Graham v. Springfield Vermont School District

Graham v. Springfield Vermont School District (2004-087); 178 Vt. 515;
872 A.2d 351

2005 VT 32

[Filed 15-Mar-2005]

                                 ENTRY ORDER

                                 2005 VT 32

                      SUPREME COURT DOCKET NO. 2004-087

                             OCTOBER TERM, 2004


  Keith Graham	                       }	APPEALED FROM:
                                       }
                                       }			
       v.	                       }	Windsor Superior Court
                                       }	
  Springfield Vermont School District  }
                                       }	DOCKET NO. 410-9-01 Wrcv

                                                Trial Judge: Mary Miles Teachout

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

       ¶  1.  Defendant Springfield Vermont School District appeals a jury
  verdict in favor of plaintiff Keith Graham, a maintenance worker who
  claimed that the District fired him because of his speech-related union
  activities, in violation of the federal and state constitutions.  We
  conclude that the superior court erred by not considering the District's
  arguments that Graham had no direct cause of action for damages under the
  United States or Vermont Constitution, which should have resulted in
  dismissal of Graham's claims.  Accordingly, we vacate the jury verdict in
  favor of Graham and enter judgment in favor of the District.

       ¶  2.  This case commenced after the District terminated Graham's
  employment in April 2001 because he allegedly misappropriated school
  equipment and then was not forthcoming about what happened with the
  equipment.  Graham had worked for the District for more than twenty-five
  years at the time of his termination.  He filed a lawsuit in August 2001,
  alleging that the District fired him because of his age and in retaliation
  for union activities that he had engaged in over the years.  In October
  2001, the trial court entered a scheduling order requiring the parties to
  file all pretrial dispositive motions by July 15, 2002.  Shortly before
  that deadline, the District filed a motion for summary judgment.  In
  September 2002, the trial court granted the District's motion with respect
  to all of Graham's claims except for his claim brought directly under the
  federal and state constitutions alleging that the District fired him
  because of his free speech activities.  The court declined to dismiss that
  claim due to the lack of briefing on whether Graham's union activities
  implicated constitutional issues.  A May 2003 trial on that claim resulted
  in a hung jury.
   
       ¶  3.  On August 18, 2003, two new attorneys replaced the District's
  previous counsel.  Approximately one week later, a second trial was
  scheduled to begin on September 22, 2003 before a new judge and jury.  On
  September 2, the District filed a motion to amend its answer to assert
  additional affirmative defenses.  Specifically, the District asserted that
  (1) Graham could not bring a damages action for violation of free speech
  rights directly under the United States Constitution because of the
  availability of a federal statutory remedy, 42 U.S.C. § 1983; (2) Graham
  had no right of action based on the Vermont Constitution's free speech
  clause because of the availability of a state statutory remedy, the Vermont
  Municipal Labor Relations Act, 21 V.S.A. §§ 1721-1735; and (3) the District
  had not waived its defense of sovereign immunity.  Graham opposed the
  District's motion to amend, arguing that the new defenses were futile.  The
  trial court denied the District's motion, stating that the new defenses did
  not challenge the court's subject matter jurisdiction, and that they should
  have been raised earlier.  The court indicated that it was not inclined to
  allow new legal theories after the first trial had ended.

       ¶  4.  The second trial began on September 22 and lasted four days. 
  At the close of Graham's case, the District moved for judgment as a matter
  of law on the same grounds that it had raised in its motion to amend.  The
  court denied that motion, as well as the District's motion for judgment as
  a matter of law filed at the close of all evidence.  The jury returned a
  verdict in favor of Graham and awarded him $257,728.  In response to the
  District's renewed motion for judgment as a matter of law and, in the
  alternative, its request for a remittitur, the court ruled that the
  evidence supported the jury's award, and that the District's attempt to
  raise new legal issues less than three weeks before commencement of the
  second trial prejudiced both the court and Graham by not allowing him
  sufficient time to prepare.  On  appeal, the District argues that the trial
  court erred (1) by refusing to allow it to raise additional affirmative
  defenses before the second trial even though those defenses would have
  precluded Graham's claims and there was no showing of prejudice; (2) by
  finding sufficient evidence of a constitutional violation even though
  Graham's alleged speech related primarily to internal workplace matters
  rather than issues of public concern and there was no evidence that
  Graham's termination resulted from his speech or union activities; and (3)
  by refusing to grant a remittitur even though the jury failed to reduce
  Graham's future losses to present value, as the trial court had instructed
  it to do.
        
