Boulton v. CLD Consulting Engineers, Inc.
Annotate this Case
Boulton v. CLD Consulting Engineers, Inc. (2002-290); 175 Vt. 413; 834 A.2d 37
2003 VT 72
[Filed 29-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 72
No. 2002-290
Leslie G. Boulton Supreme Court
On Appeal from
v. Windsor Superior Court
CLD Consulting Engineers, Inc. March Term, 2003
Alan W. Cook, J.
Norman E. Watts, Woodstock, for Plaintiff-Appellant.
Karen McAndrew and Amy M. McLaughlin of Dinse, Knapp & McAndrew, P.C.,
Burlington, for Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Gibson, J.
(Ret.), Specially Assigned
¶ 1. JOHNSON, J. Plaintiff Leslie Boulton appeals from the Windsor
Superior Court's order granting summary judgment in favor of defendant CLD
Consulting Engineers on plaintiff's claims against CLD for breach of
implied contract, wrongful termination, gender discrimination, and
intentional infliction of emotional distress. Boulton resigned from CLD
after being informed that she was being demoted from her position as
branch manager. Following her resignation, she brought suit, claiming she
had been constructively discharged and that CLD's treatment of her
amounted to several actionable violations of her rights as an employee.
The trial court granted summary judgment to CLD on all of her counts. On
appeal, Boulton contends that she presented sufficient evidence to survive
summary judgment on her claims that (1) CLD wrongfully terminated her in
violation of its personnel policies; (2) CLD violated the associated
covenant of good faith and fair dealing in an implied employment contract;
(3) CLD committed gender discrimination in treating plaintiff, a female
employee, differently from similarly situated male employees; and (4)
CLD's treatment of plaintiff was so outrageous that CLD could be found
liable for intentional infliction of emotional distress. We affirm.
¶ 2. Plaintiff had worked for CLD for thirteen years. She started
in 1985 as an entry-level engineer. In 1992, she left her position with
CLD to pursue a graduate degree in environmental engineering. She
returned in 1994, and quickly became a manager. Her performance review
dated June 2, 1999, is positive, with the exception of a note that
plaintiff, while an excellent mentor and teacher, sometimes went on "minor
rampages" and "sometimes trie[d] to do it all" rather than delegating work
to others. In 1999, plaintiff applied for the position of branch manager
of CLD's Norwich office. According to plaintiff's deposition testimony,
CEO Tim Golde did not consider her suitable for the branch manager
position. Golde told Boulton that he felt that she was "unapproachable"
and "intimidating." Nevertheless, Golde and the other CLD partners were
willing to give Boulton an opportunity to try as Norwich branch manager.
She served in this position from November of 1999 until September of 2000.
¶ 3. As reflected in her performance review dated April 12, 2000,
senior management perceived that plaintiff had difficulty "settling into
the branch manager position." While she received excellent ratings for
technical knowledge and client service, the review noted that she was
having trouble solving personnel problems and delegating work and
authority to others. A number of employees resigned during plaintiff's
tenure as branch manager, and several of them expressed the belief that
plaintiff's management style created a stressful work environment. In June
of 2000, plaintiff met with Golde and CLD's business consultant Leslie
Kagan to discuss management style. After a period of improvement following
the Kagan meeting, employees indicated that the situation in the Norwich
office continued to deteriorate. In September, another employee resigned
and sent a letter criticizing plaintiff's management. Following this
episode, CLD notified plaintiff that she was being relieved of the
position of branch manager and transferred back to the Manchester, New
Hampshire office where she was offered a position as a project engineer.
¶ 4. Plaintiff was provided with a letter outlining the options
available to her at the Manchester office. The letter stated that the
exact terms of this position would require further discussion, but that it
could be on one of the highway design teams or working directly with Tim
Golde. Her salary was to be decreased from $72,000 to $60,000 per year.
Plaintiff's complaint states that this demotion was "a complete surprise
to plaintiff and an extreme professional humiliation for her." She did
not consider the work she was being offered in Manchester a realistic
option. She asserts that as a result of intolerable working conditions,
she was forced to resign. Plaintiff filed this suit seeking compensation
for damages suffered as a result of the circumstances surrounding her
demotion and subsequent resignation, which she alleges to have been a
constructive discharge. CLD moved for summary judgment on all counts. The
trial court granted the motion, concluding that plaintiff's evidence,
consisting largely of her own deposition, did not establish genuine issues
of material fact and failed to articulate specific acts of wrongdoing by
CLD to support her claims for compensation.
