Connors v. Dartmouth Hitchcock Medical Clinic et al

Filing 193

RULING granting 187 MOTION for Judgment as a Matter of Law. Signed by Judge William K. Sessions III on 4/2/2014. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JENNIFER A. CONNORS,
Plaintiff,
v.
DARTMOUTH HITCHCOCK MEDICAL
CENTER, MARY HITCHOCK MEMORIAL
HOSPITAL,
Defendants.

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Case No.

2:10-cv-94
2:12-cv-51

RULING ON MOTION FOR JUDGMENT AS A MATTER OF LAW
Defendants Dartmouth Hitchcock Medical Center and Mary
Hitchcock Memorial Hospital have moved for judgment as a matter
of law on all of Plaintiff’s claims, pursuant to Rule 50(a) of
the Federal Rules of Civil Procedure.

Defendants claim that

Plaintiff has not demonstrated that she is entitled to damages,
compensatory or punitive, nor has she presented evidence to
support her claims of (1) disability discrimination under the
Vermont Fair Employment Practices Act (“VFEPA”); (2) illegal
retaliation under the VFEPA; (3) breach of an implied contract;
and (4) breach of an implied covenant of good faith and fair
dealing.

For the reasons that follow, Defendants’ motion is

granted, and the suit is dismissed.
I. Background

1

In April 2005, Plaintiff Dr. Jennifer Connors and
Defendants Mary Hitchcock Memorial Hospital (“MHMH”) of the
Dartmouth Hitchcock Medical Center (“DHMC”) entered into a
Resident/Fellow Agreement of Appointment for graduate training
as a psychiatry resident from June 26, 2006, through June 25,
2007.1

The Agreement provided that reappointment would be

“dependent upon satisfactory evaluations [by the program
director and/or departmental chair] and fulfillment of program
and institutional requirements.”

Pl.’s Ex. 14.

It further

stated that “[i]n the event that it is determined by Responsible
Person(s) that renewal of this Agreement for a subsequent year
of residency/fellowship will not be made,” written notice would
be provided.

Id.

Around the time of her appointment, Dr. Connors notified
the psychiatry residency program director, Dr. Ronald Green,
that she had Attention Deficit Hyperactivity Disorder (“ADHD”)
for which she required additional time for testing.
to provide this accommodation.

DHMC agreed

Dr. Connors did not assert at

trial that this accommodation was not provided to her.

Shortly

after Dr. Connors began at DHMC, her supervisors helped her find
a psychiatrist at Dartmouth Hitchcock, Dr. Sateia, so that she
could conveniently obtain prescriptions for her ADHD medication.

1

Dr. Connors attended medical school at the University of Vermont from 1998
until 2003. She then did a residency in pediatrics at the University of Utah
in Salt Lake City, Utah, which she completed in 2006.

2

In early 2007, Dr. Connors was assigned to an inpatient
psychiatry rotation at the Veterans Affairs Medical Center
(“VAMC”) in White River Junction, Vermont.

Dr. Connors

testified that during this time, her supervisor did not allow
her to leave the VAMC campus early to acquire medication.
Dr. Connors was placed on administrative leave in early
March 2007 by Dr. Green following complaints regarding her
performance.

These complaints included that she was not filing

her notes on time and an incident during which she signed off on
a physical examination that she had not completed.

She returned

from leave in September 2007, after agreeing to a remediation
plan.

The remediation plan accorded her release from her

clinical duties one afternoon per week to allow her to meet with
her health care providers.

Dr. Connors received her regular

stipend and benefits under her contract throughout the duration
of her administrative leave.
Dr. Connors and MHMH then entered into a Resident/Fellow
Agreement of Appointment for graduate training as a psychiatry
resident at the PGY-22 level from September 17, 2007, through
January 6, 2008.

This Agreement was substantively the same as

the prior agreement, other than a slightly increased stipend and
the incorporation of the remediation plan.

Dr. Connors

successfully completed a remediation period at New Hampshire
2

“PGY” stands for “post-graduate year.”

3

Hospital.

Following the completion of the remediation period,

Dr. Connors and MHMH entered into a Resident/Fellow Agreement of
Appointment for graduate training as a psychiatry resident at
the PGY-3 level, from January 7, 2008, through January 6, 2009.
For her PGY-3 year, Dr. Connors was again assigned to the
VAMC two days per week,3 where she avers she was not granted
reasonable accommodations for her disability.

