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Terino v. The Woodstock Resort Corp.

United States District Court, D. Vermont

June 28, 2017

MAR-RAE X. TERINO Plaintiff,


          William K. Sessions III District Court Judge


         Plaintiff Mar-Rae Terino brings this action against her former employer, WTS International Inc. ("WTS"), and the owner and operator of her former employment site, The Woodstock Resort Corporation. In her initial complaint, Plaintiff brought a single claim of interference with her rights under the Family Medical Leave Act ("FMLA"), arising out of the terms of her employment and eventual resignation from the Spa at the Woodstock Inn after she suffered a work-related injury at her employment location. ECF 7. On December 22, 2015, this Court granted Defendants' motion to dismiss the original complaint on the ground that her claim was untimely, but allowed her leave to amend the complaint so as to allege thirteen new causes of action. ECF 24.

         In her amended complaint, Plaintiff asserts the following claims: Interference with medical leave rights under Vermont's Parental Family Leave Act ("PFLA") (Count One); Retaliation under the FMLA and PFLA (Count Two); Racial Discrimination under Vermont's Fair Employment Practices Act ("FEPA" or "VFEPA") (Count Three); Disability Discrimination and Hostile Work Environment under FEPA (Count Four); Illegal retaliation under FEPA (Count Five); Retaliation for filing a workers' compensation claim (Count Six); Intentional infliction of emotional distress ("IIED") (Count Seven); Breach of implied employment contract and covenant of good faith and fair dealing (Count Eight); Promissory estoppel (Count Nine); Negligent hiring, retention and supervision (Count Ten); Nonpayment of wages (Count Eleven); Unjust enrichment (Count Twelve); Tortious interference with contractual relations and/or prospective economic advantage (Count Thirteen); and Defamation (Count Fourteen). At the close of discovery, Defendants moved for summary judgment on each of these claims. ECF 54; ECF 55. In her opposition to these motions, Plaintiff withdrew Counts Two, Three, Four (with respect to hostile work environment only), Seven, Eight, Nine, Ten, Thirteen and Fourteen.[1] She maintains that the evidence produced in discovery establishes material disputes of fact precluding summary judgment on her remaining claims (namely, Counts One, Four (concerning disability discrimination), Five, Six, Eleven and Twelve).[2] For the reasons set forth below, Defendants' motions for summary judgment on Plaintiff's remaining claims are granted. Accordingly, the Court will enter judgment in favor of Defendants on all counts.

         Factual Background

         Plaintiff applied for a position as a nail technician and aesthetician at the Spa at the Woodstock Inn on August 11, 2010.[3]Although Plaintiff had initially inquired about a position as a Wedding Coordinator with the Human Resources Department at the Woodstock Inn and Resort, she was told that that position had been filled and was referred to WTS instead. She applied for a position at the Spa and received an offer from WTS on August 16, 2010. Michelle Adams, the Spa director, trained Plaintiff for two weeks and oversaw her work thereafter. Plaintiff received a positive evaluation from her supervisors in her first annual evaluation in September, 2011. On January 4, 2011, she sent Adams an email stating that the Spa was "the best spa I have ever worked at."

         Between the time that she was hired and January 2012, Plaintiff performed some work from home with Adams' permission. However, she did not provide Adams with a record of her work hours at home. In addition, Plaintiff testified that on occasion, when employees arrived and clocked in early in order to prepare for a shift, Adams would clock them out until their shift began.

         On January 28, 2012, Plaintiff slipped on ice and fell in the parking lot as she was coming into work at the Spa. She suffered a sprained ankle, foot and knee, and experienced back pain as a result. After receiving treatment at the emergency room at Mount Ascutney Hospital, Plaintiff quickly provided Adams with a doctor's note stating that she would not be able to return to work until February 6th. Before February 3rd, Plaintiff provided Adams with a second note stating that she would need to be out of work until February 13th. She testified that Adams "lost her mind" at the news "because she didn't have anyone else to cover." ECF 54-2, p. 35.

         On February 8, 2012, WTS sent Plaintiff a letter stating that she did not qualify for FMLA leave because she did not work in a location where her employer had at least 50 employees within a 75 mile radius. ECF 54-9. The letter also provided that WTS would extend a personal leave of absence for up to three months, and instructed Plaintiff to discuss the amount of time that she would need with her supervisor. However, Plaintiff did not request additional leave pursuant to this letter beyond the time off she had requested between the time of her injury and February 13th. Plaintiff's salary continuation benefit payments from WTS' insurer, Traveler's Insurance Company, began in February 2012. On February 9th, Adams completed a form to authorize the application of Plaintiff's accrued paid time off for her leave on February 2nd and 3rd. A couple of months after her injury, Plaintiff filed a filed a worker's compensation claim with Travelers Insurance Company, challenging the amount of her benefit payment.

