Trombley v.Southwestern VT Medical Center
Annotate this Case
Trombley v. Southwestern VT Medical Ctr. (97-320); 169 Vt. 386; 738 A.2d 103
[Filed 16-Jul-1999]
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. 97-320
Judy Trombley Supreme Court
On Appeal from
v. Bennington Superior Court
November Term, 1998
Southwestern Vermont Medical Center
Richard W. Norton, J.
Herbert G. Ogden, Jr., and Alicia L. Aiken of Liccardi Crawford &
Ogden, P.C., Rutland, for Plaintiff-Appellee.
Karen McAndrew and Jeffrey J. Nolan of Dinse, Knapp & McAndrew, P.C.,
Burlington, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
MORSE, J. Defendant Southwestern Vermont Medical Center (SVMC)
appeals a jury verdict awarding plaintiff Judy Trombley damages for
wrongful termination. SVMC claims the trial court erred by: (1) failing
to grant its motion for judgment as a matter of law because plaintiff was
an at-will employee; (2) admitting in evidence an out-dated employee
handbook; (3) instructing the jury that, if it found that plaintiff was
entitled to disciplinary procedures, plaintiff could be terminated only
for cause; (4) placing the burden of proof on defendant to show just cause
for discharge; (5) excluding supervisory reports of complaints by patients
who had failed to waive confidentiality to allow plaintiff to inspect
their medical records; (6) admitting hearsay testimony; (7) instructing
the jury it could award front pay; and (8) failing to reduce the award of
back pay. We affirm. Plaintiff, a Licensed Professional Nurse (LPN), began
her employment with SVMC
in 1958. After four years of employment, she left SVMC, but returned to
work there in 1967. Twenty-five years later, in 1992, she was terminated.
In 1981, SVMC distributed to employees a revised employee handbook,
which, under "Resignations and Dismissals," stated:
Recommendation for dismissal of an employee is the responsibility
of the Department Head. An employee may receive a reprimand
for inefficiency, improper conduct or violation of hospital policies.
Such a reprimand will be written in duplicate by the Department
Head, signed by a member of the hospital administration,
countersigned by the employee and placed in the employee's
personnel folder.
The third reprimand as outlined above will result in automatic
dismissal.
In 1989, Carole Heaney became plaintiff's supervisor. From 1989 until
plaintiff's termination, various supervisory personnel received complaints
about plaintiff by patients and nursing staff. Heaney discussed the
complaints with plaintiff and noted each complaint on a "Performance
Record" form. The complaints included allegations by patients or their
relatives of callous and insensitive treatment. Several co-workers also
complained that she was uncooperative with nursing staff. Between 1989
and 1991, Heaney gave plaintiff warnings, both verbal and written, and
supervisor counseling. None of the "Performance Record" reports indicate
that plaintiff reviewed the statements made in them. In 1991, plaintiff
was suspended for three days for refusing to "accept[ ] assignments as
delegated by charge nurse."
On January 1, 1992, four months before plaintiff's termination, SVMC
again revised the employee handbook. The "Introduction" included the
following disclaimer:
Nothing in the handbook should be interpreted to represent a
contract of employment. You and the Medical Center may
terminate the employment relationship at any time. Employees
should be aware that the policies and benefits summarized in this
booklet are not permanent conditions of employment.
Please read this handbook carefully and keep it handy for future
reference. You have a responsibility to be familiar with the
contents.
The section entitled "When You Leave," described the discharge procedure as
follows:
A formal progressive disciplinary procedure has been developed to
ensure that employees are treated in a consistent and reasonable
manner. Toward this end, the Medical Center will, where
reasonable, provide employees with an opportunity to correct
inadequate or inappropriate work behavior. In most cases
progressive disciplinary procedure will include verbal counseling,
written counseling, suspension and finally, if corrective action has
not been taken, discharge.
