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Straw v. Visiting Nurse Ass'n & Hospice of VT/NH

Supreme Court of Vermont

October 18, 2013

Michelle M. Straw
Visiting Nurse Association and Hospice of VT/NH

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Windsor Unit, Civil Division. Theresa S. DiMauro, J.

Norman E. Watts and Stefan Ricci of Watts Law Firm, PC, Woodstock, for Plaintiff-Appellant.

Edward M. Kaplan and Sarah S. Murdough of Sulloway & Hollis, P.L.L.C., Concord, New Hampshire, for Defendant-Appellee.

Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.


Dooley, J.

[¶ 1] Plaintiff Michelle Straw appeals the judgment order of the superior court, pursuant to a jury verdict, dismissing her case for breach of an implied employment contract against defendant Visiting Nurse Association and Hospice of Vermont and New Hampshire (VNA). She argues that the jury instructions in her case were erroneous and prejudicial because they failed to instruct on the standard for just cause termination. We affirm.

[¶ 2] Plaintiff is a licensed Advanced Registered Nurse Practitioner who worked for a number of years as a hospice triage coordinator for VNA, answering patient and family calls to VNA's telephone hotline. During her years of employment, she generally received favorable performance evaluations.

[¶ 3] Plaintiff was hired as an at-will employee, and the VNA employee handbook states in many instances that employment with the organization is at will. Despite those assertions, the handbook also contains a corrective-action disciplinary policy though the language goes to great lengths to emphasize that it is not mandatory. The handbook introduces this policy by saying: When, on occasion, an employee's performance or conduct standards are not acceptable, the [VNA] strives to preserve acceptable standards of conduct and job performance through constructive criticism and/or corrective action. The common course of constructive criticism/corrective action begins with a verbal discussion between a supervisor and an employee and continues through a written warning, a suspension, and termination. According to VNA management, immediate termination is limited to severe misconduct that impacts patient care and safety.

[¶ 4] In 2009, VNA received a complaint from the family member of a patient claiming that plaintiff had been rude and unprofessional to her. The result of the conversation with plaintiff was that the patient was transported to a hospital, where he died, despite his expressed wish to die in his home. Plaintiff's supervisor conducted an investigation, which included speaking with the family member of the patient and consulting with plaintiff to see what she remembered about the incident. Plaintiff sent an email with her recollection of the case based on her log and progress notes. After consulting with the family member of the patient, but without speaking with plaintiff, VNA's president decided to terminate plaintiff's employment without engaging in any of the steps of constructive criticism and/or corrective action described in the employee handbook.

[¶ 5] Plaintiff disputes the family member's characterization of the event entirely. While she recognizes that the behavior detailed in the complaint, if true, would be unprofessional and could be grounds for termination, she denies any inappropriate behavior whatsoever. At the time that she made the decision to terminate plaintiff, VNA's president was not aware that plaintiff denied having acted in the way reported by the family member.

[¶ 6] After being terminated, plaintiff brought suit against VNA for violation of the Vermont Fair Employment Practices Act and for wrongful termination, the latter claim being based on separate counts of promissory estoppel and breach of an implied employment contract that had been created by the dissemination of the employee handbook.[1] Summary judgment was granted to VNA on the age discrimination and the promissory estoppel claims, but the implied-employment-contract claim went to a jury trial.[2]

[¶ 7] Plaintiff prepared proposed jury instructions and a proposed jury verdict form. The proposed instructions included a section on just cause for termination, indicating that the jury had to find whether plaintiff committed the acts the complainant alleged, and if she did, whether her conduct constituted just cause warranting her termination. The instruction went on to say that just cause required a determination that it is reasonable to discharge an employee because of the alleged conduct and that plaintiff had fair notice that the conduct would be grounds for discharge. Plaintiff's proposed jury verdict questions asked first whether an implied employment contract existed concerning the terms of [plaintiff's] employment? If the answer to this question was yes, it asked whether defendant had just cause to terminate plaintiff[.] The questions contained no other liability standard.

[¶ 8] There were two conferences on the jury instructions. Prior to the first, the court had prepared a draft that included reference to a just cause standard for termination. This conference was primarily a discussion that went on for about an hour. To the extent there were formal objections, they came from defense counsel. Defense counsel specifically ...

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