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Terino v. Woodstock Resort Corp.

United States District Court, D. Vermont

August 2, 2017

MAR-RAE X. TERINO Plaintiff,
v.
THE WOODSTOCK RESORT CORP. and WTS INTERNATIONAL INC., Defendants.

          OPINION AND ORDER

          William K. Sessions III District Court Judge

         Introduction

         Plantiff Mar-Rae Terino brought this action against her former employer, WTS International Inc. (“WTS”), and the owner and operator of her former place of employment, The Woodstock Resort Corporation. Terino's amended complaint alleged fourteen causes of action. ECF 24. After Defendants filed their motions for summary judgment, however, Plaintiff withdrew eight of these claims. On June 28, 2017, the Court granted summary judgment in favor of Defendants on Plaintiff's remaining claims, including her claim for (1) interference with leave rights under Vermont's Parental Family Leave Act (“PFLA”) (count one); (2) disability discrimination under Vermont's Fair Employment Practices Act (count four); (3) retaliation for disability discrimination complaints under Vermont's Fair Employment Practices Act (“FEPA”) (count five); (4) retaliation for filing a workers compensation claim (count six); (5) unpaid wages under FEPA (count eleven); and (6) unjust enrichment (count twelve). ECF 66. Plaintiff subsequently filed a motion seeking reconsideration of the Court's order with respect to her claims for (1) interference with PFLA rights; (2) disability discrimination under FEPA; (3) retaliation for disability discrimination complaints under FEPA; and (4) retaliation for filing a workers' compensation claim. For the reasons described below, the Court denies Plaintiff's motion. Nevertheless, the Court takes the opportunity to correct a factual error which, even upon reconsideration, would not alter the outcome of the Court's opinion.

         Standard of Review

         Rule 59(e) of the Federal Rules of Civil Procedure permits a party to move the Court to alter or amend a judgment within 28 days after judgment is entered. A motion to alter or amend judgment may be granted to “correct a clear error or prevent manifest injustice.” Griffin Indus., Inc. v. Petrojam, Ltd., 72 F.Supp.2d 365, 368 (S.D.N.Y.1999) (internal quotation omitted). However, such a motion “will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995); see also Robins v. Max Mara, U.S.A., Inc., 923 F.Supp. 460, 472 (S.D.N.Y. 1996). “[W]here the moving party seeks to relitigate issues already considered thoroughly by the court, ” the motion should be denied. Chet's Shoes, Inc. v. Kastner, 710 F.Supp.2d 436, 454 (D. Vt. 2010), aff'd, 449 F.App'x 37 (Fed. Cir. 2011). If the moving party cannot point to overlooked, controlling decisions or factual matters, or clear error or manifest injustice, the disagreement must be resolved “in the normal appellate process.” Id. (internal quotations omitted) (citing NL Indus., Inc. v. Comm'l Union Ins. Cos., 938 F.Supp. 248, 250 (D.N.J.1996)).

         Discussion

         For purposes of this discussion, the Court presumes the reader's familiarity with the facts adduced in discovery, outlined more fully in the Court's summary judgment order. ECF 66. After evaluating Plaintiff's arguments, the Court finds that Plaintiff has failed to identify controlling decisions or data that would alter its conclusions.

         1. Interference with Medical Leave under the PFLA

         Plaintiff raises four arguments in support of her assertion that the Court erred in dismissing her claim for interference with her PFLA rights. First, she points to an investigative report from the Vermont Human Rights Commission which applied the standard for an interference claim under the federal Family and Medical Leave Act (“FMLA”) to a claim under the state PFLA, without discussing why such a claim would be permissible under the language of the PFLA. See Thissell, Vermont HRC Case No. E16-0004 (Jan. 28, 2016) (investigative report). The Human Rights Commission later held that there were reasonable grounds to believe that the employer in that case had interfered with the complainant's PFLA rights, without discussing the legal standard employed or the factual issues in dispute. Next, Plaintiff reiterates her argument that the Court must construe the language of the state statute to provide for an interference claim. Third, Plaintiff asserts that she alleged restrictions on her time during her on-call hours, without providing any further legal argument about why that time is compensable. Finally, Plaintiff asserts that, under Vermont law, the Court was required to consider her affidavit concerning uncompensated hours, despite her prior deposition testimony stating that she could not estimate those hours. None of these arguments withstand scrutiny.

