Mellin v. Flood Brook Union School District
Annotate this Case
Mellin v. Flood Brook Union School District (2000-143); 173 Vt. 202;
790 A.2d 408
[Filed 21-Dec-2001]
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. 2000-143
Ann Mellin Supreme Court
On Appeal from
v. Bennington Superior Court
Flood Brook Union School District, March Term, 2001
Department of Education, et al.
Richard W. Norton, J.
Eileen M. Blackwood of Blackwood Associates, P.C., Burlington, for
Plaintiff-Appellant.
Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for
Defendants-Appellees Flood Brook Union School District, Coleman, Harper,
Henson, Smith, Frauman, Farrar and Wylie.
William Sorrell, Attorney General, and Joseph L. Winn, Assistant
Attorney General, Montpelier, for Defendants-Appellees Pallas and
Department of Education.
PRESENT: Dooley, Morse, Johnson and Skoglund, JJ., and Allen, C.J.
(Ret.), Specially Assigned
JOHNSON, J. Plaintiff Ann Mellin challenges the Bennington Superior
Court's grant of summary judgment and judgment on the pleadings to
defendants Flood Brook Union School District, Flood Brook Union School
Board members in their individual and official capacities, the Vermont
Department of Education ("DOE") and the DOE's licensing officer, Patricia
Pallas, in her official and individual capacities. Plaintiff contends the
trial court erred by dismissing her claims against
the school defendants (FN1) for (1) disability discrimination in
violation of Vermont's Fair Employment Practices Act ("VFEPA"), 21 V.S.A.
§ 495(a)(1); (2) retaliation for requesting accommodations for her
disability and filing complaints under the Vermont Occupational Health and
Safety Act, 21 V.S.A. § 231 and Vermont Workers' Compensation Act, 21
V.S.A. § 710; and (3) damages and equitable relief through the doctrines
of laches, waiver and estoppel. She also contests the court's conclusion
that the individual school board members were entitled to qualified
immunity on all of her claims. As to the State defendants, plaintiff
seeks reversal of the court's orders dismissing her claims for estoppel,
violations of procedural and substantive due process under the Vermont and
United States Constitutions and negligence. Finally, plaintiff appeals the
court's denial of her request to amend her complaint to allege gross
negligence against defendant Pallas. We reverse the trial court's order
on plaintiff's retaliation claim and its conclusion that the school board
members individually are entitled to qualified immunity, but affirm the
remainder of the court's decisions.
This case arises out of two key events: plaintiff's March 1994
termination from her teaching position at Flood Brook Elementary School
and the revocation of her license to teach elementary level students which
DOE and defendant Pallas had erroneously issued and reissued to plaintiff
over the course of several years. We set out the facts and history
relevant to each claim separately because they are somewhat complex and so
they may be understood in context.
I.
Plaintiff's complaint alleged that the school defendants discriminated
against her on the basis of her disability, which consists of severe
migraines and allergies triggered by various environmental
conditions, by terminating her employment, not renewing her teaching
contract, and refusing to accommodate her, actions all contrary to VFEPA.
The trial court granted summary judgment to the school defendants on this
claim, concluding that plaintiff failed to demonstrate a genuine issue of
material fact existed regarding whether she was substantially impaired in a
major life activity and could perform the essential functions of her
teaching position. See 21 V.S.A. § 495d(5)(A) (a person with a physical
or mental impairment which substantially limits one or more major life
activities is disabled); id. § 495d(6) (individuals able to perform the
essential functions of their jobs with accommodation are "qualified
individual[s] with a disability"). We affirm because the parties are
precluded by a prior arbitration award from relitigating whether a
particular job requirement was an essential function of plaintiff's
teaching position at Flood Brook. See In re Handy, ___ Vt. ___, ___, 764 A.2d 1226, 1234 (2000) (Court will not reverse an erroneous trial court
decision if record discloses any legal ground justifying result, even if
ground was not raised below or was not briefed by parties on appeal);
Richards v. Union High Sch. Dist. No. 32, 137 Vt. 132, 134, 400 A.2d 987,
989 (1979) (same).
The facts giving rise to plaintiff's discrimination claim as found by
the arbitrator are the following. The Flood Brook Union School District
Board of School Directors hired plaintiff to teach at the Flood Brook
Elementary School in 1981. Prior to and during her employment at the
school, plaintiff suffered migraine headaches, vomiting, and other
allergic reactions to various substances like mold, mildew, dust,
different types of fuel, road paving materials, cleaning solvents, wood
stove odors, perfumes, carpets, cats and dogs. Her reactions occurred
both inside and outside the school building, causing her to curtail her
social activities and to avoid some public areas to limit her
exposure to substances that triggered her allergies. To further minimize
her exposure, plaintiff taught in a classroom equipped with an air
exchanger from 1989 through 1993.