       ¶  5.  We find little evidence in the record demonstrating either
  that Graham engaged in constitutionally protected speech activities
  involving a public concern or that his speech was a motivating factor in
  the District's decision to fire him.  We need not address these issues,
  however, because we conclude that Graham did not have a direct cause of
  action under either the United States or Vermont Constitution, and that the
  trial court should have dismissed Graham's remaining claims on that basis. 
  Both the District, in its motion to amend, and the court, in its ruling on
  that motion, treated the District's new defenses as affirmative defenses
  that had to have been raised in the District's answer to Graham's
  complaint.  None of the defenses raised by the District's new attorneys
  following the first trial, however, is one of the affirmative defenses
  explicitly set forth in V.R.C.P. 8(c).  While the list in Rule 8 is not
  exclusive, the defenses raised by the District's new attorneys challenged
  the sufficiency of the pleadings, essentially alleging a failure to state a
  claim upon which relief may be granted.  See V.R.C.P. 12(b)(6).  Motions
  under rule 12(b)(6) may be made "by motion for judgment on the pleadings
  [under V.R.C.P. 12(c)], or at the trial on the merits."  V.R.C.P. 12(h)(2);
  5C C. Wright & A. Miller, Federal Practice and Procedure § 1367, at 216
  (3d. ed. 2004) ("The Rule 12(c) motion may be employed by the defendant as
  a vehicle for raising several of the defenses enumerated in Rule 12(b)
  after the close of the pleadings.").  "In this context, Rule 12(c) is
  merely serving as an auxiliary or supplementary procedural device to
  determine the sufficiency of the case before proceeding any further and
  investing additional resources in it."  C. Wright & A. Miller, supra, at
  217.

       ¶  6.  To be sure, a motion for judgment on the pleadings should
  be made promptly after the close of pleadings so as not to delay the trial,
  see V.R.C.P. 12(c), but "if it seems clear that the motion may effectively
  dispose of the case on the pleadings, the . . . court should permit it
  regardless of any possible delay consideration of the motion may cause." 
  C. Wright & A. Miller, supra, at 216.  By the same token, with respect to a
  motion to amend, "V.R.C.P. 15 directs the trial court to consider not
  whether the amendment raises a new cause of action but 'whether the just
  and expeditious disposition of the controversy between the parties will be
  advanced by permitting the amendment.' " Perkins v. Windsor Hosp. Corp.,
  142 Vt. 305, 313, 455 A.2d 810, 815 (1982) (quoting 1A Barron & A.
  Holtzoff, Federal Practice Procedure § 448, at 753 (C. Wright ed. 1960));
  see Bevins v. King, 143 Vt. 252, 254-55, 465 A.2d 282, 283 (1983) ("When
  there is no prejudice to the objecting party, and when the proposed
  amendment is not obviously frivolous nor made as a dilatory maneuver in bad
  faith, it is an abuse of discretion to deny the motion [to amend].").

       ¶  7.  In this case, the District's new attorneys were not
  foreclosed from raising previously unaddressed legal theories to defend
  against Graham's claims before the start of the second trial.  Nor did
  Graham even assert that he would be prejudiced by the District raising
  those defenses, which did not concern any additional facts; indeed, Graham
  argued only that the new legal defenses were futile.  The District
  reasserted the new defenses in motions before, during, and after the second
  trial, essentially seeking judgment based upon Graham's failure to state a
  claim upon which relief may be granted.  See V.R.C.P. 50(a)(1), (b) (during
  jury trial, court may grant judgment as matter of law with respect to claim
  or defense that cannot be maintained under controlling law; if motion for
  judgement as matter of law is renewed after entry of judgment, issue is
  preserved for appellate review).  The superior court erred by not
  considering the District's new legal theories, which directly challenged
  the viability of Graham's remaining claims against the District. (FN1)
   
       ¶  8.  Had the superior court considered the new defenses, it would
  have been compelled to dismiss Graham's remaining claims.  See 5B C. Wright
  & A. Miller, Federal Practice and Procedure § 1357, at 415 (3d ed. 2004)
  ("Since the motion to dismiss under subdivision (6) raises only an issue of
  law, the court has no discretion as to whether to dismiss a complaint that
  it determines is formally or substantively insufficient.").  Regarding
  Graham's claim for damages under the United States Constitution, "[c]ourts
  have shown a great reluctance to exercise judicial power to imply a damage
  remedy directly under the constitution when Congress has created an
  alternative remedy, even when limitations in the statutory remedy make it
  unavailable to the plaintiffs seeking relief."  Sabia v. State, 164 Vt.
  293, 311, 669 A.2d 1187, 1199 (1995).  Although 42 U.S.C. § 1983 has
  several limitations, it "provides a damage remedy to redress injuries
  resulting from violations of federal statutory or constitutional rights
  under color of state law."  Id. at 310, 669 A.2d  at 1198.  Graham
  acknowledges his failure to plead § 1983, but argues that his claims
  encompassed the statutory provision, even if it was not specifically pled. 
  According to Graham, he is entitled to relief under the principle that a
  judgment will be upheld if supported by any legal ground justifying the
  result, even when that ground is different from the ground relied upon by
  the trial court and parties.  See Richards v. Union High School Dist. No.
  32, 137 Vt. 132, 134, 400 A.2d 987, 989 (1979).

