Kwon v. University of Vermont and State Agricultural College

Filing 41

OPINION AND ORDER granting in part and denying in part 34 Motion for Summary Judgment. Signed by Judge William K. Sessions III on 12/6/2012. (law)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
MIKYUNG P. KWON

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Plaintiff,
v.
UNIVERSITY OF VERMONT AND
STATE AGRICULTURAL COLLEGE
Defendant.

No. 2:11-cv-193

OPINION AND ORDER
Plaintiff, Dr. Mikyung P. Kwon, brings this suit against
her former employer, the University of Vermont and the State
Agricultural College (“UVM” or “the University”).

Kwon alleges

that UVM discriminated against her on the basis of age, race,
national origin, and place of birth1 in violation of 42 U.S.C.
§ 2000e et seq., 29 U.S.C. § 621 et seq., and the Vermont Fair
Employment Practices Act, 21 Vt. Stat. tit. 495.

Kwon further

alleges that UVM created a hostile work environment and
intentionally caused her emotional distress.
summary judgment on all claims.

UVM now moves for

For the following reasons, the

University’s motion is denied in part and granted in part.

1.
Kwon alleged national origin and place of birth discrimination
within her single count of race discrimination. (Kwon’s Complaint, ECF No.
1, at 6). The parties have treated these three claims as indistinguishable,
and, for the purposes of this motion, the Court does so as well.
1

I.

FACTUAL BACKGROUND

The following facts are presented in the light most
favorable to Kwon as the non-moving party.

In 1999, Kwon began

working in the University’s Continuing Education Department.
That same year, the Department hired two other women: Cynthia
Belliveau and Carroll Vallett.

Belliveau began as Associate

Dean of Professional Programs and Vallett began as the Academic
Programs Manager.

In 2002, Vallett and Belliveau became Interim

Co-Directors of the Continuing Education Department.

They held

that position jointly until 2007, when they became Co-Deans of
the Continuing Education Department.
Around 2005, Kwon began to feel that she was being treated
differently than other staff within the Continuing Education
Department.

(Kwon Deposition, ECF No. 37-11, at 31).

For

instance, she relates that most staff members attended at least
one national or regional conference annually; many staff
attended without making presentations.

In 2005, the Department

refused to allow Kwon to attend a national conference without
making a presentation.

(ECF No. 37-11, at 31; Kwon’s Discovery

Answers, ECF No. 37-2, at 10).
According to Kwon, the disparate treatment continued and
escalated following a landlord-tenant dispute between Kwon and
six tenant-students in 2006.

The dispute arose when Kwon and

her husband attempted to evict the students from apartments they
2

owned.

A hearing was held in March 2006.

At the hearing, one

of the tenant-students referred to Kwon as a “notorious
slumlord,” and during the hearing three of the students’
fathers—all out-of-state attorneys—accused Kwon of using
confidential information against their children.
Deposition, ECF No. 34-6, at 86).

(Belliveau

Belliveau’s son, who was in a

relationship with one of the students Kwon sued, attended the
hearing with some of his friends.

He and his friends informed

Belliveau of both the term and the attorneys’ accusations.
(Vallett Deposition, ECF 34-5, at 113–114; ECF No. 34-6, at 86).
Belliveau repeated the term “notorious slumlord” to Vallett.
(Vallett Deposition, ECF No. 37-6, at 113; Belliveau Deposition,
ECF No. 37-9, at 101–102).
Belliveau convened a meeting to determine whether Kwon had
used confidential information against students.

Without giving

her prior notice, Belliveau went to Kwon’s office on March 13,
2006, interrupted a meeting between Kwon and a student, and
requested Kwon to report to the office as soon as the meeting
was over.

(ECF No. 37-2, ¶ 14).

Waiting in Belliveau’s office

were members of the Management Team and Belliveau’s son.

(Id.).

Belliveau raised the concern that Kwon had used confidential
student information.

She also asked Kwon about the number of

rental properties and the rate charged.

Kwon responded that she

had done nothing wrong and that she had only referred to the UVM
3

Directory.