Her chief

complaint during this time is that she was not given an office
in which to complete her notes, and instead was assigned to a
kitchenette area that housed a coffee pot, subjecting her to
distractions.

Dr. Connors was given an office at VAMC in May

2008, as soon as she began seeing patients.

It is undisputed

that Dr. Lambert, the residency director at the VAMC, was not
notified of Dr. Connors’s disability until well after Dr.
Connors left the VAMC.

During Dr. Connors’s PGY-3 rotation at

the VAMC, Dr. Lambert received frequent complaints from Dr.
Connors’s other supervisors about her behavior and conduct, some
of which Dr. Lambert raised directly with Dr. Connors.
On November 20, 2008, Dr. Green and Dr. Watts, the
associate director of the psychiatry residency program, met with
Dr. Connors to discuss the concerns of her supervisors,
including her failure to call a social service agency to report

3

She also spent two days per week at Dartmouth Hitchcock, where she had easy
access to Dr. Sateia, and one day at a third location in Colchester, Vermont.

4

a child endangerment situation; misdiagnosing a patient and
failing to discuss the diagnosis during supervision; disputing
her supervisors’ recommendations; lack of receptiveness to
feedback; lateness submitting clinical notes; and unusual
patient interactions.

VAMC faculty members were concerned that

emotional or mental illness might be causing her behavior and
asked Dr. Connors to undergo a fitness for duty evaluation,
which revealed no ill health.
On January 28, 2009, Dr. Connors had another meeting with
Dr. Green, during which Dr. Green notified Dr. Connors that she
would not be renewed for her PGY-4 year of residency.

Dr.

Connors’s last training day took place April 12, and her stipend
continued through June 30, 2009.

Dr. Connors left the program

on April 12 having completed her PGY-3 training requirements.
On April 14, she requested a Fair Hearing pursuant to DHMC’s
Policy & Procedure Manual for Residents and Fellows (“Red
Book”).
2009.

The Fair Hearing took place on June 1 and June 16,

On July 27, 2009, the Fair Hearing Committee concluded in

a written decision that Dr. Green’s decision not to renew Dr.
Connors for her PGY-4 should stand.
Dr. Connors was permitted to complete the PGY-3 rotations
she needed to be eligible for a PGY-4 year elsewhere, and was
supplied with a recommendation to another institution to
complete her residency training.

Dr. Connors completed her
5

residency training at another institution and received her
medical license in Vermont, where she is currently a practicing
psychiatrist.
After pre-trial dispositive motions, Dr. Connors had four
surviving claims against Defendants: disability discrimination
under the VFEPA (Count I); illegal retaliation under the VFEPA
(Count II); breach of an implied contract (Count III); and
breach of an implied covenant of good faith and fair dealing
(Count IV).

Dr. Connors also sought punitive damages.

parties commenced a jury trial on March 26, 2014.

The

At the close

of Plaintiff’s case on day four of trial, March 31, 2014,
Defendants moved under Rule 50 for judgment as a matter of law.
II.

Standard of Law
Rule 50 provides that a motion for judgment as a matter of

law may be granted if “a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find
for the party on that issue.”

Fed. R. Civ. P. 50(a)(1).

“A

court may grant judgment as a matter of law when the evidence,
viewed in the light most favorable to the nonmoving parties,
with every reasonable inference drawn in their favor, and
without regard to its weight, yields but one conclusion as to
the verdict that reasonable jurors can reach.”

Vermont Mobile

Home Owners' Ass'n, Inc. v. Lapierre, 131 F. Supp. 2d 553, 555
6

(D. Vt. 2001) (Sessions, J.) (citing Merrill Lynch Interfunding,
Inc. v. Argenti, 155 F.3d 113, 120-21 (2d Cir. 1998)).
III. Discussion
On their Rule 50 motion, Defendants claim that Plaintiff
has not demonstrated that she is entitled to damages,
compensatory or punitive, nor has she presented evidence to
support her claims of (1) disability discrimination under the
VFEPA; (2) illegal retaliation under the VFEPA; (3) breach of an
implied contract; and (4) breach of an implied covenant of good
faith and fair dealing.

