Woolaver v. State
Annotate this Case
Woolaver v. State (2002-012); 175 Vt. 397; 833 A.2d 849
2003 VT 71
[Filed 01-Aug-2003]
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.
2003 VT 71
No. 2002-012
Kimberly Woolaver Supreme Court
On Appeal from
v. Washington Superior Court
State of Vermont November Term, 2002
Matthew I. Katz, J.
Cassandra S. Edson and David Putter of Putter & Edson, L.L.P.,
Montpelier, for Plaintiff-Appellant.
William H. Sorrell, Attorney General, and David K. Herlihy, Special
Assistant Attorney General, Montpelier, for Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse (FN1) , Johnson and Skoglund, JJ.
¶ 1. JOHNSON, J. Plaintiff Kimberly Woolaver appeals from the
Washington Superior Court's order granting summary judgment in favor of the
State on plaintiff's claim that she was fired from her state job while on
parental leave in violation of Vermont's Parental and Family Leave Act
(PFLA), 21 V.S.A. §§ 470-474. Plaintiff contends that (1) the trial court
erred in finding that she was ineligible for PFLA leave; (2) the PFLA
prohibits the discharge of an employee while on PFLA leave, or, if the PFLA
allows termination of an employee for performance reasons during parental
leave, the facts alleged by plaintiff suggest her firing was improperly
related to her pregnancy; and (3) the State made promises to plaintiff
concerning her PFLA leave eligibility and reinstatement rights upon which
she justifiably relied. We find the record contains disputed issues of
material fact that preclude summary judgment on all of plaintiff's claims,
except for the claim based on promissory estoppel. We therefore reverse
the trial court's order granting summary judgment to the State, affirm the
court's order denying summary judgment to plaintiff, and remand for further
proceedings.
¶ 2. We review a grant of a motion for summary judgment de novo.
Agency of Natural Res. v. U.S. Fire Ins. Co.,173 Vt. 302, 305, 796 A.2d 476, 478 (2001). Summary judgment is appropriate only when the record
shows that there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Bacon v. Lascelles, 165 Vt. 214,
218, 678 A.2d 902, 905 (1996). All reasonable doubts and inferences are
resolved in favor of the nonmoving party. Samplid Enters. v. First Vt.
Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996).
¶ 3. The factual history of this case is lengthy and complex, and
not always well supported by either party with adequate citations to the
record, making review of summary judgment difficult. By way of
introduction, plaintiff was an employee of the Department of State's
Attorneys and Sheriffs (Department) when she took leave following the birth
of her son. Plaintiff had been on extended probation for performance
problems, but there was no plan to fire her prior to the leave.
Plaintiff's side of the story acknowledges performance problems; she
argues, however, that her difficult pregnancy, as she described it, kept
her from doing her best, that her performance was nonetheless adequate, and
that she was working through her problems. This position is supported by
the fact that her supervisor, Robin Orr, granted her leave following her
son's birth and extended her probationary period to October 5, 1998. A
letter from Orr dated June 9, 1998, grants plaintiff permission to use
accumulated sick and annual leave time following the delivery of her child,
and then to remain out on an unpaid basis until the end of the leave
period. Plaintiff thus contends that she expected to return to work after
her leave and continue to work with Orr to satisfy any remaining issues.
¶ 4. Plaintiff was fired during her leave, allegedly because Orr
discovered additional errors in plaintiff's work that were not known to Orr
at the time Orr granted the family leave. Plaintiff disputes that she is
responsible for the errors, and argues that Orr's statement that Orr needed
to take action because "[plaintiff] was the one who had given birth. And I
needed to make decisions about how to keep the office running . . . ." is
indicative of the real reason plaintiff was fired. In sum, plaintiff's
theory of the case is that, but for plaintiff's decision to take family
leave, Orr would have continued to work with her through the remainder of
her probation, and plaintiff believes she would have completed probation
successfully.
