United States District Court, D. Vermont
WILLIAM D. NOEL Plaintiff,
WAL-MART STORES EAST, L.P. Defendant.
MEMORANDUM AND ORDER
William K. Sessions, III District Court Judge.
Wal-Mart Stores East, L.P. (“Defendant” or
“Walmart”) moves to dismiss Plaintiff William D.
Noel's (“Plaintiff” or “Noel”)
Complaint and Amended Complaint pursuant to Fed.R.Civ.P.
12(b)(6), asserting that they fail to state claims upon which
relief can be granted. Plaintiff amended his original
Complaint as a matter of course under Fed.R.Civ.P. 15(a)(1).
Thus, the original Complaint (ECF 6) is no longer before the
court, and Defendant's motion to dismiss the original
Complaint (ECF 11) is denied as moot. Plaintiff's Amended
Complaint (ECF 12) includes four counts: breach of contract,
wrongful discharge, violation of public policy, and
promissory estoppel. For the reasons set forth below,
Defendant's motion to dismiss the Amended Complaint (ECF
15) is granted, and Plaintiff's Amended
Complaint is dismissed without leave to
Noel was employed by Defendant Walmart as a pharmacist
manager in its St. Albans, Vermont location. On April 8,
2016, Walmart announced a new policy: new hires in
Plaintiff's position would need to be certified to
administer immunizations by April 16, 2016 and incumbents
would need to be certified by October 16, 2016. See
ECF 12, p. 2. Plaintiff suffers from trypanophobia, an
extreme fear of needles. As a result, he is unable to
sought an exemption from this new policy, and he completed
Walmart's seven step process for securing an
accommodation. On June 12, 2016, Plaintiff completed a
“Confidential-Request for Accommodation Form.”
Along with this form, Plaintiff submitted a
Questionnaire” form, in which Plaintiff's physician
described Plaintiff's condition.
19, 2016, Walmart sent Plaintiff a letter stating that he was
granted an accommodation and would not have to administer
immunizations. On October 18, 2016, Plaintiff participated in
a phone call with Defendant's Health and Wellness
Director and its Accommodation Service Center Manager.
Defendant's representatives told Plaintiff that he would
have to be certified to administer immunizations to continue
in his position. Plaintiff asserts that “[b]y letter
dated October 19, 2016, Defendant, acting through the
Accommodation Service Center that had earlier granted the
accommodation Plaintiff requested, constructively terminated
Plaintiff's employment by requiring that he become
certified to administer immunizations as a condition of
retaining his employment.” ECF 12, p. 3.
originally filed this case on June 28, 2017 in Vermont
Superior Court, Chittenden Civil Division. Defendant removed
the case to the United States District Court for the District
of Vermont. Plaintiff's Complaint was filed in
this court on July 24, 2017. See ECF 6. Defendant
filed a motion to dismiss the Complaint on July 24, 2017.
See ECF 11. Plaintiff responded to the motion on
August 23, 2017. See ECF 14. Defendant replied to
the response on September 6, 2017. See ECF 21.
Plaintiff filed an Amended Complaint on August 14, 2017.
See ECF 12. Defendant filed a motion to dismiss the
Amended Complaint on August 28, 2017. See ECF 15.
Plaintiff responded to the motion on September 15, 2017.
See ECF 24. Defendant replied to the response on
October 12, 2017. See ECF 26.
dates of the responses and replies to the Complaint and
Amended Complaint overlap, leading to a slightly confusing
situation. Plaintiff amended his Complaint as a matter of
course under Fed.R.Civ.P. 15(a)(1) because he filed his
Amended Complaint within 21 days of Defendant's motion to
dismiss the original Complaint. Thus, the Amended Complaint
is controlling. Plaintiff's original Complaint is no
longer before the court, and Defendant's motion to
dismiss the original Complaint (ECF 11) is denied as moot.
Amended Complaint sets forth general allegations and four
alleges breach of contract. Plaintiff contends that his
contract of employment with Defendant included, as of July
19, 2016, an exemption from the requirement to be certified
to administer immunizations. Plaintiff asserts that Defendant
breached that contract when it constructively terminated
Plaintiff's employment on October 19, 2016 by requiring
that he become certified to administer immunizations.