The Court finds that Plaintiff has not

introduced evidence from which reasonable jurors could conclude
that punitive or compensatory damages were appropriate, and the
case must be dismissed on this basis.

The Court further finds

that Plaintiff has not introduced legally sufficient evidence to
support her individual claims.
A. Damages
Dr. Connors seeks compensatory and punitive damages.

These

are addressed separately below.
i. Compensatory Damages
At trial, Dr. Connors put forth claims for compensatory
damages based on the theory that Defendants’ discriminatory acts
denied her the opportunity to participate in “moonlighting,”
that is, accrue income from outside employment during her

7

residency.4

Dr. Connors failed to demonstrate compensatory

damages under either her VFEPA or contract claims.5
A person claiming a VFEPA violation may seek compensatory
damages, including restitution of wages or other benefits.
Stat. Ann. tit. 21, § 495b(b).

Vt.

Dr. Connors estimates her

damages at $50,000 based on the amount she could have made
“moonlighting” over the course of her residency at Dartmouth
Hitchcock.6

Dr. Connors states that she was not permitted to

moonlight during her residency because her program director, Dr.
Green, would not sign off on her licensure applications.
However, Dr. Connors did not link her lost moonlighting income
to any purported discrimination; in fact, she provided no
context at trial for Dr. Green’s refusal to sign off on her
licensure application.7

Furthermore, and most crucially, Dr.

Connors’s claim of lost moonlighting income is impermissibly
4

Dr. Connors also sought to introduce evidence of damages on a second theory
– a future lost income claim based on the delay in the completion of her
residency. Defendants objected to this testimony on the grounds that it
would be inadmissibly speculative and the Court sustained the objection, for
the same reasons that it granted a prior motion in limine to exclude expert
testimony on economic damages. See Mem. Order Re: Damages, ECF No. 168.

5

Though she was on the stand for nearly a full day, Dr. Connors did not
present any evidence of damages during her direct examination. The Court in
its discretion granted Plaintiff’s motion to recall Dr. Connors, ECF. No.
184, and allowed her to retake the stand to testify as to her damages.

6

She calculated this amount as follows: a resident may earn $1,500 per
weekend moonlighting, and she believed she would have worked one weekend a
month starting in the summer of 2007 for total earnings of about $55,000.
She then subtracted the amount she earned moonlighting while completing her
PGY-4 to reach the $50,000 figure.

7

The evidence at trial almost exclusively focused on the reasons Plaintiff
felt her non-renewal was unjust. She never presented any evidence that she
had been denied attempts to moonlight while working at the VA.

8

speculative – Dr. Connors cannot demonstrate with any certainty
that she would have moonlighted or how often.

She testified

that her estimated moonlighting hours were based on her
experience at her prior residency in Utah.

However, Dr. Connors

herself made clear during the trial that she had a much easier
time in the Utah program, and therefore it would not be
reasonable for her to base her ability to work extra hours
during her residency at Dartmouth Hitchcock on her previous
residency experience.

Dr. Connors’s proffered moonlighting

damages are therefore too speculative to reach a jury.
The bulk of evidence that Plaintiff presented at trial
regarded her administrative leave in 2007 and non-renewal in
2009 and the reasons she felt they were based on unlawful
discrimination.

However, Dr. Connors failed to present evidence

that she suffered any economic losses as a result of either. It
is undisputed that Dr. Connors was paid her full residency
stipend from June 2006 through April 2009, even for the time
that she was on administrative leave and for the months after
her January 2009 non-renewal.

She presented no evidence

regarding her economic losses following her non-renewal.

Dr.

Connors has thus provided no evidence of compensatory damages
under her VFEPA claims.
Dr. Connors similarly cannot show compensatory damages on
her contract-based claims.

“It is axiomatic that [a]
9

plaintiff[] can be compensated only for those damages which
proximately resulted from defendants’ breach.”
Bedell, 591 A.2d 50, 51-52 (Vt. 1991).

B.B. & J. v.

Thus, for her contract

claims, Dr. Connors must show that her damages were “reasonably
certain and foreseeable and were reasonably within the
contemplation of the parties at the time in which they entered
into the contract.”

Gettis v. Green Mt. Econ. Dev., 2005 VT

117, ¶ 33, 892 A.2d 162, 172.

