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Boynton v. ClearChoiceMD, MSO, LLC

Supreme Court of Vermont

August 2, 2019

Dawn Boynton
v.
ClearChoiceMD, MSO, LLC and ClearChoiceMD, PLLC

          On Appeal from Superior Court, Rutland Unit, Civil Division Samuel Hoar, Jr., J.

          James G. Levins of Tepper Dardeck Levins & Fitzsimons, LLP, Rutland, for Plaintiff-Appellant.

          Kerin E. Stackpole of Paul Frank Collins P.C., Burlington, for Defendants-Appellees.

          PRESENT: Skoglund, Robinson, Eaton and Carroll, JJ., and Pearson, Supr. J. (Ret), Specially Assigned.

          CARROLL, J.

         ¶ 1. Plaintiff appeals the trial court's dismissal of her wrongful- termination complaint against her former employer. In her amended complaint, plaintiff alleges that she was terminated from her employment as a medical assistant at defendants' medical office in Rutland in September 2017 in violation of the covenant of good faith and fair dealing and contrary to whistleblower protections.[1] We affirm.

         ¶ 2. Plaintiff worked as a medical assistant at defendants' clinic. During a shift in July 2017, plaintiff and other employees were attending to a patient in mental distress. She alleges that a senior staff member, a physician assistant named J.S., told the distraught patient to be quiet. The patient left the office, stating that he would walk into oncoming traffic. Plaintiff followed the patient outside and calmed him down. An ambulance was called to take the patient to the hospital. According to the amended complaint, after the patient departed in the ambulance, J.S. commented that "it would have been better to let [the patient] get hit by traffic." Plaintiff was upset by this comment and reported it to the general manager of the clinic. Defendants terminated her employment the following month, explaining that she had violated company policy by smoking just outside the facility entrance. Plaintiff denies that she was smoking outside the premises. She claims that she was actually terminated in retaliation for reporting J.S.'s comment and that her termination violated public policy and the covenant of good faith and fair dealing implied in her contract of employment.[2]

         ¶ 3. Defendants moved to dismiss plaintiff's amended complaint pursuant to Vermont Rule of Civil Procedure 12(b)(6), arguing that, because plaintiff was an at-will employee and the parties had not formed a contractual relationship, the claim of a breach of the covenant of good faith and fair dealing was not available to her. In addition, defendants argue that it was not a violation of public policy to terminate plaintiff because the comment made by J.S., which plaintiff reported, did not affect patient safety or care.

         ¶ 4. The trial court granted defendants' motion to dismiss. The court found that the employee handbook was unambiguous and established an at-will employment relationship that was fatal to plaintiff's claim of a violation of the covenant of good faith and fair dealing. The court also rejected plaintiff's assertion that defendants violated public policy by terminating her because she qualified as a "whistleblower" under the terms of the handbook, concluding that neither the handbook nor the whistleblower statute covered the conduct she reported. This appeal followed.

         ¶ 5. We review the trial court's dismissal of the amended complaint without deference. Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.). A court cannot grant a motion to dismiss for failure to state a claim "unless it appears beyond doubt that there exist no circumstances or facts which the plaintiff could prove about the claim made in [plaintiff's] complaint which would entitle [plaintiff] to relief." Gilman v. Me. Mut. Fire Ins., 2003 VT 55, ¶ 14, 175 Vt. 554, 830 A.2d 71 (mem.) (quotation omitted). We accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn from those facts. Id.

         ¶ 6. We first consider plaintiff's claim that defendants breached the implied covenant of good faith and fair dealing by terminating her without good cause and by falsely stating that she was being discharged for failure to comply with the smoking policy. Plaintiff appears to have conceded on appeal that she was defendants' at-will employee despite alleging otherwise in the complaint. She has not argued on appeal that the handbook created an express or implied contractual modification to her at-will employment arrangement.[3] "It is axiomatic that an at-will employee may be discharged at any time with or without cause, unless there is a clear and compelling public policy against the reason advanced for the discharge, or unless the at-will relationship has been modified." Ross v. Times Mirror, Inc., 164 Vt. 13, 23, 665 A.2d 580, 586 (1995) (quotation and emphasis omitted). For this reason, we have "decline[d] to recognize the implied covenant of good faith and fair dealing as means of recovery where the employment relationship is unmodified and at-will and the employee is challenging the dismissal based on a right to tenure." Id.; see also LoPresti v. Rutland Reg'l Health Servs., Inc., 2004 VT 105, ¶ 39, 177 Vt. 316, 865 A.2d 1102 ("[T]he covenant does not apply to at-will employment agreements when the plaintiff's argument amounts to no more than an objection to the other party's freedom to avail itself of the at-will arrangement by terminating the agreement for reasons that the other party does not accept."). Because plaintiff was an at-will employee and she has admitted on appeal that the handbook does not modify her status as an at-will employee, her argument that defendants violated the covenant of good faith and fair dealing by terminating her for a pretextual reason fails. Defendants' decision to do so was squarely within their prerogative.[4]

