Carpenter v. Central VT Medical Center

Carpenter v. Central VT Medical Center (98-387); 170 Vt. 565; 743 A.2d 592

[Filed 09-Nov-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-387

                            SEPTEMBER TERM, 1999


Bernard Carpenter	               }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	Washington Superior Court
	                               }	
Central Vermont Medical Center	       }
	                               }	DOCKET NO. 654-12-96 Wncv


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


       Plaintiff appeals from a decision granting judgment for defendant on
  claims of age  discrimination and retaliation.  At a bench trial, the trial
  court held plaintiff to a higher standard  of proof than is required for
  the prima facie case and therefore erred in applying the burden- shifting
  framework for employment discrimination claims. We reverse for this reason,
  but affirm  the other challenged rulings by the trial court.

       Plaintiff was hired by Central Vermont Hospital in 1984.  He worked as
  a custodian for  ten years, eventually moving to the Woodridge Nursing
  Home, operated by defendant Central  Vermont Medical Center (CVMC). 
  Plaintiff received favorable performance evaluations for the  majority of
  his time with CVMC.  In 1994, he was fifty-eight years old. In February
  1994, the  nursing home created a new position for a lead housekeeper,
  involving many of plaintiff's duties,  as well as some new
  responsibilities.  Two individuals applied for the position, plaintiff and 
  Mike Tanner, a twenty-three-year-old employee who had been a housekeeper
  for three months.   Plaintiff and Tanner were both interviewed, and Tanner
  was selected for the job.

       In spring 1995, the nursing home decided to restructure the duties of
  some of its staff,  including plaintiff.  Carpenter was asked to add to his
  duties of dust mopping, vacuuming,  stripping, and waxing floors, the tasks
  of wet mopping, dusting lights and furniture, cleaning  patient rooms, and
  changing dirty linens.  As a result of throat cancer and radiation
  treatments  for it, plaintiff experienced heightened sensitivity to some
  cleaning products and to human waste.  Upon being told of the
  reorganization plan, plaintiff refused to do the new duties.  He took a 
  month's vacation and returned, but was still unwilling to perform tasks
  such as cleaning patient  rooms.  His job was terminated by CVMC at that
  time.  	

       Plaintiff filed suit for age discrimination and retaliation under
  Vermont's Fair Employment  Practices Act (FEPA).  The complaint did not
  contain a demand for a jury trial, nor was one  filed within the time
  limits of V.R.C.P. 38.  Plaintiff tried repeatedly to undo this mistake by 
  adding new legal theories to his case. On February 27, 1997, plaintiff
  filed a motion to amend  his complaint to add a federal age discrimination
  claim and obtain a jury trial.  The trial court 

 

  denied these motions. Plaintiff next moved to amend his complaint to add a
  claim of disability  discrimination under FEPA and to demand a jury trial. 
  The court denied both motions. Plaintiff  moved for the third time for a
  jury trial on March 8, 1998, and this motion, too, was denied.   The
  dispute proceeded to a bench trial and the court rendered judgment for
  defendant CVMC.  

       Plaintiff appeals five issues: (1) whether the trial court erred in
  analyzing plaintiff's  evidence as required by Ross v. Times-Mirror, Inc.,
  164 Vt. 13, 665 A.2d 580 (1995); (2)  whether the trial court erred in
  refusing to let plaintiff add a claim for disability discrimination  under
  FEPA; (3) whether the trial court erred in refusing to let plaintiff add a
  claim under the  federal Age Discrimination in Employment Act; (4) whether
  the denial of a jury trial was error;  and (5) whether the refusal to let
  plaintiff amend his complaint to conform to the evidence after  trial was
  error. 

       On appeal, we review the trial court's conclusions of law to see
  whether they are  supported by the findings of fact.  See Abbiati v.
  Buttura & Sons, Inc., 161 Vt. 314, 318, 639 A.2d 988, 990 (1994).  The
  findings of fact will not be disturbed unless clearly erroneous.  See 
  V.R.C.P. 52.	

