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Connolly v. Alderman

United States District Court, D. Vermont

March 1, 2018



          Christina Reiss, District Judge United States District Court.

         On May 4, 2017, Plaintiff Donald Connolly initiated this sexual harassment and retaliation action against Defendants Philip Alderman, Alderman Motor Car, LLC, and Alderman's Automobile Corporation (collectively, "Defendants"). In Count III of his Complaint, Plaintiff alleges that Defendants negligently supervised, trained, and retained employees. On December 4, 2017, Defendants filed a motion to dismiss Count III, arguing that Plaintiffs claim is barred by the exclusivity provision of the Vermont Workers' Compensation Act (the "VWCA"), 21 VS.A. § 622, and preempted by the Vermont Fair Employment Practices Act, 21 V.S.A. §§ 495-496a (the "VFEPA"). (Doc. 24.) On January 2, 2018, Plaintiff opposed the motion. On January 16, 2018, Defendants filed their reply, at which time the court took the matter under advisement.

         Plaintiff is represented by John D. Stasny, Esq. Defendants are represented by F. David Harlow, Esq. and Elizabeth K. Rattigan, Esq.

         I. Factual Background and Procedural History.

         The following facts are derived from the allegations in Plaintiffs Complaint. Plaintiff was employed at Defendants' automotive dealerships in Vermont for approximately three years. Plaintiff states that "[u]pon information and belief, each Defendant has at all relevant times been an 'employer, ' as defined by 21 V.S.A. § 495d." (Doc. 1 at 3, ¶ 12.) During that time, Plaintiff contends that he was "subjected ... to regular, graphic descriptions of [a co-worker's] sexual interests and preferred sexual acts; sexual questions about [Plaintiff]; stories about other employees' sex acts; aggressive sexual advances and demands; and other sexual harassment." Id. at 1, ¶ 1. He further alleges that he informed his supervisor at Alderman Toyota, Robert Atkinson, both orally and in writing, about his co-worker's conduct in or about March of 2014 and requested assistance. Plaintiff claims that Mr. Atkinson warned him not to directly complain to Mr. Alderman or his employment may be terminated. On May 16, 2014, after receiving a promotion, Plaintiff was transferred from Alderman Toyota to Alderman Kia. Despite the transfer, Plaintiff alleges that his co-worker "continued to harass [him] with sexual remarks and messages" and that Mr. Alderman failed to prevent it. Id. at 6, ¶ 37.

         In Counts I and II, Plaintiff alleges Defendants' conduct violated the VFEPA. In Count III, Plaintiff contends that, "[u]nder Vermont common law, " Defendants owed him a duty to use reasonable care to avoid harming him, as well as a duty to anticipate and guard against '"human traits' of their employees which, unregulated, are likely to harm others." Id. at 9, ¶¶ 65-66. He alleges that Defendants negligently failed to properly train employees and managers to appropriately report and respond to allegations of workplace sexual harassment. He further alleges Defendants negligently retained employees whose conduct they knew or should have known would put other employees at risk, as well as negligently responded to his allegations of sexual harassment.

         II. Conclusions of Law and Analysis.

         A. Standard of Review.

         Defendants seek dismissal of Count III pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a plausible claim for which relief may be granted. In adjudicating a motion pursuant to Fed.R.Civ.P. 12(b)(6), the court is "guided by '[t]wo working principles[.]'" Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (alteration in original). First, "a court must accept as true all of the [factual] allegations contained in a complaint[, ]" a "tenet" that is, however, "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss[, ]" and a claim "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678-79.

         "The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678 (quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotation marks omitted). "Determining whether a complaint states a plausible claim for relief will[] .. . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

         Because federal subject matter jurisdiction in this case is based on diversity of citizenship, the court applies the substantive law of Vermont, the forum state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also Omega Eng'g, Inc. v. Omega, S.A., 432 F.3d 437, 443 (2d Cir. 2005) ("In a diversity case we apply the substantive law of the forum state").

         B. Whether the VWCA Preempts Plaintiffs Negligence Claim.

         Defendants seek dismissal of Count III, which purports to arise out of "Vermont common law, " on the basis of the VWCA's exclusivity provision, which they contend is the exclusive remedy for negligence-based harms in the workplace. (Doc. 1 at 9, ¶ 65.)

         The VWCA, which provides compensation to employees who suffer "a personal injury by accident arising out of and in the course of employment by an employer[, ]" 21 V.S.A. § 618(a)(1), is an employee's exclusive remedy ...

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