Foreseeability is satisfied if

the damages are “reasonably supposed to have been in the
contemplation of both parties” at the time they made the
contract [] as a probable result of [a] breach.”

Albright v.

Fish, 422 A.2d 250, 254 (Vt. 1980) (quotation marks and citation
omitted).
Dr. Connors’s damages based on moonlighting fail under her
contract claims for the same reasons outlined above.

In

addition, Dr. Connors’s damages allegation fails the causation
requirement, as she has not shown that her failure to obtain
moonlighting income is in any way connected to her non-renewal
from her residency program.

She also failed to present evidence

that Dr. Green’s refusal to sign off was in violation of any
implied contract or covenant of good faith and fair dealing.
Dr. Connors therefore has not provided legally sufficient
evidence to support a finding of compensatory damages under any
of her four claims.
10

ii. Punitive Damages
Dr. Connors also seeks punitive damages.

Punitive damages

are reserved for especially egregious conduct, and therefore the
Vermont Supreme Court has set a high bar for plaintiffs seeking
such damages.

Monahan v. GMAC Mortg. Corp., 2005 VT 110, ¶ 55,

893 A.2d 298, 316-17.

Under state law, punitive damages are

unavailable unless the plaintiff shows two essential elements:
(1) “wrongful conduct that is outrageously reprehensible” and
(2) malice.

Fly Fish Vt., Inc. v. Chapin Hill Estates, Inc.,

2010 VT 33, ¶ 18, 996 A.2d 1167, 1173.

“[T]he purpose of

punitive damages is to punish conduct that is morally culpable
to the degree of outrage frequently associated with crime.”
¶ 19.

Id.

It is not enough that the intentional or reckless conduct

is wrongful or illegal, it must be “truly reprehensible.”
¶¶ 19.

Id.

Even admittedly deplorable conduct has not satisfied the

outrageously reprehensible element.

See Oakley v. Victory in

Jesus Ministries, Inc., 2010 WL 7794410, at *7 (Vt. July 1,
2010).

Therefore, in order for Dr. Connors to be entitled to

punitive damages, she must show that the Defendants’ conduct was
more than simply unacceptable given the circumstances.
To prevail on a claim for punitive damages, a plaintiff
must also provide evidence that Defendants’ acts were made with
malice.

The Vermont Supreme Court has defined malice as “bad

motive, ill will, personal spite or hatred, reckless disregard,
11

and the like.”

Fly Fish, 2010 VT 33, ¶ 18.

Malice can be shown

through recklessness, but only where there was “egregious harm
resulting from [the] reckless conduct.”

Id.

¶ 25.

“[A]

defendant’s knowing and even gross indifference to a plaintiff’s
rights [is] insufficient to satisfy the malice threshold.”

Id.

¶ 28 (citing Brueckner v. Norwich Univ., 730 A.2d 1086, 1096-97
(Vt. 1999)).
Dr. Connors claims that punitive damages are appropriate in
this instance based on four allegations: first, that her VAMC
supervisors in or about January and February 2007 refused to
give her time off to see her psychiatrist to get her
prescription refilled; second, for the first four months of her
second stint at the VAMC in early 2008 she was assigned to the
small kitchenette rather than her own office; third, there were
periods of time when she had no assigned patients; and fourth,
that they failed to give her adequate feedback in advance of her
January 2009 non-renewal.

Because there is insufficient

evidence to support a finding that the Defendants’ conduct was
malicious and outrageously reprehensible on any of these bases,
Dr. Connors is not entitled to punitive damages as a matter of
law.
Dr. Connors failed to present legally sufficient evidence
at trial to support her claim for punitive damages under any of
her theories.

Her first complaint is that her VAMC supervisors
12

reprimanded her for leaving work early and told her she needed
to take a day off to see her prescribing physician to refill her
ADHD prescription.

Even if Dr. Connors understandably found

this hurtful or inconvenient, this behavior certainly did not
have “the degree of outrage frequently associated with crime”
required to meet the punitive damages standard.
VT 33, ¶ 19.

Fly Fish, 2010

Furthermore, their conduct did not preclude her

from accessing her prescription.

Plaintiff’s own witness, Dr.