In the summer of 1993, the school board renovated part of the school
building, including constructing a new media center and technology room,
and did minor work such as painting on the building's remainder. When
plaintiff returned to teach in mid-September she reacted to the new
carpeting, paint solvents and fumes still present in the school. Her
doctor recommended that she remain out of school for three to five weeks
and return with controlled exposure to environmental triggers. She
returned to work on October 25, 1993 in the media center at the principal's
request. She became ill from the media center's new carpeting, however,
and has not taught at Flood Brook since October 28, 1993.
By November 4, 1993, plaintiff was running out of sick leave and
requested that the school board grant her additional sick days on the
grounds that a 1985 toxic urethane solvent spill outside her classroom
caused her sensitivities to chemicals. On November 9, 1993, the school
principal informed plaintiff that the board had denied her sick leave
request and invited her to request an unpaid leave of absence. Plaintiff
refused to request an unpaid leave and instead indicated that she would
file a grievance pursuant to the terms of her contract. She also stated
that she would initiate a claim for workers' compensation.
While the sick leave grievance and workers' compensation claim were
pending, and without prior notice to plaintiff, the board voted to deny
renewal of plaintiff's contract. Two days later on March 16, 1994, and
again without advance notice to plaintiff, the board voted to immediately
terminate her contract. On March 22, the board informed plaintiff by
letter that it had terminated her employment for "failure to attend to
[her] duties as a teacher and [her] unwillingness to accept the
unpaid leave of absence offered by the school district." Plaintiff
thereafter grieved her termination. The termination and sick leave
decisions were eventually the subject of binding arbitration as provided
for in plaintiff's contract.
Prior to the arbitration merits hearing, the arbitrator issued a
procedural order which addressed the parties' question concerning whether
the arbitrator would permit evidence and entertain arguments "that have
the look or sound of" disability discrimination claims. Plaintiff argued
that such matters were germane to the "just and sufficient cause" standard
for non-renewal and termination in Section 5.3 of her contract, although
she conceded that the arbitrator lacked authority to decide whether the
board had discriminated against plaintiff due to her disability. The
arbitrator's procedural order stated that he would allow "evidence
relating to the illness or medical condition that caused the [plaintiff]
to use sick leave, the cause or causes of that condition, and the School
District's responses to her condition." The procedural order also
addressed the parties' question concerning burden of proof, concluding
that plaintiff bore the burden on "issues relating to the nature and cause
of the illness or medical condition that caused [her] to use sick leave and
whether that condition should entitle her to special treatment or
consideration." (Emphasis added.) The arbitrator and parties agreed that
plaintiff must litigate any disability discrimination claim in a different
forum.
In accordance with the procedural order, the parties litigated
plaintiff's medical history, medical condition and the history of
accommodations the school district had offered plaintiff until her March
1994 termination. The arbitrator denied plaintiff's grievance on the sick
leave issue because she failed to establish that her contract entitled her
to additional sick leave.
The arbitrator reached a favorable conclusion on plaintiff's
termination and non-renewal claims, however. He determined that the
school district's non-renewal and termination decisions violated all of
the procedures specified in plaintiff's contract. The arbitrator ordered
the school to reinstate plaintiff to a position equivalent to, or the same
as, the position she held during the 1993-1994 school year, which was a
sixth grade position. Consistent with the procedural order, the parties
also litigated whether plaintiff's condition required any special treatment
upon reinstatement.
Among plaintiff's requested remedies were accommodations for her
medical condition, including (1) an air exchanger in her classroom, (2)
limiting her exposure to wood chip odors and cleaning solvents, (3) being
excused from walking students to buses and permitting her to take private
transportation for field trips to avoid bus fumes, and (4) permission to
avoid certain areas in the school building like the media center,
technology room and other classrooms where her co-teachers were located.
The arbitrator concluded that reinstatement "with appropriate
accommodations for her allergy problems" was warranted. The arbitrator
therefore granted plaintiff's request for accommodations, except her
request to avoid the media center, the technology room and the classrooms
of her team teachers. Agreeing with the school board that if plaintiff
could not teach in those locations she could not perform an essential
function of her job, the arbitrator found that "[a] teacher who is
confined to her classroom and cannot accompany students to critical
learning areas of the school cannot perform fully as a teacher." He noted
that nothing in the teaching contract required the school district to
accommodate plaintiff "in ways that will alter the character of her
teaching position or significantly diminish her ability to perform
critical educational functions with students."
The arbitration award and the fact findings contained therein preclude
plaintiff's attempt to reexamine whether teaching in the media center,
technology room and her team teachers' classrooms is an essential function
of her job at Flood Brook. Arbitration, being similar to a judicial
inquiry, "has the same force and effect of an adjudication in terms of
precluding the same parties from relitigating the same subject." Agway,
Inc. v. Gray, 167 Vt. 313, 316, 706 A.2d 440, 442 (1997). An arbitration
award will preclude relitigation of an issue in a subsequent judicial
proceeding where the parties and issues in both proceedings are the same,
the issues were resolved by a final award on the merits, the arbitration
provided a full and fair opportunity to litigate the issues, and it is fair
to preclude the subsequent litigation. See In re Tariff Filing of Cent.
