Adams v. Green Mountain Railroad Co.

Adams v. Green Mountain Railroad Co. (2003-026); 177 Vt. 521; 862 A.2d 233

2004 VT 75

[Filed 18-Aug-2004]

                                 ENTRY ORDER

                                 2004 VT 75

                      SUPREME COURT DOCKET NO. 2003-026

                             JANUARY TERM, 2004

  Barbara J. Adams	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Windham Superior Court
                                       }	
  Green Mountain Railroad Company      }
                                       }	DOCKET NO. 294-6-01 Wmcv

                                                Trial Judge: Richard W. Norton
                                                             John P. Wesley

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

       ¶  1.  Defendant Green Mountain Railroad Company appeals from a jury
  verdict in favor of plaintiff Barbara Adams on her claim that defendant
  violated public policy by firing her for reporting that a supervisor had
  grabbed her arm during a verbal confrontation.  We conclude that the
  superior court erred by not granting defendant's motion for judgment as a
  matter of law because plaintiff failed to sustain her burden of proving
  that defendant fired her for the reason she alleged rather than for the
  reasons asserted by the company.  Accordingly, we vacate the jury's verdict
  and remand the matter for the court to enter judgment in favor of
  defendant.
   
       ¶  2.  In reviewing the denial of a motion for judgment as a matter
  of law, we view the evidence in a light most favorable to the nonmoving
  party, and we exclude the effects of any modifying evidence.  Gero v.
  J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000).  Defendant hired
  plaintiff in 1988 to manage its passenger department.  Except for the first
  six months of 2000 when she shared those duties with another employee,
  plaintiff held that position until she was fired in October 2000.  She was
  not hired under a written contract and performed her job through the years
  as an at-will employee.  Defendant came under new ownership in 1997. 
  Plaintiff had problems adjusting to the new ownership, and she was involved
  in conflicts with several other employees, including Brent Brewer, who was
  two levels of command above her in the company.  On Thursday morning,
  October 5, 2000, an employee of defendant asked Brewer to move his car so
  that a tourist bus could pull up into the spot.  Suspecting that plaintiff
  had told the employee to ask him to move the car, Brewer came into
  plaintiff's office and asked her why it was necessary to do so.  After
  complaining that buses normally do not park in the spot where he had
  parked, Brewer moved the car.  As he was heading back to his office,
  plaintiff tried to get his attention to point out a sign for bus parking. 
  An argument ensued, and Brewer asked plaintiff to move the discussion away
  from passengers and other members of the public.  When the subject of the
  argument switched from parking to plaintiff's job performance, plaintiff
  announced that she had had enough and turned to leave.  According to
  plaintiff, Brewer grabbed her arm just below her shoulder to turn her
  around and continue the discussion.  Plaintiff told Brewer not to ever
  touch her again, and left for her office, where she called her immediate
  supervisor, Douglas Lamoureux, to report her confrontation with Brewer. 
  Brewer also reported the incident.

       ¶  3.  On instructions from the company president, David Wulfson,
  Lamoureux told both plaintiff and Brewer to go home for the day.  The
  following day, Friday, October 6, Wulfson had a long-term employee, Charles
  Bischoff, conduct an investigation of the incident.  Bischoff took
  statements from each of the principals to the incident, and had them review
  and sign the statements.  He then reported to Wulfson, who concluded that,
  although Brewer had acted improperly in touching plaintiff, plaintiff had
  been the catalyst in this latest confrontation between the two.  Wulfson
  gave Brewer a written warning.  On Monday, October 9, he met with plaintiff
  and told her that her services were no longer needed.  He offered her a
  $10,000 severance check if she would sign a confidentiality agreement and a
  release in which she agreed not to sue the company.  She indicated that she
  wanted to think it over.  In the end, plaintiff neither accepted the check
  nor signed the documents.

       ¶  4.  In June 2001, plaintiff filed a two-count complaint against
  defendant, alleging age discrimination and wrongful discharge in violation
  of public policy.  Eventually, plaintiff withdrew her claim of age
  discrimination, and defendant moved for summary judgment with respect to
  the wrongful discharge claim.  The superior court denied the motion, ruling
  that (1) public policy is implicated when an employer discharges an
  employee for complaining about physical abuse by a supervisor; and (2)
  viewing the evidence most favorably to plaintiff, a jury could infer from
  the timing of the termination that defendant fired plaintiff in retaliation
  for complaining that her supervisor had grabbed her.  Following a three-day
  jury trial in October 2002, the jury awarded plaintiff $42,350 based upon
  its determination that defendant fired her solely or primarily because she
  reported that her supervisor had touched her.  The superior court denied
  defendant's renewed motion for judgment as a matter of law, and this appeal
  ensued.  On appeal, defendant argues that (1) the trial court erred in
  determining that plaintiff had engaged in an activity protected by public
  policy; (2) plaintiff failed to establish a causal nexus between her
  termination and the alleged protected activity; and (3) on the evidence
  presented at trial, no reasonable jury could have concluded that defendant
  fired plaintiff solely or primarily because she reported the October 5
  incident to her supervisor.
   