       Plaintiff's first claim is that the trial court applied an erroneous
  standard to the claim of  age discrimination by dismissing the case for
  failure to prove a prima facie case and by placing  itself in the position
  of the employer making the decision.  We agree.  The standards and burdens 
  of proof to be applied under FEPA are the same as those under Title VII of
  the federal Civil  Rights Act of 1964.  See Hodgdon v. Mt. Mansfield Co.,
  160 Vt. 150, 161, 624 A.2d 1122,  1128 (1992); 42 U.S.C.  2000e. Under the
  burden-shifting framework created for employment  discrimination cases by
  the United States Supreme Court, a plaintiff creates a rebuttable 
  inference of discrimination by making out a prima facie case that 1) he was
  in the protected age  group; 2) he was qualified for the job; 3) he was
  denied the promotion; and 4) the circumstances  permit an inference of age
  discrimination.  See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
  (1973); Ross, 164 Vt. at 24, 665 A.2d  at 586-87 .  Once the plaintiff has
  made a prima  facie case of employment discrimination, the burden shifts to
  the employer to offer a legitimate,  non-discriminatory reason for the
  adverse employment action.  See Hodgdon, 160 Vt. at 159,  624 A.2d  at 1127. 
  If the employer articulates such a reason, the plaintiff then has the 
  opportunity to show that the proffered reason is pretextual.  See id. 

       Plaintiff's burden of proof in the prima facie case is minimal.  See
  St. Mary's Honor Ctr.  v. Hicks, 509 U.S. 502, 506 (1993). We have called
  the burden "a relatively light one," see  State v. Whitingham School Board,
  138 Vt. 15, 19, 410 A.2d 996, 998 (1979).   The Court of  Appeals for the
  Second Circuit has repeatedly called it "de minimis."  See Quaratino v.
  Tiffany  & Co., 71 F.3d 58, 65-66 (2d. Cir.1995) ( "plaintiff's burden of
  proof in a . . . discrimination  action is de minimis at the prima facie
  stage, . . ."); Meiri v. Dacon, 759 F.2d 989, 996 n.10  (2d. Cir. 1985). 

       Plaintiff unquestionably satisfied the first, third and fourth
  elements of the prima facie  case.  The question the trial court purported
  to decide was the second point: whether plaintiff  was qualified. The trial
  court found that plaintiff had a long and "quite good" employment  history
  at CVMC; he was reliable, knowledgeable and met or exceeded expectations
  for his  position, which focused on cleaning floors and corridors. 
  Additionally, defendant did not contest 


 

  that plaintiff was qualified for the position.  Therefore, plaintiff
  satisfied the light burden of the  prima facie case. 

       The trial court should then have considered whether defendant provided
  a legitimate, non- discriminatory reason for failing to promote plaintiff. 
  Assuming, arguendo, that defendant did  provide such reason, the trial
  court should have looked at whether plaintiff showed that the  proffered
  justifications were pretextual.   Instead, the court erroneously dismissed
  the complaint  for failure to meet the burden of the prima facie case. 

       CVMC did offer other reasons for its hiring decision, primarily that
  plaintiff had been  reprimanded for certain kinds of misconduct, such as
  using profanity, holding stereotypical  views of women and gay men, and
  making some kind of inappropriate contact with a co-worker.  While these
  may well be valid, non-discriminatory reasons to choose not to promote
  plaintiff,  they do not go to the question of whether plaintiff had made
  the proper showing for his prima  facie case.  These issues properly fall
  into the final step of the McDonnell Douglas analysis, the  ultimate
  determination of whether the employer discriminated.  See Texas Dep't of
  Community  Affairs v. Burdine, 450 U.S. 248, 253 (1981). There was
  certainly sufficient evidence for the  court to find that the employer had
  legitimate reasons for not promoting plaintiff, but the trial  court never
  reached that issue because it cut off the inquiry prematurely.

       In the course of considering whether plaintiff had met the burden of
  the prima facie case,  the trial court erroneously substituted its judgment
  for that of the employer. The court opined  that plaintiff had become
  "stuck in his ways," and that he was "a very concrete thinker".  CVMC  had
  offered neither of these reasons as the basis for its decision, and
  therefore the trial court's  reaching out to find reasons it would not
  choose to promote plaintiff was inappropriate.

       Federal courts of appeal have repeatedly instructed district courts
  that they may not  substitute their business judgment for that of the
  employer. In a case where a district court erred  similarly, by collapsing
  the question of qualification into the question of whether the employer 
  discriminated, the Court of Appeals for the Second Circuit reversed and
  observed that the error  had more than formal consequence because it forced
  the plaintiff to prove he was the best- qualified for the job.  See Powell
  v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978); see  also Owens v.
  New York City Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991) ("[a]n 
  individual may well have the ability to perform job duties, even if her
  conduct on the job is  inappropriate or offensive."). The trial court's
  error here, if uncorrected, would force plaintiffs  to prove the ultimate
  issue in what should be the de minimis burden of the prima facie case.  
  Therefore, we reverse the decision that plaintiff failed to make out a
  prima facie case. 

       Plaintiff appeals a number of other issues, all of which we find
  meritless, and therefore,  the decisions below are affirmed with respect to
  the rulings on amending the complaint to add a  disability discrimination
  claim, a federal age discrimination claim, a jury trial demand, and 
  amendments to conform to the evidence.  We review the denial of motions
  pursuant V.R.C.P. 15  for abuse of discretion.  See Brown v. Whitcomb, 150
  Vt. 106, 108-09, 550 A.2d 1, 3 (1988).  We briefly address each of these
  issues in turn.

       Plaintiff moved to amend his complaint to add a claim of disability
  discrimination under  FEPA and to demand a jury trial. The trial court
  denied these motions as untimely under the 

 

  scheduling order.(FN1)  Plaintiff claims that this was error, as he did not
  discover the evidence  of a disability discrimination claim until he was
  deposed on May 19, 1999 by defendant. Counsel  explains he then researched
  the claim. Despite the fact that the scheduling order in the case  required
  that all pre-trial motions be filed by July 1, 1997, six weeks after
  plaintiff's deposition,  plaintiff's motion to amend was not filed until
  July 10, 1997.  

       Rule 16.2 provides: "a scheduling order controls the subsequent course
  of the action and  takes precedence over any rule with respect to the time
  for taking any action or the scheduling of  actions for trial."  V.R.C.P.
  16.2.  Failure to comply with a scheduling order may be sanctioned  as
  provided in Rule 37: "[a]n order. . . prohibiting [a] party from
  introducing designated matters  in evidence."  V.R.C.P. 37(b)(2)(B).  The
  Reporter's Notes to the rule providing for scheduling  orders explain that
  "the scheduling order takes precedence over any rule with respect to time.  
  This language is necessary because many of the rules authorizing pre-trial
  motions allow them to  be made 'at any time after the . . . commencement of
  the action.'" V.R.C.P. 16.2.  Wright and  Miller further support this
  conclusion by commenting that orders will not be modified "simply  upon
  request;" rather good cause must be shown why a party cannot satisfy the
  order despite its  diligence.  6A C. Wright, A. Miller & M. Kane, Federal
  Practice and Procedure (2d)  1522.1  at 231  (1990). Plaintiff has made no
  showing that despite diligence he had good cause for filing  the motion
  late.  He may have explained why he didn't file the motion before the
  deposition, but  had no explanation for his failure to file the motion in
  the five weeks following the deposition.   Therefore, we cannot say the
  trial court abused its discretion in denying plaintiff's belated  motion to
  add a claim for disability discrimination based on information uncovered at
  his own  deposition. 

