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Cole v. Foxmar, Inc.

United States District Court, D. Vermont

May 16, 2019

THOMAS COLE, Plaintiff,


          Christina Reiss, District Judge United States District Court

         Plaintiff Thomas Cole brings this action against Defendant Foxmar, Inc. seeking damages arising out of Defendant's termination of his employment on July 27, 2018. In his initial four-count Complaint, Plaintiff alleges claims of wrongful termination in violation of the Vermont Occupational Safety and Health Act ("VOSHA"), 21 V.S.A. §§ 201-32; wrongful termination in violation of public policy; breach of contract; and breach of the implied covenant of good faith and fair dealing.

         Pending before the court are Defendant's motion to dismiss (Doc. 3), Plaintiffs motion to amend his Complaint (Doc. 12), and Plaintiffs supplemental motion to amend his Complaint (Doc. 13). Pursuant to Fed.R.Civ.P. 12(b)(6), Defendant seeks dismissal of Plaintiff s claims for failure to state a claim upon which relief can be granted. Plaintiff opposes dismissal.

         In Plaintiffs first motion to amend his Complaint, he seeks to add a claim for wrongful termination in violation of the Vermont Earned Sick Time Act ("VESTA"), 21 V.S.A. §§481-87. In Plaintiffs supplemental motion to amend his Complaint, he seeks to add a claim for promissory estoppel. Defendant opposes these proposed amendments on the grounds that they are futile.

         Plaintiff is represented by William J. Pettersen, IV, Esq. Defendant is represented by Kevin L. Kite, Esq., Mara D. Afzali, Esq., and Michael D. Billok, Esq.

         I. The Complaint's Allegations. [1]

         Plaintiff is a resident of Ferrisburgh, Vermont. Defendant is a corporation with headquarters in Kentucky that was awarded a Department of Labor contract to manage and operate the Northland Job Corps Center ("NJCC") in Vergennes, Vermont. The NJCC is an educational facility that provides training and employment services to disadvantaged youth and adults. On or about May 23, 2018, Defendant hired Plaintiff as a full-time residential counselor in the Department of Independent Living at NJCC. Plaintiffs duties included overseeing NJCC dormitories and ensuring that they were sanitary.

         On or about Monday, July 23, 2018, a group of NJCC students reported to Plaintiff and the lead counselor, Angela Mobley, that they did not have any cleaning sanitizer. The students complained that the counselor who usually supervised their dormitory had failed to keep the dormitory properly stocked with sanitizer, although they did not specify how long this condition persisted. At the time, many of the students in that dormitory were sick, as was the counselor who usually supervised them. The students showed Plaintiff and Ms. Mobley an empty cleaning basket that purportedly should have contained cleaning supplies. Plaintiff alleges that counselors are required to ensure sanitizer is available to all students to clean their dormitories. Ms. Mobley thereafter obtained four spray bottles and sanitizer for the dormitory. At a meeting with counselors on the same day, she asked the counselors how they were doing and one of the counselors, Tori Ramos, stated that she was extremely sick. Ms. Mobley responded to the effect of "you people in Vermont need to take your medicine." (Doc. 6 at 3.) Ms. Mobley told Ms. Ramos that she could go home if she could find someone to assume her duties and responsibilities. Plaintiff alleges that "[u]pon information and belief, Ms. Ramos ended up working her entire shift on Monday." Id.

         On the morning of Tuesday, July 24, 2018, Plaintiff met with Alisha Grangent, the Center Director of NJCC responsible for overseeing the NJCC campus, and expressed his concern that the failure of "one or more counselors" to properly supply a dormitory with cleaning supplies and Ms. Mobley's refusal to permit counselors to leave work when they were sick was placing students and employees at risk. Id. at 4. Ms. Grangent responded by noting that Christina Brace, the Acting Wellness Coordinator, had informed her about an abdominal virus that was "going around campus[.]" Id. That same day, Plaintiff left work before the end of his shift after informing Ms. Grangent and her executive assistant that he was leaving early because he felt ill.

         Plaintiff was not scheduled to work on Wednesday, July 25, 2018 or Thursday, July 26, 2018. On Wednesday July 25, 2018, Plaintiff called Defendant's Human Resources Department, located at its corporate office in Kentucky, and left a voicemail indicating that there were "some difficulties on campus at NJCC that he would like to report." Id. Plaintiff alleges that he received no response to his voicemail.

         On the morning of Friday, July 27, 2018, prior to arriving at work, Plaintiff called Mari Trybendis, a Human Resources Assistant, and asked how to submit a written complaint regarding his health and safety concerns. He also asked for reassignment from the Department of Independent Living to another unspecified department. Ms. Trybendis directed Plaintiff to email his complaint to her as well as his request for reassignment and to copy Ms. Grangent on those communications.