¶ 5. "In reviewing a grant of summary judgment, this Court applies
the same standard as the trial court." Madden v. Omega Optical, Inc., 165
Vt. 306, 309, 683 A.2d 386, 389 (1996). Summary judgment is appropriate
only when the moving party shows that there is no genuine issue of
material fact and that the movant is entitled to judgment as a matter of
law. Bacon v. Lascelles, 165 Vt. 214, 218, 678 A.2d 902, 905 (1996);
V.R.C.P. 56(c). All reasonable doubts and inferences are allowed to the
nonmoving party. Samplid Enters. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996). It is not enough, however, for the nonmoving party
to "rest on allegations in the pleadings to rebut credible documentary
evidence or affidavits." Gore v. Green Mountain Lakes, Inc., 140 Vt. 262,
266, 438 A.2d 373, 375 (1981). "Where the moving party does not bear the
burden of persuasion at trial, it may satisfy its burden of production by
showing the court that there is an absence of evidence in the record to
support the nonmoving party's case. . . . The burden then shifts to the
nonmoving party to persuade the court that there is a triable issue of
fact." Ross v. Times Mirror, Inc., 164 Vt. 13, 18, 665 A.2d 580, 583
(1995) (internal citations omitted). In this action, plaintiff has not
met her burden on any of her claims.
I. Wrongful Termination
¶ 6. Plaintiff's first argument on appeal is that the trial court
improperly dismissed her wrongful termination claim. She contends that
the trial court (1) failed to address the wrongful termination issue as
presented; (2) improperly ignored her constructive discharge claim; and (3)
improperly concluded that evidence failed to demonstrate CLD had a policy
of warning employees when their employment was in jeopardy.
¶ 7. The trial court concluded that plaintiff's wrongful termination
claim could not survive summary judgment because facts alleged by
plaintiff did not show that her employer had failed to provide her with a
warning that she could be fired if she did not modify her conduct. On the
contrary, the concerns raised in her April 2000 performance review and the
meeting with a business consultant provided plaintiff with notice of her
employer's concerns. We agree with the trial court's analysis. In her
brief, plaintiff argues that the trial court mischaracterizes her claim for
wrongful termination by considering only CLD's "obligation to warn
employees in the abstract - absent the context of an impending termination
from employment." Her brief further asserts that "[k]eeping one informed
about an employer's 'concerns over management style' is not the same as
warning an employee that her job is in jeopardy . . . . General
information about management's concern does not constitute a warning."
¶ 8. The undisputed facts in this case show that the company's CEO
did advise plaintiff of her performance inadequacies. Plaintiff had
reasonable warning that her performance was not meeting the company's
needs, and this notice fulfilled any implied contractual obligation they
might have had to provide warning before termination. Given that
plaintiff had been offered an opportunity to try the position as branch
manager over the objection of the company's CEO, and the CEO communicated
to her several times that her management style was still a matter of
concern, any reasonable person would have been on notice that her position
as branch manager was in jeopardy. Plaintiff does not argue that an
implied contractual agreement between her and CLD modified her at-will
employee status, except to the extent that she claims that CLD's
company-wide practices require that managers follow a procedure of warning
employees who are at risk of termination. This is not a situation where
the employee is claiming the company could not fire her except for cause.
The only protection she claims is the right to warning that would give her
an opportunity to correct behaviors that might otherwise lead to her
termination. Although as the nonmoving party in a motion for summary
judgment, plaintiff is entitled to the benefit of the inference that CLD
was under a duty to warn her that her behavior subjected her to a risk of
termination as manager, we agree with the trial court that she was given
such warnings. See In re Towle, 164 Vt. 145, 150, 665 A.2d 55, 60 (1995)
("Knowledge that certain behavior is prohibited and subject to discipline
is notice of the possibility of dismissal.").