Vt. Pub. Serv. Corp., ___ Vt. ___, ___, 769 A.2d 668, 673 (2001) (setting
out elements of collateral estoppel). Issue preclusion applies to issues
of fact as well as law. See Restatement (Second) Judgments § 27 (1982)
("When an issue of fact . . . is actually litigated and determined by a
valid and final judgment, and the determination is essential to the
judgment, the determination is conclusive in a subsequent action between
the parties, whether on the same or different claim."); see also In re
Freeman, 30 F.3d 1459, 1466 (Fed. Cir. 1994) (a fact finding in a previous
action may preclude relitigation of the same fact in a later action if the
finding was necessary to the judgment in the previous action). The
critical inquiry is "whether the party to be bound has had a full and fair
opportunity to contest an issue resolved in an earlier action so that it
is fair and just to refuse to allow that party to relitigate the same
issue." Trepanier v. Getting Organized, Inc., 155 Vt. 259, 266, 583 A.2d 583, 588 (1990).
Based on the record before us, we believe plaintiff had a full and
fair opportunity to litigate whether her job at Flood Brook Elementary
School required her to teach outside her own classroom in other parts of
the school building like the media center, technology room and other
classrooms.
Plaintiff and the school board were given the opportunity during the
four-day arbitration hearing to present evidence, give oral statements and
submit post-hearing briefs. Plaintiff herself put the matter in issue
before the arbitrator by requesting an accommodation that would allow her
to avoid those duties. The arbitrator's decision reflects that he
considered and rejected the same arguments on this factual issue that
plaintiff asserted before the trial court. We therefore find no unfairness
in precluding plaintiff from attempting to circumvent the binding effect
of the arbitrator's finding that avoiding key learning areas would "alter
the character of her teaching position" and would "significantly diminish
her ability to perform critical educational functions with students."
Those findings compel the legal conclusion that plaintiff could not
perform the essential functions of her job. See State v. G.S. Blodgett
Co., 163 Vt. 175, 182, 656 A.2d 984, 989 (1995) (duties that are
legitimate and necessary to meet the goals of a particular job are
essential job functions for the purposes of disability discrimination).
Therefore plaintiff is not a "qualified individual with a
disability" entitled to relief under 21 V.S.A. § 495(a)(1), and her claim
was properly dismissed.
II.
Plaintiff contests the court's grant of summary judgment to the school
defendants on her retaliation claims. Plaintiff's complaint alleged that
the school defendants retaliated against her by refusing her request for
additional sick leave in November 1993 and terminating and not renewing
her contract. She alleged the school defendants took those retaliatory
actions because she filed a complaint with the Vermont Occupational Health
and Safety Administration about the conditions at the school in October
1993, filed a workers' compensation claim in November 1993 and asked for
accommodations due to her allergic reactions to the school environment.
We review orders resolving summary judgment motions using the same
standard as the trial court. Wentworth v. Fletcher Allen Health Care, ___
Vt. ___, ___, 765 A.2d 456, 459 (2000). Summary judgment is appropriate
only where the depositions, pleadings, interrogatory answers, admissions
and affidavits on file show that no genuine issue of material fact exists
and "any party is entitled to a judgment as a matter of law." V.R.C.P.
56(c)(3). On summary judgment, the court may not act as the trier of
fact, but instead must draw all reasonable inferences and doubts in the
nonmoving party's favor, Wentworth, ___ Vt. at ___, 765 A.2d at 459-60, and
must "regard all properly supported allegations presented by the opposing
party as true." Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 159, 624 A.2d 1122, 1127 (1992).
To succeed on her retaliation claims, plaintiff must show that (1) she
was engaged in a protected activity, (2) the school defendants knew of
that activity, (3) plaintiff suffered adverse employment action, and (4) a
causal connection exists between plaintiff's protected activity and the
adverse employment action. Gallipo v. City of Rutland, 163 Vt. 83, 92, 656 A.2d 635, 642 (1994). Plaintiff may establish the required causation
indirectly through the timing of her protected activity and the school
defendants' alleged retaliatory actions. Id. at 93, 656 A.2d at 642. If
plaintiff establishes a prima facie case of retaliation, defendants must
proffer a legitimate, nondiscriminatory reason for their actions. Murray
v. St. Michael's College, 164 Vt. 205, 210, 667 A.2d 294, 299 (1995).
Plaintiff then must prove by a preponderance of the evidence that the
school defendants' reasons for their actions are a pretext for
discrimination. Id.
The superior court concluded that although she had established a prima
facie case of retaliation, plaintiff had failed to meet her burden to
establish pretext. It noted that plaintiff did not proffer any evidence
of direct retaliatory motive and school officials repeatedly testified that
no such
motive existed. The court faulted plaintiff for relying solely on the
timing of the adverse employment decisions relative to her requests for
accommodation, her VOSHA complaint and her request for workers'
compensation.