       ¶  5.  In Vermont, at-will employees such as plaintiff "may be
  discharged at any time with or without cause, 'unless there is a clear and
  compelling public policy against the reason advanced for the discharge.'"
  Payne v. Rozendaal, 147 Vt. 488, 491, 520 A.2d 586, 588 (1986) (quoting
  Jones v. Keogh, 137 Vt. 562, 564, 409 A.2d 581, 582 (1979)).  In Payne, we
  rejected the notion "that the public policy exception to at will employment
  contracts must be legislatively defined."  Id. at 493, 520 A.2d  at 589. 
  Rather, we defined public policy as "'the community common sense and common
  conscience, extended and applied throughout the state to matters of public
  morals, public health, public safety, public welfare, and the like,'" and
  we indicated that when an employer's course of conduct with regard to an
  at-will employee "'is cruel or shocking to the average [person's]
  conception of justice,'" such conduct must be considered contrary to public
  policy even if the policy is not explicitly set forth in our written laws. 
  Id. at 492-93, 520 A.2d  at 588 (quoting Pittsburgh, Cincinnati, Chicago &
  St. Louis Ry. v. Kinney, 115 N.E. 505, 507 (Ohio 1916)).  We held in Payne
  that firing an employee solely on the basis of age violated public policy. 
  Id. at 494, 520 A.2d  at 590.  In later cases, however, we held that
  employers were entitled to judgment as a matter of law on claims alleging
  that the employer violated public policy (1) by firing an employee for
  refusing to sign a potentially unenforceable noncompetition agreement,
  Madden v. Omega Optical, Inc., 165 Vt. 306, 313-14, 683 A.2d 386, 391
  (1996), and (2) by firing an employee for administering medication in a
  manner that the employee thought was proper but that violated the
  employer's policy, Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74,
  82, 807 A.2d 390, 397 (2002).

       ¶  6.  In this case, the trial court struggled with the issue of
  whether the jury should be allowed to decide if the underlying physical
  contact by Brewer was significant enough to implicate public policy, (FN1)
  but ultimately concluded, as a matter of law, that firing an employee for
  reporting any unconsented touching warranted instructing the jury on a
  claim of retaliatory discharge in violation of public policy.  Moreover,
  the court denied defendant's motions for directed verdict and judgment as a
  matter of law, ruling that the jury could find for plaintiff based on
  evidence that (1) Brewer touched plaintiff without her consent; (2) she
  reported the incident; and (3) she was fired a mere four days after
  reporting the incident.  According to the court, evidence of plaintiff's
  contributions to the company countered other evidence of employment-related
  problems she had had, and evidence concerning the manner in which defendant
  investigated her complaint was consistent with her argument that the
  reasons advanced for her termination were merely a pretext.

       ¶  7.  The court instructed the jury that plaintiff was entitled to
  judgment on her claim of retaliatory discharge in violation of public
  policy if she proved by a preponderance of the evidence that (1) she was
  engaged in an activity protected by public policy; (2) defendant knew of
  the protected activity; (3) defendant fired her; and (4) the sole or
  principal reason for her discharge was that she had engaged in the
  protected activity.  Cf. Robertson v. Mylan Lab., Inc., 2004 VT 15,  ¶
  42, 848 A.2d 310 (setting forth elements for establishing prima facie case
  of wrongful retaliatory discharge).  As to the first element, the court
  charged the jury that reporting an unconsented touching by a supervisor is,
  as a matter of law, a legally protected activity.  Because there was no
  dispute that defendant knew plaintiff had reported the unconsented touching
  and that defendant had fired plaintiff, the only real question for the jury
  was whether plaintiff had proved that defendant's proffered reasons for her
  discharge were a pretext, and that instead she had been fired for engaging
  in a protected activity.  Accordingly, the jury's special verdict form
  asked the jurors to determine whether defendant fired plaintiff solely or
  primarily because she reported that her supervisor had touched her, or
  solely or primarily for the business reasons stated by the company.  The
  form instructed the jury to enter judgment for plaintiff if it found the
  former.     
   