¶ 5. The State's position is that plaintiff's performance problems
were serious and longstanding, and that plaintiff would not have
successfully completed probation. The State contends that plaintiff
admitted her performance problems in depositions when she testified that
her work problems resulted from a difficult pregnancy. Because pregnancy
is not a legal excuse for substandard job performance, the State views the
case as appropriate for summary judgment once plaintiff admitted that she
had not performed all aspects of her job satisfactorily. The State
contends that the timing of the firing of plaintiff does not suggest a
violation of the PFLA because Orr discovered new errors after the leave
began. Finally, the State asserts that plaintiff was not eligible for PFLA
leave, although it admits that Orr granted plaintiff such leave and that
the State changed its position after the leave began. The change of
position was not communicated to plaintiff until after this lawsuit was
filed.
¶ 6. The trial court granted summary judgment to the State on each
of plaintiff's claims. First, the court found that plaintiff was not
entitled to leave pursuant to the PFLA because she had not worked in her
position as Business Manager/Personnel Manager for the Department for the
one-year period required to qualify as an employee pursuant to the PFLA,
citing 21 V.S.A. § 471(2). Second, the court considered the merits of
plaintiff's PFLA-based claim. The court held that the State would be
entitled to summary judgment even if plaintiff is found to have been
entitled to PFLA leave because there was no genuine issue of material fact
about whether plaintiff was terminated because of her poor performance, and
the PFLA allows discharge for poor performance during leave. Third, the
court granted the State summary judgment on plaintiff's promissory estoppel
claim on the grounds that plaintiff took no substantial action in reliance
on the State's alleged promises. (FN2) We reverse because there are material
facts in dispute that preclude summary judgment on plaintiff's claim that
she was eligible for PFLA leave, and on her claim that the State is
estopped to claim that she is not eligible; material facts are also in
dispute as to whether or not plaintiff would have been fired had she not
been on leave. Moreover, the trial court erred in its interpretation of
some provisions of the PFLA and failed to adequately consider plaintiff's
estoppel claims.
I. PFLA-based Claims
¶ 7. The PFLA permits eligible employees to take up to twelve weeks
of unpaid leave during any twelve-month period for family or medical
reasons, including "for parental leave, during the employee's pregnancy and
following the birth of an employee's child." 21 V.S.A. § 472(a)(1). The
purpose of the Act is to promote "strong families" as the "foundation for a
productive and competitive state." Id. § 470(a). The PFLA makes parental
and family leave "a condition of employment" for qualifying employees. Id.
§ 470(c). Employees on PFLA leave are entitled to the continuation of
employment benefits during the leave. Id. § 472(c). They are also
entitled to reinstatement at "the same or comparable job at the same level
of compensation, employment benefits, seniority or any other term or
condition of the employment existing on the day leave began." Id. §
472(f).
¶ 8. The right to reinstatement under § 472(f), however, is not
absolute. There is no right to PFLA leave where "prior to requesting
leave, the employee had been given notice or had given notice that the
employment would terminate." Id. § 472(f). Moreover, an employer has no
obligation to reinstate an employee after the conclusion of parental or
family leave where
the employer can demonstrate by clear and convincing evidence
that: (1) during the period of leave the employee's job would have
been terminated or the employee laid off for reasons unrelated to
the leave or the condition for which the leave was granted . . . .
Id.
¶ 9. Thus, in a discharge case under § 472(f), a plaintiff must
demonstrate that (1) plaintiff was an employee within the meaning of the
PFLA, as defined in § 471(2); (2) the employer is an employer under the
PFLA, as defined in § 471(1); (3) the employer refused to reinstate
plaintiff-employee after PFLA leave; (4) prior to requesting leave the
employee had not been given notice or given notice "that the employment
would terminate," pursuant to § 472(f); and (5) employee was terminated for
reasons related to the leave or the condition for which the leave was
granted, as prohibited by § 472(f). Once the plaintiff makes this prima
facie case, Vermont's PFLA shifts both the burden of production and the
burden of persuasion to the employer to prove by clear and convincing
evidence that the reasons for termination were not related to the
employee's request for leave or the condition for which leave was sought.
Id. § 472(f). (FN3)
¶ 10. As we discussed in In re N.H., 168 Vt. 508, 724 A.2d 467
(1998),
the clear-and-convincing-evidence standard represents a very
demanding measure of proof. Although something less than proof
beyond a reasonable doubt, it is substantially more rigorous than
the mere preponderance standard usually applied in the civil
context, and is generally said to require proof that the existence
of the contested fact is "highly probable" rather than merely more
probable than not.