We need not decide whether timing alone is sufficient to establish
pretext because there was additional evidence in the record from which a
jury could conclude that the school defendants retaliated against
plaintiff. That additional evidence included the arbitrator's award, which
determined that the school board's termination decision "was in clear
violation of [plaintiff's] procedural rights" by "omitt[ing] every
procedural protection afforded to a teacher, including the right to
counsel and a full, fair and impartial hearing before the termination
decision is made." A clear violation of an employee's legal rights or
rights under an employer's established policy can be evidence of
retaliatory motive sufficient to prove pretext. See Sorrells v. Veterans
Admin., 576 F. Supp. 1254, 1265 (S.D. Ohio 1983) (agency's non-compliance
with its procedures can create inference of a retaliatory motive); see
also 2 L. Larson, Employment Discrimination § 35.05, at 35-25 to 35-26 (2d
ed. 2001) (an employer's response to an employment situation that is
different from response in employer's ordinary policy is evidence of
pretext in retaliation cases). The undisputed evidence also showed that
plaintiff won reinstatement through the arbitration process to a sixth
grade position or its equivalent. In July 1995, the school defendants
offered her a kindergarten teaching position instead. When plaintiff
objected because she was inexperienced at that level, they offered her a
sixth grade position which they previously discovered she could not accept
because she had no license for that position and was not qualified to
obtain one at that time. The school defendants also refused to request a
waiver of the licensing requirements. The school defendants' hollow offer
following arbitration could lead a jury to find that they were intent on
preventing plaintiff from ever
teaching at Flood Brook again, and thus their reasons for her termination
were pretextual. Finally, it is not insignificant that the arbitrator
concluded the school board's decision to terminate plaintiff based on her
unwillingness to accept unpaid leave amounted to retaliation for grieving
her claim for additional sick leave. The trial court erroneously granted
summary judgment to the school defendants in light of the additional
evidence because a genuine issue for trial existed.
III.
Plaintiff contests the trial court's grant of summary judgment to the
individual school board defendants in their personal capacities on all
claims because it determined that the doctrine of qualified immunity
barred those claims. Qualified immunity is available to protect public
officials from suits where the officials perform a discretionary function
in good faith and within the course and scope of their employment. Murray
v. White, 155 Vt. 621, 627, 587 A.2d 975, 978 (1991). Plaintiff does not
contest that the school board members performed a discretionary function
that was within the course and scope of their employment when they
terminated her. The central issue here is whether the school board
members acted in good faith.
We use an objective standard when assessing whether a public
official's acts were taken in good faith. Rich v. Montpelier Supervisory
Dist., 167 Vt. 415, 423-24, 709 A.2d 501, 506 (1998). "Good faith exists
where an official's acts did not violate clearly established rights of
which the official reasonably should have known." Sabia v. Neville, 165
Vt. 515, 521, 687 A.2d 469, 473 (1996). In this case, the trial court
necessarily determined the school board defendants acted in good faith and
were therefore immune from suit because the court dismissed plaintiff's
claims on summary judgment. In light of our reversal of the trial court's
decision on plaintiff's retaliation claim because factual disputes exist
with respect to that claim, we also reverse the court's decision
immunizing the school board defendants in their individual personal
capacities. See id. at 525, 687 A.2d at 475 (because fact finder could
conclude that defendants violated statutory duties that were clear and
mandatory, it is error to find as a matter of law that defendants were
protected by qualified immunity); see also Rich, 167 Vt. at 424, 709 A.2d
at 507 (disputed factual issue central to plaintiff's retaliation claim
precluded summary judgment on qualified immunity).
IV.
Plaintiff asserted claims against DOE and its licensing officer
Patricia Pallas under 42 U.S.C. § 1983 for deprivation of her rights to
liberty and procedural and substantive due process under the United States
Constitution and due process and liberty under the Vermont Constitution.
(FN2) The trial court granted judgment on the pleadings to DOE and Pallas
in her official capacity only on the federal constitutional claims. In
that same order, it also awarded judgment to DOE and Pallas, in her
official and individual capacities, on the claims arising under the Vermont
Constitution. In a subsequent order, the court entered summary judgment
for Pallas in her individual capacity on the federal constitutional
claims. Those claims share a common factual basis, which we set forth
using a similar standard. Compare Thayer v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122, 1126 (1990) (for purposes of a motion for judgment on the
pleadings, all well pleaded factual allegations in nonmovant's pleadings
and all reasonable inferences that can be drawn therefrom are assumed true,
and all contravening assertions in nonmovant's pleadings are presumed
false), with Wentworth, ___ Vt. at ___, 765 A.2d at 459-60 (on summary
judgment court must take as true nonmoving party's
supported factual allegations and give nonmoving party benefit of all
reasonable doubts and inferences).
Prior to her employment at Flood Brook, plaintiff was certified to
teach English and social studies in New Jersey. In November 1982,
plaintiff was under contract to teach secondary English at Flood Brook and
applied to DOE for certification in secondary English and social studies.