         Plaintiff returned to work at the Spa on February 14th with the following medical restrictions: she could not use stairs, lift more than ten pounds, work for more than four hours a day, or perform pedicures. She sought accommodations from WTS for her sprained foot, knee and ankle, and informed WTS each time her physician altered her restrictions. The parties agree that Adams changed Plaintiff's schedule frequently thereafter, but dispute the cause of these changes. Defendant WTS asserts that, as the Spa's lead therapist, Michelle D'Hooghe, testified, Plaintiff's schedule changed in response to her changing work restrictions. ECF 54-21. P. 16. Plaintiff disputes that her doctor's restrictions were changed "frequently, " but does not present valid evidence that she was scheduled to work fewer hours than what her doctor allowed. ECF 56-1, p. 10. On February 11, Plaintiff was told that she would not be able to apprentice another employee after her injury until she returned to work full time. Finally, on February 14, 2012, WTS changed Plaintiff's employment status from full-time to part-time, in response to her reduced work hours.

         On February 23, Plaintiff met with WTS and Woodstock Resort management staff about the way her injury was being handled at work. At that meeting, she objected to the last minute scheduling changes and to not being given notice of the change in her schedule, but not to the number of hours she was scheduled to work. She testified that she informed the management staff that she was under a lot of stress from work and that Adams screamed at her over the phone to pressure her to come in to work. On February 24, WTS provided Plaintiff with a letter from COBRA Control Services notifying her that her health benefits would be cut, and that she had the option to elect COBRA to continue her health benefits after her coverage was cut on March l.[4] Plaintiff did not respond to this letter. At that time, Plaintiff's medical expenses were paid by WTS' workers' compensation insurer. On February 28, Plaintiff was verbally coached for failing to sign off on a closing checklist of tasks.

         On April 7, 2012, Plaintiff came to work approximately one hour before her scheduled shift and found that a client had arrived for an appointment that she hadn't been informed about previously. Plaintiff was very upset about the scheduling shift and signed a written resignation that day. Although Plaintiff alleged in her complaint that the Spa staff intentionally manipulated her schedule to ensure that she would fail to show up for an appointment, thereby providing an excuse to fire her, Defendant asserts that Plaintiff has no evidence that Spa staff had this intention. Plaintiff's response implies that such a motive can be inferred from the Spa staff s purported reason for failing to call her (namely, that the power went out), which she alleges "makes no sense." ECF 56-1, p. 16.

         Standard of Review

         Summary judgment should be granted if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law." SCR Joint Venture I. P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009) (citing Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008)). Thus, summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         "[O]n summary judgment the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)) (internal quotations omitted). However, "a court is obliged not to consider inadmissible evidence at the summary judgment stage, [and] it remains in that court's discretion whether to strike the inadmissible portions or simply disregard them." Pacenza v. IBM Corp., 363 F.App'x 128, 130 (2d Cir. 2010).


         Plaintiff sustains that she is entitled to go to trial on her claim for (1) Interference under the PFLA (Count 1); (2) Disability discrimination under FEPA (Count 4); (3) Retaliation under FEPA (Count 5); (4) Retaliation for filing a workers compensation claim (Count 6); (5) Unpaid wages under state law; and(6) Unjust enrichment. The Court addresses these in turn, and concludes that Defendants are entitled to summary judgment on each.

         1. Interference under Vermont's Parental Family Leave Act

         Count One of Plaintiff's amended complaint alleges that Plaintiff "attempted to exercise her rights under the ... PFLA, " and that Defendants "interfered with, restrained and denied the exercise of Ms. Terino's medical leave rights" under state law. ECF 27, p. 29. Federal courts are bound to apply state substantive law to a state claim. Promisel v. First Am. Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991). In the absence of authoritative law from the state's highest court, the Court must either (1) predict how the state's highest court would resolve the state law question, or, if state law is so uncertain that the Court can make no reasonable prediction, (2) certify the question to the state's highest court for a definitive resolution. DiBella v. Hopkins, 403 F.3d 102, 111 (2d Cir. 2005) .

         Defendant WTS asserts that unlike the federal FMLA, Vermont's PFLA does not create a cause of action for "interference." ECF 54-54, p. 3. The Vermont statute provides that "an employer shall not discharge or in any other manner retaliate against an employee who exercises or attempts to exercise his or her rights under this subchapter." 21 V.S.A. § 473. That language directly tracks the retaliation provision in the FMLA, which makes it unlawful for an employer to "discharge or in any other manner discriminate against any individual for any practice made unlawful" by the FMLA. 29 U.S.C. § 2615(a). However, FMLA "interference" claims are established pursuant to a separate provision, which makes it unlawful for employers to "interfere with, restrain or deny the exercise of or attempt to ...

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