moreover, the reprimand letters issued to
him after his VFEPA complaint and lawsuit were the first he had received in
twenty-six years as a firefighter.

Defendants contend, however, that plaintiff has failed to present
evidence of a causal link between his complaint and the allegedly retaliatory
actions. For purposes of a prima facie case, plaintiff may establish a link
indirectly by showing that the timing of the complaint and the retaliatory
action was suspect. Grievance of McCort, No. 93-237, slip op. at 16 (Vt.
Sept. 2, 1994). The trial court found that the first disciplinary memorandum
came seven months after the filing of plaintiff's VFEPA complaint, an
interval the court felt was too long to establish the necessary causal link
to show retaliation. But more significant, in our view, is the fact that
plaintiff had had no "detail" assignments in at least ten years, nor had he
received any disciplinary memoranda in twenty-six years until after he had
filed a complaint with the Attorney General. Cf. Weaver v. Casa Gallardo,
Inc., 922 F.2d 1515, 1525 (11th Cir. 1991) (pronounced increase in negative
reviews and careful scrutiny of plaintiff's performance, coupled with
testimony that management personnel were acutely aware of EEOC charge filed
by plaintiff, were sufficient to establish causal link for plaintiff's prima
facie case of retaliatory discharge). Considering the evidence in the light
most favorable to plaintiff, we conclude that there is a genuine issue of
material fact concerning his claim of retaliatory discrimination. Summary
judgment on this claim is reversed.

IV.

Plaintiff contends that Chief Lloyd failed to comply with the City
Charter and the City personnel regulations when he added skills and
responsibilities to the job descriptions of the open positions. Chief Lloyd
posted notice of a lieutenant's position vacancy in November 1985 which
stated that, in addition to the requirements listed in the City Personnel
Manual, "the person selected for this position will also serve as the Traffic
Light and Fire Alarm Officer. His duties

will be to supervise the fire alarm and traffic system." Plaintiff asserts
that this change to the job description was required to be in writing and
approved by the City aldermen.

The Personnel Rules and Regulations and the City Charter, however,
contain no such requirement. Indeed, the Recruitment section of the
personnel manual states that in filling vacancies, a department head shall
announce, among other things, "desired qualifications of applicants."
Personnel Rules and Regulations III 1.C.

Plaintiff also refers to 24 V.S.A. 1122 for support. This section
made personnel rules "personnel matters subject to regulation by local
officials," Martin v. Town of Springfield, 141 Vt. 554, 561, 450 A.2d 1135,
1139 (1982), allowing the legislative body of a municipality to adopt rules
relating to personnel matters, including promotions; the section does not,
however, mandate such a procedure or make it the exclusive procedure.

We agree with the trial court that the proffered evidence is inadequate
to raise a genuine issue of material fact on plaintiff's claim that Chief
Lloyd failed to comply with City regulations in posting the November 1985
vacancy notice.

Plaintiff alleges further a claim for intentional infliction of
emotional distress. The trial court granted summary judgment on this count
because it had granted summary judgment on the retaliation claim.

Plaintiff's burden of proof on a claim of intentional infliction of
emotional distress is a heavy one. He must demonstrate that defendants'
conduct was so outrageous as to surpass "`all possible bounds of decency, and
. . . be regarded as atrocious, and utterly intolerable in a civilized
community.'" Demag v. American Ins. Co., 146 Vt. 608, 611, 508 A.2d 697, 699

(1986) (quoting Restatement (Second) of Torts 46 cmt. d (1965)). In
addition, plaintiff must show that the conduct was undertaken intentionally
or with reckless disregard of the probability of causing emotional distress,
and that it did in fact result in extreme emotional distress. Crump v. P & C
Food Markets, Inc., 154 Vt. 284, 296, 576 A.2d 441, 448 (1990).

The evidence proffered by plaintiff falls far short of that necessary to
raise a genuine issue as to whether defendants' actions amounted to
intentional infliction of emotional distress. The "detail" chores to which
plaintiff was assigned are, by his own admission, routine firehouse duties,
though they are normally assigned to rookie or junior firefighters.
Likewise, the reprimand letters cannot be characterized as outrageous conduct
surpassing the bounds of decency. Plaintiff offers no other specific
evidence of outrageous conduct; we therefore find no error in the trial
court's ruling on this count.