Beck, testified that Dr. Connors could have called Dr. Sateia’s
office when she was running low to have them send the medication
to her, and there was evidence introduced from Dr. Sateia’s
deposition confirming that this was an option.

Dr. Connors

testified that her supervisors at DHMC played a major role in
helping her find a convenient psychiatrist to ensure that she
would have easy access to prescriptions.
Moreover, this conduct did not constitute malice.

Dr.

Connors testified that one of her supervisors stated that no one
cared about her ADHD and that she was responsible for her own
disability.

While being told by a supervisor that no one cared

about her mental condition was wrong, even deplorable, it still
does not support a finding of malice under Vermont precedent.
In Fly Fish, the Vermont Supreme Court explained that even where
a defendant is intentionally indifferent to the plaintiff’s
rights, this is insufficient to constitute malice in the absence
13

of “egregious harm.”

See id. ¶¶ 25, 28.

Because the evidence

taken in a light most favorable to Dr. Connors only shows that
the VAMC supervisors were indifferent to her need to get her
prescriptions filled, but did not show that there was any
egregious harm resulting from this indifference, this is
insufficient to support a punitive damages finding.
Next, Dr. Connors argues that being assigned to the small
kitchenette was punishment for complaining about supervision.
Dr. Lambert, the residency director of the VAMC at that time,
testified that Dr. Connors received office space as soon as she
started seeing patients; Dr. Connors did not immediately start
seeing patients because she had to complete an orientation.8
Plaintiff’s expert Dr. Beck testified that he believed that the
office assignment showed the Defendants’ “deliberate
indifference” because they knew that Dr. Connors needed a quiet
8

Contrary to Dr. Connors’s assertion that every PGY-3 resident receives an
office, Dr. Lambert stated that residents use one of two “swing” rooms that
they share with other staff and trainees, but no resident had a permanent
office. When residents had patients, they would be assigned an office for
the entire day. Moreover, in May 2008, upon Dr. Connors’s request, the
administrative assistant agreed to only assign Dr. Connors to a specific room
(Room 116) so that she could settle into one place. Pl.’s Ex. 51. This was
made possible because the V.A. moved some staff to another area, which opened
up more clinical space for Dr. Connors. Prior to being assigned Room 116,
the staff would assign Dr. Connors to a room that was available that day.
The staff had initially offered her an office used by a part time employee
who was not at the VAMC on Fridays, but Dr. Connors rejected the office
because it was too cluttered. Dr. Connors also stated that she was not
immediately given a key, which was a constant disruption to her day, as she
had to go to the call desk for the master key and then return the key. Dr.
Lambert stated that VAMC used to give residents their own keys, but that
residents kept losing them so VAMC switched to using one master key. She
added that when Dr. Connors requested to have her own key and she was given
her own key at that time. See Pl.’s Ex. 54.

14

work area and the kitchenette had constant foot traffic.
However, as Dr. Lambert testified, Dr. Connors never explained
to Dr. Lambert that she had ADHD when she made specific office
accommodation requests.

Even if Dr. Lambert was aware of Dr.

Connors’s needs, “a defendant’s knowing and even gross
indifference to a plaintiff’s rights [is] insufficient to
satisfy the malice threshold.”

Id. ¶ 28.

Thus, Dr. Connors has

not shown that the failure to immediately give her a personal
workspace was a result of Defendants’ malice.
Dr. Connors also claims that she was either not assigned
patients or had an exceedingly low number of patients for
several months.

For instance, she started at Dartmouth in June

2006, but did not start her clinic until August and only
received her first patient around August 25, 2006.

She then

only had five patients throughout those initial months.

She

complained to her supervisor, Dr. Watts, about the low number of
patients, but he did not give her more patients.

Dr. Connors

also commented that there was a delay in her picking up patients
when she started working at the VAMC in January 2008.

However,

the evidence indicates that Dr. Connors picked up patients
fairly quickly and had an average caseload.

Dr. Lambert

explained in her testimony that any delay in Dr. Connors
receiving patients was not intentional, but was due to the
difficulty of her starting in January, unlike the other
15

residents who started in July and could take on patients from
the residents who were completing their PGY-3 year.
Regardless of the reason for the delay, Dr. Connors’s
purported lack of patients does not support a finding of
punitive damages.

