David A. Gauthier
Keurig Green Mountain, Inc. f/k/a Green Mountain Coffee Roasters, Inc
[Copyrighted Material Omitted]
On Appeal from Superior Court, Washington Unit, Civil Division. Helen M. Toor, J.
Oreste V. Valsangiacomo, Jr. of Valsangiacomo, Detora & McQuesten, P.C., Barre, for Plaintiff-Appellant.
Kerin E. Stackpole, Kristina R. Brines and Emily E. Chamberlain of Paul Frank Collins P.C., Burlington, for Defendant-Appellee.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] David A. Gauthier appeals the Washington Superior Court, Civil Division's entry of summary judgment in favor of employer Green Mountain Coffee Roasters (Green Mountain) on his complaint for workers'-compensation retaliation and denial of his motion to amend his complaint. We affirm.
[¶2] As a preliminary matter, we address Green Mountain's motion to strike certain portions of Gauthier's printed case on the ground that it contains certain excerpts from Gauthier's deposition and two
pages from Green Mountain's employee handbook that were not submitted to the trial court in the proceeding below by either party and thus are not part of the record on appeal. See V.R.A.P. 10(a)(1) (setting forth, in relevant part, that " [t]he record on appeal consists of the original documents, data, and exhibits filed ... in the superior court " (emphasis added)); V.R.A.P. 30(a)(1) (requiring appellant to prepare a printed case " containing extracts from the record that are necessary to present fully the questions raised" (emphasis added)).
[¶3] Gauthier responds that he is not seeking to introduce " entirely new document[s]" and contends that the portions of his printed case that Green Mountain seeks to strike are " merely certain pages of his deposition transcript, large portions of which were presented to the trial court." Gauthier also contends that the cited portions of his printed case go to the weight of the evidence, provide context, or are established by other parts of the record.
[¶4] There is no merit to Gauthier's contentions, and thus we grant the motion to strike. Our review of the trial-court record reveals that the deposition excerpts and employee-handbook pages that Green Mountain seeks to strike from Gauthier's printed case were never " filed ... in the superior court" and accordingly they are not part of the record before us, V.R.A.P. 10(a)(1), and thus are inappropriate for inclusion in Gauthier's printed case, V.R.A.P. 30(a)(1). That other portions of Gauthier's deposition transcript may have been submitted into the record in the proceeding below does not automatically convert the entire transcript into record material that this Court may review on appeal. See V.R.A.P. 10(a)(1), 30(a)(1) (establishing what may constitute the record on appeal and what may be included in an appellant's printed case); see also Napro Dev. Corp. v. Town of Berlin, 135 Vt. 353, 355, 376 A.2d 342, 345 (1977) (granting motion to strike materials " not properly before us because they are not part of the record" ). To the extent other materials that are properly part of the record on appeal establish the same or similar points, they are appropriately included in Gauthier's printed case and we shall consider them. Given our posture in reviewing a summary-judgment decision, in determining whether there is a genuine dispute as to a material fact, we will accept as true the facts as alleged by Gauthier where they are supported by the portions of the record developed in front of the trial court, giving Gauthier " the benefit of all reasonable doubts and inferences." See Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356, 848 A.2d 310.
[¶5] Accordingly, the record developed before the trial court reveals the following material facts. Gauthier began work at Green Mountain in May 2007 on an at-will basis as a full-time maintenance technician and was responsible for maintaining and repairing production machinery. His shifts were Sunday through Tuesday, 5 a.m. to 5 p.m., and every other Saturday. Gauthier did not have his own work computer, but would routinely use internet-enabled Green Mountain computers during his workday to assist with his job duties, including using in-house software to locate a part number for a machine part. In order to access a Green Mountain computer, he would enter his Green Mountain computer credentials, consisting of a unique user ID and password. Occasionally, Gauthier would need to leave his computer logged in and attend to a maintenance request. Several times over the course of his employ, Gauthier would return from the maintenance job to discover that someone had changed the settings on his computer, including the background image on his desktop.
[¶6] During his employment with Green Mountain, and prior to the incident resulting in this appeal, Gauthier was subjected to at least two internal disciplinary proceedings. In July 2009, Green Mountain placed Gauthier on a " corrective action plan" (CAP) to resolve issues he was having with co-workers. Gauthier completed the conditions of the CAP, and the plan was terminated several months later with no further action taken.
[¶7] In May 2010, Gauthier received a written warning for " frequently accessing non-business sites during his shift" in violation of Green Mountain's internet-use policy. Green Mountain maintains a written policy regarding appropriate e-mail, software, and internet use. The warning informed him that if he did not immediately improve his use of time it would " result in disciplinary action up to and including termination." Gauthier understood the possible ramifications of violating the internet-use policy.