¶ 9. Plaintiff also argues that the trial court ignored her argument
that her demotion amounted to a constructive discharge. The trial court
held that it was unnecessary to decide the constructive discharge claim,
because even if plaintiff's demotion was a constructive discharge,
plaintiff does not allege facts that support a cause of action. This
logic is sound.
¶ 10. Constructive discharge "provides a mechanism to avoid the
technical requirement that wrongful discharge be based on
employer-initiated discharge." Balmer v. Hawkeye Steel, 604 N.W.2d 639,
641 (Iowa 2000). Standing alone without an accompanying claim that the
termination was wrongful because of employer's illegal conduct or breach
of an implied contract of employment, an at-will employee's claim for
constructive discharge is not an actionable tort. Starzynski v. Capital
Public Radio, Inc., 105 Cal. Rptr. 2d 525, 530-31 (Cal. Ct. App. 2001);
Krauss v. Catholic Health Initiatives, 66 P.3d 195, 202-03 (Colo. Ct. App.
2003); Balmer, 604 N.W.2d at 641-43. We assume, for purposes of this
claim, that plaintiff accurately characterizes CLD's decision to demote
her as tantamount to discharge. Because we find CLD fulfilled its
obligation to warn her before termination, plaintiff has not shown CLD
behaved wrongfully in discharging her, and therefore plaintiff's
allegations that she was discharged are not actionable.
¶ 11. Plaintiff's final attempt to resurrect her wrongful
termination claim is to argue that the trial court erred in finding that
there was no clearly established practice of warning employees of
impending termination at CLD that could be the basis for plaintiff's
wrongful termination claim. Our review of summary judgment is de novo, so
we are not bound by the trial court's findings. Since in deciding a
summary judgment motion we give every inference to the nonmoving party, we
assume for purposes of this opinion that plaintiff has presented
sufficient evidence that a jury would find CLD was under an implied
contractual obligation to warn employees before terminating their
employment. The existence of an implied contract, however, is irrelevant
in light of our conclusion that CLD fulfilled any obligation it had under
such a contract to provide warning of impending termination.
II. Covenant of Good Faith and Fair Dealing
¶ 12. On appeal, plaintiff argues that if we assume that there was
an implied employment contract between the parties, a covenant of good
faith and fair dealing necessarily applies to the contract. Plaintiff
further argues that the question of whether or not the covenant has been
breached is a question for a jury to decide, citing Carmichael v.
Adirondack Bottled Gas Corp. of Vt., 161 Vt. 200, 208-09, 635 A.2d 1211,
1217 (1993). While we agree that this is usually a question of fact for a
jury, id., the facts alleged by plaintiff in this case do not come close
to providing a basis on which a jury could determine that the covenant of
good faith and fair dealing has been violated. Plaintiff's brief to this
Court does not cite any evidence in the record that could demonstrate that
CLD has violated the "community standards of decency, fairness, or
reasonableness" that the covenant of good faith and fair dealing seeks to
protect. Id. at 208-09, 635 A.2d at 1216 (quoting Restatement (Second) of
Contracts § 205 cmt. A (1981)); Southface Condo. Owners Ass'n v.
Southface Condo. Ass'n, Inc., 169 Vt. 243, 246, 733 A.2d 55, 58 (1999).
¶ 13. Plaintiff asserts the existence of a limited employment
contract protecting her right to warning before termination. This alleged
contract was entirely satisfied. Moreover, nothing in the record suggests
that CLD's executives abused their authority or lacked a reasonable basis
for their actions with respect to plaintiff. Therefore, even if there
were an implied covenant of good faith and fair dealing applying to the
contract, we would also have to conclude that the covenant was not
breached.
III. Gender Discrimination
¶ 14. Plaintiff's third assignment of error is that summary judgment
was not appropriate on plaintiff's claim of gender discrimination, brought
under Vermont's Fair Employment Practices Act (FEPA), 21 V.S.A. § 495.
Plaintiff argues that she has produced enough evidence to reach a jury on
her claim that gender discrimination was a motivating factor in CLD's
decision to demote her. Specifically, she contends that she has produced
evidence that shows she was treated differently from other male managers
who were experiencing performance problems. She further contends that the
trial court relied on hearsay in reaching its conclusion that CLD had met
its burden of producing evidence that there was a legitimate,
nondiscriminatory reason for the termination.