Dr. Connors has only alleged that she did not

have as many patients as she expected she would receive and that
her supervisors repeatedly denied her opportunities to take on
more patients.

There is no evidence that these refusals were

outrageously reprehensible, or that they were done out of spite
or hatred such to constitute malice.
Finally, Dr. Connors argues that rather than give her
feedback on her performance, her supervisors were secretly
sharing their complaints with one another and that Dr. Green
actively collected the complaints and ambushed her at the
November 20, 2008, meeting with all the emails and evidence of
her misconduct.

She argues that because she never received

specific feedback and continued to receive satisfactory or
exemplary marks, the Defendants were in essence deceiving her.
However, Dr. Connors does not provide evidence in the
support of this theory.

Instead, the evidence indicates that

Dr. Green only sought feedback from supervisors to share with
Dr. Connors at the November meeting in response to concerns
voiced by Dr. Lambert and her other supervisors at the VAMC.
This does not evidence a malicious attempt to actively form a
16

case against her, as Dr. Lambert was the initiator and she did
not even know about Dr. Connor’s ADHD.

In fact, Dr. Connors

herself testified that she did not tell any of her supervisors
at the VAMC about her ADHD, which makes it unlikely that the
criticisms were made with personal spite due to her requests for
accommodations.

Furthermore, emails introduced into evidence

show that numerous supervisors voiced concerns that Dr. Connors
was psychologically ill, indicating that the meeting was
motivated by concern for her wellbeing, not malice.

Finally,

the November meeting did not result in any adverse employment
action, and occurred well in advance of Dr. Connors’s nonrenewal in January.

Thus, the meeting itself represented an

opportunity for Dr. Connors to respond to the concerns voiced by
her supervisors, rather than the ambush she describes, and thus
was not outrageously reprehensible conduct that supports
punitive damages.
Dr. Connors has therefore presented no evidence to support
an award of punitive damages under Vermont law.

Dr. Connors

also failed to show compensatory damages and has not requested
nominal damages.

Thus, at the close of Plaintiff’s case, the

evidence presented was legally insufficient for a reasonable
jury to make an award of damages based on any theory.

Because

Plaintiff has failed to show damages as a matter of law, her
claims are dismissed.
17

B. Substantive Claims
Even if Dr. Connors could make a showing of damages, her
individual claims still fail as a matter of law because she did
not present legally sufficient evidence for a reasonable jury to
find for Plaintiffs on her claims of (1) disability
discrimination under the VFEPA; (2) illegal retaliation under
the VFEPA; (3) breach of an implied contract; and (4) breach of
an implied covenant of good faith and fair dealing.
i. Vermont Fair Employment Practices Claims
VFEPA makes it unlawful for any employer to discriminate
against a qualified disabled individual.

Vt. Stat. Ann. tit.

21, § 495(a)(1); see Colby v. Umbrella, Inc., 2008 VT 20, ¶ 9,
955 A.2d 1082, 1088.

A “qualified” disabled individual is “[a]n

individual with a disability who is capable of performing the
essential functions of [her] job . . . with reasonable
accommodation to the disability.”
495d(6).

Vt. Stat. Ann. tit. 21, §

It likewise forbids any employer from discharging or

discriminating against an employee because the employee has
lodged a complaint of discriminatory acts or practices, or is
about to lodge a complaint, or because the employer believes
that the employee may lodge a complaint. § 495(a)(5).
Disability discrimination claims under VFEPA are subject to
the burden-shifting analysis established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
18

To

establish a prima facie case of disability discrimination, the
plaintiff must show that she is a qualified disabled individual,
that she suffered an adverse employment action, and the action
occurred under circumstances such to give rise to an inference
of discrimination.
405, 406 (Vt. 1998).

Kennedy v. Dep’t of Pub. Safety, 719 A.2d
For a retaliation action under the VFEPA,

a plaintiff bears the initial burden of proving that she was
engaged in a protected activity, that the employer was aware of
that activity, that she suffered an adverse employment action,
and that there was a causal connection between the protected
activity and the adverse employment action.

Gallipo v. City of

Rutland, 2005 VT 83 ¶ 15, 882 A.2d 1117, 1182.
If the plaintiff is able to present a prima facie case of
discrimination or retaliation, the burden shifts to the
defendants to present a legitimate, non-discriminatory reason
for the adverse employment action.
production, not persuasion.