       ¶  8.  Because we conclude that the evidence, even when viewed most
  favorably from plaintiff's perspective, does not support the jury's
  conclusion that defendant fired plaintiff solely or primarily because she
  reported that her supervisor had grabbed her, we need not address
  defendant's argument that the facts of this case did not warrant a jury
  instruction on plaintiff's claim of wrongful discharge in violation of
  public policy.  The causation element of plaintiff's cause of action
  required plaintiff to prove by a preponderance of the evidence that she was
  fired for conduct linked to the violation of public policy, and not for
  some other reason.  2 H. Perritt, Jr., Employee Dismissal Law and Practice
  § 7.21, at 54 (4th ed. 1998).  When, as here, the employer meets its burden
  of proffering a legitimate reason for the dismissal, "the employee may win
  only by showing that the proffered reason was a pretext."  Id. § 7.22, at
  58; see Robertson, 2004 VT 15, at  ¶ 42 ("If the defendant carries this
  burden of production, the plaintiff must then demonstrate that the
  defendant's reasons are pretext for retaliatory discrimination."). 

       ¶  9.  Plaintiff's principal basis for claiming that defendant fired
  her for reporting the unwanted touching rather than for insubordination, as
  the company claimed, was the timing of the discharge - just four days after
  the incident occurred and was reported to her supervisor.  "An employer's
  unlawful motive may be inferred from the circumstances where no direct
  evidence of the employer's intent exists in the record."  Rosenberg v
  .Vermont State Colleges, 2004 VT 42,  ¶ 11, 15 Vt. L.W. 177.. 
  Nevertheless, when a plaintiff relies on the timing of an adverse
  employment decision to show improper motive, the record must support an
  inference that the timing is suspect.  Id. ¶ 12.  There must be some
  evidence other than chronology that gives the factfinder reason to believe
  that the timing is an indication of improper motive.  See id.;see also
  Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 302 (Iowa 1998)
  (mere fact that adverse employment decision occurred after protected
  activity is not, standing alone, sufficient to support finding that
  decision was in retaliation for engaging in protected activity).  For
  example, in In re McCort, 162 Vt. 481, 495, 650 A.2d 504, 512-13 (1994),
  the adverse employment decision came one day after the employee's protected
  activity and lacked a reasonable, non-retaliatory basis.  In another case,
  the suspicious timing of the adverse employment decision was supported by
  evidence that the plaintiff's supervisor had expressed anger and
  frustration over the plaintiff's decision to apply for workers'
  compensation benefits, and that other employees of defendant's had tried to
  persuade the plaintiff to drop his appeal of the initial denial of his
  benefits.  See Murray v. St. Michael's College, 164 Vt. 205, 211, 667 A.2d 294, ___ (1995).

       ¶  10.  Here, plaintiff presented virtually no evidence linking her
  termination to her reporting the confrontation with Brewer.  Indeed, she
  testified on cross-examination that the timing of her termination was the
  only factor she could think of suggesting that defendant was retaliating
  for her having reported the incident.  She was unable to demonstrate how
  the timing of her termination was suspicious, however, given that the
  incident and the reporting of the incident occurred on the same day.  The
  evidence was undisputed that plaintiff had been in several conflicts with
  persons whom she perceived were encroaching on her authority.  Plaintiff
  had received a written warning in February 2000 concerning her job
  performance, had been sent home for three days in May 2000 after she
  refused to do something for another employee, was warned in June 2000
  before she resumed control of the passenger department that she had two
  strikes against her and had only one more chance to make things work, was
  reprimanded again in September 2000 for not following up on a group
  reservation, and finally was fired on October 9, four days after engaging
  in a heated argument with her supervisor in public.  Given this evidence,
  plaintiff's termination four days after the incident occurred is consistent
  with defendant's claim of insubordination.  Cf. Robertson, 2004 VT 15, at 
  ¶ 35 (plaintiff's evidence was entirely consistent with employer's stated
  reason for employment decision and did not raise inference of pretext).
        
       ¶  11.  Other than her assertion about timing, at trial plaintiff
  attacked defendant's proffered reasons for firing her by trying to show
  that her prior insubordinate conduct was insubstantial and the prior
  warnings were unwarranted.  The evidence was undisputed, however, that the
  incidents did occur, and that plaintiff was warned and reprimanded - before
  she reported her confrontation with Brewer.  The warnings and reprimands
  could not have been a pretext for terminating plaintiff for reporting an
  incident that had not yet occurred.  Further, plaintiff's evidence
  challenging the significance of her prior conduct and defendant's prior
  warnings could not overcome defendant's claim, which was supported by the
  evidence, that plaintiff was fired for engaging in a public confrontation
  with a company employee after having received prior warnings.  Absent an
  explicit or implied contractual provision limiting the employer's right to
  discharge,  neither the trial court nor the jury is entitled to usurp the
  role of the employer by determining the weight to be given to the various
  incidents that preceded plaintiff's termination.  See id. (courts may not
  act as super-personnel departments second-guessing employer's
  nondiscriminatory business decisions, regardless of their wisdom).