         Plaintiff drafted a letter to Bernadette Brookes, Human Resources Manager, wherein he explained the health and safety issues that he had witnessed earlier in the week, noted that he believed those issues posed "an unnecessary risk to him and others[, ]" and requested a reassignment from the Department of Independent Living. Id. at 5. Plaintiff emailed this letter to Ms. Trybendis and Ms. Grangent on Friday, July 27, 2018 and asked that they direct the letter to other appropriate supervisors.

         A few hours after sending the July 27, 2018 email, Plaintiff received a voicemail from Ms. Brookes notifying him that she wished to speak with him about his continued employment. Plaintiff met with Ms. Brookes that afternoon, at which time Ms. Brookes terminated Plaintiffs employment. Plaintiff asked Ms. Brookes why she had not addressed any of his complaints. Ms. Brookes responded that she had not received any complaints from him.

         Defendant thereafter issued Plaintiff a termination notice dated July 27, 2018 which stated that Plaintiff was terminated because he did not report for his scheduled shifts on Monday, July 23, Tuesday, July 24, and Wednesday July 25, 2018. The termination notice was signed by Ms. Mobley, Ms. Brookes, and Howard Harmon, Defendant's Executive Vice President and Chief Operating Officer. Plaintiff alleges that the claimed reason for his termination was false and pretextual and that he was actually terminated because he complained to his supervisors regarding health and safety violations he witnessed.

         Defendant's Employee Handbook (the "Handbook")[2] states as follows in its introductory section:

All parties involved will adhere to ETR's Core Values in all that we do. This not only means that the expectation is that we will all operate in a safe environment, both physically and mentally, that will allow an open dialogue that leads to individuals taking accountability to proactively act in good faith to demonstrate a commitment to integrity and respect that allows growth for both the individual, the Center, and the Company. . . . You have the distinct privilege and responsibility to speak up when things are found out of compliance.

(Doc. 3-2 at 7.)

         The Handbook includes a policy entitled "Free to Choose - (Employment-at- Will)" which states:

... we cannot make any guarantees about your continued employment at our Company.
Employees who do not have an individualized written employment contract or a collective bargaining agreement are employed at the will of the company. This means that you are free to quit at any time, for any reason, just as we are free to release you from employment at any time, for any reason with or without notice or cause.
Employees may be demoted or held accountable and the terms and conditions of their employment with ETR may be modified at the sole discretion of ETR with or without cause and with or without notice. Additionally, "Employment-at-Will" means that ETR has no obligation to continue your present position, pay, or benefits.
This is the entire agreement between you and ETR regarding the terms of your employment with the company. No. statements made in pre-hire interviews or subsequent discussions are to alter the at-will nature of your employment. ETR's policies and practices with respect to any matter are not to be considered as creating any contractual obligation on ETR's part or as stating in any way that discharge will occur only for "just cause[.]" Statements of specific grounds for discharge set forth in this manual or in any other ETR documents are examples only, not all-inclusive lists, and are not intended to restrict ETR's right to discharge at-will. Similarly, completion of an introductory period does not change your status as an at-will employee.
Other than ETR's President/CEO, no one has the authority to make any agreement for employment other than for employment-at-will or to make any agreement limiting ETR's discretion to modify terms and conditions of employment. This policy may not be modified by any statements contained in this manual or any other employee handbooks, employment applications, recruiting materials, company correspondence, or other materials provided to applicants or employees in connection with their employment. With the sole exception of the above mentioned written employment contract or collective bargaining agreement, no statements, written or oral, whether singly or combined, are to create an express or implied contract of employment for a definite period, or an express or implied contract concerning any terms or conditions of employment. Only ETR's President/CEO has the authority to make any such agreement and then only in a written document signed by the President/CEO and you.

Id. at 19-20.

         Under the heading "Sick Leave[, ]" the Handbook states: "You're miserable when you're taking it, but you can't live without it. Here's the bottom line. When you are really too sick to work, we want you to stay home and get better." Id. at 31.

         With regard to attendance and punctuality, the Handbook provides: "Please be aware that excessive absences, lateness, or leaving early may lead to accountability actions, including losing your job. Absence from work for three (3) consecutive days without notifying your manager or the Human Resources Department will be considered a voluntary resignation and job abandonment." Id. at 27.

         A section entitled "Employee Conduct and Accountability" distinguishes between minor offenses, major offenses, and dischargeable offenses. Id. at 37. "Failure to report any non-compliance issues" and "[v]iolation of safe practices; exposing self and others to injury" are classified as major offenses. This section also states: "Examples of prohibited conduct are not intended to be an all-inclusive list. At management's discretion, any violation of policies or any conduct considered inappropriate or unsatisfactory may subject the offender to accountability action, up to and including losing your job." Id. at 39 (italics omitted).

A section entitled "Safety and Security" provides:
Compliance with safety and security policies and procedures will help us all in maintaining a safe Center environment that will support the high level of programming we offer. In addition, employees must call attention to conditions or situations which threaten the safety and security of others by contacting appropriate Center management representatives.

Id. at 49.

         A "HANDBOOK ACKNOWLEDGEMENT" requires employees to attest ...

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