In February 1992, Heaney filled out a performance record in response
to a complaint about plaintiff from a patient's daughter. According to
the report, "her mother did not get the care that she needed from
[plaintiff]." The report indicated that Heaney approached plaintiff with
the complaint. Plaintiff contended that when she offered to bathe the
patient, the patient refused. As a result of the complaint, the patient
was assigned to a different care provider.(FN1) On March 9, Heaney filled
out another performance report following a complaint by the daughter of
another patient asking that plaintiff be reassigned because she had fed her
mother too quickly. The performance record indicates that plaintiff denied
she had fed the patient too quickly and said that Mrs. Whiton, the
patient, had never relayed this to her. Plaintiff contended that: "Mrs.
Whiton's daughter was probably angry because [I] suggested that they limit
visitors." On March 28, Heaney made another "Performance Record," noting
in the "description outlining employee's behavior" section: "Mrs. B.
McKee commented on Judy's mumbling under her breath while in her room and
described how bad Judy's day was going." In the "noting expected change in
behavior" section, Heaney stated: "Will review [plaintiff's] record -
incidents of complaints are too frequent. Will discuss with Julia and
Suzie. Recommend dismissal. Third reprimand." The report was signed by
Heaney.
On April 6, Heaney prepared a "Counseling Report Form" alleging that
plaintiff lacked "caring" behavior towards patients as evidenced by
complaints from patients or their families and
recommended plaintiff be terminated from employment with SVMC. The report
stated:
The employee was advised of the following policy;
According to the personnel policies of Southwestern Vermont
Medical Center, an official reprimand may be issued to employees
for inefficiency, improper conduct or violation of hospital policies.
The third reprimand results in automatic dismissal from your job.
There was a place for "employee comments" and a signature line for the
employee. Both were left blank. A statement below the signature line
noted that the employee's signature indicated only that the employee had
an opportunity to read the statements, not that the employee necessarily
agreed with them. Plaintiff was subsequently fired. She was fifty-eight
years old.
Plaintiff filed suit in August 1994 against SVMC and Heaney. Her
complaint against Heaney was dismissed before trial. In her complaint
against SVMC, plaintiff claimed that she was (1) discriminated against in
violation of 21 V.S.A. § 495(a)(1) because of a seizure disorder, (2) a
victim of age discrimination in violation of 21 V.S.A. § 495(a)(1) and (3)
terminated in breach of her employment contract with SVMC.
During discovery, a dispute developed over the production of the
medical records of patients who had complained about plaintiff. In
response to plaintiff's request for those records, SVMC sought a
protective order, arguing that the patient records were confidential. In
April 1996, the court directed SVMC to either obtain waivers from patients
of any applicable privilege or refrain from introducing at trial any
evidence of complaints by patients who did not waive the confidentiality
of their medical records.
In September, SVMC filed a motion in limine requesting the court to
admit evidence at trial of personnel records that contained complaints by
those patients from whom they had been unable to obtain waivers. One
month later, SVMC requested that the court inspect the medical records of
patients in camera to determine whether they contained any relevant
information. The court denied both motions.
At trial, SVMC introduced testimony and documents in plaintiff's
personnel file about
complaints made by both nursing staff and patients. Plaintiff attacked the
credibility of the complaints with testimony highlighting inconsistencies
and inaccuracies with the alleged complaints. Furthermore, plaintiff
introduced testimony by several co-workers describing her capabilities
both with patients and staff members.
At the close of the evidence, the court submitted the claims for
disability discrimination and breach of contract to the jury. The jury
returned a plaintiff's verdict, awarding her $60,000 in past wages (back
pay) and $65,000 in future lost wages (front pay). Although the jury
determined plaintiff was handicapped, it did not find that SVMC had
discriminated against her on that basis. Instead, the jury based
liability on breach of her employment contract because she was dismissed
without cause and she was not terminated in the "manner and means" of
SVMC's discharge procedure.
SVMC moved for judgment notwithstanding the verdict or, in the
alternative, for a new trial or remittitur. The court denied the motion.
I.
SVMC first contends that the trial court erred in failing to grant its
motion for judgment as a matter of law because plaintiff was an at-will
employee. SVMC claims that the 1992 handbook was in effect at the time of
plaintiff's discharge and thus controlled the discharge.
