Egri v. U.S. Airways, Inc.

Egri v. U.S. Airways, Inc. (2000-569); 174 Vt. 443; 804 A.2d 766

[Filed 22-May-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-569

                             JANUARY TERM, 2002


Janice Egri	                     }	      APPEALED FROM:
                                     }
                                     }
     v.	                             }	      Federal District Court 
                                     }
                                     }
U.S. Airways, Inc.	             }        DOCKET NO. 2:99-CV-195

                                              Trial Judge: Jerome J. Niedermeier

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


       The United States District Court for the District of Vermont has
  certified to this Court the  following question: (FN1) Whether plaintiff
  Janice Egri's claim under the Vermont Fair  Employment Practices Act, 21
  V.S.A. §§ 495-496, is governed by the three-year statute of limitation  of
  12 V.S.A. § 512(4) or the six-year statute of limitation of 12 V.S.A. §
  511.  As explained more  fully below, we answer the question as follows:
  The three-year limitation statute governs plaintiff's  claim for emotional
  distress resulting from her loss of employment, while the six-year statute 
  governs her claim for economic loss of income and benefits.

       As set forth in plaintiff's complaint, the facts relevant to the
  question may be summarized as  follows: (FN2) Plaintiff began working for
  defendant U.S. Airways, then called Allegheny Airlines,  in 1972.  In 1983,
  she was transferred to the Burlington airport, where she worked as a
  customer  service agent.  In October 1993, plaintiff suffered a herniated
  lumbar disc while on the job and  ceased working.  Her doctor released her
  to return to work in March 1994, with restrictions due to  her back injury. 
  She sought to return, requesting reasonable accommodation, but was refused 
  because she was unable to perform every task that she had previously
  performed.

       On June 1, 1999, plaintiff filed suit against defendant in Chittenden
  Superior Court, alleging  that, by refusing to reasonably accommodate her
  disability, defendant had violated the provision of 

 

  the Vermont Fair Employment Practices Act (FEPA) prohibiting discrimination
  against qualified  individuals with disabilities.  21 V.S.A. § 495(a)(1). 
  Plaintiff claimed that, as a result of defendant's  conduct, she had
  "suffered lost income and benefits," as well as "emotional distress
  resulting from  her loss of employment."

       Defendant removed the case to the United States District Court for the
  District of Vermont on  the basis of diversity jurisdiction, and moved to
  dismiss the action, arguing that plaintiff had failed to  bring her claim
  within the three-year statute of limitation governing suits for "[i]njuries
  to the  person."  12 V.S.A. § 512(4). (FN3)  Plaintiff acknowledged that
  the complaint was barred if  governed by § 512(4), but argued that it
  should be controlled instead by the general six-year  limitation period of
  12 V.S.A. § 511. (FN4)  Relying upon an earlier decision of the United
  States  District Court, Fellows v. Earth Constr., Inc., 794 F. Supp. 531,
  535-36 (D. Vt. 1992), the court held  that the three-year statute applied
  and dismissed the complaint as time barred.  Although the district  court
  initially declined a request to certify the statute-of-limitation question
  to this Court, it  subsequently reconsidered its ruling following an appeal
  and remand from the Second Circuit Court  of Appeals, and certified the
  question whether plaintiff's FEPA claim was governed by the three-year
  statute of limitations under § 512(4), or the six-year statute of
  limitations under § 511.  We  accepted the certified question, and the
  issue was subsequently briefed and argued by the parties.

       The central point of defendant's argument, and the United States
  District Court decision, is  that there is only one limitation period
  governing all FEPA claims, irrespective of the nature of the  injury
  alleged by plaintiff.  We believe that this position is directly
  inconsistent with our decisions  construing §§ 511 and 512.  We have
  repeatedly held: "it is the nature of the harm done, rather than  the
  plaintiff's characterization of the cause of action, that determines which
  statute of limitations 

 

  governs."  Bull v. Pinkham Eng'g Assocs., Inc., 170 Vt. 450, 455, 752 A.2d 26, 31 (2000).  In  Fitzgerald v. Congleton, 155 Vt. 283, 291-93, 583 A.2d 595, 599-601 (1990), we decided how this  principle applies when a
  plaintiff alleges harm that falls into more than one category.  The
  plaintiff  asserted in Fitzgerald that, as a result of the defendant's
  legal malpractice committed more than three  years earlier, she had
  suffered "emotional distress" and "personal humiliation" through the loss
  of  custody of her son, 155 Vt. at 289, 583 A.2d  at 599, as well as "the
  costs incurred by her to secure  the return of her child, including such
  expenses as her attorney's fees."  Id. at 293, 583 A.2d  at 601.   We
  concluded, accordingly, that "the nature of the harm alleged to have been
  done to plaintiff herein  is mixed - some of her alleged injuries are
  personal injuries within the meaning of § 512(4), while  some are not." 
  Id. at 290, 583 A.2d  at 599 (emphasis added).  In such a case, we
  explained, "[a]  single complaint may contain multiple causes of action,
  some of which are time-barred and some  not."  Id.  Finding that
  plaintiff's complaint fell into the category just described, we held that
  the  plaintiff's emotional distress claim was governed by the three-year
  limitations period of § 512(4),  and therefore time-barred, while her claim
  for costs and expenses was controlled by the six-year  provision of § 511,
  and therefore timely.  Id. at 293, 583 A.2d  at 601.  More recently in
  Politi v.  Tyler, 170 Vt. 428, 435, 751 A.2d 788, 793 (2000), a malpractice
  and intentional infliction of mental  distress case against a psychologist,
  we applied the holding of Fitzgerald to find that part of the  alleged
  injury was subject to a three-year limitation period under § 512(4) and
  part a six-year  limitation period under § 511.