In response to her application, DOE sent plaintiff a teaching certificate
with an endorsement for elementary teaching rather than secondary English
and social studies for which she was qualified. Plaintiff returned the
certificate to DOE with a note pointing out the error and a request to
issue her the secondary license she sought. Pallas returned the
erroneously issued certificate back to plaintiff with no changes.
Plaintiff tried calling Pallas to discuss the error by leaving messages at
her office, but never received a call back. Concerned, plaintiff spoke to
the school superintendent. The superintendent informed plaintiff that he
had obtained a waiver to allow her to teach elementary grades and her
secondary license was covered by a reciprocal agreement with the State of
New Jersey.
DOE, through Pallas, continued to reissue plaintiff a license with
elementary level endorsements each time her license was up for renewal.
In April 1991, however, Pallas sent plaintiff a certificate with secondary
English and social studies endorsements only, but it was returned because
DOE did not have plaintiff's correct address. In September 1991, plaintiff
again applied for a license with secondary endorsements, and in response,
Pallas wrote plaintiff that her license did not expire until June 1994.
Pallas's letter also stated that plaintiff's license already reflected
authority to teach secondary English and social studies. Plaintiff never
received that letter; she first became aware of it in 1995 after the
arbitration proceeding.
Plaintiff applied for renewed certification in 1994. She requested
renewed authority to teach elementary students as well as secondary
English and social studies. The license she received back from DOE showed
endorsements in all three areas she had requested. In August 1995,
however, DOE informed plaintiff's attorney that DOE had issued her
elementary license erroneously and that plaintiff's circumstances and DOE
regulations did not permit the agency to waive the licensing requirements.
As noted previously, plaintiff was unable to accept Flood Brook's offer to
teach sixth grade following the arbitration proceeding because she did not
have the proper license to do so.
A.
We first examine plaintiff's federal claims under 42 U.S.C. § 1983
against DOE and Pallas. It is well settled that any § 1983 action
claiming deprivation of a constitutional right requires proof of a
violation of the underlying constitutional right asserted. Daniels v.
Williams, 474 U.S. 327, 330 (1986). Because no constitutionally protected
interests are evident from plaintiff's due process claims, we affirm the
trial court's dismissal of them.
The Fourteenth Amendment's Due Process Clause is implicated where
property or liberty interests are at stake. Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 569 (1972). While procedural due process
is concerned with the process used to deprive a person of a protected
interest, id. at 569-70, the substantive component of the Due Process
Clause protects individuals against arbitrary government action
irrespective of the procedures used to take the action. Conrad v. County
of Onondaga Examining Bd. for Plumbers, 758 F. Supp. 824, 828 (N.D.N.Y.
1991). Plaintiff grounds her procedural due process claim against the
state defendants on her alleged property interest
in the erroneously issued elementary teaching license. (FN3) We agree with
the trial court that plaintiff had no protectable property interest in the
erroneously issued license.
A property interest arises when a person has a "legitimate claim of
entitlement" to a government benefit and not merely a "unilateral
expectation" of receiving that benefit. Roth, 408 U.S. at 577; Gallipo,
163 Vt. at 86, 656 A.2d at 638. "[W]hether an applicant has a legitimate
claim of entitlement to the issuance of a license or certificate should
depend on whether, absent the alleged denial of due process, there is
either a certainty or a very strong likelihood that the application would
have been granted." Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d
Cir. 1985). In this case, there is no genuine dispute that plaintiff was
not entitled to an elementary endorsement on her teaching license because
she had not met the qualifications for the endorsement. Plaintiff
therefore had no legitimate claim of entitlement to elementary teaching
certification.
Plaintiff nevertheless argues that the state's repeated issuance of
the elementary endorsement gave rise to a property interest in the
erroneous license; thus, the state was required to afford her due process
prior to revoking it. Although cases have found a property right created
by the repeated renewal of a government-issued license, see, e.g.,
Richardson v. Town of Eastover, 922 F.2d 1152, 1157 (4th Cir. 1991), those
cases presuppose that the license being renewed was properly issued in the
first place. DOE had no authority to issue plaintiff a license to teach
elementary school unless she was legally qualified to do so. We note
that, when confronted with a similar claim regarding an erroneously issued
license, the Minnesota Supreme Court concluded that no protected property
interest arises when a state officer issues a license under a mistake of
fact or contrary to applicable
regulations. Snyder v. City of Minneapolis, 441 N.W.2d 781, 792 (Minn.
1989). We need not decide that issue in this case, however, because even
if plaintiff were correct, the outcome of the state's process would have
required it to deny plaintiff's claim because she lacked qualifications for
the elementary endorsement. Thus, the lack of a hearing prior to the
license withdrawal did not visit any harm upon plaintiff.
B.