An employment contract may be "at-will," terminable at any time, by
either party, for any reason or for no reason at all. See Sherman v.
Rutland Hosp., Inc., 146 Vt. 204, 207, 500 A.2d 230, 232 (1985). In
Taylor v. National Life Insurance Co., however, we held that personnel
manuals inconsistent with an at-will relationship may be used as evidence
that the employment contract requires good cause for termination. See 161
Vt. 457, 464, 652 A.2d 466, 471 (1993); see also Toussaint v. Blue Cross &
Blue Shield of Mich., 292 N.W.2d 880, 892 (Mich. 1980); Pine River State
Bank v. Mettille, 333 N.W.2d 622, 629-30 (Minn. 1983); Woolley v. Hoffmann-
LaRoche, Inc., 491 A.2d 1257, 1265 (N.J. 1985). Handbook provisions
committing the employer to a progressive discipline system are sufficient
for a jury to find that the employer may terminate the employee only for
cause. See Haynes v. Golub Corp., 166 Vt. 228, 234, 692 A.2d 377, 380
(1997).
The trial court correctly submitted the issue of the nature of the
employment relationship to the jury. The 1992 handbook stated that "[a]
formal progressive disciplinary procedure has been developed to ensure
that employees are treated in a consistent and reasonable manner."
Furthermore, plaintiff introduced into evidence the counseling report
recommending her termination. The report stated that an employee may
receive a reprimand for "ineffective, improper conduct, or violation of
hospital policies. The third reprimand results in automatic dismissal
from your job." Even though the 1992 handbook was in effect, the report
contained the exact language used in the disciplinary procedures from the
1981 handbook. The fact that plaintiff's supervisor used the language
from the 1981 handbook in the discharge report, the ambiguity in the 1992
handbook discharge procedure, and the relatively short time the 1992
handbook was in effect amply gave rise to a jury question on the terms of
employment. See Ross v. Times Mirror, Inc., 164 Vt. 13, 20, 665 A.2d 580,
584 (1995) (policies which expressly or impliedly include promise of
specific treatment in specific situations may be enforceable in contract);
Benoir v. Ethan Allen, Inc., 147 Vt. 268, 270, 514 A.2d 716, 718 (1986)
(court may consider other evidence in addition to personnel manual in
determining whether there exists implied-in-fact promise for continued
employment, including practices of the employer).
II.
A.
SVMC next contends that the court erred in instructing the jury that
the 1981 employee handbook was relevant to determine whether the
employment relationship could be terminated at-will or only for just
cause. SVMC claims that the court should have submitted only the most
recent handbook to the jury for determining whether the 1992 handbook's
progressive discipline procedure established an implied contract.
When we determined that personnel manuals may modify an at-will
agreement to require good cause for termination, see Taylor, 161 Vt. at
464, 652 A.2d at 471, we further concluded that when an employment policy
manual demonstrates a commitment to a progressive discipline procedure, it
may be submitted to the jury, and the jury may find that the employment
handbook restricted defendant
to terminating employees only for cause. See id. at 465, 652 A.2d at 471.
SVMC asks this Court to expand our holding in Taylor to allow handbook
modifications to amend existing employer-employee relationships, and that
the superseding handbook, as a matter of law, be the only relevant
document in a wrongful termination action. SVMC claims that subsequent
modifications of handbook provisions, so long as notice is provided to the
employees, are the exclusive source of potential contract rights.
In Toussaint, the Michigan Supreme Court held that an employer may
change employment personnel policies or practices unilaterally, so long as
the employee believes that the policies and practices established are
official, fair, and applied with consistency and uniformity to all
employees. See 292 N.W.2d at 892. Many courts which have adopted the
Toussaint unilateral contract theory have determined as a matter of law
that an employer has the right to modify the unilateral contract terms
with notice to its employees. See Ferrera v. A.C. Nielsen, 799 P.2d 458,
460 (Colo. Ct. App. 1990) (employer's right to modify employee handbook
presumed because employer must be able to respond flexibly to changing
conditions): In re Certified Question (Bankey v. Storer Broadcasting Co.),
443 N.W.2d 112, 120 (Mich. 1989) (employer may change or amend personnel
policy, with notice to employees, because modern business climate requires
businesses to be adaptable to changing circumstances); Sadler v. Basin
Elec. Power Coop., 431 N.W.2d 296, 298 (N.D. 1988) (employer may modify
an employee handbook and thus effectively modify a previously existing
employment contract with employee). We agree that employee handbooks may
be modified or altered subsequent to employment and, if the employee has
knowledge of the modifications of the policies and procedures,(FN2) the
modified version governs the terms of employment.