VI.

Plaintiff alleges violations of his rights under the Vermont
Constitution, charging that Chief Lloyd's failure to promote him violated
fundamental principles of fairness. See Vt. Const. ch. I, art. 18 (referring
to accountability of officers and their duty to adhere to principles of
"justice, moderation, temperance, industry, and frugality"). But plaintiff
has not shown its application here. Likewise, in asserting violations of
other constitutional provisions, he has failed clearly to show how his rights
have been violated under Article 7, which, among other things, prohibits
government action "for the particular emolument or advantage of any single
man," id. ch. I, art. 7, or under Article 3, securing the free exercise of
religion, id. ch. I, art. 3. We therefore will not address those issues.
See Fitzgerald v. Congleton, 155 Vt. 283, 295-

96, 583 A.2d 595, 602 (1990) (declining to address state constitutional issue
where plaintiff failed clearly to delineate how her rights had been
violated).

VII.

In June 1992, plaintiff filed a motion for Judge Norton to disqualify
himself and to vacate the summary judgment order in this case. Plaintiff
alleged that Judge Norton's position as Rutland City Attorney from 1969 to
1976 coincided with some of the years during which plaintiff claims the
Rutland Fire Department pursued a policy of promotion based on seniority.
According to plaintiff, Judge Norton's prior service as City Attorney raises
an appearance of allegiance or bias toward the City.

Judge Norton refused to disqualify himself and the matter was referred
to Administrative Judge Stephen B. Martin. See V.R.C.P. 40(e)(3). Judge
Martin found that plaintiff had failed to meet his burden of showing bias or
prejudice on the part of Judge Norton. We agree.

As we have stated on more than one occasion, it is not enough merely to
show the existence of adverse rulings, no matter how erroneous or numerous,
or that the judge expressed a comment or opinion, uttered in the course of
judicial duty, based upon evidence in the case. See Cliche v. Fair, 145 Vt.
258, 262, 487 A.2d 145, 148 (1984). Judge Norton's rulings do not on their
face demonstrate bias, and the fact that he served as city attorney many
years prior to the events at issue herein is not sufficient by itself to
warrant disqualification. National Auto Brokers Corp. v. General Motors
Corp., 572 F.2d 953, 958 (2d Cir. 1978) (prior representation of party by
judge in unrelated matter does not automatically require recusal); Black v.
American Mut. Ins. Co., 503 F. Supp. 172, 173 (E.D. Ky. 1980) (same). In the
absence of supporting evidence of actual bias, we are unable to discern "a
doubt of impartiality [that] would exist in

the mind of a reasonable, disinterested observer." Richard v. Richard, 146
Vt. 286, 288, 501 A.2d 1190, 1191 (1985). Accordingly, the decision of the
administrative judge must be upheld.

Denial of motion for disqualification is affirmed. Reversed on claims
of violations of Vermont Fair Employment Practices Act; in all other
respects, the judgment of the trial court is affirmed. Cause remanded.

FOR THE COURT:

________________________________
Associate Justice

-------------------------------------------------------------------------------
Footnotes

FN1. 42 U.S.C. 1983 (1994) provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . , subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured . . . .

FN2. The parties and the trial court incorrectly applied the McDonnell Douglas
framework to plaintiff's discrimination claims under 495. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Hodgdon, 160 Vt.
at 161, 624 A.2d at 1128-29 (explaining different burdens of production
depending upon evidence presented by plaintiff). The trial court's decision
was prior to our decision in Graff v. Eaton, 157 Vt. 321, 324, 598 A.2d 1383,
1384 (1991), where we adopted the Price Waterhouse framework, which is
applicable to the claims raised by plaintiff. See Price Waterhouse v.
Hopkins, 490 U.S. 228, 241 (1989); Hodgdon, 160 Vt. at 161, 624 A.2d at
1128-29. If the plaintiff fails to establish that an impermissible factor
played a motivating part in the employment decision, then the McDonnell
Douglas analysis applies. Hodgdon, 160 Vt. at 162, 624 A.2d at 1129.