¶ 15. On the basis of the record as a whole, we affirm the trial
court's holding that plaintiff has produced no evidence that could prove
that she was the victim of gender discrimination. In the absence of
direct evidence of unlawful discrimination, which plaintiff has not
adduced, this Court applies the three-step burden-shifting analysis
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973) to FEPA claims. Beckmann v. Edson Hill Manor, Inc., 171 Vt. 607,
608, 764 A.2d 1220, 1222 (2000) (mem.). This framework requires plaintiff
to make an initial showing of circumstantial evidence creating a
presumption of illegal discrimination by the defendant. Human Rights
Comm'n v. LaBrie, Inc., 164 Vt. 237, 244 n.2, 668 A.2d 659, 665 n.2 (1995).
The burden then shifts to the defendant to " 'articulate some legitimate,
nondiscriminatory reason' for the adverse employment action." Hodgdon v.
Mt. Mansfield Co., 160 Vt. 150, 159, 624 A.2d 1122, 1127 (1992) (quoting
McDonnell Douglas, 411 U.S. at 802). If the employer meets this burden of
production, the final stage of the analysis shifts the burden of production
back to plaintiff to prove by a preponderance of the evidence that the
legitimate reasons given by the employer are a pretext for discrimination.
Beckmann, 171 Vt. at 608, 764 A.2d at 1222-23.
¶ 16. Viewing the evidence in the light most favorable to the
nonmoving party, plaintiff has made a prima facie showing of gender
discrimination. She was a qualified female engineer who lost her
managerial position and was replaced by a male manager. "Plaintiff's
burden of proof in the prima facie case is minimal. . . . The Court of
Appeals for the Second Circuit has repeatedly called it 'de minimis.' "
Carpenter v. Cent. Vt. Med. Ctr., 170 Vt. 565, 566, 743 A.2d 592, 595
(1999) (mem.) (internal citations omitted). Once plaintiff made a prima
facie case, CLD had the burden of production to demonstrate that it had
legitimate, nondiscriminatory reasons for removing plaintiff from her
position as branch manager.
¶ 17. The trial court found that CLD has carried this burden of
rebutting the presumption of discrimination. We agree. CLD clearly had
legitimate concerns about plaintiff's performance as manager. Plaintiff
testified that she was aware that CEO Tim Golde doubted her ability to
perform adequately in the managerial position from the beginning. Her
performance review from April of 2000 states that she was "still settling
into the branch manager position" and indicates concerns about her
management style. Two employees from the Norwich office, Thaddeus Luther
and Pat Holt, resigned in May of 2000. Although neither resigned because
of plaintiff's management, Luther stated in his deposition that in his exit
interview with CLD manager Chris Beane, he mentioned the uncomfortable
office environment at Norwich. Luther described the Norwich office
atmosphere as "caustic." Plaintiff does not dispute that she attended a
training session in June of 2000 with Leslie Kagan to learn how to improve
her management style and her ability to work with Golde. In September,
the Norwich office administrator resigned and sent a letter to CLD
management alleging that Boulton treated her badly and created a stressful
office atmosphere. Following receipt of this letter, Golde contacted
Leslie Kagan to consult about the deteriorating conditions in the Norwich
office. In response, Kagan told Golde that plaintiff should be removed
from the branch manager position. At that point, CLD management decided to
demote plaintiff. Plaintiff argues that CLD should have provided her more
support following the office administrator's resignation, talking with
other employees to obtain corroboration of the allegations in the letter
before reaching the decision to demote plaintiff.(FN1) While this is her
opinion on how things should have been handled, CLD has still met its
burden of showing that employees had complained and that it had
legitimate, nondiscriminatory reasons for removing plaintiff from the
branch manager position.
¶ 18. Plaintiff can overcome CLD's evidence of a legitimate,
nondiscriminatory motive by either relying on the facts already presented
or by offering additional evidence that the reasons defendant gave for
demoting her were mere pretext and the real reasons constituted
discrimination on the basis of her gender. Plaintiff argues on appeal
that she presented sufficient additional evidence for a fact-finder to
determine that she had been discriminated against by comparing how CLD
treated her with the treatment CLD accorded similarly situated male
managers who had performance problems. Plaintiff asserts that "she was
treated differently from male executives," who were "given more leeway and
time to correct mistakes." Aside from her own bare allegations, however,
plaintiff does not proffer evidence that could support a determination
that plaintiff was subjected to disparate treatment because of her gender.