(Id.).

It was later determined that information in

the UVM Directory did not constitute confidential information.
Following the March 13, 2006 meeting, one of Kwon’s
supervisors, Beth Taylor-Nolan, held performance assessments.
Belliveau attended Kwon’s performance assessment, as she did
others.

During the meeting, Belliveau again raised the lawsuit

and the allegations that Kwon had used confidential information.
Kwon again denied using confidential information in relation to
the lawsuit.

The parties dispute whether Kwon was placed on

probation following the performance assessment.

(Taylor-Nolan

Deposition, ECF No. 34-7, at 68–69, 112–13, 163–65; ECF No.37-2,
at 10, ¶ 22).
Following the 2006 meetings, Kwon felt that Belliveau began
to isolate her at work.

Kwon stated that Belliveau routinely

failed to invite Kwon to both ad-hoc and scheduled meetings.
(ECF No. 37-2, at 5, ¶ 4).

When Kwon attended meetings,

Belliveau ignored her presence and disregarded her responses to
questions Belliveau raised.

(Id. at 6, ¶ 8).

Kwon also

reported that Belliveau ignored her when they passed in the
halls, the parking lot, and at a 2007 Christmas party at
Belliveau’s home.

(Id. at 4–5, ¶¶ 1, 2, 4).

Belliveau’s form of treatment of Kwon spread to other
managers within the Department.

For instance, Kwon compiled and

sent data reports on the GAP Program to Belliveau, Vallett and
4

Nolan.

(Id. at 9, ¶¶ 16, 17).

When Kwon asked Belliveau

whether she had been receiving the reports, Belliveau stated
that she had but that the reports contained too much data.
(Id.).

Kwon continued sending the reports until she was

terminated.

Towards the end of her time at UVM, neither

Vallett, Belliveau, nor Nolan responded to the data Kwon
prepared.

(Id.).

According to Kwon, every time there was a reorganization,
her role became smaller.

(ECF No. 37-11, at 174).

The

Continuing Education Department was organized into teams, and
all of the advisors in the Department were on two or more teams,
except for Kwon.

(ECF No. 37-2, at 9, ¶ 19).

In her role on

the Global Team, Kwon was instrumental in bringing a group of
Pakistani students to the University.

(Id.).

Nolan assigned

Kwon to a position on the Global Team that included a trip to
Washington, DC.

(Id. at 6, ¶ 7).

Despite Kwon’s expressed

desire to remain on the Team and before she could go on the
trip, Belliveau removed Kwon from the Global Team.
¶¶ 7, 9).

(Id. at 6–7,

Kwon was moved to the Online Team, but was not

invited to meetings. (Id. at 9, ¶ 20).

When she attempted to

join the Environmental Team, she was rebuffed by the managers in
the Department.

(Id. at 9, ¶ 19).

Around August 2008, UVM experienced financial difficulties.
In response to a budget shortfall, the University requested the
5

Continuing Education Department to reduce its annual budget by
$500,000.00.

(ECF No. 34-6, at 45–46).

Because Belliveau was

on administrative leave during the 2008-2009 academic year,
Vallett took the lead in developing a plan to cut the
Department’s budget.

(ECF No. 34-5, at 84).

was involved in drafting the plan.

However, Belliveau

While Belliveau did not

create a list of names or positions to be eliminated, she and
Vallett discussed the planned cuts in a few face-to-face
meetings and several telephone calls.
74).

(ECF No. 34-6, at 70–71,

They discussed Kwon’s position at some point during their

conversations, and Belliveau described the personnel cuts as a
joint decision.

(Id.).

The result of Vallett’s and Belliveau’s conversation was
the January 2009 Reorganization Plan.

Among other cuts, the

Plan proposed shrinking Continuing Education’s budget by
reducing marketing expenses; cutting teams, including the
Online/Distance Learning Team; and eliminating or reducing five
staff positions.

(ECF No. 34-5, at 64).

In the end, Kwon and

another individual were fired. (ECF No. 34-5 at 70–71).