II alleges wrongful discharge. Plaintiff erroneously states
that “Defendant is a qualified individual with
a disability” when he clearly meant to say
“Plaintiff is a qualified individual with a
disability” (emphasis added). Plaintiff contends that
Defendant recognized him as disabled, granted him an
accommodation, and then willfully refused to honor that
accommodation-thereby unlawfully failing to accommodate his
disability and terminating his employment. In the
alternative, Plaintiff contends that Defendant discriminated
against him “on account of his inability to perform a
non-essential function of his position, which inability
Defendant knew to be caused by a physical or mental
impairment within the meaning of 21 V.S.A. §
495d.” Plaintiff argues that Defendant's conduct
constitutes constructive discharge, failure to accommodate
Plaintiff's disability, unlawful discrimination, and
wrongful discharge in violation of 21 V.S.A. § 495.
III alleges violation of public policy. Plaintiff asserts
that it is contrary to the public policy of Vermont for
employers to grant accommodations and then refuse to honor
such accommodations, resulting in constructive discharge.
IV asserts promissory estoppel. Plaintiff states that he
relied on Defendant's accommodation procedures when he
completed all of the required forms and was granted an
exemption. Plaintiff argues that Defendant is estopped from
denying the accommodation it granted to Plaintiff. Plaintiff
also argues that in denying the accommodation that had
previously been granted, Defendant constructively discharged
counts, Plaintiff alleges that he has suffered economic loss,
emotional distress, and other damages as a direct and
proximate consequence of Defendant's actions.
INCORPORATED BY REFERENCE
if the court is to consider material presented to it that was
not included in the complaint, the motion to dismiss
“shall be treated as one for summary judgment”
and “all parties shall be given reasonable opportunity
to present all material made pertinent to such a
motion.” Chambers v. Time Warner, Inc., 282
F.3d 147, 152 (2d Cir. 2002). However, “the complaint
is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it
by reference.” Id. (citing Int'l
Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62
F.3d 69, 72 (2d Cir. 1995)). “[W]hen a plaintiff
chooses not to attach to the complaint  a [document] 
which is integral to the complaint, the defendant may produce
the [document] when attacking the complaint for its failure
to state a claim, because plaintiff should not so easily be
allowed to escape the consequences of its own failure.”
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d
42, 47 (2d Cir. 1991).
Noel relies heavily on three documents which he has failed to
include with his Amended Complaint even though they are
integral to assessing the plausibility of his allegations.
The documents are: the April 8, 2016 announcement, the July
19, 2016 letter, and the pharmacy manager job description.
Plaintiff relies on all three of these documents, and he is
not prejudiced by the court's recognition and
consideration of them. The Second Circuit has explained that
generally, the harm to the plaintiff when a court considers
material extraneous to a complaint is the lack of notice that
the material may be considered. Cortec, 949 F.2d at
48. Accordingly, “[w]here plaintiff has actual notice
of all the information in the movant's papers and has
relied upon these documents in framing the complaint the
necessity of translating a Rule 12(b)(6) motion into one
under Rule 56 is largely dissipated.” Id.
Chambers, 282 F.3d at 153.
certainly has notice of all three of these documents. He
personally received both the April 8, 2016 announcement and
the July 19, 2016 letter. The court's consideration of
the pharmacy job description is slightly more complicated, as
it is dated November 17, 2016-nearly one month after
Plaintiff asserts that he was constructively terminated.
However, this was essentially just a codification of the
immunization policy which was announced on April 8, 2016.
Further, Plaintiff's Amended Complaint specifically
refers to the “alteration of his job
description.” ECF 12, p. 2. Plaintiff has not contended
that the November 17, 2016 document is an inaccurate job
description, nor does he voice any concerns in his opposition
to the motion to dismiss about the court considering any of
the three documents Defendant submitted. See ECF 24.
To the contrary, Plaintiff acknowledges Defendant's
exhibits and uses them in his arguments opposing the motion
the court will consider these three documents in ruling on
Defendant's motions to dismiss.
Motion to ...