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Cate v. City of Burlington

Supreme Court of Vermont

August 2, 2013

Adam CATE
v.
CITY OF BURLINGTON.

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[Copyrighted Material Omitted]

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Susan J. Flynn of Clark, Werner & Flynn, P.C., Burlington, for Plaintiff-Appellant.

Pietro J. Lynn and Scarlett S. MacIlwaine of Lynn, Lynn & Blackman, P.C., Burlington, for Defendant-Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

ROBINSON, J.

¶ 1. Plaintiff filed suit for breach of contract and intentional infliction of emotional distress (IIED) against his former employer, the City of Burlington, claiming that the City disciplined him for actions and in a manner not authorized by the City's personnel manual. The trial court granted the City summary judgment, concluding that the manual unambiguously allowed the City to place plaintiff on paid administrative leave pending an investigation and proscribed plaintiff's conduct of viewing other employees' emails. The court also concluded that plaintiff had failed to demonstrate outrageous conduct sufficient to support an IIED claim. On appeal, plaintiff argues that summary judgment was inappropriate because the court misconstrued the personnel manual, there were disputed issues of fact, and there was sufficient evidence of outrageous conduct to send the IIED claim to the jury. We affirm.

¶ 2. The following facts are undisputed.[1] At the time of the relevant events, plaintiff was employed by the City of Burlington in the Parks and Recreation Department as the Waterfront Manager. Plaintiff supervised approximately thirty seasonal employees and one full-time employee, and he oversaw daily operations of the Boathouse, a City-owned property on the waterfront. Plaintiff's immediate supervisor was the Superintendent of Park Operations, Ben Pacy, who eventually left the Department to work at City Hall. After Pacy left, Cate reported directly to Robert Whalen. Wayne Gross, the Director of the Department, supervised Pacy before his departure and subsequently Whalen. When Pacy left the Department, Gross was in the process of preparing a plan to reorganize the Department. Cate believed that, from his new position in City Hall, Pacy

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was doing things to undermine Wayne Gross's reorganization effort.

¶ 3. In January 2008, after Pacy left, plaintiff moved into Pacy's former office. At that time, he turned on the computer formerly used by Pacy and gained access to Pacy's email by, according to plaintiff, correctly guessing Pacy's password. Over the ensuing months, plaintiff accessed Pacy's email account in this way approximately six times. Plaintiff also began accessing the email account of department employee and plaintiff's coworker William Rasch, who was the union shop steward, after plaintiff discovered the account was not password protected. He accessed Rasch's account without authorization approximately eight times. Plaintiff printed emails from these accounts and shared them with Gross, but plaintiff lied about how he got them, telling his supervisor that he found the emails sitting on the office printer. On June 19, 2008, upon learning that plaintiff had apparently accessed other employees' email accounts, the City's human resources department placed plaintiff on paid administrative leave while it investigated further. During the ensuing investigation of plaintiff's accessing others' emails, plaintiff, who said he did so at the direction of his immediate supervisor, initially lied and told the investigator that he found the emails left on the printer.

¶ 4. In the meantime, immediately after plaintiff was informed that he was being investigated and placed on paid administrative leave, he telephoned two coworkers under his supervision at the Boathouse. He instructed one employee to remove approximately $2500 in cash from the safe and another employee to hide a City laptop that he had been using. The employees reported these requests to management who in turn reported the matter to the Burlington Police Department, which began investigating a possible embezzlement at the Boathouse. Ultimately, the police determined that all money was accounted for and closed the investigation.

¶ 5. After law enforcement finished its investigation, the City hired an investigator to do an independent investigation concerning plaintiff's management of the Boathouse. The City placed plaintiff on further indefinite administrative leave pending that investigation. The investigator ultimately concluded that plaintiff had misused his City computer and had mismanaged Boathouse finances.

¶ 6. On September 22, 2008, the City sent plaintiff a letter indicating that it was considering serious discipline, including the possibility of termination, on several bases. Among other things, the City concluded that plaintiff had repeatedly gained unauthorized access to other employees' email accounts, had lied to both his supervisors and investigators about how he got the emails in question, was insubordinate when he called Boathouse employees immediately after he was put on administrative leave and told not to attempt to influence the investigation, misappropriated the City's laptop for personal use, accessed pornography on the City's laptop, and used irregular accounting procedures. The City subsequently terminated plaintiff by letter in October 2008.

¶ 7. Plaintiff appealed that decision to the Parks and Recreation Commission pursuant to procedures outlined in the employee manual. In November 2008, after a hearing, the Commission concluded that the City had not met its burden with respect to its claims that plaintiff had been dishonest with his supervisors, had been insubordinate, had appropriated City property for personal use, and had practiced irregular accounting procedures. However, the Commission concluded that the City had met its burden of demonstrating

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that plaintiff committed misconduct by accessing coworkers' emails without authorization, lying to investigators, and making improper requests of two employees supervised by him. It found that plaintiff's misconduct deserved sanction, but not termination. The Commission placed plaintiff on an unpaid thirty-day suspension and a six-month probation period following suspension. Plaintiff did not appeal this decision.

¶ 8. Plaintiff served his suspension and returned to work on probationary status. Four months into his probation, a Boathouse employee complained that plaintiff had repeatedly harassed him by calling him names. After investigating the complaint, the City fired plaintiff in April 2009. ...


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