Plaintiff's substantive due process claim must also fail because she
has no constitutional liberty interest in the elementary endorsement or a
waiver of the requirements for such endorsement. The liberty protected by
the Due Process Clause is broad, and includes the freedom to engage in the
"occupations of life." Roth, 408 U.S. at 572. Although the Constitution
prohibits state regulation of professional employment from "foreclos[ing]
a range of opportunities" in a way that does not comport with due process,
id. at 574, state action that forecloses a single or narrow range of
opportunities does not implicate a liberty interest protected by the Due
Process Clause. See id. at 575. In plaintiff's case, the state's
withdrawal of her elementary endorsement, and its refusal to grant a
waiver outside of its normal procedures, did not foreclose altogether her
ability to pursue teaching as a profession. It is undisputed that
plaintiff remained certified to teach secondary level students.
Therefore, she had no liberty interest for which the substantive component
of the Due Process Clause might afford her relief. (FN4)
C.
Plaintiff next alleges that the trial court erroneously dismissed her
due process claims against the state defendants under the Vermont
Constitution. The state defendants moved for judgment on the pleadings on
this count arguing, in part, that they did not have fair notice of the
claims because plaintiff did not cite the specific constitutional
provisions supporting them. In response to the motion, plaintiff argued
that she was proceeding directly under the Vermont Constitution, but again
did not specify which constitutional provision grounded her cause of
action. The trial court thereafter granted the state defendants' motion
concluding that plaintiff had failed to plead her state constitutional
claims with sufficient specificity. On appeal, plaintiff identifies
Chapter I, Article 4 of the Vermont Constitution as the basis for her
constitutional claims. Plaintiff's argument on appeal only highlights the
need for specificity when pursuing claims for damages under the Vermont
Constitution.
Damages are not necessarily available to remedy violations of a
person's rights under the Vermont Constitution. In any given case, the
court must conduct a two-step inquiry of the particular constitutional
provision involved. Shields v. Gerhart, 163 Vt. 219, 222, 658 A.2d 924,
927 (1995). That inquiry's first step involves determining whether the
constitutional provision at issue is self-executing. Id. Thus, one must
first know under which constitutional provision plaintiff claims
protection before analyzing whether the provision is self-executing.
Plaintiff's complaint alleged only that defendants denied her
"procedural and substantive due process and liberty in violation of the .
. . Vermont constitution[]." Although plaintiff contends here that her
allegation fairly apprised defendants that her claim arose under Article 4,
her allegation could also be construed to refer to Article 10, which
prohibits the state from depriving a person of liberty without due
process. Vt. Const. ch. 1, art. 10; State v. Messier, 145 Vt. 622, 627,
497 A.2d 740, 743 (1985). Plaintiff is correct that we have held Chapter I, Article
4 as "the equivalent to the federal Due Process Clause." Quesnel v. Town
of Middlebury, 167 Vt. 252, 258, 706 A.2d 436, 439 (1997). We have also
held, however, that it does not "create substantive rights" but ensures
access to the courts. Shields, 163 Vt. at 223, 658 A.2d at 928. Under
the circumstances, we cannot say that the grounds upon which plaintiff's
state constitutional claims rested were readily discernable from the face
of the complaint. See Lane v. Town of Grafton, 166 Vt. 148, 152-53, 689 A.2d 455, 457 (1997) ("[A] pleading is sufficient as long as it gives fair
notice of the claim and the grounds upon which it rests."). Thus, the
trial court did not err by dismissing plaintiff's state constitutional
claims for lack of specificity.
V.
The trial court also dismissed plaintiff's negligence claim against
the State on the grounds that no comparable private analogue to her claim
existed as required by 12 V.S.A. § 5601(a) to overcome the bar of
sovereign immunity. Plaintiff argues the court erred by dismissing her
claim against the State because this case involves the execution of
statutory duties under a predictable standard for decision making, and,
therefore, her claim is viable against the State. To sustain a tort claim
against the State, plaintiff must demonstrate that her claim is "comparable
to a recognized cause of action against a private person." Sabia v.
State, 164 Vt. 293, 298, 669 A.2d 1187, 1191 (1995); see also 12 V.S.A. §
5601(a) ( state liable for injury only under same circumstances, in same
manner, and to same extent as private person would be liable). Plaintiff
also must establish that no exception to the State's waiver of its
immunity applies to her claim. Sabia, 164 Vt. at 307-08, 669 A.2d at
1196-97. Plaintiff's argument on appeal addresses the latter issue only.
Plaintiff presents no argument on how her claim is "comparable to a
recognized cause of action against a private
person." We consider plaintiff's brief to be wholly inadequate on the
negligence issue because it omits discussion of an essential element of
her claim. We therefore have no reason to disturb the trial court's
dismissal of her negligence claim against the State. See Buttura v.
Buttura, 143 Vt. 95, 98, 463 A.2d 229, 230 (1983) (Court will not address
claim of error where error is inadequately briefed).
VI.
Plaintiff next claims the trial court abused its discretion by denying
her motion to amend the complaint to include allegations of gross
negligence against defendant Pallas. Plaintiff moved to amend her
complaint after the trial court granted Pallas's motion for judgment on the
pleadings due to the immunity from suit 12 V.S.A. § 5602(a) (FN5) provides
when state employees act within the scope of their employment. The court
denied plaintiff's request to amend the complaint, reasoning that the
amendment would be futile because no reasonable person could infer that the
acts plaintiff ascribed to Pallas in her complaint were grossly negligent.
