Knapp v. State

Knapp v. State  (97-180); 168 Vt. 590; 729 A.2d 719

[Opinion Filed 28-Apr-1998]
[Motion for Reargument Denied 13-Jul-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-180

                              MARCH TERM, 1998


Angela Knapp                          }     APPEALED FROM:
                                      }
                                      }
     v.                               }     Washington Superior Court
                                      }
State of Vermont, Don Mandelkorn,     }
Cindy Miller and SRS                  }     DOCKET NO. 269-5-95Wncv


       In the above-entitled cause, the Clerk will enter:

       Plaintiff Angela Knapp appeals a jury verdict finding that her
  employer, the Vermont Department of Social and Rehabilitative Services
  (SRS), did not discriminate against her based on her hearing and
  communication impairment in violation of the Vermont Fair Employment
  Practices Act (VFEPA), 21 V.S.A. § 495 et seq.  On appeal, she argues that
  the judge's jury instructions were erroneous and therefore a new trial is
  required.  Because the trial judge failed to instruct the jury as to the
  shifting burdens of proof in this case, we reverse and remand for a new
  trial.

       Plaintiff's employment with SRS ran from November 1993 through April
  1994.  Plaintiff was employed as a clerk/receptionist, and her job
  description required her to have extensive contact with the general public
  both on the telephone and in person.  According to plaintiff, her
  disability affected her ability to perform her job tasks.  She requested
  telephone amplification and hearing aids to accommodate her hearing and
  communication problem.  Neither were provided prior to SRS terminating her
  employment.  At trial, plaintiff claimed that SRS was aware of her
  disability but failed to provide reasonable accommodation in violation of
  VFEPA. SRS claimed that plaintiff was fired because of poor work
  performance.  A jury verdict was returned in favor of SRS.  The jury found
  that plaintiff had a handicap, that the State was aware of the handicap,
  and that plaintiff could have performed the essential functions of her job
  with reasonable accommodation.  However, the jury found that the State did
  not terminate her employment in violation of VFEPA.  Judgment was entered
  accordingly on April 7, 1997.

       On appeal, plaintiff claims that the jury was improperly instructed on
  two elements: first, that the trial judge erroneously instructed the jury
  that plaintiff was required to establish that she was "intentionally"
  discriminated against; and second, that the judge did not properly instruct
  the jury concerning the shifting burdens of proof.  We find no error in the
  first instruction but do find error in the second.

       VFEPA prohibits discrimination in employment against a qualified
  handicapped individual.  To establish a claim under this statute, a
  plaintiff must show that she was a qualified handicapped individual and
  that she was excluded from her position because of her handicap. See State
  v. G.S. Blodgett Co., 163 Vt. 175, 180, 656 A.2d 984, 988 (1995).  A
  qualified handicapped individual is defined as "an individual with a
  handicap who is capable of performing the essential functions of the job or
  jobs for which [s]he is being considered with reasonable accommodation to
  h[er] handicap."  21 V.S.A. § 495d(6).

 


       A party appealing a jury charge has the burden of establishing that
  the charge was both clearly erroneous and prejudicial.  See Mobbs v.
  Central Vt. Ry., 155 Vt. 210, 218, 583 A.2d 566, 571 (1990).  In reviewing
  jury instructions, we look to them in their entirety.  See Winey v. William
  E. Dailey, Inc., 161 Vt. 129, 143, 636 A.2d 744, 753 (1993).  Although the
  trial court has the responsibility to instruct the jury fully and correctly
  on every point raised by the material evidence, the degree of elaboration
  lies within its sound discretion.  See Currier v. Letourneau, 135 Vt. 196,
  204, 373 A.2d 521, 527 (1977).  The propriety of an instruction must be
  determined by considering the charge as a whole with an eye to its general
  content, and not piecemeal in isolated segments.  See Forcier v. Grand
  Union Stores, Inc., 128 Vt. 389, 396, 264 A.2d 796, 801 (1970).  If a
  charge as a whole "`breathes the true spirit and doctrine of the law and
  there is no fair ground to say that the jury has been misled,'" it ought to
  stand.  In re Moxley's Will, 103 Vt. 100, 114, 152 A. 713, 718 (1930)
  (quoting Fassett v. Roxbury, 55 Vt. 552, 556 (1882)).