         ¶ 7. We turn next to plaintiff's claim that her termination violated public policy. In support of this claim, she alleged that the professional guidelines governing physician assistants require them to treat all persons equally, to provide compassionate and effective care to patients, and to report illegal or unethical conduct by health-care professionals. She also alleged that the code of ethics applicable to medical assistants required her to "[r]ender service with full respect for the dignity of humanity; [u]phold the honor and high principles of the profession and accept its disciplines; [and] [s]eek to continually improve the knowledge and skills of medical assistants for the benefit of patients and professional colleagues." Plaintiff alleged that these provisions are evidence of a public policy encouraging health-care workers to report conduct that is harmful to patient care and that her termination for reporting J.S.'s comment violated this policy.

         ¶ 8. An at-will employee may not be terminated for reasons that violate "a clear and compelling public policy." Payne v. Rozendaal, 147 Vt. 488, 492, 520 A.2d 586, 588 (1986) (defining public policy in employment context as "the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public heath, public safety, public welfare, and the like" (quotation omitted)). Whether an activity violates public policy is a question of law. Madden v. Omega Optical, Inc., 165 Vt. 306, 314 n.3, 683 A.2d 386, 391 n.3 (1996). This Court has recognized that "public policy in the employment context may be found in sources other than statutes and constitutions," such as professional ethical codes. LoPresti, 2004 VT 105, ¶ 22. However, "employees who invoke such codes . . . still bear the burden of demonstrating that such codes are clear and compelling in their mandates to employees who claim that their professional ethical obligations supersede those owed to their employers." Id. ¶ 23 (quotation omitted). An employee seeking to invoke the public-policy exception to at-will employment must demonstrate that her employer's conduct was" 'cruel or shocking to the average [person's] conception of justice.'" Payne, 147 Vt. at 493, 520 A.2d at 589 (quoting Pittsburgh, Cincinnati, Chi. & St. Louis Ry. v. Kinney, 115 N.E. 505, 507 (Ohio 1916)).

         ¶ 9. Accepting as true plaintiff's allegation that she was fired for reporting J.S.'s comment, the code provisions cited in plaintiff's complaint are too vague to support "an objective, good faith belief" that the comment violated an ethical rule or was conduct that plaintiff was obligated to report. LoPresti, 2004 VT 105, ¶ 23. Even if we were to interpret the quoted provisions as requiring plaintiff to report actions by medical providers that are harmful to patient care, such a requirement would be inapplicable here because J.S. made the comment at issue after the patient left the premises. Therefore, the comment-about what should have happened to a patient in the past-did not negatively affect patient care. See id. ¶ 24 ("[A] professional employee must show that the specific provisions contained in the ethical code relied upon apply in the particular professional context in which the employee is working.").

         ¶ 10. Tellingly, plaintiff does not make any allegations in the amended complaint that J.S.'s comments caused harm to patients. Rather, the complaint asserts that "[t]he termination violates public policy which encourages workers to report [i]ncidents which are harmful to patient care." There is no allegation that this incident was indeed harmful, or that it would cause harm in the future. And, although the complaint asserts that plaintiff's termination caused her "anxiety and stress, worry about finances, [and] loss of sense of achievement and association with coworkers," it does not allege that plaintiff reasonably believed that J.S.'s comments caused harm in the past or would cause harm in the future to patients.[5] Moreover, plaintiff's moral objection to the alleged comment is insufficient to state a claim that her report was protected by public policy. See id. ¶ 23 ("To succeed, an employee cannot rely on his or her personal moral beliefs, or on an overly cautious reading of the mandates in a particular code."). The allegations in the complaint do not demonstrate that defendants' conduct was "cruel or shocking to the average [person's] conception of justice." Payne, 147 Vt. at 493, 520 A.2d at 589 (quotation omitted).