Id. at 512, 724 A.2d at 469-70.
¶ 11. With this outline of the statute in mind, we turn to
plaintiff's claims on appeal that (1) the trial court erred in finding that
she did not meet the eligibility requirements of the statute, and that even
if she did not meet the eligibility requirements, the State is estopped
from claiming that she did not; and (2) the State was not permitted to fire
her, even for performance reasons, while she was on family leave, and even
if the State could fire her, the trial court erred by placing the burden of
proof on plaintiff to show motivation and improperly resolved material
disputed facts against her.
A. PFLA Eligibility
¶ 12. Plaintiff began working as Business Manager/Personnel Officer
at the Department on July 21, 1997. Her leave began on June 3, 1998. She
was terminated on July 31, 1998. The trial court found that plaintiff's
one-year qualifying period for PFLA eligibility was not met because one
year had not elapsed between July 21, 1997 and the beginning of the leave
on June 3, 1998.
¶ 13. Plaintiff makes two independent arguments that could support
her claim to PFLA coverage at the time she was terminated, one based on an
interpretation of the statute and one based on an estoppel theory. First,
with respect to the statute, plaintiff contends that the question of
eligibility does not hinge upon her employment status as of June 3, 1998
(the day her parental leave commenced) but upon her employment status on
July 31, 1998 (the day she was terminated). She argues that where an
employer has allowed an employee to take parental leave even when the
employee has not technically qualified for PFLA leave (under the employer's
more generous leave policies), the statute should be construed to allow her
to qualify as an employee under the PFLA definition part-way into her leave
period. She further contends that she satisfied the PFLA definition of
employee no later than July 21, 1998, one year from the date on which she
started working at the department.
¶ 14. We agree with plaintiff in principle that the clock did not
stop running for purposes of qualifying for the PFLA on the date that she
commenced her leave. Because the PFLA is a remedial statute, we construe
it liberally to accomplish the Legislature's remedial intent. Town of
Killington v. State, 172 Vt. 182, 191, 776 A.2d 395, 402 (2001). The
statute does not explicitly state when eligibility for PFLA leave is
determined, so we are limited to construing the PFLA's definition of
employee: "a person who, in consideration of direct or indirect gain or
profit, has been continuously employed by the same employer for a period of
one year for an average of at least 30 hours per week." 21 V.S.A. §
471(2). Although the statute is silent on the question of whether time
spent on accrued sick leave or annual leave counts in calculating the
thirty hours of work per week average, the only sensible construction is
that it does. Otherwise, an employee who worked thirty hours a week for
fifty one weeks and then took accrued vacation or sick leave in the
fifty-second week would not qualify for PFLA protection in her fifty-third
week, even though she had been on the payroll for the one year minimum
established by the statute. Given this construction, it would be arbitrary
to hold, in a case such as plaintiff's where several weeks of accrued leave
balances are used at the beginning of a period of parental leave, that the
hours of accrued leave are not counted towards time worked for purposes of
PFLA eligibility. As long as plaintiff was using accrued leave balances
that she had earned, the clock was still running towards the fifty-two
weeks of continuous employment required for PFLA eligibility, just as she
was continuing to accrue additional leave balances. Once she exhausted her
leave balances, however, time spent on unpaid leave would not count towards
the thirty hours per week required for PFLA purposes, as long as the
State's personnel policy does not permit the accrual of seniority and other
benefits when an employee is on unpaid leave. See Heibler v. Dep't of
Workforce Dev., 2002 WI App 21, ¶¶ 9-13, 639 N.W.2d 776, 780-81 (Wis. Ct.
App. 2001) (determining whether an employee could accrue salary, seniority,
and benefits that normally would have accrued during her leave under the
Wisconsin Family and Medical Leave Act in accordance with governing
provisions of collective bargaining agreement and state administrative
regulations). Although the trial court erred in its narrow construction of
the statute, we cannot tell on the present record when plaintiff's leave
balances were exhausted and remand this issue for further proceedings.