       Plaintiff first claims that the judge erroneously instructed the jury
  as to her burden of proof in showing that she was unlawfully discriminated
  against.  The judge's instructions and jury interrogatories stated that, in
  order to prevail, plaintiff had to prove that SRS "intentionally"
  discriminated against her.  She claims that this instruction was
  unnecessary and confusing since she needed to prove only that her hearing
  loss was a "motivating factor" in her discharge pursuant to In re McCort,
  162 Vt. 481, 494, 650 A.2d 504, 512 (1994).  This argument is without
  merit.  The exact language of the judge's instructions clarified what
  "intentional discrimination" actually meant.  The instructions stated that
  "[i]n order to recover, plaintiff must prove that defendants intentionally
  discriminated against her; in other words, that her hearing impairment was
  a motivating factor in defendants' decision to terminate plaintiff." 
  (Emphasis added).  Therefore, it cannot be said that the jury was misled as
  to what the phrase "intentionally discriminated" actually meant.

       A similar instruction was addressed in Luciano v. Olsten Corp., 110 F.3d 210, 219 (2nd Cir. 1997).  In that case, the trial court took pains to
  sufficiently explain what was meant by "motivating factor" and
  "determinative influence."  The reviewing court noted this explanation in
  finding the jury instructions "fundamentally correct."  Id.  Similarly,
  here the trial judge went to equal lengths to make clear that in order to
  find intentional discrimination, the jury had to find that plaintiff's
  physical impairment was a motivating factor in her termination.  Because of
  this explanation, we find that the intent element was sufficiently defined
  in the jury instructions.

       Plaintiff's second claim of error is that the judge did not explain
  the shifting burdens of proof in employment discrimination cases as
  required by Graff v. Eaton, 157 Vt. 321, 325-26, 598 A.2d 1383, 1385-86
  (1991).  In Graf f, we remanded the case for a new trial because the trial
  judge failed to instruct the jury that, if it found that plaintiff had
  shown that gender was a motivating factor in the employment decision, then
  defendants had to prove that they would have made the same decision even
  absent the discriminatory motive.  See id. at 326, 598 A.2d  at 1386.  We
  based this determination on Price Waterhouse v. Hopkins, 490 U.S. 228,
  244-45 (1989), where the Supreme Court held that such a shifting of burdens
  was appropriate in employment discrimination cases.  Although the present
  case involves alleged discrimination based on a handicap and not gender, we
  think the same result should follow.  In this instance, the jury should
  have been instructed that if Knapp showed that her handicap was a
  motivating factor in SRS's decision to terminate her employment, then SRS
  had to prove that they would have made the same decision even absent the
  discriminatory motive.

       The need for the instructions on shifting burdens was real in this
  case.  Several of SRS's reasons for terminating plaintiff's employment
  related, at least to some degree, to her handicap.

 

  For example, plaintiff was faulted for "inconsistency in the recording of
  specific information required for phone messages" and because "she can be
  loud to the point of disrupting other staff nearby."  Plaintiff explained
  that these shortcomings were caused by her hearing impairment and by SRS's
  refusal to make reasonable accommodations for it by, for example, placing
  an amplifier on her telephone.  If the jury knew that SRS had the burden to
  show that it would have made the same decision without the reasons related
  to plaintiff's handicap, it may have found that SRS failed to meet that
  burden.   As we stated in Graff, the type of evidence presented by
  plaintiff "implies that an impermissible criterion was a factor in the
  employment decision, [and is] sufficient evidence for the jury to conclude
  that the employer's decision was, at least in part, discriminatory."  157
  Vt. at 327, 598 A.2d  at 1386.  Thus, the failure of the trial court to give
  the Graff shifting burdens instruction was prejudicial in this case.

       Reversed and remanded.




                              BY THE COURT:




                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice