Wentworth v. Fletcher Allen Health Care

Wentworth v. Fletcher Allen Health Care (99-196); 171 Vt. 614; 765 A.2d 456

[Filed 19-Jul-2000]
[Motion for Reargument Denied 28-Nov-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-196

                               MAY TERM, 2000


Joan Wentworth	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Chittenden Superior Court
                                       }	
                                       }
Fletcher Allen Health Care	       }	DOCKET NO. S1637-96 CnC

                                                Trial Judge: Matthew I. Katz

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


       Plaintiff-employee Joan Wentworth appeals the Chittenden Superior
  Court's orders granting  defendant Fletcher Allen Health Care summary
  judgment on plaintiff's claims arising from her  occupational injury and
  eventual termination from employment with defendant's predecessor, Fanny 
  Allen Hospital.  Plaintiff claims that the court erred in (1) granting
  defendant summary judgment  where there were material facts in dispute; (2)
  improperly placing on her the burden of proof to  establish a "suitable
  position" under 21 V.S.A. § 643b; (3) failing to place the burden of proof
  on  defendant in a "mixed-motives" wrongful termination claim; (4)
  improperly finding that Medical  Center Hospital of Vermont (MCHV) was not
  plaintiff's employer; and (5) failing to find that  defendant's motion for
  summary judgment was untimely.  Plaintiff also claims that the court 
  unreasonably denied plaintiff's motion for sanctions after defendant
  refused to appear for a  deposition.  We find no merit in plaintiff's
  claims of error and affirm.  

       Plaintiff was employed as a licensed practical nurse (LPN) at Fanny
  Allen Hospital for twenty  years.  On October 8, 1992, she injured her back
  while moving a patient.  Plaintiff received workers'  compensation
  benefits, underwent surgery and treatment, and returned to work on August
  18, 1993,  with a lifting restriction of fifty pounds maximum once per hour
  and forty pounds frequently.  On  November 5, 1993, plaintiff again injured
  her back moving a patient.  She returned to work on  December 15, 1993,
  with weight restrictions of fifteen pounds lower lifting and twenty pounds 
  overhead.  There was no nursing job at Fanny Allen that plaintiff could do
  with a weight restriction  of fifteen pounds.  Fanny Allen terminated
  plaintiff's employment, effective December 21, 1993,  because she was not
  able to perform LPN duties.

       Plaintiff inquired about other open employment positions at Fanny
  Allen, specifically a unit  secretary.  Defendant maintains that the unit
  secretary position required typing skills of 30 word per  minute. 
  Plaintiff disputes this contention, though she concedes that she did not
  possess such typing 

 

  skills.  Plaintiff was not hired for the unit secretary position nor any
  other position at Fanny Allen,  nor at the MCHV, which acquired the assets
  of Fanny Allen on January 1, 1995, and became Fletcher  Allen Health Care,
  Inc.

       In November 1996, plaintiff brought an action against Fletcher Allen
  alleging four counts: (1)  unlawful retaliation for filing a worker's
  compensation claim in violation of 21 V.S.A. § 710; (2)  breach of
  contract; (3) emotional distress; and (4) punitive damages.  Defendant
  moved for summary  judgment on all counts in June 1998, to which both
  parties responded with motions.  On January 14,  1999, the trial court
  granted defendant's motion on the first three claims.  However, despite the
  fact  that plaintiff did not expressly plead it, the court identified a
  failure to reinstate claim under 21  V.S.A. § 643b(b) in plaintiff's
  action, and declined to grant defendant summary judgment on this or  the
  punitive damages claim related to it.  

       Defendant moved to reconsider and renewed its summary judgment motion
  on the failure to  reinstate claim in January 1999.  Plaintiff opposed
  defendant's renewed motion and filed her own  motion to reconsider. 
  Defendant filed a reply memorandum in support of its renewed motion and in 
  opposition to plaintiff's motion to reconsider.  Plaintiff responded to
  this with two separate motions.   On February 18, 1999, the court heard
  arguments by both parties on defendant's renewed motion and  plaintiff's
  motion for sanctions against defendant for failure to produce a witness for
  deposition.  The  court granted defendant summary judgment on the
  reinstatement claim, as well as the related  punitive damages claim. 
  Plaintiff filed a motion to reconsider and for summary judgment, which  was
  denied.  Plaintiff appeals to this Court. (FN1)

       We review a grant of summary judgment using the same standard as the
  superior court.  Madden v. Omega Optical, Inc., 165 Vt. 306, 309, 683 A.2d 386, 389 (1996). Summary judgment is  appropriate "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). In determining whether a  genuine issue of
  material fact exists, we take as true the facts alleged by the nonmoving
  party, see  Madden, 165 Vt. at 309, 683 A.2d  at 389, and give the nonmoving
  party the benefit of all reasonable  doubts and inferences.  See Wilcox v.
  Village of Manchester Zoning Bd. of Adjustment, 159 Vt.  193, 196, 616 A.2d 1137, 1138 (1992).

 

                                     I.


       Plaintiff first argues that there were material facts in dispute as to
  whether plaintiff could have  performed the duties of the unit secretary
  position at Fanny Allen.  Plaintiff's reinstatement claim is  predicated on
  21 V.S.A. § 643b(b):

         The employer of a worker disabled by an injury compensable
    under this  chapter shall reinstate the worker when his or her
    inability to work ceases  provided recovery occurs within two
    years of the onset of the disability.  A  worker who recovers
    within two years of the onset of the disability shall be 
    reinstated in the first available position suitable for the worker
    given the  position the worker held at the time of the injury.

       It was this reinstatement claim, which plaintiff did not advance in
  her pleading, that prompted  the court to partially deny defendant's
  summary judgment motion in its January 14, 1999 order.  The  court
  initially concluded that there was an issue of material fact on whether a
  suitable position was  available.  Defendant then addressed this new claim
  by filing a motion to reconsider and renewed  summary judgment motion,
  contending that the undisputed evidence demonstrated that there was no 
  suitable position available for plaintiff within the relevant time period. 
  Plaintiff filed three  opposition memoranda in response to defendant.

       In its February 18, 1999 order, the court addressed this issue.  It
  listed the four positions that  were available: (1) licensed practical
  nurse; (2) emergency medical technician; (3) unit secretary; and  (4)
  pharmacy technician.  It was undisputed that the first two positions were
  not suitable for plaintiff  because each required lifting that was unsafe
  for her, given her weight-lifting restrictions.  Plaintiff  claims that the
  court erred in finding that no material dispute of fact existed on the
  issue of her  suitability for the unit secretary position. (FN2)  We
  disagree.  

       The uncontradicted evidence before the trial court at the time of its
  consideration of  defendant's renewed summary judgment motion supported
  defendant's contention that typing skills  of thirty words per minute were
  required for the unit secretary position.  For example, an affidavit of 
  Barbara Sponem, Human Resources Director at Fletcher Allen, stated that the
  "[u]nit [s]ecretary  position at Fanny Allen required typing skills of 30
  words per minute and data entry skills."   Although plaintiff contends that
  she offered evidence that raised a material dispute of fact as to the 
  requirements of the unit secretary position, her evidence was submitted
  after the court granted  summary judgment.  This was true despite the fact
  that plaintiff filed three responsive motions to  defendant's renewed
  summary judgment motion.  Given this, we simply cannot accept plaintiff's 
  contention that she did not have adequate notice and opportunity to respond
  completely to  defendant's motion.  We will not, as the trial court would
  not, consider plaintiff's evidence which  disputes defendant's evidence on
  the typing requirement for the unit-secretary position because it was 
  filed too late.  See Fitzgerald v. Congleton, 155 Vt. 283, 295, 583 A.2d 595, 602 (1990) (stating

 

  well-settled rule that party opposing summary judgment motion must inform
  trial court of legal and  factual reasons why summary judgment should not
  be entered, and if it does not do so, and loses  motion, it cannot raise
  such reasons on appeal).  

                                     II.

       Plaintiff also contends that the court erred in its interpretation of
  § 643b(b)'s suitable  employment requirement.  Plaintiff invites us,
  borrowing from our worker's compensation statute  and the federal Americans
  with Disabilities Act, to import a "reasonable accommodation"  requirement
  into § 643b(b) and define a suitable job as one for which the employee
  through training  can obtain the skill required in a reasonable amount of
  time.  

       Our goal in interpreting statutes is to effect the intent of the
  Legislature, which we attempt to  discern first by looking to the language
  of the statute.  State v. Wool, 162 Vt. 342, 348, 648 A.2d 655, 659
  (1994). When the meaning of a statute is plain on its face, we have no need
  for  construction, but rather must enforce it according to its terms.  See
  Russell v. Armitage, 166 Vt. 392,  403, 697 A.2d 630, 637 (1997).  We, as
  did the trial court, decline plaintiff's invitation to so broadly 
  interpret § 643b(b)'s requirement that the "worker shall be reinstated in
  the first available position  suitable for the worker."  Section 643b(b)
  says nothing about any type of accommodations that an  employer must
  provide to reinstate an injured employee; thus, none is required. 
  Plaintiff's vocational  rehabilitation argument does not fall within the
  ambit of the statute's reinstatement provision, and  plaintiff's
  admonitions that it should, despite the absence of any statutory language
  so indicating, are  "more appropriately presented to the Legislature than
  to this Court because we find the meaning of  the statute to be plain on
  its face."  Newport Sand & Gravel Co. v. Miller Concrete Const., Inc., 159 
  Vt. 66, 71, 614 A.2d 395, 398 (1992).

                                    III.

       Plaintiff next argues that she was wrongfully terminated, in violation
  of 21 V.S.A. § 710, after  she suffered a workplace injury.  Plaintiff
  argues that the court erred in relying on Murray v. St.  Michael's College,
  164 Vt. 205, 667 A.2d 294 (1995), in framing its analysis of her
  retaliatory-termination and discrimination claim.  She contends that the
  court should have applied a mixed-motives analysis when she raised such a
  claim, and that the court erred in its failure to place the  burden on
  defendant to prove that its action was not discriminatory in that it was
  related to her  workplace injury and worker's compensation claims that
  followed.  

       We reject plaintiff's argument that the court should have provided a
  mixed-motives analysis.   In a mixed-motives case, a plaintiff must
  initially proffer evidence that an impermissible criterion  was in fact a
  "motivating" or "substantial" factor in the employment decision.  See de la
  Cruz v. New  York City Human Resources Admin. Dep't of Social Services, 82 F.3d 16, 23 (2d Cir. 1996).  Once  the plaintiff offers such evidence, the
  burden shifts to the employer to demonstrate that it would have  reached
  the same decision even in the absence of the impermissible factor.  See id.  

       Plaintiff presented no evidence that an impermissible criterion played
  any role in her  termination.  Her argument can succeed only if we accept
  her invitation to declare it against public 
                                      
 

  policy - and thus impermissible under § 710 - to terminate an employee who
  is unable to carry out  the duties of her position due to an occupational
  injury.  For reasons stated below, we decline to do  so.

       Instead of applying a mixed-motives analysis, the trial court
  correctly applied the retaliatory-discharge analysis as outlined in
  Murray.  Twenty-one V.S.A. § 710(b) provides that "[n]o person  shall
  discharge or discriminate against an employee from employment because such
  employee  asserted a claim for [workers' compensation] benefits under this
  chapter or under the law of any state  or under the United States."  To
  withstand summary judgment on a claim that an employee was  discriminated
  against for filing a workers' compensation claim, a plaintiff must present
  a prima facie  case of retaliatory discrimination, which consists of four
  elements: (1) plaintiff was engaged in a  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 decision.  See Murray, 164 Vt. at 210,
  667 A.2d  at 299.  If the plaintiff succeeds in  establishing a prima facie
  case of retaliatory discrimination, the defendant must come forward with a 
  legitimate, nondiscriminatory reason for the conduct at issue.  If the
  defendant articulates such a  reason, then the plaintiff will be required
  to show that the reason was a pretext for discrimination.   See id.  If
  plaintiff cannot do so, then the employer is entitled to summary judgment.

       The trial court thoroughly analyzed plaintiff's § 710 claim using this
  standard.  It found that  plaintiff had established the first three
  elements of the retaliatory discharge claim, but that, on the  central
  question - whether there was a causal connection between plaintiff's
  seeking workers'  compensation for her injuries and her termination -
  plaintiff could not meet her burden.  Plaintiff  does not dispute that
  defendant's reason for discharging her was because her injuries and weight-
  lifting restrictions prevented her from performing the duties required of a
  licensed practical nurse.   She presents no argument that it was a pretext
  for any other established illegal motive, but contends  that we should not
  allow such a justification to stand for public policy reasons.  We decline
  her  invitation.  See Reed v. Glynn, 168 Vt. 504, 508, 724 A.2d 464, 466
  (1998) (conflicting  considerations of public policy are fundamentally for
  Legislature).  She was not, on the evidence  presented, discharged because
  she asserted a workers' compensation claim or for any other  recognized
  illegal reason; therefore, § 710(b) affords her no relief.  See Lowell v.
  International Bus.  Machs. Corp., 955 F. Supp. 300, 307 (D. Vt. 1997)
  ("Although Vermont has recognized a clear and  compelling public policy
  against retaliatory discharge for filing a workers' compensation claim, it
  has  not taken the additional step of finding a public policy against
  retaliation for work-related injuries."  (citations omitted)).

       Since plaintiff could not carry her burden on her
  retaliatory-discharge claim, she also could not  meet the threshold
  warranting a mixed-motives analysis, as this burden is greater than the
  level of  proof necessary to make out a pretext prima facie case.  See de
  la Cruz, 83 F.3d  at 23.  Thus, the trial  court did not err in granting
  summary judgment to defendant on plaintiff's § 710(b) claim.

                                     IV.

       Plaintiff next argues that the court improperly found that MCHV was
  not plaintiff's employer.   Our disposition on plaintiff's § 643(b) claim
  renders moot her argument that the court improperly 

 

  found that MCHV was not plaintiff's employer.  Regardless of the
  correctness of this finding, it is not  material to the legal issue of
  whether there was a duty to reinstate plaintiff by whatever entity was 
  identified as her employer.  Moreover, we note that plaintiff was never
  employed by MCHV, and  that her employment with Fanny Allen terminated a
  year before MCHV acquired the assets of Fanny  Allen to become Fletcher
  Allen Health Care, Inc.  Plaintiff has not introduced any evidence showing 
  that MCHV was responsible for hiring employees or terminating employment at
  Fanny Allen.   Therefore, this claim must fail.
 