In

February 2009, Vallett informed Kwon that her position would be
terminated in June 2009.
Vallett stated that Kwon’s position was eliminated because
her role within the Department would shrink after the
Reorganization plan.

According to Vallett, Kwon’s work was
6

split evenly between advising GAP students and the
Online/Distance Learning Team.

Vallett claimed that Kwon was

eliminated because the Online/Distance Learning Team was to be
disbanded and the need for GAP services was expected to decline.
(ECF No. 34-5, at 71, 86–87).
Following Kwon’s departure, her work was redistributed to
younger staff in the Continuing Education Department.

(Nunziata

Deposition, ECF No. 37-7, at 31; Worthley Deposition, ECF No.
37-8, at 38).

The technical support Kwon provided students

taking online courses was outsourced to a third-party vendor.
(ECF No. 34-7, at 31, 34).

According to UVM, no new staff was

hired to make up for the loss of content development, advisory
services, or technical support that Kwon provided.

(Id.).

Kwon disputes the University’s justification.

She points

out that the majority of her work was with GAP students, rather
than an even split between GAP advising and work with the
Online/Development Team.

(ECF No. 37-11, at 17).

Further, Kwon

alleges that the need for GAP services in 2009 was high and that
the demand for advising GAP students remained high.
37-7, at 38).

(ECF No.

She notes that the individuals that took primary

responsibility for her GAP work were extremely overworked.
No. 37-8, at 19–20).

(ECF

Kwon alleges that Belliveau preferred

younger employees, and the individuals that took over Kwon’s

7

work were in their forties or younger.

(ECF No. 37, at 9-11;

ECF No. 37-7, at 21, 80).
According to Kwon, the University is currently seeking to
hire a project manager for the services that she used to
provide.

(ECF No. 37-7, at 31–33).

Pointing to the third-party

vendor that UVM hired in January 2009 and the University’s
current search for a project manager, Kwon disputes the
University’s claim that it has not hired additional personnel to
do the work she once provided.

(Id.).

After she was terminated in June 2009, Kwon filed an age
discrimination complaint with UVM’s Office of Affirmative
Action/Equal Opportunity Office.

The Office interviewed

Belliveau as part of its investigation.

During her interview,

Bellvieau stated that Kwon and her husband were “notorious
slumlords.”

(AAEO Report, ECF No. 37-3, at 11).

Kwon has

proffered expert testimony that this expression is racially
derogatory toward Asian Americans.
at 7).

(Eastman Report, ECF 37-4,

The Report found that, as early as 2005, Belliveau knew

that Kwon was in a dispute with some of her tenants and that
Kwon’s use of the UVM Directory was not in violation of
University policy. (Id. at 26).

The Report concluded that Kwon

had experienced a hostile work environment, but did not find
that University policies were violated. (Id. at 27).

8

In February 2010, Kwon filed a charge of discrimination
with the United States Equal Employment Opportunity Commission
and Civil Rights Unit of the Vermont Attorney General’s Office,
alleging discrimination of race, national origin, age, and
retaliation.

The Report concluded that Kwon did not suffer

employment discrimination. (US EEOC Report, ECF No. 34-16, at
1).

A.

II. LEGAL STANDARDS
Summary Judgment Standard

Pursuant to the Rule 56(a) of the Federal Rules of Civil
Procedure, summary judgment is appropriate if “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

A fact is

material if it could affect the outcome of the lawsuit; a
dispute is genuine if a reasonable jury could return a verdict
for the nonmoving party.
U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477

“[A]t the summary judgment stage the

judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

Id. at 249.

Summary judgment is generally inappropriate where questions
of the defendant’s state of mind are at issue, and, therefore,
the Second Circuit has repeatedly cautioned against granting
summary judgment in employment discrimination claims where the
9

intent of the employer remains at issue.

See, e.g., Gorzynski

v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010); Gallo
v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219,
1224 (2d Cir. 1994).

However, “summary judgment remains

available to reject discrimination claims in cases lacking
genuine issues of material fact.”

Chambers v. TRM Copy Ctrs.