¶ 19. To establish circumstances giving rise to an inference of
gender discrimination, a plaintiff may show that she was treated
differently from a similarly situated male employee. Shumway v. United
Parcel Serv., 118 F.3d 60, 63 (2d Cir. 1997). As the trial court found,
plaintiff has not made such a showing in this case. She argues on appeal
that she was treated differently from three male CLD employees: Tom
Sommers, Reuben Hull, and Mark Morin, all of whom were engineers and CLD
executives who had exhibited significant performance issues. Plaintiff
argues that while mistakes were tolerated in the males and they were
provided with opportunities to grow, she was demoted to an untenable
position and effectively discharged.
¶ 20. Plaintiff correctly observes that employees may be similarly
situated even if their positions are not "perfect replicas." Graham v.
Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). Nevertheless, in each
of the situations in which plaintiff claims she was subject to disparate
treatment on the basis of gender, we find that the facts alleged by
plaintiff are insufficient to support her legal claim. To survive summary
judgment, other employees with whom the plaintiff compares herself "must
have a situation sufficiently similar to plaintiff's to support at least a
minimal inference that the difference of treatment may be attributable to
discrimination." McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir.
2001). The facts about CLD's treatment of male managers alleged by
plaintiff do not support a minimal inference that CLD discriminated
against her.
¶ 21. We consider the male employees that plaintiff's appellate
brief emphasizes. Thomas Sommers was formerly CLD's CEO, but was asked to
relinquish that position because he was not meeting performance
expectations. After his resignation, he became a senior vice-president,
which, in Sommers' own words, was a "step down." Rather than supporting
plaintiff's position, the facts that plaintiff enumerates concerning
Sommers suggest that CLD is supportive of executives who have been removed
from upper level positions, and that plaintiff might have been able to
carve out a successful career at CLD if she had relinquished her branch
manager position but remained with the company. Plaintiff asserts that
"[w]hen Thomas Sommers[] stepped down as [CLD's] president, he was
permitted to do so as if it were spontaneous. He was also permitted to
'reinvent' a position for himself. He was not demoted; he became 'senior
vice president.' No such position was offered to [plaintiff]." Plaintiff
feels strongly that the undefined position she was being offered in the
Manchester office was not becoming of her stature in the company; however,
to the extent that plaintiff was not offered a position commensurate with
the senior vice presidency, there is no question that the position of CEO
involves a different level of responsibility and expertise than branch
manager, and that as a result the position that she would be expected to
assume following her demotion would not be at the level of the vice
presidency. On the whole CLD's treatment of plaintiff and Sommers reveals
more similarities than differences: both were removed from top management
positions but asked to remain with the company in different capacities.
If there are differences in treatment, they are explained by their
difference in status within the company.
¶ 22. Reuben Hull's position at CLD closely paralleled plaintiff's:
he serves as branch manager of a satellite office in York, Maine.
Therefore, CLD's treatment of Hull can meaningfully be compared to the
company's treatment of plaintiff, if the weaknesses that the two branch
managers had been exhibiting had been similar in type. Hull's performance
issues have related to particular problems with specific projects and
office profitability. Plaintiff's brief emphasizes that Hull's branch was
unprofitable. CLD did not state, however, that the reason it decided to
demote plaintiff was related to profitability of the Norwich branch
office. In both its letter to plaintiff explaining its decision to demote
her and in testimony offered by the CEO during deposition, CLD emphasized
that its concerns had to do entirely with plaintiff's handling of
personnel issues. Golde's explanation of the reasons that plaintiff was
demoted precisely captures the reason that plaintiff's circumstances
differed from those surrounding Hull. When asked what factors contributed
to the decision to remove plaintiff from management, Golde replied:
The primary factor is the desire on the part of the firm
to create a good working atmosphere in order for individuals
to achieve success . . . . [T]he owners of the firm did not
feel they were living up to that duty in the Norwich office
[and] [t]hat we had not created an atmosphere where people
felt empowered, comfortable in order to achieve that
success, and that was our primary charge. We had tried
different things and we could not allow it to go on any
further.