This determination does not mean, however, that the most current
employment handbook must, as a matter of law, be the sole basis for
employee termination procedures. We begin by noting that employee manuals
containing "definitive policies, which expressly or impliedly include
a promise for specific treatment in specific situations, especially when
the employer expects the employee to abide by the same, may be enforceable
in contract." Ross v. Times Mirror, Inc., 164 Vt. 13, 20, 665 A.2d 580,
584 (1995). Furthermore, "[t]he critical inquiry is, of course, whether
the procedure amounted to an enforceable promise of specific treatment in a
specific circumstance." Id. at 22, 665 A.2d at 585. In Farnum v.
Brattleboro Retreat, Inc., we held that whether several employee handbooks
created an implied employment contract was a question for the jury. See
164 Vt. 488, 494, 671 A.2d 1249, 1254 (1995) (whether employee could be
discharged without cause where contents of three handbooks contained mixed
messages was question for jury). The applicable discharge procedures must
be evaluated within the context of all the other provisions in the
handbooks and any other circumstances pertaining to the status of the
employment agreement. See id. at 495, 671 A.2d at 1255.
Here, the evidence at trial was ambiguous regarding which discharge
procedure was in place at SVMC in the spring of 1992. The 1981 handbook
provided for a "three-reprimands-and-you're-out" progressive discipline
policy. The 1992 handbook provided a more flexible "progressive
disciplinary procedure." The trial court determined that the language of
the 1992 handbook was unclear as to whether the formal disciplinary
procedure from the 1981 handbook was incorporated into the 1992 handbook
with the phrase "[a] formal progressive disciplinary procedure has been
developed . . . ." (Emphasis added.) The trial court instructed the jury
to consider both handbooks to decide whether that language automatically
incorporated the 1981 procedures into the 1992 handbook. We conclude that
the trial court correctly determined that whether one or both handbooks
formed the procedures for termination was a question of fact for the jury.
B.
SVMC next contends that the trial court erred by instructing the jury
that plaintiff could be terminated only "for cause" if it found that she
was entitled to defined disciplinary procedures. The court charged the
jury:
[I]f you decide that the Defendant established policies and practices
regarding discharge and that Plaintiff had a legitimate expectation
that such policies and practices would be followed, then you must
decide whether unlike the at-will relationship, the implied contract
precluded the Defendant from discharging Plaintiff without just
cause.
SVMC did not specifically object to this instruction. Instead, SVMC
objected to the court's failure to charge the jury that the 1992 handbook
replaced the 1981 handbook. Defense counsel stated: "Defendant continues
to object to submission of the just cause to the jury. We object to the
failure to give No. 19." SVMC had requested in charge No. 19 that the
court instruct the jury: "[O]nly the handbook in effect at the time of . .
. the discharge [ ] should be looked to when considering whether there was
an enforceable promise to follow a specific policy."
Because SVMC failed to clearly object to this jury instruction, the
claim is not preserved on appeal. See Weaver v. Georg Karl Geka Brush,
166 Vt. 98, 106-07, 689 A.2d 439, 444-45 (1996) (where party failed to
object distinctly, claim not preserved for appeal).
C.
Similarly, SVMC contends that the court erred when it instructed the
jury: "The Defendant asserts that it had just cause to terminate
Plaintiff. Defendant has a burden of proving it had just cause for
dismissing the Plaintiff." SVMC did not object to this instruction.