Corp., 43 F.3d 29, 40 (2d Cir. 1994).
B.

Discrimination Laws

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq., makes it “an unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin.”

42 U.S.C. § 2000e-2(a) (2006).

The Age Discrimination in Employment Act (ADEA) makes it
“unlawful for an employer . . . to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s age.
29 U.S.C. § 623(a) (2006).
The Vermont Fair Employment Practices Act (VFEPA) makes it
unlawful “[f]or any employer, employment agency, or labor

10

organization to discriminate against any individual because of
race, color, religion, ancestry, national origin, sex, sexual
orientation, gender identity, place of birth, age, or
disability.”

Vt. stat. ann. tit. 21, § 495(a)(1).
C.

McDonnell Douglass Framework

When reviewing discrimination claims, the Court follows the
McDonnell Douglass burden-shifting scheme.

See McDonnell

Douglass Corp. v. Green, 411 U.S. 792 (1973); accord Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).

The

framework is applicable to all the federal and state
discrimination claims at issue in this case.

See Green v.

Vermont Country Store, 191 F. Supp. 2d 476, 482 (D. Vt. 2002)
(citing Carpenter v. Cent. Vt. Med. Ctr., 743 A.2d 592, 594
(1999)); see also Vivenzio v. City of Syracuse, 611 F.3d 98, 107
(2d Cir. 2010).
The McDonnell Douglass scheme shifts the burden of
production between the parties and orders the presentation of
proof in order to “‘progressively . . . sharpen the inquiry into
the elusive factual question of intentional discrimination.’”
Bucalo v. Shelter Island Union School Dist., 691 F.3d 119, 128
(2d Cir. 2012) (quoting St. Mary’s Honor Ctr. v. Hicks, 502 U.S.
506 (1993)).

The plaintiff bears the first burden of

11

production, which requires the plaintiff to demonstrate a prima
facie case of discrimination.

Bucalo, 691 F.3d at 128.

To establish a prima facie case, the plaintiff must
demonstrate: (1) that she was within a protected group, (2) that
she was qualified for the position, (3) that she suffered an
adverse employment action, and (4) that circumstances
surrounding the adverse employment action could give rise to an
inference of age discrimination.

Bucalo, 691 F.3d at 129.

The

prima facie case is a low bar, and the mere fact that a
plaintiff was replaced by someone outside the protected class
will suffice for the required inference of discrimination at the
prima facie stage of the analysis.

Zimmermann v. Assoc. First

Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001).
If the plaintiff establishes the prima facie case, the
burden shifts to the employer to offer a legitimate,
nondiscriminatory explanation for the adverse employment action.
Bucalo, 691 F.3d at 129.
specific.”

The reason must be both “clear and

Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985).

If the employer satisfies its burden of production, the
burden shifts back to the plaintiff and “merges with the
ultimate burden of persuading the court that she has been the
victim of intentional discrimination.”

Bucalo, 691 F.3d at 129

(internal quotation and citation omitted).

In other words, the

plaintiff must establish both that the employer’s reason was
12

pretextual and that discrimination was the real reason for the
adverse employment action.

Abdu-Brisson v. Delta Air Lines,

Inc., 239 F.3d 456, 466 (2d Cir. 2001); accord Hicks, 509 U.S.
at 512–520 (1993).
In attempting to satisfy this final burden, plaintiffs may
rely on evidence tending to undermine the employer’s
explanation, because “proof that the defendant’s explanation is
unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination, and it
may be quite persuasive.”

Reeves, 530 U.S. at 147.

In

determining whether an employer’s stated justification is worthy
of credence, this Court should not second-guess the employer’s
decisions.

However, the “employer’s invocation of the business

judgment rule does not insulate its decision from all scrutiny
in discrimination cases” because there is a distinction between
poor business decisions and reasons manufactured to avoid
liability.