Golde's statement explains the difference between CLD's treatment of Hull
and its treatment of plaintiff. Nothing in plaintiff's brief suggests
that employees working under Hull had ever complained or that CLD had
reason to doubt Hull's ability to work effectively with others. While
Hull had been criticized by CLD executives on occasion for poor judgment
in project management, CLD had not expressed doubts in Hull's ability to
manage people. In contrast, plaintiff admits that CEO Golde had informed
her when she started as branch manager that he did not think she was
suitable for the position because he felt that plaintiff was
"unapproachable" and "intimidating." Plaintiff knew of Golde's concerns
and failed to adjust her behavior or learn to use a management style that
Golde or the CLD executive staff found acceptable.
¶ 23. Plaintiff's arguments concerning Morin are too sparse to be
considered. She asserts that Golde mentored Mark Morin and Hull and gave
them more tools to be successful. She notes that Morin was a CLD manager
who exhibited performance issues. The record contains no additional
arguments concerning ways in which CLD's treatment of Morin compared with
its treatment of plaintiff. The issue is not adequately briefed and
supported by arguments. See Brigham v. State, 166 Vt. 246, 269, 692 A.2d 384, 398 (1997) (this Court will not undertake search for error where issue
is not adequately briefed and supported by arguments).
¶ 24. Even taking the facts as alleged by plaintiff, we find that
she has failed to demonstrate that she was treated differently from the
male executives with whom she compares herself. The trial court did not
err in rejecting plaintiff's argument that she had alleged facts that
could support her allegation of disparate treatment on account of her
gender.
¶ 25. Finally, plaintiff contends that the trial court improperly
based its decision on inadmissible hearsay evidence. The evidence that
plaintiff challenges consisted of (1) testimony that CLD management heard
that engineers Luther and Holt resigned their positions at least in part
because of plaintiff's management style, and (2) testimony that management
heard from Norwich branch office employees that there were indications of
improvement in the office in the spring and then the situation became
worse. Because we are reviewing a trial court's decision to grant summary
judgment, our review is de novo. Even if we were to agree with plaintiff
that the trial court improperly relied on evidence that was not
admissible, we could find on the basis of other admissible evidence in the
record that CLD had met its burden of production. Ross, 164 Vt. at 19,
665 A.2d at 583 (Supreme Court is not bound by reasoning of trial court).
¶ 26. Testimony regarding what CLD knew about the reasons that
Luther and Holt resigned and the situation in the Norwich office concerns
CLD management's state of mind at the time management decided to demote
plaintiff. Vermont Rule of Evidence 801(c) defines hearsay as "a
statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter
asserted." Here, defendant's assertions about the resignations and the
problems with the office were not offered to prove the truth of the
matters asserted. Such statements are not hearsay because they were
offered for the limited purpose of showing why CLD decided to relieve
plaintiff of her branch manager responsibilities, not to prove why, in
fact, Luther and Holt had resigned. State v. Beattie, 157 Vt. 162, 167,
596 A.2d 919, 922 (1991) (" 'When it is proved that D made a statement to
X, with the purpose of showing the probable state of mind thereby induced
in X, . . . the evidence is not subject to attack as hearsay.' ") (quoting
C. McCormick, McCormick on Evidence § 249, at 733-34 (E. Cleary 3d ed.
1984)).
¶ 27. While finding that such evidence is not inadmissible hearsay,
we sounded a note of caution in Beattie, approving the trial court's
efforts to limit use of evidence of state of mind because of the risk that
the jury would use it as proof of the matter asserted. Id. This cause
for cautious handling of state-of-mind evidence is equally present when a
judge is considering a motion for summary judgment. We have held that
"[c]ourts should be cautious in granting motions for summary judgment in
any cases in which the resolution of the dispositive issue requires
determination of state of mind, as the fact finder normally should be
given the opportunity to make a determination of the credibility of
witnesses, and the demeanor of the witness whose state of mind is at
issue." Barbagallo v. Gregory, 150 Vt. 653, 653, 553 A.2d 151, 151 (1988)
(mem.). Given our reluctance to rely on this type of evidence, we agree
with plaintiff that the trial court decision depends too heavily upon
testimony concerning management's understanding of the reasons for the
resignations and office morale, even though the contested testimony is not
hearsay. Nonetheless, the nature of plaintiff's claim greatly reduces the
risk of improper reliance on state-of-mind evidence.