This burden is one of

Boulton v. CLD Consulting

Engineers, Inc., 2003 VT 72 ¶ 15, 834 A.2d 37, 44.

If the

defendant meets this burden, the burden shifts back to the
plaintiff to prove by a preponderance of the evidence that the
legitimate reasons given are merely a pretext for
discrimination.

Id.

In this case, the parties do not dispute that Dr. Connors
has presented a prima facie case of discrimination and
19

retaliation, and clearly Defendants have met their burden of
production in supplying non-discriminatory bases for Dr.
Connors’s termination.

These include the concerns and

complaints raised by multiple supervisors and employees based
on, among other things, her failure to call the Department of
Children & Families to report a child endangerment situation,
submitting clinical notes late, and unusual patient
interactions.

Thus, the burden shifts back to Dr. Connors to

present evidence that these legitimate reasons are merely
pretextual.
At the close of her case, Dr. Connors had presented no
evidence that Defendants’ conduct was motivated by unlawful
discrimination.

In fact, she did not demonstrate at trial that

her supervisors at the VAMC (who gave her the unfavorable
reviews) were even aware of her condition.

Furthermore, her

non-renewal was subject to a formal Fair Hearing process.

After

a two-day hearing in 2009, the non-renewal decision was
affirmed.

Dr. Connors presented no evidence at trial that the

Fair Hearing process was deficient in any way.

She also

provides no evidence that her residency supervisor, Dr. Green,
acted with discriminatory motive in refusing to sign off on her
licensure application to moonlight.

Her claims of

discrimination and retaliation therefore fail as a matter of
law.
20

Dr. Connors also claims under the VFEPA that Defendants
failed to reasonably accommodate her ADHD.

To make a prima

facie failure to accommodate claim, Plaintiff must show that (1)
Plaintiff is a person with a disability under the meaning of the
VFEPA; (2) Plaintiff’s employer had notice of her disability;
(3) with reasonable accommodation, Plaintiff could perform the
essential functions of her position; and (4) the employer
refused to make such accommodations.

McBride v. BIC Consumer

Products Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir. 2009)
(internal quotation marks and citations omitted).

Under the

VFEPA, a “reasonable accommodation” refers to the “changes and
modifications which can be made in the structure of a job or in
the manner in which a job is performed unless it would impose an
undue hardship on the employer.”

Vt. Stat. Ann. tit. 21 §

495d(12).
Dr. Connors claims that Defendants denied her reasonable
accommodations in five ways.

She submits that her requested

accommodations included additional time to take tests, a quiet
area to prepare clinical notes and see patients, and the ability
to acquire medication and treatment for her disability.

She

also claims that she was denied feedback and was not assigned
patients.

Dr. Connors did not present evidence at trial to

support any of these claims.

21

It is undisputed that she was granted additional time to
take tests.

Dr. Connors claims that she had difficulty

acquiring her medication during her rotation at the VAMC in
2007; however, this was addressed in her remediation plan and it
is undisputed that she was granted time to see her physician and
receive prescriptions for the remainder of her residency.

The

bulk of Dr. Connors’s concern centers on a period at the VAMC
during which she was assigned to the kitchenette.

However, the

evidence put on during the Plaintiff’s case demonstrates that
the VAMC had space constraints and made efforts to assign her an
office as soon as one became available and it is undisputed that
Dr. Connors had an office to use as soon as she had patients.
Plaintiff also fails to show that she was denied feedback or
denied patients; in fact, the evidence indicates that she had an
extra supervisor and an average patient caseload.

From the

facts as Plaintiff presented them, no reasonable jury could find
that Plaintiff was denied reasonable accommodations for her
disability.9
ii. Contract Claims
Dr. Connors also brought claims against Defendants for
breach of an implied contract and breach of an implied covenant
of good faith and fair dealing.

At the close of Plaintiff’s

9

Moreover, Plaintiff has not even established whether she met her prima facie
burden of demonstrating that her employer had notice of her disability or
that she requested such accommodations, as the evidence suggests that her
supervisors at the VAMC were unaware of her ADHD.

22

case, Dr. Connors had not explained her implied contract theory
to the jury, nor had she presented any evidence of any promises,
express or implied, made by Defendants as to her residency.