Weiss v. JP Morgan Chase & Co., 332 Fed. App’x. 659,

663 (2d Cir. 2009) (citing Dister v. Continental Group, Inc.,
859 F.2d 1109, 1116 (2d Cir. 1988)).
To defeat summary judgment, “the plaintiff is not required
to show that the employer’s proffered reasons were false or
played no role in the employment decision, but only that they
were not the only reasons and that the prohibited factor was at
least one of the motivating factors.”
13

Holtz v. Rockefelller &

Co., Inc., 258 F.3d 62, 78 (2d Cir. 2001) (internal quotation
and citation omitted).

“Only occasionally will a prima facie

case plus pretext fall short of the burden a plaintiff carries
to reach a jury trial on the ultimate question of
discrimination.”

Zimmermann, 251 F.3d at 382; Reeves, 530 U.S.

at 148 (“[A] plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.”).
Determining whether discrimination was the real reason for
the adverse employment action requires a “case-by-case approach,
with a court examining the entire record to determine whether
the plaintiff could satisfy h[er] ‘ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated
against the plaintiff.’”

Schnabel v. Abramson, 232 F.3d 83, 87

(2000) (quoting Reeves, 530 U.S. at 143).

In reaching this

conclusion, courts must consider “the strength of the
plaintiff’s prima facie case, the probative value of the proof
that the employer’s explanation is false, and any other evidence
that supports the employer’s case and that properly may be
considered on a motion for summary judgment.” Reeves, 530 U.S.
at 148–49.

14

A.

III. DISCUSSION
Count 1: Title VII Claim
1.
The Prima Facie Case

The parties do not dispute that Kwon can demonstrate three
of the four elements of a prima facie case of race
discrimination.

UVM contends it is entitled to summary judgment

because Kwon cannot establish that she was terminated under
circumstances that would give rise to an inference of race
discrimination.
Kwon established a prima facie case of race discrimination.
She was the only person of color when her position was
terminated, and, therefore, when UVM redistributed her work to
existing employees, it redistributed her work to individuals
outside of a protected class.
2 at 4, ¶ 3; ECF 37-7, at 16).

(EDF 37-1, at 4, ¶ 1; ECF No. 37As replacement by someone

outside the protected class is sufficient to create an inference
of race discrimination, Kwon satisfied this minimally burdensome
requirement.

See, e.g., Zimmermann 251 F.3d at 381; see also De

La Cruz v. New York City Human Res. Admin. Dep’t of Soc. Servs.,
82 F.3d 16, 20 (2d Cir. 1996).
2.

Legitimate, Nondiscriminatory Reason

UVM contends that even though Kwon established a prima
facie case of race discrimination, it is entitled to summary
judgment because it has articulated a legitimate, nondiscriminatory reason for the termination, and Kwon failed to
15

satisfy her final burden.

Before this Court considers whether

Kwon met her final burden, it must determine whether UVM
articulated a legitimate, non-discriminatory reason for the
termination because if UVM has failed to meet its burden of
production and a rational jury would have to conclude that Kwon
established the prima facie case, the Court must award judgment
to Kwon.

Hicks, 509 U.S. at 509; see First Fin. Ins. Co. v.

Allstate Interior Demolition Corp., 193 F.3d 109, 115 (2d Cir.
1999) (noting that courts have the authority to grant summary
judgment against the movant).
The University satisfied its burden of production.

UVM

contends that it fired Kwon in response to a financial crisis as
part of a reorganization plan.

Specifically, the University

alleges that Vallett terminated Kwon’s position under the
reorganization plan because she cut the Online/Distance Learning
Team and expected the need for GAP services to decline.
No. 34, at 14).

(ECF

Because this evidence would permit a reasonable

jury to conclude that Vallett fired Kwon for legitimate, nondiscriminatory reasons, UVM met its burden.
3.

Evidence of Pretext

As UVM articulated a legitimate, non-discriminatory reason,
the burden of production shifts back to Kwon and merges with her
ultimate burden to persuade the court that the University

16

discriminated against her on the basis of race by a
preponderance of evidence.

Henry v. Wyeth Pharm., Inc., 616

F.3d 134, 157 (2d Cir. 2010).