         ¶ 11. Plaintiff also argues that her claim is supported by the anti-retaliation policy, the "whistleblower policy," contained in defendants' employee handbook, which, according to the amended complaint, states that defendants "will not tolerate action against an employee who: . . . [m]ake[s] a good faith report of a violation that endangers the health or safety of an employee, patient, client or customer, environment or general public." Assuming that this employee handbook can be a source of anti-retaliation protection, plaintiff has failed to demonstrate that she is entitled to protection under the quoted provision because J.S.'s alleged comment cannot reasonably be viewed as having endangered anyone's health or safety given the timing of the statement. Nor, as noted above, did plaintiff make such an allegation in her complaint. Plaintiff therefore cannot state a claim grounded in the facts and allegations of the complaint that defendants violated the handbook's whistleblower provision, which protects an employee who, in good faith, reports threats to patient safety.[6]

         ¶ 12. We conclude that plaintiff has not stated a claim for a violation of a clear and compelling public policy. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 82, 807 A.2d 390, 397 (2002) (affirming summary judgment in favor of employer where plaintiff failed to show that termination was "so contrary to society's concern for providing equity and justice that there is a clear and compelling public policy against it"). Nor has she stated a claim under the handbook's whistleblower policy. The trial court therefore properly dismissed this claim as well.

         Affirmed.

          ROBINSON, J., dissenting.

         ¶ 13. I conclude that the allegations in plaintiff's complaint, and the fair inferences from those allegations, are sufficient to survive a motion to dismiss with respect to plaintiff's claims that defendants breached the covenant of good faith and fair dealing and wrongfully terminated her in violation of public policy. First, I believe the framework applied by the majority-based on its understanding that plaintiff has not argued that her at-will status has been modified to any degree-overlooks that plaintiff's claim based on the implied covenant of good faith and fair dealing arises from defendants' alleged violation of a specific no-retaliation provision in the handbook. Second, given the standards applicable at this stage of litigation, I believe the complaint alleges sufficient facts to support plaintiff's claims based on retaliatory discharge under a theory based on public policy. Because I conclude that the allegations, considered in their proper light, could support the claims that plaintiff has made, I would deny the motion to dismiss and remand for further proceedings. Accordingly, I respectfully dissent.

         ¶ 14. The posture of this case is critical to my analysis. Given the liberal notice-pleading standard in effect, as well as the standards for evaluating a motion to dismiss, we should be particularly careful in characterizing plaintiff's claims in any light other than that most favorable to her. Vermont has an "extremely liberal" notice-pleading standard. Mahoney v. Tara, LLC, 2014 VT 90, ¶ 15, 197 Vt. 412, 107 A.3d 887. A complaint need be nothing more than "a bare bones statement that merely provides the defendant with notice of the claims against it." Colby v. Umbrella, Inc., 2008 VT 20, ¶ 13, 184 Vt. 1, 955 A.2d 1082. The requirement that a complaint provide "fair notice of what the plaintiff's claim is and the grounds on which it rests" does not require plaintiffs to produce evidence supporting their claims, or even to provide a detailed description of the evidence that would support those claims. Reporter's Notes, V.R.C.P. 8 (quotation omitted). The complaint's "purpose is to initiate the cause of action, not prove the merits of the plaintiff's case." Colby, 2008 VT 20, ¶ 13. It is only upon a motion for summary judgment that the court considers the record to determine whether "the materials cited . . . establish the absence or presence of a genuine dispute" and entitle one party to judgment as a matter of law. V.R.C.P. 56(c)(1)(A)-(B); see also V.R.C.P. 56(a).

         ¶ 15. In evaluating a motion to dismiss, the court must "assume that all factual allegations pleaded in the complaint are true, accept as true all reasonable inferences that may be derived from plaintiff's pleadings, and assume that all contravening assertions in defendant's pleadings are false." Mahoney v. Tara, LLC, 2011 VT 3, ¶ 7, 189 Vt. 557, 15 A.3d 122 (mem.) (quotation omitted). Accordingly, a motion to dismiss should not be granted "unless it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Id. (quotation omitted). Given this "low threshold for withstanding a 12(b)(6) motion to dismiss," Colby, 2008 VT 20, ¶ 8, a "motion to dismiss for failure to state a claim is not favored and rarely granted." Gilman v. Me. Mut. Fire Ins. Co., 2003 VT 55, ¶ 14, 175 Vt. 554, 830 A.2d 71 (mem.).

         ¶ 16. Plaintiff's legal arguments traversed a range of legal theories, but her complaint actually only raised two: First, plaintiff contended that defendants, through the employee handbook, specifically promised employees that if they made good-faith reports within certain parameters, they would not be subject to adverse employment action in retaliation. By terminating her in retaliation for good-faith reports, contrary to the assurance in the employee handbook that such actions would be protected, defendants breached the implied obligation of good faith and fair dealing. Second, plaintiff contended that because her ...


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