       ¶  12.  In short, plaintiff was left with the possible inference
  that, but for her reporting an unwanted touching, the company would not
  have fired her because it had endured a number of other past incidents
  involving her without firing her.  In this case, however, the inference was
  too weak to support the jury's verdict that she was fired primarily for
  reporting the incident, as opposed to being fired for the incident itself. 
  Indeed, plaintiff has not suggested either at trial or on appeal any motive
  the employer might have had to fire her for reporting the October 5
  incident to her supervisor.  By all accounts, the company responded
  immediately to plaintiff's internal report of the incident.  Further, the
  relatively minor physical contact between Brewer and plaintiff made it
  highly unlikely that defendant would suffer negative repercussions in the
  event that the conduct was reported outside the company.

       ¶  13.  Plaintiff contends on appeal, however, that other evidence
  suggests she was fired for reporting her confrontation with Brewer.  For
  example, she argues that her employer's improper motive could be inferred
  from the fact that Wulfson offered her a $10,000 severance check if she
  would sign a general release precluding her from suing the company. 
  Wulfson testified that because plaintiff had worked for the company for
  twelve years, he wanted to give her enough severance pay to allow her time
  to find another job.  He also stated that requiring employees to sign
  general releases in situations like this was standard procedure.  The
  evidence was undisputed that plaintiff had threatened Brewer with a sexual
  harassment suit and had told Lamoureux that if the company was going to get
  rid of her, she would bring them all down.  It is hardly surprising that,
  in an employment termination situation such as this, the employer would
  seek to protect itself as a matter of course, notwithstanding its actual
  liability, and further would offer the employee severance pay as
  consideration for signing the release.  A reasonable factfinder could not
  view the company's conduct as an admission of wrongdoing in the context of
  this case. 

       ¶  14.  Plaintiff also makes much of the fact that Brewer faxed
  documents concerning her performance problems to company headquarters
  between the date of the incident and the date she was fired.  Apparently,
  she is suggesting that defendant trumped up the performance problems after
  the fact to bolster its claim that she was fired for reasons having to do
  with job performance.  As noted, however, the evidence was undisputed that
  plaintiff had job performance problems and that she received warnings and
  reprimands as the result of those problems.  Hence, defendant's interest in
  documenting and summarizing plaintiff's past performance problems does not
  demonstrate that  Wulfson's stated reason for firing plaintiff - the
  October 5 incident was the last straw in a series of performance problems -
  was a pretext.  If anything, it suggests the opposite - that the company
  wanted to review the previous incidents to determine the appropriate course
  of action.
   
       ¶  15.  Nor do we think that a reasonable factfinder could infer an
  improper motive, as plaintiff suggests, from the fact that defendant gave
  plaintiff a performance rating one year after she sued the company; or that
  plaintiff was allowed to take over the passenger department again only two
  weeks after she had been sent home for not cooperating with another
  employee. First, defendant's post hoc performance rating might be probative
  of pretext if there were no other evidence of performance problems, but
  that is not the case here.  In view of the pre-existing personnel records,
  the belated performance evaluation is irrelevant.  Second, plaintiff did
  not challenge defendant's explanation that it allowed her to take over the
  passenger department again because the person who had been doing the job
  did not want to work with her anymore, and defendant needed someone with
  experience to do the job as the high season started.  The previous
  three-day suspension had been based on plaintiff's unwillingness to
  cooperate with a fellow employee, not with her inability to run the
  passenger department.  In any event, the evidence demonstrated that at the
  time defendant gave plaintiff control over the department, she was warned
  that this would be her last chance to make things work.  Finally, we infer
  no unlawful motive from the fact that Wulfson did not call plaintiff
  directly after the October 5 incident and gave Brewer only a warning for
  his role in the incident.

       ¶  16.  In sum, although we must be extremely cautious about granting
  judgment as a matter of law when resolution of the dispositive issue
  requires a determination of someone's state of mind, see Doe v. Forrest,
  2004 VT 37, ¶ 56, 15 Vt. L.W. 125, we conclude that, based on the
  evidence presented at trial, plaintiff failed to meet her burden of
  demonstrating that defendant fired her for reporting her confrontation with
  Brewer rather than for the reasons stated by the company.

       Reversed and remanded for the superior court to enter judgment for
  defendant.


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice


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


FN1.  At trial, plaintiff testified that Brewer grabbed her just below the
  shoulder and forcefully turned her around, and that she was fearful because
  she did not know what he was going to do next.  In her contemporaneous
  report of the incident, however, she told the company investigator that
  Brewer grabbed her arm lightly just to turn her, and that one of his
  fingers got caught up in the fold of her shirt.  For his part, Brewer
  acknowledged that he should never have touched plaintiff, but claimed that
  he merely touched her on the shoulder to get her attention.