For

example, Dr. Connors introduced no evidence that she was
impliedly promised a place at Dartmouth Hitchcock for her PGY-4
year.

The Agreements of Appointment expressly provided that

they were for specified terms, and that reappointment would be
“dependent upon satisfactory evaluations and fulfillment of
program and institutional requirements.”

Ex. 14.

Dr. Connors

also presented no evidence that she was denied the educational
training promised in her express contracts: Defendants allowed
Dr. Connors to complete her PGY-3 training through April 2009
after she was non-renewed in January so that she would be able
to continue her residency at another institution.

She received

her stipend and benefits throughout this period, and also during
her administrative leave in 2007.

Her supervisors also provided

recommendations to get her a placement elsewhere for her PGY-4
year.

She therefore did not demonstrate at trial that she was

denied anything promised to her under her residency agreement.
Though she did not discuss it in any detail, Dr. Connors
also introduced the “Red Book” of policies for residents as
evidence at trial.

Policy manuals may sometimes provide the

basis for an implied contract action.

Even assuming that the

“Red Book” made implied promises to Dr. Connors, she introduced
23

no evidence at trial that any specific provisions of the Red
Book were denied to her.

Notably, the Red Book included

provisions regarding Defendants’ Fair Hearing Policy, which
provided a process by which an aggrieved resident could contest
a decision not to renew her appointment, and provided that the
decision of the Fair Hearing Committee would be final.

Dr.

Connors sought and was granted a Fair Hearing after her nonrenewal, and she does not allege that this process was deficient
or denied to her.

Plaintiff also introduced the DHMC Residency

Training Program in Adult Psychiatry handbook into evidence, but
did not demonstrate whether provisions of Training Program as
described in the overview were not provided.

Thus, there is no

indication that Dr. Connors did not receive the educational and
training experiences promised to her under her contracts,
whether express or implied.
Plaintiff has also failed to show that Defendants violated
an implied covenant of good faith and fair dealing.

In a

pretrial briefing, Plaintiff explained her implied covenant
claim as based on Defendants’ “assault” against her.
136.

ECF No.

This “assault” was premised on her purported lack of

patients, her 2007 administrative suspension, her subjection to
fitness for duty evaluations, and the failure to provide
accommodations.

As detailed above, Plaintiff has not provided

evidence that she was denied reasonable accommodations.
24

Moreover, the evidence suggests that while she began her time at
VAMC with a light patient load, her patient load ramped up
quickly to the point where she had an average number of
patients.

Thus Plaintiff has not presented evidence to suggest

that she was denied patients in bad faith.
Nor does Dr. Connors’s 2007 administrative suspension
support a finding of bad faith.

Dr. Connors was placed on paid

administrative leave after supervisors expressed legitimate
concerns about her, and was welcomed back into the program
subject to a remediation plan that included provisions requested
by Dr. Connors herself (such as the ability to take select time
off from clinic to see her prescribing physician).

This paid

leave and subsequent remediation plan therefore represents
evidence of Defendants’ good faith efforts to help Dr. Connors
with the difficulties she was having and make her residency a
success.

In fact, Dr. Connors herself testified that her

remediation period, which she spent at New Hampshire Hospital,
was a positive experience for her.
Finally, Dr. Connors does not show that her fitness for
duty evaluations were performed in bad faith.

Instead, the

evidence indicates that they were administered in response to
concerns of supervisors.

Dr. Connors has presented no evidence

to suggest that these evaluations were administered for any
reason other than to ensure her wellbeing.
25

Plaintiff therefore

failed to present any evidence at trial to support her claim
under an implied covenant of good faith and fair dealing.
IV.

Conclusion
At the close of Plaintiff’s case, the evidence presented

was legally insufficient for a reasonable jury to support a
finding of compensatory or punitive damages for Plaintiff, or to
find for the Plaintiff on her individual claims of
discrimination and retaliation under the VFEPA, breach of
implied contract, and breach of an implied covenant of good
faith and fair dealing.

Accordingly, Defendants’ motion for

judgment as a matter of law is granted.
Dated at Burlington, in this District of Vermont, this 2nd
day of April, 2014.
/s/ William K. Sessions III
District Court Judge

26