¶ 28. As we discussed above, plaintiff's employment discrimination
claim is based on her allegation that "she was treated differently from
male executives," who were "given more leeway and time to correct their
mistakes." Accordingly, her claim does not turn on a factual dispute
about whether or not she was having problems maintaining the type of
office environment CLD expected, or whether CLD was justified in believing
that plaintiff's management style contributed to the causes of Luther and
Holt's resignation. The state-of-mind evidence referenced above is
immaterial to the disparate treatment argument that is the crux of her
claim.
¶ 29. Moreover, as the trial court noted, plaintiff did not
controvert key assertions contained in CLD's Rule 56(c)(2) statements of
undisputed facts. Within its statement, CLD clearly enumerated other,
nonhearsay, record facts, discussed above, that showed how plaintiff's
management "mistakes" were partially responsible for numerous personnel
issues in the Norwich office, including the resignation of at least one
other employee in addition to Luther and Holt. Furthermore, plaintiff's
own deposition testimony, even when viewed in the light most favorable to
her, indicates that she was making managerial "mistakes." Therefore, as a
matter of law, defendant had met its burden of production without the
controverted state-of-mind evidence. See V.R.C.P. 56(c)(2) (material
facts set forth in moving party's statement of undisputed facts are deemed
admitted unless controverted by nonmoving party's statement of undisputed
facts); see also Richart v. Jackson, 171 Vt. 94, 97 (2000) (facts in
moving party's statement deemed undisputed when supported by the record
and not controverted by nonmoving party's statement).
IV. Intentional Infliction of Emotional Distress
¶ 30. Plaintiff's final argument on appeal is that the trial court
erroneously concluded that CLD's conduct did not rise to the level of
extreme and outrageous conduct. She cites Crump v. P & C Food Mkts., 154
Vt. 284, 296-97, 576 A.2d 441, 448-49 (1990) as support for her argument,
alleging that the treatment that she was subjected to compared in severity
and oppressiveness to the abusive behavior that this Court found
actionable in Crump.
¶ 31. To establish a claim for intentional infliction of emotional
distress, "plaintiff must demonstrate " 'outrageous conduct, done
intentionally or with reckless disregard of the probability of causing
emotional distress, resulting in the suffering of extreme emotional
distress, actually or proximately caused by the outrageous conduct.' " Id.
at 296, 576 A.2d at 448 (quoting Birkenhead v. Coombs, 143 Vt. 167,
174-75, 465 A.2d 244, 247 (1983)). Plaintiff fails to identify any
behavior by her employer that could meet the legal standard for
outrageousness. Crump can be distinguished because the employer in that
case accused Crump of product theft, interrogated him for hours without a
break, and then fired him. Id. at 296-97, 576 A.2d at 448-49. Here,
plaintiff does not allege that CLD interrogated her, accused her of
illegal behavior, or otherwise handled her demotion in an outrageous
manner. Instead, she was simply informed that she was being removed from
the branch manager position. The demotion of an employee "under
suspicious circumstances for reasons that do not stand up under scrutiny"
does not support a claim for intentional infliction of emotional distress.
Baldwin v. Upper Valley Servs., Inc.,162 Vt. 51, 56-57, 644 A.2d 316,
318-19 (1994) (citing Staples v. Bangor Hydro-Electric Co., 561 A.2d 499,
501 (Me. 1989) (humiliation at staff meetings and demotion without cause
fell short of conduct that exceeds "all possible bounds of decency" and
that must be regarded as "atrocious and utterly intolerable in a civilized
community")). There was no error in granting defendant's motion for
summary judgment.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Plaintiff's pleadings refer to the resigned assistant as "the
subordinate" and in her deposition and pleadings plaintiff describes the
"subordinate" as a "destructive force who created bad feelings and
problems in the branch office." Plaintiff further asserts that during the
episode, CLD "[m]anagement failed to support her when she was severely
criticized by an unruly subordinate."
18
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