SVMC failed to make a timely objection to the jury instruction and
therefore, the claim is waived on appeal. See V.R.C.P. 51(b) (no error in
giving instructions to the jury unless the party objects distinctly prior
to jury consideration of issue); Imported Car Center, Inc. v. Billings,
163 Vt. 76, 80, 653 A.2d 765, 769 (1994) (failure of defendant to object to
instruction precluded review by this Court).
III.
SVMC contends that the court erred in excluding evidence of three
supervisory reports relating to patient complaints, where the complaining
patients refused to waive the confidentiality of their medical records.
The three specific complaints arose on October 6, 1991, March 9, 1992,
and March 28, 1992. The October 6 complaint was lodged through a
confidential letter with the complainant undisclosed, and alleged that
"[t]he evening and daytime nursing care was terrible. My main complaint
was with [plaintiff]." The March 9 complaint, lodged by a patient's
daughter, involved an allegation that the mother had been fed too quickly
by plaintiff. The March 28 complaint stated that a patient had "commented
on [plaintiff's] mumbling under her breath while in [patient's] room."
Defense counsel offered to prove that: (1) on each occasion plaintiff
was counseled by the nursing supervisor; (2) the written reports were
placed in plaintiff's personnel file; (3) the nursing supervisor relayed
the substance of the complaints to the other managers in the hospital
involved in the termination; and (4) SVMC relied on the substance of these
complaints as well as other reported problems in deciding to terminate
plaintiff.
SVMC fails to demonstrate prejudicial error requiring reversal. Even
though evidence relating to patient complaints for which waivers had not
been obtained was ruled inadmissible, complaints of two of the three
patients were ultimately admitted into evidence - the anonymous complaint
of October 6, 1991 and the complaint on March 9, 1992.(FN3) The March 28
complaint pertaining to a patient "comment" about plaintiff's mumbling was
the only incident of which the jury was unaware.
Even if the supervisory records should have been admitted, the
exclusion was harmless error. The proffered records would have offered
little to SVMC's case. SVMC introduced into evidence, through documents
and testimony, multiple complaints of both nursing staff and patients.
Plaintiff countered with testimony from supportive co-workers commending
her nursing skills. Plaintiff also introduced testimony attacking the
credibility of the complaints themselves and demonstrating SVMC's failure
to follow the disciplinary procedures in place at the time of the
termination. The
jury failed to find that SVMC was justified in its termination of
plaintiff, determining instead that SVMC had breached an implied contract
with plaintiff in the "manner and means of discharge." We fail to see how
the March 25 "mumbling" incident would have turned the case around for
SVMC.
IV.
SVMC next claims error in the admission of plaintiff's hearsay
testimony about her conversation with a patient since deceased. SVMC's
nursing supervisor testified to a complaint made by a patient's daughter
that plaintiff fed her mother too aggressively and quickly. The nursing
supervisor admitted that, although she did write up the complaint and
discuss it with plaintiff, she could not remember whether she had ever
discussed the complaint with the patient herself. In rebuttal, and over
SVMC's objection, plaintiff testified that she later went to see the
patient who told her she was upset that plaintiff had been reassigned
because "she enjoyed my caring for her and I was the only one that gave
her the hope to go on living."
If it was error to admit plaintiff's self-serving statement, we
conclude that any error was harmless. Whether plaintiff was permitted to
testify that one patient had professed confidence in plaintiff's nursing
skills did not change the outcome of the trial. The jury did not address
whether plaintiff was a substandard employee, concluding merely that
defendant had substantially breached the contract of employment in the
"manner and means of discharge." SVMC fails to demonstrate how the
admission of plaintiff's statement into evidence was prejudicial to the
outcome. See Keus v. Brooks Drugs, Inc., 163 Vt. 1, 7, 652 A.2d 475, 480
(1994) (even with error, court will not reverse unless prejudice is
demonstrated); Cadel v. Sherburne Corp., 139 Vt. 134, 136, 425 A.2d 546,
547 (1980) (refusing to reverse where statement in question did not appear
to be a significant factor in jury's determination).
V.