       Defendant suggests that we have abandoned the Fitzgerald approach in
  the recent  memorandum decision of Rennie v. State, 171 Vt. 584, 586-87,
  762 A.2d 1272, 1276 (2000) (mem).  Rennie did not purport to modify
  Fitzgerald; in fact, it relied upon it.  It did apply § 512(4) because  the
  "gravamen or essence" of the specific claim before the court was for
  personal injury and not  economic loss.  Id.  This inevitable process of
  categorizing a vaguely-worded complaint does not  undermine the teaching of
  Fitzgerald: that, where a complaint clearly alleges injury covered by § 512 
  and injury covered by § 511, the two different limitation periods apply,
  even though there is only one  wrongful act.

       Defendant also argues that we should view the statute-of-limitation
  question as one of  applying FEPA and, consistent with our policy of
  looking to federal law to construe FEPA, see  Hodgdon v. Mt. Mansfield Co.,
  160 Vt. 150, 165, 624 A.2d 1122, 1130 (1992), we should follow  federal
  cases holding that state statutes of limitation for personal injury tort
  actions apply to civil  rights actions under 42 U.S.C. § 1983 and § 1981,
  notwithstanding their potential economic  consequences, because the essence
  of the claim is "an injury to the individual rights of the person."  
  Wilson v. Garcia, 471 U.S. 261, 277-79 (1985); see also Goodman v. Lukens
  Steel Co., 482 U.S. 656, 661 (1987) (racial discrimination is "a
  fundamental injury to the individual rights of a person").  In Fellows v.
  Earth Constr., Inc., 794 F. Supp.  at 536, the federal district court for
  Vermont relied on  Wilson in predicting that we would apply our three-year
  statute to FEPA claims, and the district  court in this case relied, in
  turn, on Fellows in dismissing plaintiff's entire complaint as untimely.

       The difficulty with defendant's argument is that FEPA contains no
  applicable statute of  limitations, and we must determine the applicable
  limitation period(s) from §§ 511 and 512, statutes  that were
  authoritatively construed in Fitzgerald.  For that reason, we cannot hold
  that Fitzgerald 

 

  applies only to common law actions or only to particular types of statutory
  actions, whatever we may  believe is the best policy.

       For the same reason, we reject the argument of defendant, and amicus
  curiae Associated  Industries of Vermont and the Vermont Retail
  Association, that we decide for policy reasons detailed  in Montells v.
  Haynes, 627 A.2d 654, 657-58 (N.J. 1993) that a uniform
  three-year-limitation period  applies to FEPA actions.  These policy
  reasons are better directed to the Legislature in support of a  special
  statute of limitations for FEPA actions.

       Fitzgerald also governs how we must analyze the complaint in this
  case.  Plaintiff separately  alleged economic loss, "lost income and
  benefits," and emotional distress.  We have repeatedly held  that § 511
  applies to actions seeking damages for economic loss, including monetary
  claims for lost  profits.  See Bull, 170 Vt. at 455-56, 752 A.2d  at 31; see
  also Politi, 170 Vt. at 435, 751 A.2d  at 793  (medical malpractice claim
  seeking damages for work interruption was for economic losses under § 
  511); Inv. Props., Inc. v. Lyttle, 169 Vt. 487, 494, 739 A.2d 1222, 1228
  (1999) (§ 511 governs  indemnity action seeking money damages resulting
  from defective flooring in condominiums);  Congdon v. Taggart Bros., Inc.
  153 Vt. 324, 325, 571 A.2d 656, 657 (1989) (mem.) (§ 511 applies to  action
  against builder for monetary damages resulting from fire allegedly caused
  by negligent design  and construction of building).

       Claims for damages resulting from "emotional distress," in contrast,
  fall within the scope of  "injuries to the person" and therefore are
  governed by § 512(4).  See Fitzgerald, 155 Vt. at 291-93,  583 A.2d at
  599-601; accord Rennie, 171 Vt. at 586-87, 762 A.2d  at 1276.  As we
  explained in  Fitzgerald, "[t]he rationale for including emotional distress
  within the term 'bodily injury' is that it is  often difficult, even for
  doctors, to distinguish between mental and physical injuries, since
  emotional  disturbances have physical aspects and physical disturbances
  have emotional aspects."  155 Vt. at  292, 583 A.2d  at 600-01.

