Sunday, January 25, 2015

You’ve Lost That Loving Feeling

Davis v. The American Legion of Vermont, 2014 VT 134

By Jeffrey M. Messina

The American Legion, karaoke, a four-year-old granddaughter, a six-dollar entry fee, and a protective grandmother. What could possibly go wrong?

This case comes to SCOV on appeal from the trial court’s grant of defendant’s motion to dismiss, in a case stemming from a very brief night out at the American Legion for plaintiff and her four-year-old granddaughter.

While I'm sure every night at the American Legion is a party, karaoke night is sure to be extra special. On this particular evening, plaintiff—a member of the Barre Post-10 Auxiliary Unit— brought her four-year-old granddaughter to Post-10 hoping to have her sing. Regrettably, the little girl’s dreams of stardom were dashed when a member of the staff asked them to leave. Apparently, a Post-10 club rule explicitly prohibits minors at the club after 7 p.m. without special permission of the House Committee.

What is a Post? An Auxiliary? House Committee? I'm glad you asked. Try to keep up . . .

The American Legion (Legion) is a federally chartered corporation with membership limited to those who have served in the Armed Forces. Each state has a Department and within each Department are several Posts. Barre Post-10 is such a Post. Each Post disciplines its own members. House Committees are the governing bodies of Posts.

The American Legion Auxiliary (Auxiliary) is a civilian organization. Its membership is limited to mothers, wives, daughters, sisters, granddaughters, great-granddaughters, and grandmothers of either members of the American Legion or veterans who would otherwise qualify for membership.

(It is not within the context nor scope of this summary for me to comment on the merits of potential sexist and/or discriminatory claims, and in no way suggests that women cannot be veterans or that men cannot be such female veterans’ fathers, husbands, sons, brothers, grandsons, great-grandsons, or grandfathers.)

Much like the Legion itself, each Auxiliary has a Department in each state and is organized into local Units. Though each Auxiliary Unit is "attached" to a specific Post, Auxiliary Units are responsible for disciplining their members. The Legion and the Auxiliary have no authority to regulate each other.

Okay, so grandma is asked to leave at 7 p.m. to effectuate the no-minors-after-seven rule. She's so unhappy that she followed a House Committee member to the parking lot where a "disagreement ensued." Plaintiff eventually left the premises with her granddaughter, but their six-dollar combined karaoke entry fee was not returned. That, as they say, was the last straw.

As a result of karaoke-gate, plaintiff posted several messages on the Post Facebook page, criticizing the organization, some members, and its club staff. In response to the Post-related postings, and because Plaintiff “verbally attacked” Post officers, the House Committee voted to ban her from the club and club activities for four months, though she could still attend Auxiliary meetings there. The House Committee sent a "letter of reprimand" to plaintiff and copied the Post-10 club manager and the president of the Post-10 Auxiliary on that letter.

Plaintiff appealed the reprimand to every conceivable Vermont Legion entity, and none took up arms on her behalf. She thusly filed a five count lawsuit seeking a preliminary injunction as well as compensatory and punitive damages, claiming: (1) violation of the Vermont Public Accommodations Act on the basis of sex; (2) breach of implied contract based on the failure of Post-10 or the Legion Department to follow its own rules; (3) violation of the public policy favoring the right of free speech; (4) IIED; and, (5) libel.

SCOV reviews the motion to dismiss under the same standard as the trial court. Motions to dismiss are generally disfavored, and in reviewing a motion to dismiss, the court takes "all of the nonmoving parties factual allegations as true [and considers whether] "it appears beyond doubt that there exists no facts or circumstances that would entitle the plaintiff to relief. [The court will] treat all reasonable inferences from the complaint as true, and [ ] assume that the movements contravening assertions are false."

SCOV summarily disposes of plaintiff’s first two claims, based in large part on the very documents she attached to her complaint in support. (SCOV explains that when documents attached as exhibits to complaints contradict allegations in the complaint, “the exhibit trumps the allegation.”)

Plaintiff provided several documents showing Legion disciplinary procedure. However, the SCOV points out that Post-10 did not have authority to expel Plaintiff or reprimand her in any capacity relating to her membership as an Auxiliary, and it didn’t. The House Committee merely suspended her ability to be present at the club for non-Auxiliary matters. The Court concludes that what the Post would or would not do to its own members has no bearing here, as plaintiff is not a member of the Post. If you were paying attention above, you’d know that the Legion and the Auxiliary have no authority to regulate each other.

SCOV also quickly addresses Count III: violation of the public policy favoring the right of free speech. Here, the High Court says that while courts may intervene in matters of a private club as such circumstances warrant where the matter “contravenes public policy,” because plaintiff was a guest of the group that banned her, rather than a member, and the club is a private one, the House Committee decision to temporarily restrict her privileges is not a matter of public policy.

Plaintiff’s IIED claim also fails. SCOV states that in order to support a prima facie claim of IIED, Plaintiff must show “outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct," and that the actions were “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decent and tolerable conduct in a civilized community and be regarded as atrocious and utterly intolerable.” Plaintiff's "embarrassing experience" does not qualify.

Finally, SCOV wraps up by affirming dismissal of the libel claim citing, in large part, plaintiff's failure to allege any injury resulting from the letter. Harm from defamation includes "impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering." SCOV delineates between the language of the “letter of reprimand” and the actions taken, stating that while “allegedly libelous statements should be read in context . . . a disciplinary action by its nature cannot be a false and defamatory statement.” Again, an "embarrassing experience" does not meet the threshold.

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