See Gus' Catering, Inc. v. Menusoft Sys., ___ Vt. ___, ___, 762 A.2d 804, 808 (2000) (mem.) (trial court did not err by denying leave to amend
complaint where amendment would be futile). We agree.
To sustain a claim for gross negligence, plaintiff must present facts
that demonstrate Pallas heedlessly and palpably violated a legal duty she
owed to plaintiff. See Shaw v. Moore, 104 Vt. 529, 531, 162 A. 373, 374
(1932) (gross negligence "is a heedless and palpable violation of legal
duty respecting the rights of others"). Stated differently, one who fails
to exercise "even a slight degree of care" or acts indifferently to the
duty owed to another may be grossly negligent. Rivard v. Roy, 124 Vt. 32,
35, 196 A.2d 497, 500 (1963) (quoting Emery v. Small, 117 Vt. 138, 140, 86 A.2d 542, 543 (1952)). Generally, whether an individual was grossly
negligent is a question for the jury, except where reasonable persons
cannot differ on the question. Hardingham v. United Counseling Serv. of
Bennington County, Inc., 164 Vt. 478, 481, 672 A.2d 480, 483 (1995). We
agree with the trial court that reasonable minds could not differ that
plaintiff's allegations failed to make out a case of gross negligence
against Pallas.
Plaintiff's amended complaint against Pallas asserted the following
facts: (1) Pallas issued plaintiff a one-year teaching certificate with
elementary endorsement only, although plaintiff's application sought
certification in secondary English and social studies; (2) plaintiff
received the certificate back from Pallas's office after returning it to
DOE with a request for correction; (3) Pallas issued her a renewed
elementary teaching certificate even though plaintiff's renewal form
indicated her experience had been at the secondary level; (4) plaintiff
attempted to contact Pallas about the discrepancy "to no avail"; (5)
Pallas again issued a renewed certificate with elementary an endorsement
in 1987; (6) Pallas issued plaintiff endorsements in secondary English and
social studies in November 1991; (7) Pallas never notified plaintiff that
she was not certified in elementary level education between 1982 and 1991;
(8) Pallas did not provide plaintiff with a hearing either before or after
plaintiff learned she did not have a license to teach at the elementary
level; and (9)
Pallas would not waive the certification requirements unless the school
district's superintendent submitted a written request to do so. Even
assuming that Pallas had a legal duty to plaintiff, an issue we do not and
need not decide, we fail to see how these facts show a "heedless and
palpable violation" of plaintiff's rights. We are mindful that plaintiff
filed her motion to amend nearly three years after she filed her complaint
and after substantial discovery had taken place. Yet even after all that
time, plaintiff did not include any new facts in her proposed amended
complaint concerning Pallas's actions to support a claim of gross
negligence. Consequently, we find no abuse of the court's discretion in
denying plaintiff's motion to amend.
VII.
Finally, Plaintiff contests the trial court's dismissal of her
estoppel, waiver and laches claims against DOE and Pallas, and her
estoppel claim against the school defendants. In Count IV of her
complaint, Plaintiff alleged causes of action against all defendants for
damages and equitable relief based on the theories of estoppel, waiver and
laches. As to the state defendants, the trial court dismissed these
claims on the grounds that plaintiff had failed to establish the elements
necessary to withstand summary judgment. The trial court dismissed the
same claims against the school defendants because it reasoned the claims
should have been raised in the arbitration proceeding and therefore res
judicata precluded their relitigation in the superior court. We affirm
because estoppel, waiver and laches are all affirmative defenses; they are
not causes of action that provide a basis for a lawsuit. See Vt. Nat'l
Bank v. Dowrick, 144 Vt. 504, 508, 481 A.2d 396, 398 (1984) (estoppel is an
affirmative defense, it "is not a cause of action in and of itself
cognizable as a counterclaim"); Preston v. Chabot, 138 Vt. 170, 172, 412 A.2d 930, 931 (1980) (laches is an affirmative defense); 1 D. Dobbs, Law
of Remedies § 2.3(5), at 84-86, 88-89 (2d ed. 1993) (discussing waiver,
estoppel
and laches as closely related equitable defenses); see also V.R.C.P. 8(c)
(setting forth estoppel, waiver, and laches as affirmative defenses that
must be specifically pled); Snyder, 441 N.W.2d at 790-91 (estoppel does
not provide basis for damages claim but is defense against claim of
estopped party). Each of these equitable doctrines seek to prevent
injustice through either an adverse party's misleading conduct,
unreasonable delay or voluntary and knowing relinquishment of that party's
known right. They do not, however, provide plaintiff with an independent
source for damages or other relief.
Although we affirm the trial court's dismissal of plaintiff's causes
of action based on estoppel, waiver and laches, we must address the
doctrine of estoppel in relation to an issue the school defendants raised
in their briefs. The school defendants argue that the deficiency in
plaintiff's teaching credentials is an intervening efficient cause of any
harm she suffered after September 27, 1995, the date they offered
plaintiff the sixth grade teaching position that she could not accept, and
therefore they should not be required to bear the burden of that harm. It
is here that plaintiff's estoppel theory has application.