¶ 15. Plaintiff's second claim is that the State should be estopped
from denying coverage under the PFLA because it specifically granted her
the leave. As we understand plaintiff's argument, she claims detrimental
reliance upon the State's oral promises as well as upon two documents, one
a personnel action and one a letter from Orr indicating that plaintiff was
entitled to leave under the PFLA. Although we emphasize that the
significance of these documents is unclear from this record and hotly
disputed by the parties, individually or together the documents may be
sufficient to estop the State from denying plaintiff eligibility for PFLA
leave. See Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 493-94 (8th Cir.
2002) (recognizing a district court's ability to equitably estop an
employer from contesting an employee's eligibility to assert a claim under
the federal FMLA when a letter from the employer to the employee had stated
that the employee's entire 34-week leave qualified under the FMLA and the
employee relied on the specified leave time to his detriment); Woodford v.
Com'ty. Action of Green County, Inc., 268 F.3d 51, 57 (2d Cir. 2001)
(observing that the "doctrine of equitable estoppel itself may apply where
an employer who has initially provided notice of eligibility for [FMLA]
leave later seeks to challenge that eligibility"). (FN4)
¶ 16. The first document that plaintiff claims to have relied upon
is a personnel action. The State has admitted that on or about August 1,
1997, a personnel document was generated with regard to plaintiff that
included the phrase "ADJUSTED HIRE DATE FOR LEAVE & RIF IS 05/02/87." The
document refers to plaintiff's original hire date with the State and her
years of service in the Department of Transportation. Her service with the
State was briefly interrupted before she went to work at the Department of
Sheriffs and State's Attorneys. In attempting to explain the meaning of
this document, the State cites a contract provision from the agreement
between the State and the Vermont State Employees' Association that
purports to govern re-employment situations such as plaintiff's and
provides that after successful completion of probation the employee shall
have the "length of continuous previous . . . service re-credited for the
purpose of subsequent leave accrual and RIF [reduction in force] rights."
The State argues that this provision applies only to accrual rates and that
Plaintiff should not have construed it to provide her with PFLA rights.
Plaintiff asserts, however, that she had become pregnant only "after
learning of, and in reliance on, [the State's] grant of an 'adjusted hire
date' of 5/2/87 for me." We also note that plaintiff was an exempt
employee, not a classified employee, and the extent to which this personnel
document affected her employment was not adequately explained by the
document, the affidavit in support of summary judgment from Tom Ball of the
Department of Personnel, or counsel at oral argument.
¶ 17. The second document that plaintiff puts forward as the basis
for estoppel is the State's letter, signed by Robin Orr and dated June 9,
1998, representing to plaintiff that the leave she was taking had been
approved as PFLA leave. Orr's letter to plaintiff includes the following
sentence: "With your leave commencing on June 3, 1998 the Parental and
Family Leave Act (PFLA) entitles you to be out of the office until August
26, 1998." Plaintiff started her leave on June 3, 1998, six days before
receiving this letter, but she alleges that the letter reflected prior
verbal authorization for PFLA leave. The State asserts that there could be
no detrimental reliance on this letter because plaintiff would have taken
the leave time following the birth of her son regardless of whether she
believed she qualified for PFLA leave. While it is true that plaintiff
would have been compelled to take some time off work to deliver her baby,
plaintiff's assertion of reliance relates specifically to the protections
afforded her by the PFLA, which, as we hold supra, at 7-10, include the
right not to be fired for reasons related to parental leave of a certain
length of time.
¶ 18. A party invoking equitable estoppel has the burden of
establishing the following elements:
(1) the party to be estopped must know the facts; (2) the party
being estopped must intend that his conduct shall be acted upon or
the acts must be such that the party asserting the estoppel has a
right to believe it is so intended; (3) the party asserting
estoppel must be ignorant of the true facts; and (4) the party
asserting estoppel must rely on the conduct of the party to be
estopped to his detriment.
Westco, Inc. v. City of Montpelier, 169 Vt. 520, 524, 739 A.2d 1241,
1244-45 (1999).
¶ 19. We find that plaintiff's pleadings allege each of these
elements of estoppel, but virtually all of the facts surrounding the claim,
including the import of the personnel document and the degree of
plaintiff's reliance, are in dispute and cannot be resolved on this record.