         First, the investigator's report, which applied the federal standard for an interference claim to the PFLA without discussion of its applicability under state law, does not provide a binding interpretation the scope of the PFLA. In fact, Plaintiff does not set forth a cogent legal argument about the weight of this authority at all, other than to contend that “the Vermont Supreme Court would agree or [sic] that this issue needs to be decided by the high court.” ECF 68, p. 3.[1] Nor could this Court find authority to suggest that a contrary conclusion offered without discussion by an administrative agency would weigh on the Vermont Supreme Court's willingness or desire to take on a certified question.[2] Moreover, while Vermont courts do grant deference to the legal interpretations of administrative agencies, those conclusions are still subject to judicial review. See State v. Grenier, 198 Vt. 55, 67 (2014) (“We employ a deferential standard of review of an agency's interpretation of its own regulations, and the presumption that an agency's interpretation is valid may be overcome only by compelling indications of error.”) (internal quotations omitted); In re Vill. Assocs. Act 250 Land Use Permit, 188 Vt. 113, 119 (2010)(“where we are not reviewing a decision by an agency charged with promulgating and interpreting its own rules, we employ the familiar de novo standard of review for matters of law.”). Thus, regardless of the standard of review to be employed to the determination in Thissell, it is clear that the Human Rights Commission's conclusory application of a different standard is not binding on this Court. Nor does the investigative report in Thissell make state law so uncertain that the Court could not make a reasonable prediction based on statutory construction, given the dearth of analysis contained therein.

         In fact, immediately following her reference to Thissell, Plaintiff argues that this Court should engage in statutory construction to reach a different conclusion. This argument, too, is unavailing. In particular, Plaintiff asserts that the PFLA and the FMLA contain parallel language -namely, they both prohibit retaliatory conduct for a party's attempt to exercise his or her rights under those laws -and that this language should lead the Court to reason that similar claims are contemplated by both laws. But that argument ignores an obvious difference between the two statutes: the FMLA expressly makes it unlawful for an employer “to interfere with” such an attempt, while the PFLA does not. See 29 U.S.C. § 2615(a)(1); 21 V.S.A. § 473. The Vermont statute, therefore cannot be described as merely “combining ... into one section” two separate provisions of federal law, as Plaintiff claims. As such, the Court sees no reason to depart from its prior conclusion on this question of statutory construction.[3]

         Since the law does not contemplate an interference claim to begin with, the Court need not delve into the specific facts Plaintiff references concerning the restrictions she faced during on-call hours. Nevertheless, the Court notes that the facts Plaintiff points to in her motion were available at the time of the summary judgment opinion, and were contemplated by the Court at the time. As in her first briefing on this question, Plaintiff makes no attempt to argue that the relevant facts warrant a conclusion that her on-call time was compensable. See Singh v. City of N.Y., 524 F.3d 361, 368 (2d Cir. 2008) (“whether an employee's expenditure of time is considered work under the FLSA turns in part on whether that time is spent predominantly for the benefit of the employer or the employee”). In fact, Plaintiff's brief fails to include a single reference to the applicable legal standard for compensable work time. Having undertaken this effort of its own initiative once, the Court sees no reason to upset its prior analysis.

         Finally, since interference claims are unavailable under the PFLA, the Court need not consider the evidentiary question of whether the Plaintiff may contradict her own, uncorrected deposition testimony by preparing an affidavit for purposes of summary judgment. Nevertheless, even if it did, Plaintiff's reference to Vermont law is unavailing in this case. See ECF 68 (citing Northern Security Insurance Company v. Mary L. Joseph and Anthony Rossitto, 762 A.2d 861, 893 (Vt. 2000)). Although this Court must apply state substantive law to a state law claim, federal law continues to guide procedural determinations. See Retained Realty, Inc. v. McCabe, 376 Fed.Appx. 52, 55 (2d Cir. 2010) (summary order) (quoting Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996)) (“Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.”). The Federal Rules of Civil Procedure provide express guidance to this Court concerning the standard to be applied at summary judgment, including the validity of affidavits submitted as evidence at this stage. See Fed. R. Civ. P. 56. Therefore, the Court must apply these rules, as interpreted by the Supreme Court, to resolve the evidentiary dispute at issue here. See Cappiello v. ICD Publications, Inc., 720 F.3d 109, 113 (2d Cir. 2013) (holding that if a federal rule applies, the court need “not wade into Erie's murky waters.”)(quoting Shady Grove Orthopedic Associates, P.A, 559 U.S. at 398). As such, to the extent that Vermont law would provide a more lenient standard for evaluating the evidence presented for summary judgment, the Court need not apply that standard here.

         Furthermore, Plaintiff's reference to Gage v. Rymes Heating Oils, Inc., Case No. 14-CV-480-PB, 2016 WL 843262, at *6 (D.N.H. Mar. 1, 2016) is inapposite. In that case, the Court addressed whether an admission made in a deposition would amount to the “functional equivalent of an admission under Rule 36” of the Federal Rules of Civil Procedure. Id. The Court concluded that it was not. That question, however, is entirely distinct from the situation at hand, in which the Court must determine what evidence suffices to create a material dispute of fact. As the Court stated in its prior order, the Second Circuit has directly addressed that question. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 455 (2d Cir. 1999) (“[i]t is beyond cavil that a party may not create an issue of fact by submitting ...


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