United States District Court, D. Vermont
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS, GRANTING
PLAINTIFF'S MOTION TO AMEND THE COMPLAINT, AND GRANTING
PLAINTIFF'S SUPPLEMENTAL MOTION TO AMEND THE COMPLAINT
(DOCS. 3, 12, 13)
Christina Reiss, District Judge United States District Court
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.
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
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.
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.
The Complaint's Allegations. 
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
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."
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.
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.
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
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.
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.
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
Employee Handbook (the "Handbook") 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.)
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
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.
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.
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.
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.
"HANDBOOK ACKNOWLEDGEMENT" requires employees to