Further proceedings are necessary to determine whether plaintiff has met
her burden of proof. Because we cannot resolve the eligibility question,
we turn to the other grounds on which plaintiff's claim was dismissed by
the trial court in the event she is found eligible on remand.
B. Rights Protected by the PFLA
¶ 20. Plaintiff's second claim on appeal is that, assuming she is
eligible for PFLA leave, the trial court erred in holding that the statute
permits her to be fired for performance reasons during the leave period.
She argues that the statute protects an employee on leave unless her job
has been eliminated due to a reduction in force or other economic reason.
She claims that six other jurisdictions with similar statutes have
prohibited firing employees while they are on parental leave, and that the
statutory language of the Vermont PFLA supports the same construction. We
reject all of plaintiff's arguments and hold that the PFLA does not protect
an employee from being fired, as long as the employer's decision withstands
scrutiny that the firing is not related to the leave.
¶ 21. The statute provides, in § 472(f), that there is no right to
reinstatement if the employer can demonstrate by clear and convincing
evidence that "during the period of leave the employee's job would have
been terminated or the employee laid off for reasons unrelated to the leave
or the condition for which the leave was granted." Plaintiff reads the
phrase "job would have been terminated" as referring to situations where a
position has been eliminated due to reorganization, essentially synonymous
with the phrase "employee laid off." We are not convinced by plaintiff's
construction because it assumes a redundancy in the statute, that is, it
treats the phrase "job would have been terminated" as a special variation
on the reasons that an employee could be laid off. We conclude the more
plausible construction is that an employer may deny reinstatement to an
employee if the employee would have been terminated for reasons not related
to the leave or the condition for which the leave was granted. See State
v. Baldwin, 140 Vt. 501, 512, 438 A.2d 1135, 1141 (1981) ("[W]e are
reluctant to discard statutory language as inadvertent or as mere
surplusage when it is not necessary in order to effectuate what we conceive
to be the intent of the legislature . . . ."); see also State v. Tierney,
138 Vt. 163, 165, 412 A.2d 298, 299 (1980) ("In construing a statute, this
Court . . . if possible, gives effect to every word, clause and
sentence."); State v. Ben-Mont Corp., 163 Vt. 53, 57, 652 A.2d 1004, 1007
(1994) ("Our interpretation must . . . if possible, give meaning and effect
to all the statutory language.").
¶ 22. Our interpretation furthers a fair and rational result. See
Ben-Mont, 163 Vt. at 57, 652 A.2d at 1007 (holding that this Court's
interpretation of a statute "must further fair, rational results"). As the
State argues, an interpretation of the PFLA that does not allow dismissal
while an employee is on leave would require an employer who discovers
evidence of serious misconduct or unacceptable performance when the
employee is on leave to reinstate that employee no matter how clear the
evidence might be of wrongdoing. We cannot find that intent in the
statutory language. See Braun v. Bd. of Dental Exam'rs, 167 Vt. 110, 117,
702 A.2d 124, 128 (1997) (statutes construed with presumption "that the
Legislature does not intend an interpretation that would lead to absurd or
irrational consequences").
¶ 23. Moreover, no other court has interpreted a similar statute to
prohibit discharge for performance problems during leave. Upon examination
of the six jurisdictions cited by plaintiff that she claims prohibit
dismissal during leave except in cases of economic necessity, none so hold.
(FN5)
¶ 24. Finally, our construction is sensible in light of the heavy
burden the Legislature placed on employers to prove that the discharge of
an employee on leave was unrelated to the reason for the leave. In other
words, the teeth of the statute is in the employer's burden of proof,
rather than in an absolute protection not to be fired while on leave. See
21 V.S.A § 472(f).
¶ 25. Applying the clear and convincing evidence standard to the
record before us, we cannot uphold summary judgment for the State, bearing
in mind that this is an appeal from a grant of summary judgment in which
the employee must be given the benefit of all reasonable inferences. We
note initially that the trial court does not mention the high burden of
proof and does not appear to place that burden on the employer; instead,
the trial court indicates that the burden is on plaintiff to establish an
entitlement to the protection of the PFLA by a preponderance standard.
Whatever the trial court meant, however, our review of summary judgment is
de novo, and therefore we undertake a review of the evidence, placing the
burden of proof on the State.
