By Merrill Bent
Cate v. City of Burlington, 2013 VT 64
If you could kick the person in the pants responsible for most of your trouble,
you wouldn’t sit for a month. —Theodore Roosevelt
Today’s case is about personal responsibility, and the moral of the story is: just because no one tells you that you can’t, doesn’t mean you should.
Plaintiff was the Waterfront Manager of the Parks and Recreation Department for the City of Burlington, and as such, was in charge of overseeing the daily operations of the city-owned Boathouse on the Burlington waterfront. Soon after plaintiff’s supervisor, the Superintendent of Park Operations, left the Department to work at City Hall, plaintiff moved into his old office, and subsequently gained access to his email account by correctly guessing the password (statistics suggest that it was either “password” or “123456”). Plaintiff accessed the account approximately six times over the course of a few months.
Plaintiff soon upped the ante, and started accessing another coworker’s email account after discovering that it was not password protected. He accessed that account approximately eight times. Plaintiff apparently found something of interest, because he printed selected emails and shared them with the Department Director under the pretense that he had simply found them sitting atop the office printer.
The jig was soon up and, realizing that Plaintiff had been accessing other employees’ email accounts, the City’s Human Resources Department placed him on paid administrative leave pending further investigation. Plaintiff lied to the investigator, maintaining that he found the emails on the office printer. Plaintiff later claimed that he lied at the behest of his immediate supervisor.
As soon as plaintiff was placed on leave, he called two Boathouse employees who had been under his supervision and directed one to remove $2,500.00 in cash from the safe, and the other to hide the City laptop he had been using. In what may have been the best long-term workplace decision of their lives, the employees did not follow plaintiff’s directions but instead reported him to Department management, who notified the Burlington Police Department, which prompted an embezzlement investigation. The police were able to account for all of the money and quickly closed that investigation.
The situation nonetheless grew worse for plaintiff. The City placed him on indefinite administrative leave and hired an investigator to look into his management of the Boathouse. The investigator determined that, in addition to accessing his coworkers’ emails, lying to investigators, and attempting to influence the investigation through the other Boathouse employees, plaintiff had also misused his City computer and mismanaged Boathouse finances. The City initially responded by issuing a letter to plaintiff indicating that he faced serious discipline, including termination, on account of his actions. A month later, the City issued a letter of termination.
Plaintiff appealed to the Parks and Recreation Commission, as outlined in the employee manual. The Commission determined that the City had not adequately proven all of the claims that formed the basis for plaintiff’s termination and, while plaintiff’s misconduct warranted sanctions, it was not severe enough to justify termination. Instead, the Commission imposed a thirty-day suspension to be followed by a six months of probation once he returned to work.
Four months into the probationary period, another employee complained that plaintiff was harassing them. Following an investigation, the City dismissed plaintiff and, as a probationary employee, he had no right of appeal. The following year, plaintiff filed a lawsuit, raising breach of contract and intentional infliction of emotional distress (“IIED”) claims, and seeking compensatory and punitive damages.
The trial court granted summary judgment for the City, finding that the personnel manual clearly prohibited plaintiff’s conduct and that plaintiff failed to demonstrate the existence of a material issue of fact regarding the City’s alleged breach of the employment contract. The court also found that plaintiff had not shown any evidence to support his IIED claim.
The SCOV limits its breach of contract analysis to the facts of this particular case because the parties’ presentations raised questions that the parties had not previously addressed. On appeal, plaintiff concedes that his second termination for harassment was warranted, and challenges instead the City’s initial decision to place him on administrative leave pending its investigation into his earlier misconduct.
The SCOV notes that plaintiff failed to expressly challenge the Commission’s decision to impose a probationary period even though that was what “set the stage” for his subsequent termination. Because plaintiff’s breach-of-contract claim was collateral to the unchallenged decision to impose probation, the SCOV states that the claim would ordinarily have been barred under the doctrine of collateral estoppel. However, as the City did not argue estoppel, the SCOV takes the opportunity to expound on the merits of the case rather than conclude on the basis of a procedural defect.
The SCOV starts by restating the general principle that an employer may be bound to its written policies and practices when it comes to the grounds or procedures for taking disciplinary action, including termination. Plaintiff argues that the City’s personnel manual did not explicitly prohibit viewing other employees’ email and did not contemplate paid administrative leave in its disciplinary process. You read that correctly¾plaintiff says he shouldn’t get in trouble because no one told him that he wasn’t supposed to snoop in other people’s email or how much trouble he would get in if he did.
Guided by the general principles of contract interpretation, the SCOV concludes as a matter of law that, the personnel manual contained terms concrete enough to create a binding employment contract, and that it also clearly prohibited the conduct for which plaintiff was disciplined. Indeed, under a section titled “Computer System,” the manual specifically prohibited “accessing or attempting to gain unauthorized access to internal or external sources” in any unauthorized manner. The language of this prohibition is what lawyers mean when they say “unambiguous.”
Plaintiff persists, claiming that the “Computer System” section was not clear enough for him to know that his conduct was not allowed. In this vein, he argues that the City should have specifically stated that viewing other employees’ email was not permitted, and that because the manual said elsewhere that employees should not expect privacy in their work email, he could not be expected to know that his conduct would be considered improper. The SCOV explains that any reasonable person would understand the manual to prohibit secretly viewing a co-worker’s emails, and that since plaintiff was not acting on the City’s behalf when he did so, his access was unauthorized and would not find any protection in the privacy warning.
Finally, the SCOV concludes that plaintiff’s attempts to portray himself as a “whistleblower” or as acting on “official business” out of concern for Department restructuring were belied by the facts that this type of activity was not within his job description, and that he lied about how he obtained the emails when he turned them over to supervisors.
Addressing plaintiff’s argument that the City breached the employment contract by placing him on paid administrative leave, the SCOV states that, because public employees’ protected property interest in their jobs is limited to the pay and benefits they receive, placing an employee on paid administrative leave is not considered a disciplinary measure or an adverse-employment action subject to due process protections. In addition, the SCOV concludes that the nature of the City’s personnel manual’s expressly non-exhaustive list of potential disciplinary actions—including suspension without pay—would not, to a reasonable person, preclude the possibility of a paid administrative leave under appropriate circumstances.
The SCOV also rejects plaintiff’s IIED claim, as well as his argument that a stricter standard is used in the employment context. The first element of IIED is that the defendant’s conduct was objectively “outrageous,” meaning that it goes “beyond all possible bounds of decent and tolerable conduct in a civilized community” as measured by the defendant’s actual conduct, rather than the plaintiff’s personal beliefs as to the defendant’s motivation.
Reaching only that first element, the SCOV finds that, even under the heightened standard proposed by plaintiff, mere discipline, without evidence of oppressive or abusive conduct, does not meet the requisite level of objective outrageousness for this cause of action. Although plaintiff complained of the City’s improper political motives, he was unable to provide any evidence that they exist, relying on general, conclusive allegations to support his claim. As there was no proof that the employer had engaged in “outrageous” conduct, the SCOV dispensed with plaintiff’s final argument, and wholly affirmed the trial court’s decision.
This is a practical result. Had the SCOV agreed with plaintiff’s arguments, employers would be rigidly glued to the terms of employment manuals without room for common sense if the manual omitted any type of prohibited conduct. Additionally, as the SCOV has now weighed in, plaintiff can approach his next endeavors with certainty as to whether he should or shouldn’t read other people’s emails without consent.