-------------------------------------------------------------------------------
Concurring and Dissenting

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. 91-320

Raymond F. Gallipo Supreme Court

On Appeal from
v. Rutland Superior Court

City of Rutland, Fire Chief February Term, 1994
Gerald Lloyd, and Gerald Lancour

Richard Walsh Norton, J.

Andrew Jackson, Middlebury, for plaintiff-appellant

Samuel Hoar, Jr., and Susan J. Flynn of Dinse, Erdmann & Clapp, Burlington, for
defendants-appellees

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.), Specially
Assigned

MORSE, J., concurring and dissenting. I respectfully dissent from the
reversal of the judgment dismissing the claim under the Vermont Fair
Employment Practices Act for religious discrimination and the claim of
retaliation. Otherwise, I concur.

The links in the circular chain of inferences the Court employs to
arrive at religious discrimination are derived only from the statement of
Alderman Cassarino and Chief Lloyd's answer to an interrogatory question,
both quoted in the Court's opinion. According to Cassarino, Chief Lloyd
insinuated, but did not say, that "the guys" "made fun" of plaintiff for
"watching PTL and 700 Club all the time," and that plaintiff "wasn't really
commanding."

Lloyd stated plaintiff lacked "leadership" and spent most of his considerable
free time at the station "watching TV" rather than constructively preparing
for "future officer vacancies."

The Court assumes that watching such television during working hours is
a protected religious practice. May a court take judicial notice that "PTL
or 700 Club" are "religious" observances within the meaning of the Act? The
Court next assumes that plaintiff's coworkers made fun of plaintiff's
"religion," rather than his choice of television entertainment. The Court
further assumes, based on Lloyd's insinuation, that plaintiff was not
"commanding" only because he watched a particular form of programming.
Making yet another assumption, the Court states that Chief Lloyd's statement
describes the same conversation that Cassarino vaguely remembers.Chief
Lloyd's statement does not remotely supply evidence of discrimination found
wanting in Cassarino's deposition. The Court, nevertheless, makes a quantum
leap from one statement to the other. Lloyd's observation that plaintiff's
watching television during most of his free time at the station instead of
working toward his promotion becomes Lloyd's assessment of plaintiff's
religious observance; practicing religion fosters disrespect by coworkers;
the disrespect becomes a motivating, if not sole, consideration in making the
decision not to promote plaintiff. Under the Court's factual analysis,
surmise leads to speculation forming a conjectural waft of religious
prejudice. Summary judgment should be available to screen out such frivolous
attacks.

I would also affirm the grant of summary judgment on the claim of
retaliation. Plaintiff has not shown a causal connection between his
complaint and the allegedly retaliatory actions. The record only indicates
that plaintiff was assigned "detail" work on an average of once per month.
The record does not indicate, beyond plaintiff's assertion, that plaintiff
was singled out

to perform this type of work. Plaintiff made no showing that only new
recruits were required to perform menial tasks or that menial tasks were
assigned as a form of discipline.

Nor has plaintiff shown that defendant's non-discriminatory reasons for
disciplining plaintiff were pretextual. Plaintiff complains that three
reprimand letters were retaliatory because the subject of the reprimands were
actions that are not normally the subject of discipline. I fail to see how
insubordination, failure to respond to an emergency call in a timely fashion,
nonresponse to emergency calls on two separate occasions, failure to wear
proper equipment, and abuse of sick leave would not be subject to such mild
sanctions. Where plaintiff had some legitimate explanation for his behavior,
Lloyd accepted the explanation and took no disciplinary action. Moreover,
plaintiff has introduced no evidence that other firefighters were treated
differently for these same actions. By not requiring this showing, the
Court assumes that these letters resulted from increased scrutiny and fails
to take into account that even twenty-six year employees may misbehave after
being passed over for promotion.

In my opinion, the Court's decision today, as I have discussed,
encourages the practice of making spurious claims against employers and
wastes the limited resources of all concerned.

_________________________________
James L. Morse, Associate Justice

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