Again, to satisfy her burden,

Kwon does not have to demonstrate that UVM’s rationales played
no role in her termination, but only that they were not the only
justifications and her race was at least a motivating factors.
Holtz, 258 F.3d at 78.
Kwon submitted sufficient evidence for a reasonable jury to
conclude that the University’s justification was pretextual.
She produced evidence that the need for GAP services was not in
decline, that the University hired people to provide technical
support that Kwon provided, that the University is in the
process of hiring a project manager that for online work she
once provided, and that Belliveau disliked her and was involved
in the decision-making process.

(ECF No.37-1, ¶¶ 50, 56, 69;

ECF No. 37, at 10; ECF No. 37-2, at 4–9; ECF No. 34-6, at 70–71,
74).

Given these facts, a reasonable jury could conclude that

the University’s explanations were pretextual.

The Court must

now determine whether a reasonable jury could conclude that Kwon
was fired because of her race.
A reasonable juror could conclude that Kwon was
discriminated against on the basis of race.

Only rarely will a

prima facie case of discrimination plus evidence of pretext be
insufficient to carry the ultimate question of discrimination to
17

a jury.

Zimmermann, 251 F.3d at 382.

that burden, though barely.

Here, Kwon has satisfied

She established the prima facie

case and submitted evidence that UVM’s explanation is not worthy
of credence.

In addition, her expert will testify that “the

phrase ‘notorious slumlord’ is a semantic move or coded language
describing a person from a racial group who are commonly
stereotyped as sneaky, stingy, greedy, etc.”

(ECF 37-4, at 7).

He will state that the remark “reflects a racial stereotype that
successful Asians gain their success by exploiting innocent
others out of greed.”

(Id.).

Given the facts before it, this

Court is unwilling to assume that Belliveau’s comments are not
possibly probative of a discriminatory motive.

Because this

Court believes that a reasonable jury could conclude that Kwon
was discriminated against on the basis of race, summary judgment
on the race discrimination claim is denied.
B.
1.

Count 2: ADEA Claim
The Prima Facie Case

As with Kwon’s race discrimination claim, only the fourth
element of her prima facie case of age discrimination is
disputed.
The evidentiary burden to establish the prima facie case is
minimal and replacement by an individual outside the protected
class is sufficient.

Abdu-Brisson, 239 F.3d at 467 (2d Cir.

2001); Zimmermann, 251 F.3d at 381.
18

Kwon met her burden because

she was seventy when she was terminated and her workload was
assumed by people in their forties or younger.

(Plaintiff’s

Undisputed Facts, ECF No. 37-1, ¶ 53; see also ECF No. 37-7, at
31).
2.

Legitimate, Non-Discriminatory Reason

As discussed above in reference to the race discrimination
claim, UVM articulated a non-discriminatory justification for
the employment decision.
3.

Evidence of Pretext

There is sufficient evidence for reasonable jury to
conclude that the University’s explanations were pretextual.
The question is whether a reasonable jury could conclude that
Kwon was discriminated against on the basis of age.
Kwon established a prima facie case of age discrimination
and provided sufficient evidence for a jury to conclude that the
University’s stated justifications were false.

Multiple

witnesses will testify that Belliveau was aware of age and
treated younger employees differently than older employees.
(ECF No. 37-1, ¶¶ 42–46).

For example, at her deposition,

Debbie Worthley stated that Belliveau had a preference for
younger employees and hired younger people for jobs that
required more experience than they had.

(ECF No. 37, at 9–11).

Janet Nunziata also stated that Belliveau was aware of age, and

19

she recalled at least one occasion where Belliveau asked a job
candidate about his age.

(ECF No. 37-7, at 21, 80).

Accordingly, a reasonable jury could conclude that Kwon’s age
contributed to the University’s decision to terminate her
position.

Summary judgment on Kwon’s age discrimination claim

is denied.
C.

Hostile and Abusive Work Environment

To survive summary judgment on a hostile work environment
claim, the plaintiff must be able to demonstrate that the
workplace was “so severely permeated with discriminatory
intimidation, ridicule, and insult that the terms and conditions
of her employment were thereby altered.”

