United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS COUNT III OF THE COMPLAINT (DOC. 24)
Christina Reiss, District Judge United States District Court.
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.
is represented by John D. Stasny, Esq. Defendants are
represented by F. David Harlow, Esq. and Elizabeth K.
Factual Background and Procedural History.
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, ¶
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.
Conclusions of Law and Analysis.
Standard of Review.
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.
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.
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").
Whether the VWCA Preempts Plaintiffs Negligence
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.)
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