                                     V.

       Plaintiff next argues that the trial court abused its discretion in
  allowing defendant to move for  summary judgment on the reinstatement
  claim.  Abuse of discretion requires a showing that the trial  court
  withheld its discretion entirely or exercised it for clearly untenable
  reasons or to a clearly  untenable extent.  See Vermont Nat'l Bank v.
  Clark, 156 Vt. 143, 145, 588 A.2d 621, 622 (1991).   Plaintiff's claim of
  error is without merit.

       Plaintiff's argument that defendant moved for summary judgment "after
  the jury had been  drawn" evidently refers only to the reinstatement claim,
  which, as the trial court noted, was not  expressly pleaded but which the
  court generously inferred from her original complaint.  Defendant  could
  not have been expected to respond to a claim that was not clearly alleged
  against it, see  V.R.C.P. 8(e)(1) ("Each averment of a pleading shall be
  simple, concise, and direct."), and plaintiff  cannot now take advantage of
  the court's largesse by arguing that defendant slept on its response and 
  was precluded from responding to this new claim.  Moreover, plaintiff's
  citation to Campbell v.  Dupont, 138 Vt. 448, 450, 417 A.2d 929, 930 (1980)
  ("[I]t is only under extraordinary circumstances  that summary judgment
  should be granted after trial begins."), is inapposite.  In that case,
  trial had  actually begun when the court granted the plaintiff's summary
  judgment motion.  See id. at 449-50,  417 A.2d  at 930.  Here, as plaintiff
  admits, a jury had been drawn but trial had not begun; no  witnesses had
  been called nor were the parties - at least not plaintiff - even finished
  with discovery.   Defendant was entitled to renew its summary judgment
  motion on the new reinstatement claim, and,  as we held earlier, the court
  was correct to grant it.

                                     VI.

       Finally, plaintiff argues that the court unreasonably denied her
  motion for sanctions under  V.R.C.P. 37 after defendant's employee,
  Fletcher Allen Human Resources Director Barbara Sponem,  refused to appear
  for a deposition.  Plaintiff did not move to depose Sponem, despite the
  fact that she  was available as a potential witness early in the discovery
  process, until shortly before trial was to  begin - more than eight months
  after discovery was supposed to have closed.  Defendant moved for  a
  protective order to prevent the deposition.  The parties agreed to cancel
  the court reporter pending  the court's ruling on the protective order. 
  Two days after the scheduled deposition was to have taken  place, the court
  allowed plaintiff to depose Sponem on the day before the jury trial was to
  start.   Plaintiff's counsel declined, due to his belief that it would be
  too disruptive to his preparation for  trial.  Consequently, plaintiff
  produced no evidence to dispute Sponem's testimony that the unit  secretary
  position required typing skills, and the court accordingly entered summary
  judgment on the  reinstatement claim.  This was plaintiff's counsel's
  strategic choice, and defendant 

 

  will not be penalized for the consequences visited upon plaintiff's claim
  as a result.  Absent a  showing of prejudice as a result of the court's
  refusal to impose sanctions for alleged discovery  violations, reversal is
  not warranted.  See In re R.M., 150 Vt. 59, 64, 549 A.2d 1050, 1053 (1988).

       Affirmed.	


                                       BY THE COURT:

                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  We reject defendant's argument that plaintiff's appeal is untimely
  filed.  Both the timing and  contents of plaintiff's motion for
  reconsideration indicate that it was, for all intents and purposes, a 
  motion to alter or amend the judgment under V.R.C.P. 59(e), not a Rule
  60(b) motion for relief from  judgment.  The superior court denied
  plaintiff's motion to reconsider on March 16, 1999, and she  filed her
  appeal on April 13, 1999.  Thus, the motion was timely filed within the
  thirty-day period set  forth in V.R.A.P. 4.  See Murray v. St. Michael's
  College, 164 Vt. 205, 208, 667 A.2d 294, 297  (1995).  Additionally,
  plaintiff preserved her appeal on the issues disposed of in the court's
  January  14, 1999 order, by filing an appeal on all issues.  She could not
  appeal the order dismissing those  issues until the court had conclusively
  determined all of the rights of the parties and left nothing  further for
  it to do but execute the judgment.  See Town of Randolph v. Estate of
  White, 166 Vt. 280,  283, 693 A.2d 694, 695 (1997).

FN2.  Plaintiff does not appeal the court's decision that plaintiff was
  not entitled to reinstatement to  the pharmacy-technician position.