Alfano v. Costello,

294 F.3d 365, 373 (2d Cir. 2002) (internal quotation and
citation omitted).

To succeed, a plaintiff must be able to

demonstrate that the workplace was objectively and subjectively
altered.

Id.

In order to demonstrate that the workplace was both
objectively and subjectively altered, the plaintiff must point
to “sufficiently continuous and concerted” acts.

Id.

While

isolated acts are usually insufficient to establish that a
workplace was hostile, a single act could be sufficient if it
“can and does work a transformation of the plaintiff’s
workplace.”

Id.

In determining whether the workplace was

20

hostile, courts must review the totality of the circumstances
and may consider facially neutral incidents so long as a
reasonable jury could conclude that they were based on the
plaintiff’s protected class.

Alfano, 294 F.3d at 378.

The

analysis is the same under Title VII, the ADEA, and VFEPA.
Brennan v. Metro Opera Ass’n Inc., 192 F.3d 310, 318 (2d Cir.
1999); Fernot v. Crafts Inn, Inc., 895 F.Supp. 668, 678 (D. Vt.
1995) (quoting Hodgdon v. Mt. Mansfield Co., Inc., 624 A.2d
1122, 1129 (Vt. 1992)).
Kwon satisfied the subjective and objective component of
her hostile work environment claim.

Kwon alleged that the

isolation she felt within the Continuing Education department
was draining.

(ECF No. 37-1, ¶ 74).

She has also provided

sufficient facts to allow a reasonable inference that
Belliveau’s treatment was so severe and sustained that it
objectively altered the conditions of the workplace.

The

alleged harassment began in 2005, when Belliveau denied Kwon the
opportunity to attend a conference but allowed similarly
situated employees to go.

(ECF No. 37-2, at 9–10).

Belliveau’s

mistreatment continued and escalated after Belliveau learned
that Kwon sued her son’s girlfriend in a landlord-tenant
dispute.

(Id. at 4–9).

Taken as a whole, the incidents that

Kwon describes were sufficient to alter the conditions of the
workplace.

As discussed above in reference to the age and race
21

discrimination claims, a reasonable juror could infer that Kwon
was mistreated because of her age and/or race.

Because a

reasonable jury could infer that Kwon’s work environment was
hostile because of her age and/or race, summary judgment must be
denied.
D. VFEPA Claim
VFEPA claims are analyzed under the same rubric as Title
VII and ADEA claims.
482.

Vermont Country Store, 191 F. Supp. 2d at

Accordingly, summary judgment on Kwon’s VFEPA claim must

be denied.
E.

Intentional Infliction of Emotional Distress (IIED) Claim
To state a case for IIED in Vermont, plaintiffs must be

able to demonstrate: (1) outrageous conduct, (2) done
intentionally or with “reckless disregard of the probability of
causing emotional distress”, and (3) actually or proximately
causing extreme emotional distress.

Fromson v. State, 848 A.2d

344, 347 (Vt. 2004) (internal quotation and citation omitted).
To satisfy the first element, plaintiffs must allege conduct “so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
Id. (internal quotation and citation omitted).

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The conduct must

be so extreme that “no reasonable person could be expected to
endure it.”

Id. (internal quotation and citation omitted).

Kwon has not pointed to any conduct that is so extreme that
it goes beyond all possible bounds of decency.

Further Kwon has

submitted no evidence tending to suggest that she suffered
extreme emotional distress as a result of Belliveau’s conduct.
Accordingly, Kwon cannot satisfy two of the necessary three
elements to prevail on a claim of IIED in Vermont.

As such,

summary judgment on Kwon’s IIED claim is granted.
IV.

CONCLUSION

For the foregoing reasons, this Court grants the
University’s motion for summary judgment on Kwon’s IIED claim
and denies its Motion for Summary Judgment on Kwon’s Title VII,
ADEA, VFEPA, and hostile and abusive work environment claims.
Dated at Burlington, in the District of Vermont, this 6th
day of December 2012.

/s/ William K. Sessions III__
William K. Sessions III
U.S. District Court Judge

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