¶ 26. The State has offered affidavits from Robin Orr, plaintiff's
supervisor, and Richard LeBus, the person who held the position of business
manager before plaintiff and had been asked to train her in budget matters
when he was hired for a new position as a computer information specialist.
Both assert that plaintiff did not have the background or skills needed to
perform the job of business manager and made numerous mistakes throughout
the period of her employment that caused them not to trust her work. The
State's lack of written documentation of plaintiff's performance during the
time she worked at the Department consigns it, however, to reliance on
after-the-fact accounts of plaintiff's performance. Moreover, its
extension of her probationary period to October and its failure to take
action against plaintiff prior to leave remains unexplained. See Haschmann
v. Time Warner Entm't Co., 151 F.3d 591, 604-05 (7th Cir. 1998) (holding
that a jury could reasonably find that the timing of employer's firing of
employee days after she requested medical leave was not merely a
coincidence). The State is correct that the timing of discharge might not
be sufficient, in and of itself, to prove that the firing was unlawful, but
the additional unexplained facts are sufficient to place the burden of
proof on the State.
¶ 27. The State asserts in response, through Robin Orr's affidavit,
that it made additional discoveries about the extent of plaintiff's
performance problems after plaintiff's leave began, such as the discovery
that plaintiff had told two other employees to stop paying bills because of
a budget deficit erroneously predicted by plaintiff, and that plaintiff's
termination occurred because of these new discoveries. Plaintiff has
denied giving this instruction to employees and offers evidence showing
that the employees in question were not in the office on the day she
completed the erroneous budget calculations. The record does not include
affidavits from either employee about this issue. Plaintiff also asserts
that she knew the figures in the budget did not reconcile, but because she
had scheduled her labor to be induced that afternoon, she did not have time
to fix them. She claims to have informed LeBus prior to her departure that
there was a problem with the budget that needed further work. Orr alludes
to other problems as well, but they are not in the record before us. Thus,
we cannot conclude on this record that the State has met its burden. If,
on remand, the State is able to prove that it made additional discoveries
demonstrating plaintiff's poor judgment or incompetence, or resolve the
factual issues that now exist, the evidence may meet the clear and
convincing evidence standard, but the evidence is too confused and
contradictory at this point to make a finding in favor of the State.
¶ 28. To the extent that plaintiff claims that her performance
problems were due to her pregnancy, we clarify that the PFLA neither
excuses performance problems caused by the condition for which PFLA leave
is taken nor requires an employer to give an employee an opportunity to
show improved job performance following leave. Plaintiff is essentially
attempting to bootstrap a discrimination claim of the kind that could be
brought under the Fair Employment Practices Act (FEPA), 21 V.S.A. §
495-496, into her PFLA claim. We have held that pregnancy discrimination
qualifies as sex discrimination under FEPA, if employers treat workers who
request accommodation for pregnancy disability differently from workers
requesting accommodation for other disabilities. Lavalley v. E.B. & A.C.
Whiting Co., 166 Vt. 205, 210-12, 692 A.2d 367, 370-71 (1997). If
plaintiff felt unable to perform her job because she was disabled by her
pregnancy, she was entitled to ask the State to accommodate her, but any
rights plaintiff may have had to accommodation under the FEPA do not
provide a legal excuse to her discharge while on pregnancy leave under the
PFLA.
II. Promissory Estoppel
¶ 29. Plaintiff's final assignment of error challenges the trial
court's decision that the State is not obligated to reinstate plaintiff
under the doctrine of promissory estoppel. As discussed in Part I.A above,
plaintiff's claims under an estoppel theory are of two distinct types. The
first is that written or oral promises regarding plaintiff's eligibility
for PFLA leave estop the State from denying that she was covered by the
PFLA when she was fired. This is a claim for equitable estoppel. The
second is that each of the rights that flow from PFLA eligibility - leave
and reinstatement - should be treated as separate promises implied by the
State's assurance that she was covered by the statute. Under this
promissory estoppel theory, plaintiff adds another promise that she would
receive "particularized supervision" upon her return to work, presumably
stemming from the State's extension of her probationary period. The trial
court treated plaintiff's entire estoppel claim as one for promissory
estoppel, characterizing the promises as a promise for continued employment
and for a further extended probationary period, and found those promises
too indefinite to hold the employer liable. With the caveat that plaintiff
has alleged the elements of a viable equitable estoppel argument that could
support her claim to eligibility for PFLA coverage, see supra, at 15-19,
we agree with the trial court that her claim under a promissory estoppel
theory must fail.
