Plaintiff worked for the Visiting
Nurse Association and Hospice of Vermont and New Hampshire (VNA) as a licensed
Advanced Registered Nurse Practitioner for a number of years. After an incident in which a patient’s family
member made a complaint, plaintiff was fired.
Do not pass “Go.” Do not collect
$200.
There was an employee handbook that had some discipline
guidelines. For those not familiar with
Vermont employment law in general, here’s the 20-second, grossly oversimplified
summary: employment is, by default, “at-will”—this means that unless the
parties enter an employment contract, an employee can leave at any time for any
reason, and an employer can give an employee the boot at any time for any
reason (other than an illegal one). If,
however, there’s an employee handbook with policies, those policies can give
rise to an implied employment
contract. In other words, the employer
doesn’t get to say “here’s what we’re gonna do,” but then say “um, we changed
our mind—see ya.”
The basic result of this law is that employers constantly generate
employment material with the big bold words “This is not a Contract.” Much like Magritte’s “This is not a pipe,”
such language can be a treacherous conceit.
While the employee handbook in this case took pains to use the “these-written-terms
-are-not-a-binding-contract-on-us” language, it did have a corrective-action
disciplinary policy. Thus, when
plaintiff sued, most of her claims went the way of the dodo on summary
judgment, but her implied-employment-contract claim went to jury trial.
There were two jury-instruction conferences. The crux of the matter is that plaintiff
wanted the instructions to articulate a “just cause” standard for the jury to
determine whether the VNA’s firing of plaintiff was warranted; defendant
objected. The trial court got rid of the
“just cause” standard and plaintiff objected to that in the second
conference. After the jury charge and before
the case was sent to the jury, plaintiff’s counsel more or less said “same
objection” and when the trial court judge asked whether that was the bit about
just cause, plaintiff’s counsel said “yes.”
The trial court judge gave the jury a special verdict form. The first question was whether plaintiff’s
at-will status was modified by the handbook.
The jury said “yes.” The second
question was whether plaintiff had proven that the VNA had obligated itself to
follow certain procedures that it failed to follow. The jury said “no.” Game over.
Plaintiff’s primary argument is that once at-will status is
modified by the terms of a disciplinary policy, then an employer can only fire
an employee for “just cause.” Ergo, the
jury instructions in this case prevented the jury from considering the proper
standard by which her termination should have been evaluated.
But first, the majority wants to talk about preservation of
objections. Here, the majority says that
plaintiff’s counsel’s failed to preserve the objection to removal of “just
cause” from the instructions because the reference to the
earlier-conference-objection did not distinctly state the grounds for objection
pursuant to V.R.C.P. 51(b).
[Editor’s Note: The opinions
expressed in the rant below are solely the author's own and do not reflect the
views of SCOV Law, its slave labor, the author’s firm, or—arguably—any sane and
rational human being].
Excuse me for a moment while I go off on a tirade. If you’ve ever repeated yourself ad nauseum in front of a judge, you know
that this is one of the quickest ways to irk the living $#!t out of her. If you’ve ever been in a lengthy trial, you
know that you need to be juggling about 1001 different things at once. Referring to an earlier-stated objection for
preservation should be enough to meet a formal requirement that objections be
preserved, particularly if you stated the objection with specificity and
clarity the first-time around. All due
respect, but this is the kind of scrutiny that the weird kid with a magnifying
glass applies to ants. You’ve got to be
kidding me.
[We now return to our
regularly scheduled programming]
At this point, the case is pretty much resolved on procedural
grounds. But because there’s some
confusion about the nature of an implied contract of employment, the majority
addresses the issue. An employee hired
for an indefinite period is an at-will employee. An employer’s
inconsistent-with-at-will-employment policies and practices can modify that
arrangement and create an implied employment contract.
Plaintiff’s theory, as the SCOV majority articulates it, “is that
once the at-will status of an employee has been modified by an implied
contract, a switch is flipped as to the proper grounds of termination for that
employee, and termination is henceforth subject to a ‘just cause’ requirement.”
Defendant’s theory is that the terms of
the implied contract are what control.
The SCOV tends to agree with defendant.
The majority first discusses “just cause,” and specifically notes
that this is a term generally used in relation to termination of state
employees. The majority notes that the
plaintiff’s flip-switching construct would have the effect of making any
variation of an at-will situation disproportionate. In effect, it would impose the same standard
required to terminate state employees on private employers. This, the majority explains, would be
fundamentally unfair to employers. As
such, the standard must be according to the terms of the implied contract. If that sounds confusing, don’t worry: the
majority explicitly acknowledges this will not be the last case to struggle
with the vagaries of at-will employment and implied-employment contracts.
The majority explains that the SCOV has “created confusion with
our sloppy word choice in past decisions, jumping between ‘cause,’ ‘good cause,’
and ‘just cause,’ to the chagrin of litigants and judges alike.” In an effort to clarify, the majority
explains that “cause,” “good cause,” and “just cause” generally mean the same
thing—better-than-no reason. The
exception is that “just cause” is a term of art when used in the state-employee-collective-bargaining
context.
The majority neglects to mention that “just cause” is also the
name of a popular PlayStation® 3 game, but that’s okay.
The majority’s analysis ends by stressing the narrowness of the
issue. Because plaintiff failed to effectively
object to any of the language of the charge and only argued that it should’ve
had more language, the majority doesn’t consider any claims that the substance
of the charge contained reversible error.
Justice Robinson concurs in the merits, but dissents on the
preservation issue. As the dissent views
it, the “purposes of the rules of civil procedure and the practical realities
of trials” dictate a more-flexible approach.
As the dissent notes, the arguments on the objection have usually
already been made once. The majority’s
approach requires counsel to make the same argument again, which is inefficient
and redundant. The primary purpose “of
the post-charge objection requirement is to give the trial court ‘one last
opportunity to avoid an error.’” As the
dissent sees it, restating an already-made objection in short form certainly
gives the trial court that opportunity.
The rigid application of the distinctly-stated-post-charge-objection
requirement does not serve the underlying purpose of the rule.
To butcher a Simon & Garfunkel tune: “Here’s to you Justice
Robinson . . . . Litigators love you more than you will know . . . .”
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