       ¶  9.  This argument has no merit.  By failing to plead § 1983,
  Graham prevented the District from raising any defenses that may have been
  available because of § 1983's limitations.  Thus, whatever potential
  defenses the District may have had were not considered at trial.  We will
  not presume that Graham could have overcome those defenses in the event he
  had pled the statutory remedy.  Because of the availability of the
  statutory remedy, no direct action for damages under the United States
  Constitution was available to Graham.

       ¶  10.  Regarding Graham's claims for damages under the Vermont
  Constitution, we have held that when the Legislature has provided a
  reasonably adequate remedy, even if it is not as effective for the
  plaintiff as money damages, "we will ordinarily defer to the statutory
  remedy and refuse to supplement it" by implying a damages remedy to enforce
  state constitutional rights directly under the Vermont Constitution. 
  Shields v. Gerhart, 163 Vt. 219, 234-35, 658 A.2d 924, 935 (1995).  In
  Shields, we held that the plaintiff could not pursue an action for damages
  directly under the Vermont Constitution because she failed to avail herself
  of the administrative remedy available to her, specifically a hearing
  before the Human Services Board to adjudicate her claim that a state agency
  had retaliated against her for engaging in her right to free speech.  Id.
  at 236, 658 A.2d  at 935.  As support for our holding, we compared a prior
  case in which a state employee had brought a similar retaliation claim in
  an employment context before the Vermont Labor Relations Board.  Id.
  (citing In re Morrissey, 149 Vt. 1, 14-19, 538 A.2d 678, 686-89 (1987)). 
  Like the plaintiffs in Shields and Morrissey, Graham had available to him
  an administrative remedy for his retaliation claim.  As a municipal
  employee, Graham could have brought an unfair labor practice claim under
  the Vermont Municipal Labor Relations Act, 21 V.S.A. §§ 1721-1729.
        
       ¶  11.  One of the purposes of the Act is to protect the rights of
  employees to participate in employee organizations and to provide
  procedures for preventing both employers and employees from interfering
  with each other's legitimate rights.  Id. § 1721.  The Act makes it an
  unfair labor practice for an employer to discriminate based on union
  membership with respect to hiring or tenure of employment, id. §
  1726(a)(3), and "[t]o penalize a person for exercising a right guaranteed
  by the constitution or laws of the United States or the state of Vermont,"
  id. § 1726(10).  When a charge of an unfair labor practice is made, the
  Labor Relations Board may serve a complaint and hold a hearing.  Id. §
  1727(a).  If the board confirms an unfair labor practice, it may issue a
  cease-and-desist order and require the offending party "take such
  affirmative action as the board shall order."  Id. § 1727(d).  Further, if
  the complaining party does not have recourse to binding arbitration under a
  labor contract grievance procedure for suspension or discharge, the board
  may require reinstatement and back pay.  See id. § 1727(f).  Finally, §
  1728, which provides that the expression of views shall not constitute
  evidence of an unfair labor practice, is plainly intended to protect the
  free speech rights of entities charged with an unfair labor practice, not
  to protect those retaliating against others for expressing their views, as
  Graham suggests.  We conclude that the Act provided a reasonably adequate
  remedy for Graham to have his retaliation claim adjudicated, and therefore
  a direct action under the Vermont Constitution was not available to him. 
  Hence, the superior court erred by not dismissing his claim made directly
  under the Vermont Constitution.

       The judgment in favor of plaintiff is vacated, and judgment is entered
  for defendant.



                                       BY THE COURT:



                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned


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                                  Footnotes


FN1.  If the defenses raised in the District's motion to amend before the
  start of the second trial had been affirmative defenses that the District
  had to have pled in its initial answer to the complaint, the trial court
  may well have acted within its discretion in denying the motion, which was
  filed after the first trial and thus long after expiration of the court's
  initial discovery order.  That is not the case, however, as explained
  above.