Next, SVMC claims that the trial court erred in permitting the jury to
consider the issue of front pay. At trial, over defendant's objection,
plaintiff's sister testified that plaintiff had told her she hoped to
retire at age sixty-two. At the close of evidence, defendant objected,
arguing that front
pay was not an issue for the jury because plaintiff failed to introduce
evidence during trial. The court, over SVMC's objection, instructed the
jury to consider an award of front pay. SVMC did not object to front pay
after the jury instructions were made.
We have determined that when front pay is allowed, damages must be
"limited to a reasonable period of time," and must not be too
"speculative." Schnabel v. Nordic Toyota, Inc., ___ Vt. ___, ___, 721 A.2d 114, 121 (1998). The issue preserved on appeal is whether front pay
damages are supported by the evidence introduced at trial. Plaintiff's
evidence demonstrated that plaintiff was fifty-eight years old at the time
of her termination and had been employed by SVMC for a period of
twenty-five years. Plaintiff submitted front pay damages to the jury of
$78,307 premised on her retirement at age sixty-two.
We fail to see how defendant was prejudiced by plaintiff's sister's
testimony. Without it, the jury could have reasonably concluded
plaintiff would have retired at age sixty-five. See Haynes, 166 Vt. at
238, 692 A.2d at 383 (jury award would be reasonable if based on normal
retirement age of sixty-five, unless evidences demonstrated that plaintiff
planned to work after age sixty-five). Because plaintiff was a long-term
employee and the time to retirement was short, the front pay award was not
speculative and was limited to a reasonable time period.
VI.
Finally, SVMC claims that the court should have reduced the amount of
back pay awarded because the evidence failed to support damages of
$60,000. SVMC does not contend that plaintiff did not mitigate her
damages with other employment, but argues that the only evidence relevant
to back pay was $53,585, the total back pay damages presented during
summation by plaintiff's counsel.
In determining a damages award, the jury award must stand if the
verdict can be justified on any reasonable view of the evidence. See
Clement v. Woodstock Resort Corp., 165 Vt. 627, 629, 687 A.2d 886, 888
(1996) (mem.); see also Jackson v. Rodgers, 120 Vt. 138, 150, 134 A.2d 620, 627 (1957) (when no amount is set within contract, court may not
interfere with jury award unless
amount is shown to have been grossly insufficient or excessive).
At trial, plaintiff introduced into evidence her length of employment
with SVMC, personal tax returns and W-2 forms from 1992 through 1996,
employment positions obtained after her termination including length of
time and hourly pay, and her year-to-date earnings for 1997 which
consisted of $72. Furthermore, a nursing supervisor from SVMC testified
that the hourly wages paid to similarly qualified LPNs at SVMC varied from
$9.99 to $11.
In plaintiff's closing argument, two methods of ascertaining back pay
were presented to the jury. One method calculated back pay to be $53,585
based upon plaintiff maintaining the same rate of pay from the time of her
discharge until trial in early 1997. The alternative method assumed
plaintiff received a raise in 1995 from $9.99 per hour to $11 per hour,
excluded any earnings for 1997, and calculated damages of $59,171.
We conclude that the jury award of $60,000 in back pay was not
excessive. The evidence estimated plaintiff's lost wages at between
$53,585 and $59,171. The second calculation did not include salary for
the first six weeks of 1997 and plaintiff testified that her earnings for
1997 consisted of $72. The evidence was thus sufficient for the jury to
determine that the total amount of back pay owed to plaintiff was $60,000.
We find no error in the trial court's failure to reduce the back pay
award.
Affirmed.
FOR THE COURT:
___________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. At trial, a letter from the patient was admitted into evidence stating
that she had never complained about plaintiff, in fact, plaintiff "took
very good care of me." The patient noted that her youngest daughter had
complained about the care, but "never mentioned [plaintiff]. [I]n fact she
didn't know who was on that day."
FN2. Plaintiff conceded at trial that she had notice of the changes adopted
in the 1992 handbook.
FN3. During the testimony of the nursing supervisor, the anonymous
complaint of October 6 was introduced by plaintiff without objection by
SVMC. The complaint of March 9 was introduced by SVMC over objection by
plaintiff. Heaney testified as to the dangers involved when a patient is
fed too aggressively, the basis of the complaint.
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