       A similar conclusion readily follows here.  Plaintiff's claim for lost
  wages and benefits  resulting from the alleged FEPA violation plainly seeks
  damages for economic losses, and therefore  is governed by § 511.  See
  Politi, 170 Vt. at 435, 751 A.2d  at 793 (plaintiff's claim for damages 
  resulting from her inability to continue in her career and inability to
  work for long periods was for  economic losses under § 511).  Accordingly,
  this portion of plaintiff's action was timely and may  proceed.  The
  emotional distress claim, however, plainly seeks damages for "injuries to
  the person"  under § 512(4), as interpreted in Fitzgerald, and is therefore
  time-barred, as the complaint was not  filed within three years of accrual
  of the claim.

       Although the result here would appear to be obvious under Fitzgerald,
  plaintiff nevertheless  asserts that her emotional distress claim is
  distinct from Fitzgerald, and more appropriately governed  by § 511.  The
  argument is unpersuasive.  It is true, as plaintiff observes, that in
  characterizing the  emotional distress claim in Fitzgerald as one for
  "injuries to the person" we cited the traditional  common law rule allowing
  recovery for emotional distress only when accompanied by substantial 
  bodily injury.  Fitzgerald, 155 Vt. at 292, 583 A.2d  at 600.  It is also
  true that we have distinguished  the evidentiary burdens necessary to
  establish damages for emotional distress under statutes such 

 

  as FEPA from the more stringent requirements under common law tort
  theories.  See Human Rights  Comm'n v. Labrie, Inc., 164 Vt. 237, 248, 668 A.2d 659, 667 (1995).  As noted earlier, however, our  express "rationale"
  for including emotional distress within the scope of § 512(4) was not the 
  requirement that emotional distress result in bodily injury, but instead
  the difficulty of  "distinguish[ing] between mental and physical injuries,
  since emotional disturbances have physical  aspects and physical
  disturbances have emotional aspects."  Fitzgerald, 155 Vt. at 292, 583 A.2d 
  at  600-01.  Fitzgerald, therefore, applies equally to statutory and common
  law causes of action for  emotional distress.

       We similarly reject defendant's argument that the 1947 amendment to §
  512(4), modifying the  language from "damages for bodily hurt" to "injury
  to the person," demonstrates an intent to greatly  expand the coverage of §
  512(4) to apply to the economic loss alleged by plaintiff in this case.  
  Whatever the purpose behind the 1947 change, see Fitzgerald, 155 Vt. at 291
  n.6, 583 A.2d  at 600  n.6 (noting that the general statutory revision
  suggests the lack of an intent to change its meaning,  but declining to
  decide the issue), we discern no intent to expand the scope of § 512(4) to
  include  virtually any harm that may be broadly characterized as affecting
  the personal dignity of the plaintiff.  See Alpstetten Ass'n v. Kelly, 137
  Vt. 508, 512, 408 A.2d 644, 646 (1979) ("injury to the person"  does not
  "cover all actions that allege harm that is somehow personal to the
  plaintiff").

       The certified question is answered as follows: The three-year statute
  of limitation under 12  V.S.A. § 512(4) governs plaintiff's claim for
  emotional distress resulting from defendant's alleged  violation of the
  Fair Employment Practices Act; the six-year statute of limitation under 12
  V.S.A. §  511 governs plaintiff's claim for lost income and benefits
  resulting from defendant's alleged  violation of the Act.



                                       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


------------------------------------------------------------------------------
                                  Footnotes


FN1.  V.R.A.P. 14(a) authorizes a court of the United States to certify a
  question of Vermont law  to this Court if the answer may be determinative
  of an issue in pending litigation in the certifying  court.  We may, in our
  discretion, decline to answer, reformulate the question, or accept the
  question  as certified.  V.R.A.P. § 14(a) & (b).

FN2.  V.R.A.P. 14(d)(1)(B) provides that the order of certification shall
  include "[t]he facts  relevant to the question, showing fully the nature of
  the controversy out of which the question  arose."

FN3.  Section 512 provides, in its entirety, as follows:

        Actions for the following causes of action shall be commenced 
        within three years after the cause of action accrues, and not after:
          (1) Assault and battery;
          (2) False imprisonment;
          (3) Slander and libel;
          (4) Except as otherwise provided in this chapter, injuries to the 
        person suffered by the act or default of another person, provided that 
        the cause of action shall be deemed to accrue as of the date of the 
        discovery of the injury;
          (5) Damage to personal property suffered by the act or default of 
        another.


FN4.  Section 511 provides as follows:

        A civil action, except one brought upon the judgment or decree of a 
        court of record of the United States or this or some other state, and 
        except as otherwise provided, shall be commenced within six years 
        after the cause of action accrues and not thereafter.