By Elizabeth Kruska
I had completely forgotten about the three-part burden-shifting test from McDonnell Douglas v. Green until I read this opinion. Then I distinctly remembered being in first year constitutional law as a law student and reading the case. For those who went to Vermont Law School before the 2003ish renovation, you’ll recall that the Old Classroom Building, or OCB, as it was often called, had sort of a distinct musty smell. My con law class was in that building, and immediately memories of that musty smell came flooding back to my brain. It was a very Marcel Proust-type moment for me right there, except for a distinct lack of tea and madeleines.
In any case, McDonnell Douglas set forth a three-part test to be applied when a person alleges that an employment action was taken against him or her for discriminatory reasons. It goes like this: first, the employee has to make a prima facie case showing that there was a retaliatory action. Second, the burden shifts to the employer to show that there was a legitimate, non-discriminatory reason for the action. Third, the burden shifts back to the employee to show that actually that proffered non-discriminatory reason was actually just a mere pretext. It plays out like a tennis match of burden shifting.
Mr. Gauthier worked for Keurig Green Mountain, which used to be known simply as “Green Mountain.” Whether the company’s name will next be changed into an unpronounceable glyph or a reference to World Peace remains to be seen. Anyway, he worked for the coffee people in Waterbury doing maintenance on overnight shifts starting in May of 2007. He didn’t have his own computer for work, but he did have access to a computer and had a login name and password. According to Mr. Gauthier, sometimes he’d log in and then have to go do something, and when he’d return, would find his settings—including his desktop background picture—had changed. My desktop photo right now is one I took of American Pharoah; I’d be annoyed if someone came in and changed it to something else, but then I’d probably just change it back. I would know that someone did something to my computer while I wasn’t there. Along the lines of I think what Mr. Gauthier was trying to say, it would show that someone else was accessing his account.
Over the years, Mr. Gauthier was reprimanded a couple times and was once put on an employee corrective plan because he was using the internet for non-work stuff. On August 1, 2011, the HR department decided to run a web-checking report that covered eleven maintenance workers for their work internet usage from July 2011. On August 2, Mr. Gauthier sustained a workplace injury that was going to require surgery. He kept working up until the time of his surgery in early September. In the meantime, between August 2 and early September, he received a 12% raise and HR recommended that he be terminated due to internet usage. Those things happened in that order. The opinion is a little bit confusing about this point about whether he knew he was going to be terminated or not, because he kept working until the September surgery. On September 29 the decision to terminate Mr. Gauthier was made, which was followed up by a letter dated October 3 saying he needed to meet with HR when he returned.
Mr. Gauthier came back to work after the surgery, met with HR, and was put on administrative leave. He was officially terminated from his job on November 8. Of the eleven maintenance workers whose web use was monitored, one other was fired and others were also disciplined.
Mr. Gauthier sued Green Mountain, alleging that they retaliated against him for making a comp claim, they breached the covenant of good faith and fair dealing, and intentional infliction of emotional distress. Discovery went forward and ultimately Green Mountain filed a motion for summary judgment. After that, Mr. Gauthier filed a motion to amend his complaint to add two new claims. This got denied by the trial court. The trial court then granted Green Mountain’s motion for summary judgment. Mr. Gauthier appealed on the retaliation claim and also about the fact the trial court wouldn’t let him amend his complaint.
First off, there’s some discussion about part of the printed case being stricken because it wasn’t raised below. SCOV says this was okay. There are rules about what can be raised on appeal, and apparently this information wasn’t properly before the court.
Second, SCOV affirms the summary judgment ruling. This is where the McDonnell Douglas analysis comes in to play. Mr. Gauthier had to show that there was a discriminatory action taken. Mr. Gauthier had to show that he was engaged in a protected activity, that the employer was aware of the activity, that he suffered an adverse decision, and there was a causal connection between the activity and the adverse decision.
SCOV says that Mr. Gauthier met this. The first three factors are pretty easily shown. SCOV was concerned, though, that the firing came within a few months of his having filed a workers’ comp claim. Also, the decision to fire him was made after he came back to work, and this raises SCOV’s collective eyebrow enough to shift the burden to Green Mountain.
So, now the ball is in Green Mountain’s court to show that it had a legitimate, non-discriminatory reason for the action it took. Green Mountain showed that the investigation into the employees’ web use started before the injury that caused Mr. Gauthier to make his comp claim. Also, other people got investigated and, in some cases, reprimanded for their doing the same thing Mr. Gauthier did. Furthermore, Mr. Gauthier had previously been reprimanded more than once for the very activity that Green Mountain investigated and later relied upon for firing him.
Then the burden shifts back to Mr. Gauthier to show that the reason is a pretext reason. He has to show that he was probably discriminated against despite Green Mountain’s stated legitimate rationale.
This is hard, because how does an employee do this? If there’s a so-called “smoking gun” that obviously helps. But an employee could also show inconsistencies or other information to show that the stated legitimate reason isn’t really the real reason.
SCOV says that when dealing with the second prong—the legitimate reason for the action prong—that Vermont is going to follow some law established by the Seventh Circuit in similar cases. There, a plaintiff has to show that the employer’s stated reasons aren’t true. But, if the employer legitimately believed the reasons they had for doing their action, then the court finds for the employer. It’s up to the employee to cast doubt on the reasons themselves.
For example, an employer comes into some information that employee A is engaged in X activity, which is prohibited by the employer. If the employer has legitimate reasons to rely on that information, they can make an employment decision based on that. If it later turns out the employer was wrong or that the information was incorrect, the employer is still protected in having made its decision. It’s only if employee A is able to show that there are problems with the information that the employee crosses this hurdle.
Mr. Gauthier urged SCOV to adopt a stricter standard, which is followed by some other courts, and would force the employer to prove its reasons rather than making the employee attack the validity of the reasons. SCOV declines to do this in this context.
The reason is that workers’ comp is a deal between employers and employees; if an employee gets hurt at work, he or she doesn’t get to sue – comp is the remedy. In exchange, the employer is not allowed to take a retaliatory move against the employee for making a comp claim. To be sure, an employer is allowed to fire an employee after he or she makes a comp claim, but it’s got to be for an honest, legitimate reason that isn’t that the employee made the claim. Also, the employer has to have relied on the basis for that honest, legitimate reason, even if it turns out to be mistaken in the end.
Here, Mr. Gauthier tried to attack the reasons given by Green Mountain. He said it couldn’t be shown that he didn’t do his work. He also pointed out that he got a raise after Green Mountain did the web report; by this logic, Green Mountain was satisfied with him. He also said there were issues with the web report itself. SCOV says the dots don’t connect, and that in light of all the information, this wasn’t a pretext firing.
SCOV also bats down the issue regarding the trial court’s denial of the motion to amend the pleadings. Vermont has very liberal pleading rules, and it is not at all uncommon for complaints to be amended. But here the complaint wasn’t sought to be amended until about fourteen months into the case. By that point discovery was done, and Green Mountain had already filed a motion for summary judgment. If new information had come to light through the discovery process, that’d have been one thing. But this wasn’t based on anything new. Mr. Gauthier didn’t show good cause for why his complaint should have been allowed to be amended that late in the game.
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