Weekly, Monthly, Whatever Update: June 12, 2022

'Nuff said. 

By Andy Delaney

As you might have guessed (or not), there were no opinions the past couple of weeks. But one issued Friday.

I opened the link thinking we were going to be talking about medical negligence due to the case title (Kelly v. The University of Vermont Medical Center), but this one is an academic and employment law mix-up. Plaintiff was a medical fellow in a sleep-study program at the University of Vermont Medical Center (UVMMC), which allows one fellow (but never more than two fellows) per year. Plaintiff had an employment contract for the position. A lot of stuff happened, including plaintiff missing several days in the first few months due to health and other difficulties; having a stroke; and a suicide attempt. UVMMC chose not to extend plaintiff’s fellowship. Plaintiff did not get a certificate and couldn’t take his sleep-medicine boards. Plaintiff filed a grievance first, and eventually filed suit when the grievance did not obtain satisfaction.

In the civil division, the judge concluded that plaintiff’s discrimination claim failed, in part because the decision not to extend the fellowship was an academic decision, not an employment decision. Extending the fellowship was not a reasonable accommodation under the circumstances, and plaintiff’s damages were purely speculative. So, the civil division granted summary judgment on all counts to UVMMC.

Plaintiff appeals.

On appeal, SCOV holds that the decision not to extend a fellowship is not an adverse employment action but an academic decision and so there is no discrimination claim there. Next, SCOV reasons that on plaintiff’s failure-to-accommodate claim, the briefing is inadequate, citing to V.R.A.P. 28(a)(4)(A) (providing the briefing must contain “the issues presented, how they were preserved, and appellant’s contentions and reasons for them—with citations to the authorities, statutes, and parts of the record on which the appellant relies”). To really drive it home, SCOV quotes a zinger: “We will not comb the record searching for error.” (In re S.B.L., 150 Vt. 294, 297, 553 A.2d 1078, 1081 (1988)). Ouch.

On the breach-of-contract claims, SCOV agrees with the trial court that plaintiff’s damages are purely speculative. Essentially, as framed by SCOV, plaintiff’s argument is that he’d be making more money as a sleep medicine specialist than he is making as a hospitalist. SCOV appears annoyed with this argument and says, “Okay. First off . . .” listing off the necessary chain of proof and the reasons it doesn’t exist. SCOV affirms. Kelly v. The University of Vermont Medical Center, 2022 VT 26

And, yes, I did skip one week last month. One opinion on Friday, May 20, 2022.

There are three questions raised in this appeal: (1) is firing a gun into a person’s car an intentional or knowing disregard of a deadly risk; (2) can the trial court exclude a statement of remorse made three hours after a shooting; and (3) is showing three graphic crime scene photos to the jurors that were not admitted into evidence reversible error? SCOV says yes, yes, and no. This case stems from the 2017 shooting in Montpelier following a fight in Barre. Defendant’s girlfriend got into an argument with the victim and hit the victim. The victim then punched girlfriend in the face and fractured her jaw. Defendant tracked down the victim in the wee hours of the morning and fired a shot into the victim’s car, killing victim. Defendant was convicted by jury of second-degree murder, which triggers an automatic appeal. On appeal, SCOV reasons that there was enough evidence to meet the elements of the offense; that the trial court’s exclusion of defendant’s statement of remorse to his cousin three hours after the shooting was not an error; and that the crime scene photos weren’t so dissimilar as to other photos admitted into evidence as to constitute reversible error. SCOV affirms. State v. Caballero, 2022 VT 25.