[¶8] On August 1, 2011, in response to a request by Gauthier's supervisor that the human resources (HR) department investigate internet use in the maintenance department, a Green Mountain HR generalist requested a " Websense" report for the month of July 2011 for eleven maintenance technicians, including Gauthier. A Websense report " provides detailed information about internet use and access in connection with a particular employee's log in information." Internet use is depicted as a number of " page hits," with each hit representing an " active 'mouse click' to select another page, from the current one."  Gauthier's supervisor made the request for an investigation because there was " a lack of maintenance productivity during hours" when no supervisors were present. The requested Websense report for July 2011 was generated on August 5, 2011. The report showed that, during July 2011, Gauthier had 41,750 internet hits, an amount of internet hits " more than double the internet usage that [Green Mountain] generally considered excessive usage."
[¶9] On August 2, 2011, the day after the HR generalist had requested the report, but several days before it had been compiled, Gauthier sustained an injury while at work. Gauthier made a workers'-compensation claim, which Green Mountain accepted, and he continued to work until the day before he underwent an operation for his injury on September 8, 2011. Following the operation, he remained out on medical leave to recover for several weeks. Also, effective August 21, 2011, Gauthier received a 12% " market adjustment" increase to his base compensation rate.
[¶10] On August 22, 2011, based in part on the result of the Websense report, the HR generalist submitted a disciplinary action plan to his supervisor recommending that Gauthier be terminated. The report recounted that Gauthier was not required to access the internet frequently for business purposes and that he had been " engaged in the [Green Mountain] discipline process" for several years, including being placed on a CAP and receiving a written warning for violation of Green Mountain's internet-use policy. The report concluded that " [i]t is reasonably inferred, given the CAP and then the Written Warning ..., that [Gauthier] has not responded to counseling nor the [Green Mountain] discipline process" and that " [Gauthier] has been given ample opportunity in which to improve his performance." On September
29, 2011, the HR generalist's supervisor informed him that Green Mountain had agreed to terminate Gauthier based on his internet use. Due to the timing with Gauthier's workers'-compensation claim, however, the HR generalist was instructed to first send Gauthier a letter indicating that " there were some issues related to his performance that needed to be discussed once he returned from leave," which was sent on October 3, 2011.
[¶11] When Gauthier returned to work from his medical leave, he met with two Green Mountain HR generalists to discuss his July 2011 internet use as reflected in the Websense report. Gauthier denied the excessive internet use, and Green Mountain placed him on administrative leave while it investigated the matter. Green Mountain's information technology (IT) department informed the HR department that the use could have come from someone other than Gauthier only if he had shared his Green Mountain computer-login information with others. Gauthier denied sharing his computer-login information, and Green Mountain subsequently terminated him on November 8, 2011. As a result of the investigation into the eleven maintenance technicians' internet use, one received a written warning, one was subjected to a CAP, and two, including Gauthier, were fired.
[¶12] In March 2013, Gauthier filed a three-count complaint in the superior court, civil division, alleging (1) workers'-compensation retaliation; (2) breach of the implied covenant of good faith and fair dealing; and (3) intentional infliction of emotional distress. On February 13, 2014, following the completion of discovery, Green Mountain moved for summary judgment on all three counts. On March 12, 2014, one month after Green Mountain had moved for summary judgment and approximately one year after filing his complaint, Gauthier moved to amend his complaint to add two new claims: one for breach of contract and another for whistleblower retaliation. Gauthier also made two filings in opposition to summary judgment and filed a letter from a computer expert that " preliminarily suggested that the '[Websense]' report may have been misinterpreted" by Green Mountain. In a June 2014 decision, the court denied the motion to amend and entered summary judgment for Green Mountain on all three original counts. This appeal followed, with Gauthier arguing that the court erred by entering summary judgment in favor of Green Mountain on his claim for workers'-compensation retaliation and abused its discretion in denying his motion to amend his complaint. Gauthier has not appealed the trial court's grant of summary judgment in favor of Green Mountain on his claims for breach of the implied covenant of good faith and fair dealing and intentional infliction of emotional distress.
I. Workers'-Compensation Retaliation
[¶13] We first address Gauthier's argument that the trial court erred in entering summary judgment in favor of Green Mountain on his claim for workers'-compensation retaliation because Green Mountain's firing of him upon his return from workers'-compensation leave, in conjunction with the asserted weakness or implausibility of Green Mountain's proffered reason, indicates that Green Mountain used its internet policy as a pretext to fire him in retaliation for making a workers'-compensation claim. To this end, Gauthier contends that the trial court erred in applying the summary judgment rule in that it did not grant him the benefit of all reasonable doubts and inferences ...