       On February 27, 1997, plaintiff moved to amend his complaint to add a
  claim under the  federal Age Discrimination in Employment Act (ADEA) and to
  obtain a jury trial.  The trial  court denied both motions, explaining that
  the ADEA requires a plaintiff to file within 300 days  of the last alleged
  unlawful act and plaintiff had not filed within that time frame.  This
  ruling was  correct. The alleged act of age discrimination was defendant's
  failure to promote plaintiff in  February 1994.  Three hundred days expired
  in December 1994.  Plaintiff did not file his  complaint with the Attorney
  General's office until August 1995.  The motion to amend was  therefore
  untimely and the trial court's denial of it was not an abuse of discretion.

       Next, plaintiff alleges that the trial court erred in denying him a
  trial by jury.  As noted  above, he included a jury demand in his motions
  to add claims under the ADEA and disability  discrimination under FEPA, but
  as those motions were denied on other grounds which we have  affirmed, they
  would not have entitled him to a jury trial.  Under the scheduling order in
  the  case, all pre-trial motions were to be filed by July 1, 1997. 
  Plaintiff moved to amend his  complaint to add the disability
  discrimination claim on July 10, 1997.  Defendant filed its  response on
  July 30, 1997.  The court denied the motions on August 6, 1997.  As
  explained  above, the scheduling order controls the subsequent action in a
  case, and we cannot say the trial 

 

  judge abused his discretion by enforcing the scheduling order.

       Finally, plaintiff alleges error in the trial court's denial of his
  motion to conform the  pleadings to the evidence to add a breach of
  contract claim.  We have explained that failure to  object to evidence
  related to an unpleaded issue may be evidence of implied consent but "'it
  must  appear that the party understood the evidence was introduced to prove
  the unpleaded issue.'"   Vineyard Brands, Inc. v. Oak Knoll Cellar, 155 Vt.
  473, 485, 587 A.2d 77, 83 (1990) (quoting  Campbell v. Bd. of Trustees of
  Leland Stanford Jr. Univ., 817 F.2d 499, 506 (9th Cir. 1987)).    The
  evidence at issue here was testimony elicited by plaintiff about CVMC's
  anti-discrimination  policies and whether investigation of plaintiff's
  claim was made.  Plaintiff asserts that defendant  must have understood
  that he was trying to prove a breach of contract claim.  We do not find the 
  evidence so obviously and exclusively related to a breach of contract
  claim.  Furthermore, the  trial court denied the motion on the basis that
  the substantive proof for such a claim simply was  not introduced.  

       Judgment, insofar as it found plaintiff had failed to prove a prima
  facie case, is reversed  and remanded for proceedings not inconsistent with
  this opinion; in all other respects, judgment affirmed.


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       MORSE, J., dissenting.  I respectfully disagree with the result. 
  While the superior court  collapsed the steps of the McDonnell Douglas
  analysis, it is beyond doubt that the court would  ultimately determine
  that CVMC did not discriminate.  The court found several non-
  discriminatory reasons justifying CVMC's decision, including plaintiff's
  lack of supervisory  experience, inflexible attitude, use of profanity and
  offensive remarks, sexist views of women,  and "inappropriate" contact with
  a co-worker.  As the court concluded, "he was not supervisory  material." 
  These reasons were found as facts sufficiently persuasive to deny plaintiff
  relief, and,  therefore, would not to be found "pretextual" if we remanded
  for an explicit finding.  The  conclusion that CVMC was not liable is
  foregone.  I would avoid the unnecessary expense and  delay and affirm.



                                       BY THE COURT:


Dissenting:	                       _______________________________________
	                               John A. Dooley, Associate Justice

______________________________	       _______________________________________
James L. Morse, Associate Justice      Denise R. Johnson, Associate Justice
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice

	                               _______________________________________
	                               Howard E. Van Benthuysen, Superior Judge
        	                       Specially Assigned




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                                  Footnotes


FN1.  The trial court also denied the motion as having been made after undue
  delay and on the  substantive ground that the claim was not within 29
  C.F.R.  1630.2(j)(3)(i).  As we uphold the  decision that the motion based
  on evidence revealed at plaintiff's deposition was untimely under  the
  scheduling order, we need not reach the other issues.