Hall v. State of Vt.,
2012
VT 43.
Employment discrimination cases are often difficult for two
reasons. The first are a series of highly technical evidentiary and procedural gates
that swing back and forth between employer and employee depending on the stage
of the case. The second is the complicated
factual story that precedes the litigation.
Today’s case is much more focused on the second difficulty
as the SCOV tries to untangle a complicated web of releases, allegedly retaliatory
behavior and a tardy set of decisions from the trial court.
In the early 2000s Plaintiff was a supervisor with the
Agency of Transportation. In 2002,
Plaintiff injured his knee and filed a workers’ compensation claim. Shortly thereafter, he was accused by a
female employee of creating a hostile work environment.
Following an investigation, Plaintiff, with counsel, negotiated
a settlement. Plaintiff was demoted from
a supervisory position, but suffered no reduction in salary. The demotion was not labeled as such.
In return, Plaintiff released any and all of his claims. This agreement, modified by his counsel,
contained fairly broad and general language—as most releases do.
At the end of 2003, Plaintiff filed a second workers’ compensation
claim based on the same knee. In 2004, a
surgeon replaced the knee, and the State, acting upon a tip, began an
investigation into this claim, which included videotaping Plaintiff for the
day.
This investigation does not appear to have led to a negative
employment action against Plaintiff, but the State determined that Plaintiff’s
physical condition prevented him for performing his job and reassigned him to
the finance department at the same rate of pay.
This new job, however, was not eligible for overtime, which meant a de
facto pay cut for Plaintiff’s whose old position enjoyed regular overtime.
You know what comes next.
Plaintiff filed a lawsuit against the State seeking to set aside his
2003 release and alleging discrimination, retaliation, disability
discrimination, violation of free speech, violation of fair employment
practices, and discrimination for his opposition to discriminatory policies
against female employees.
The State cited several affirmative defenses including the
expected sovereign immunity as well as waiver, estoppel, accord and
satisfaction, and failure to mitigate.
These various filings were whittled down through pre-trial
motions to a claim of disability discrimination and retaliation for filing a
workers’ compensation claim. Following
trial, the jury denied the disability discrimination claim entirely but awarded
Plaintiff approximately $493,000 for the retaliation claim.
On appeal, the State seeks to set aside the jury verdict
primarily on the basis that the jury should never have had the issue put before
them.
Here is where we can get into the procedural weeds. The basis of the State’s argument boils down
to this. There were only two allegedly retaliatory
actions taken by the State against Plaintiff.
The first was the 2003 investigation into his alleged hostile workplace
behavior. The second was videotaping him
for one day in 2004. The State argues
that Plaintiff waived the first with his 2003 release, and the second does not
rise to the level of retaliatory behavior.
The State raised these arguments in pre-trial motions to the
trial court, but the trial court deferred making a ruling. At each critical juncture, the State renewed
its motion as a Rule 50 motion, and the trial court deferred. Do this enough times, and you will eventually
find yourself, as the parties did, on the other side of a jury verdict, which
transformed the issue into a post-judgment motion to set aside the jury
verdict.
On appeal, the SCOV notes that the trial court never really
ruled on this issue but kicked the can down the road until it was able to
dispose of it from a post-trial posture.
This is improper, and the SCOV steps into the shoes of the trial court
to review the motion from a pre-trial perspective.
The SCOV looks to the plain meaning of the 2003 release and
determines that there is no ambiguity and rules that the 2003 investigation was
effectively waived. This is enough to
undermine the jury verdict, and the SCOV vacates the verdict and remands to the
trial court to address the Agreement in light of this analysis.
The SCOV then looks at the videotaping to determine whether
it alone could have constituted retaliation.
Here the SCOV is confronted with two different standards from the state
and federal courts. Without resolving
which test applies, the SCOV determines that the videotaping incident does not
trigger either.
The first test comes from Vermont law. It requires that there be a negative
employment action taken and that it be causally connected to the protected
activity. Here there is no connection as
the videotaping did not lead to any negative employment action.
The second test from the federal courts comes from Title VII
discrimination cases. This test simply requires
the court or a jury to determine whether the retaliatory action would dissuade
a reasonable person from filing a legitimate claim. In this case, the SCOV rules that one day’s
videotaping of a person based on a tip that the claim was fraudulent was a
reasonable course of action and would only dissuade people from filing
fraudulent workers’ compensation claims.
In other words, one day’s unobtrusive videotaping does not constitute
retaliation or illegitimate behavior but rather the proper investigation that
the State should take to detect and prevent fraud.
Taken together, the SCOV’s ruling appears to shut down
Plaintiff’s claim. Yet, the SCOV’s
ultimate ruling steps back from this edge and remands the case to the trial
court to determine if the rulings remove all or part of Plaintiff’s retaliation
claims. The ruling is a bit of hedge as
the factual complexity of the case puts the SCOV at a factual disadvantage in
making a final ruling.
Plaintiff can take comfort too in the SCOV’s last paragraph
that suggests and offers guidance to the trial court for a successive trial—one
that would seem to be precluded if the trial court follows the SCOV’s reasoning
to its logical conclusions.
So the case continues.
Plaintiff’s claims—while hampered—appear to live another day.
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