¶ 30. To enforce a claim for promissory estoppel, plaintiff must
show "[a] promise which the promisor should reasonably expect to induce
action or forbearance on the part of the promisee or a third person and
which does induce such action or forbearance" and that "injustice can be
avoided only by enforcement of the promise." Foote v. Simmonds Precision
Prod. Co., 158 Vt. 566, 573, 613 A.2d 1277, 1281 (1992) (quoting
Restatement (Second) of Contracts § 90(1) (1981)). We recently discussed
promissory estoppel in the context of a wrongful termination action and
noted that courts require a "promise of a specific and definite nature
before holding an employer bound by it." Dillon v. Champion Jogbra, Inc.,
__ Vt. __, __, 819 A.2d 703, 710 (2002).
¶ 31. The weakness in plaintiff's promissory estoppel argument is
that the alleged promises do not go far enough to extend to plaintiff the
kind of protection she seeks. The thrust of her argument is that her
employer should reinstate her and continue her probationary period without
any consideration of performance problems that the State claims arose after
she went on leave and that caused her discharge. In other words, plaintiff
would have us conclude that the promise of continued employment and an
extended probationary period guaranteed that she would not be fired for any
reason during the period following her pregnancy. Such an absolute
guarantee is not reasonably implied by the State's actions and alleged
promises. To the extent that plaintiff reasonably relied on the State's
promises, what she relied on was the right to leave and reinstatement that
is protected by the PFLA. The statute, rather than promissory estoppel, is
the basis for any relief to which she might be entitled.
¶ 32. Further, as the trial court concluded, the fact that plaintiff
was on probation and acknowledged that there were legitimate questions
about her performance make it impossible to justify a finding that the
State's promises regarding leave reasonably induced reliance that her
employment was guaranteed for any specific length of time. Under the
doctrine of promissory estoppel, the trial court was correct that
plaintiff's claim was insufficient to create any independent liability for
the State. Reversed and remanded.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnote
FN1. Justice Morse sat at oral argument but did not participate in this
decision.
FN2. The trial court also gave a fourth ground for dismissing plaintiff's
case: the "department did not terminate [plaintiff] during her period of
leave. It terminated her immediately following her leave . . . ." The
State, however, admits that plaintiff was terminated on July 31, 1998 and
that her dental benefits were terminated on the following day, four weeks
before her twelve-week period of leave under the PFLA would have ended.
The State terminated plaintiff while she was on leave following the birth
of her son; the question this case presents is whether that leave qualified
as PFLA leave, and what substantive rights follow from such a finding.
FN3. The clear and convincing evidence standard imposed upon employers who
dismiss employees while on leave is a higher standard than the one normally
required in civil cases or under the federal equivalent of the PFLA.
Courts have held that under the federal Family and Medical Leave Act
(FMLA), 29 U.S.C. § 2601-2654, the plaintiff has the burden of establishing
"by a preponderance of the evidence, that he is entitled to the benefit he
claims." Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 713 (7th Cir.
1997). See 29 U.S.C. § 2615(a)(2) ("It shall be unlawful for any employer
to discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter."); Beal v.
Rubbermaid Commercial Prod., Inc., 972 F. Supp. 1216, 1229 (S.D. Iowa, 1997)
("In a retaliation claim brought pursuant to the FMLA . . . the plaintiff
bears the ultimate burden of proving that FMLA leave was the determinative
factor in the employment decision at issue."). Even courts that apply the
"burden shifting" analysis following McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973) to determine whether a plaintiff has presented a
circumstantial case of wrongful discharge hold that the ultimate burden of
proving discrimination remains on the plaintiff. Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981) (under McDonnell Douglas
burden shifting, "[t]he ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff").