Equitable estoppel operates to prevent a party from "'asserting rights
which may have existed against another party who in good faith has changed
his or her position in reliance upon earlier representations.'" Beecher
v. Stratton Corp., 170 Vt. 137, 139, 743 A.2d 1093, 1095 (1999) (quoting
Fisher v. Poole, 142 Vt. 162, 168, 453 A.2d 408, 411 (1982)). The party
asserting estoppel has the burden to demonstrate that the following
elements are met: (1) the party against whom estoppel is claimed knows the
facts; (2) that party intends that his or her conduct will be acted upon or
that the conduct is such that the party asserting estoppel has a right to
think it should be acted upon; (3) the
party seeking estoppel is ignorant of the true facts; and (4) that party
detrimentally relied upon the other party's conduct. Id. at 140, 743 A.2d
at 1096.
Taking plaintiff's evidence in the light most favorable to her, we
believe the school defendants may be estopped from asserting their
intervening efficient cause defense to any harm the jury might find on
plaintiff's retaliation claim after September 27, 1995. Throughout this
litigation, plaintiff has consistently contended that the school district
superintendent informed her that he had obtained a waiver of the
elementary level teaching certification requirements. (FN6) She alleges
that she thought her elementary license was valid based upon the
superintendent's representation to her at the outset of her employment at
Flood Brook. Consequently, she did not vigorously pursue the license
defect. According to the parties, DOE requirements in effect at that time
assigned sole responsibility for requesting waivers to the superintendent.
See Memorandum from James G. Lengel, Vermont Department of Education, to
Superintendents 1 (October 3, 1983). There is no genuine dispute that the
superintendent did not actually request or obtain a waiver for plaintiff.
The context in which the superintendent made his statement to plaintiff
shows that he intended plaintiff to take action upon his statement,
namely, not to worry about her certification because it was all in order.
There was no reason for plaintiff to know that the superintendent had not
followed through on the waiver issue. She had possession of a license for
elementary teaching over the course of several years. Moreover, the
requirements regarding waiver in effect at that time did not require
plaintiff to do anything to obtain the waiver, and there is no indication
that the requirements required any notice to the affected teacher about
the waiver. Id. at 1-2. Finally, plaintiff has shown that she
detrimentally relied on her belief that she was not required to do anything
more to obtain certification for elementary level teaching. Thus, if the
jury believes plaintiff that the superintendent told her he had requested
and obtained a waiver to allow her to teach elementary level students, the
school defendants would be estopped from disavowing responsibility for any
damages occurring after September 27, 1995 on the basis of efficient
intervening cause.
The trial court's order on plaintiff's retaliation claims and on the
Flood Brook Union School District School Board of Directors'claims for
qualified immunity in their personal capacities are reversed and remanded
for further proceedings not inconsistent with this opinion. In all other
respects the trial court's orders of March 9, 1999, February 23, 2000, and
February 24, 2000 are affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. In this opinion we refer to the Flood Brook Union School
District and the Flood Brook Union School Board members collectively as
the "school defendants."
FN2. Plaintiff's complaint also alleged federal due process
violations against the school defendants that the trial court dismissed on
summary judgment. Plaintiff makes no argument challenging that decision
and has therefore waived any such challenge on appeal. In re Smith, Bell &
Hauck Real Estate, Inc., 132 Vt. 295, 300, 318 A.2d 183, 187 (1974).
FN3. Plaintiff also claimed a property interest in a waiver of the
requirements for the elementary endorsement. Plaintiff's brief offers no
argument on this point, and we therefore do not address it. In re Smith,
Bell & Hauck, 132 Vt. at 300, 318 A.2d at 187.
FN4. Even if plaintiff had a protected liberty interest in this case,
her due process claims were properly dismissed because her allegations
state nothing more than negligent conduct by the state officials, and
negligent conduct is not actionable under § 1983. Daniels, 474 U.S. at
328.
FN5. Section 5602(a) states:
When the act or omission of an employee of the state
acting within the scope of employment is believed to have
caused damage to property, injury to persons, or death, the
exclusive right of action shall lie against the state of
Vermont; and no such action may be maintained against the
employee or the estate of the employee.
12 V.S.A. § 5602(a).
FN6. When the trial court addressed plaintiff's estoppel claim, it
declined to use the fact of the superintendent's statement to plaintiff
believing the statement was inadmissible hearsay. Because plaintiff
offered the statement to prove why she did not pursue her teaching
credentials further with DOE rather than to prove that the superintendent
had in fact requested and obtained a waiver, the statement is not hearsay.
V.R.E. 801(c); see also V.R.E. 801(d)(2) (out-of-court statement, offered
by opposing party, made by agent during course of employment and about
matter within scope of agency or employment is a party admission, not
hearsay).
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