FN4. Plaintiff's complaint and memorandum in opposition to summary judgment
confuse the estoppel issue by conflating equitable estoppel and promissory
estoppel. The confusion is not clarified by the trial court's opinion,
which deals only with a promissory estoppel claim. With respect to
plaintiff's coverage under the PFLA, the claim is more accurately
characterized as equitable estoppel because the argument centers on whether
the State should be stuck with the mistake it now claims it made when it
granted plaintiff a leave under the PFLA, rather than the content of
particular promises the State allegedly made about continuing plaintiff's
probationary period and giving her more training. See Triology Variety
Stores, Ltd. v. City Prod. Corp., 523 F. Supp. 691, 697 n.3 (S.D.N.Y.1981)
(distinguishing between equitable and promissory estoppel, explaining that
"[e]quitable estoppel depends on a misrepresentation of an existing fact,
while promissory estoppel requires a promise concerning future intent").
We address the promissory estoppel claim in infra, Part II.
FN5. Plaintiff's cite to Colorado statutes is incorrect; Colorado has no
family leave law of general application that we can discover; the only
relevant provision is found in the Colorado Administrative Regulations for
State Employees, which clearly allows discharge for performance. 4 Colo.
Code Regs § 801, P-5-35 (2003), available at WL 4 COADC801 ("The employee
does not have restoration rights if the employment would not have otherwise
continued had the FML leave not been taken, e.g., discharge due to
performance . . ."). Plaintiff's cite to the statutes of the District of
Columbia is also erroneous. The D.C. law mirrors the federal FMLA language
and includes the same section allowing termination while on leave. The
federal section on "restoration to position" states that "[n]othing in this
section shall be construed to entitle any restored employee to . . . (B)
any right, benefit, or position of employment other than any right, benefit
or position to which the employee would have been entitled had the employee
not taken the leave." 29 U.S.C. § 2614(a)(3). The District of Columbia's
provision is almost identical, stating that no restored employee is
entitled to "[a]ny right, employment benefit, or position of employment
other than any right, employment benefit, or position of employment to
which the employee would have been entitled had the employee not taken the
family or medical leave." D.C. Code Ann. § 32-505(e)(2) (2003). Plaintiff
concedes that the FMLA's provision allows discharge during leave for poor
performance, citing as an example case Hubbard v. Blue Cross Blue Shield, 1 F. Supp. 2d 867, 875 (N.D.Ill. 1998) (holding that under FMLA, an employee
is not entitled to reinstatement if employer would have validly terminated
her had she not been on leave). Plaintiff is yet again incorrect in her
citation of California law. She cites a key employee exception in
California law, found at Cal. Gov't Code § 12945.2(r)(1) (2003), which has
no bearing on the question of whether or not an employee can be dismissed
for cause while on leave. While the California family leave statute does
not explicitly discuss whether discharge for cause is allowed, case law
from California suggests that an employer may lawfully terminate an
employee for misconduct while the employee is on leave. See Nelson v.
United Technologies, 88 Cal. Rptr. 2d 239, 249 (1999) (holding that
employee fired during leave under the California Family Rights Act "has the
burden of proving the proffered justification was a pretext for
discrimination"). The Connecticut and Montana statutes cited by plaintiff
establish that employers are not required to reinstate employees after
leave if "the employer's circumstances have so changed as to make it
impossible or unreasonable to do so." Conn. Gen. Stat. § 46a-60(a)(7)(D)
(2003); Mont. Code Ann. § 49-2-311 (2003). We can find no case law
interpreting this language to preclude discharge for cause during leave,
and so we can make no determination about how it would be construed by the
Connecticut or Montana courts. This leaves a single state of the six cited
by plaintiff, New Jersey. New Jersey's statute providing for restoration
of position on expiration of leave clearly denies reinstatement where there
has been a "reduction in force or layoff," and makes no mention of whether
reinstatement can be denied on other grounds. See N.J. Stat. Ann.
§34:11B-7 (2003). However we find no cases from New Jersey indicating that
restoration is mandatory even in cases where poor performance would
otherwise lead to discharge. Certain cases seem to tilt the other way. A
New Jersey court has held that one of the elements of a cause of action
under New Jersey's Family Leave Act is that "plaintiff was performing
satisfactorily." DePalma v. Bldg. Inspection Underwriters, 794 A.2d 848,
859 (N.J. Super. Ct. App. Div. 2002)
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
