Wyatt v. City of Barre, Vermont et al

Filing 27

MEMORANDUM OPINION AND ORDER granting in part and denying in part 12 Motion to Dismiss. Signed by Judge William K. Sessions III on 4/25/2012. (law)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
RACHEL WYATT,
Plaintiff,
v.
CITY OF BARRE/BARRE CITY FIRE,
DEPARTMENT, TIMOTHY BOMBARDIER,
JOE ALDSWORTH, ROBERT
HOWARTH and CINDY HOWARTH,
Defendants.

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Case No. 2:11-CV-00297

MEMORANDUM OPINION and ORDER
Rachael Wyatt filed suit against the Barre City Fire
Department (“BCFD”); the City of Barre; Timothy Bombardier,
Chief of the BCFD; Robert Howarth and Joe Aldsworth, supervisors
at the BCFD; and Cindy Howarth, a coworker at the BCFD.

Wyatt

claims fourteen different causes of action arising out of
alleged sexual harassment and gender discrimination by the BCFD
and its employees.

Aldsworth has moved to dismiss all but two

of the fourteen claims, for failing to state a claim against
him.
For the reasons that follow, Aldsworth’s motion to dismiss
is GRANTED with respect to Counts Two, Three, Six, Seven, Eight,
Nine and Ten, and DENIED with respect to Counts Five, Eleven,
Twelve, Thirteen, and Fourteen.

FACTUAL BACKGROUND
The following facts were gleaned from the complaint, and
are assumed to be true for the purposes of this motion.

Wyatt

was a female member of the BCFD’s Call Force from March, 2009 to
September, 2010.

Timothy Bombardier was the Chief during all

times relevant to this suit.

Joe Aldsworth was a fellow

firefighter who was promoted to Deputy Chief at some point
during Wyatt’s time with the BCFD, though it is unclear exactly
when that promotion happened.
From the early days of her employment with BCFD, Wyatt was
subjected to harassment by fellow firefighters Robert and Cindy
Howarth, and the harassment was motivated by Wyatt’s gender.
Wyatt frequently complained about the harassment both to Chief
Bombardier and Aldsworth, who served as her mentor.

Wyatt met

with Aldsworth and Bombardier, and Bombardier indicated that he
would employ mediators to try to resolve the problem.

A

mediator made one brief visit to the station, but the harassment
continued nonetheless.
In February of 2010, Bombardier suspended Wyatt because she
had yet to obtain an “EMT-B” (Emergency Medical Technician)
certification.

When Wyatt began work with the BCFD, she had

completed an EMT training course, but had not passed the written
examination required for “EMT-B” certification.

BCFD policy

required Wyatt to obtain her EMT-B certification or a
2

“Firefighter-1” certification within eighteen months of her date
of hire.

At the time she was suspended, however, Wyatt had

seven months remaining on that eighteen month period.

Moreover,

at the time of Wyatt’s suspension there were other firefighters
without EMT-B certifications who were not suspended pending
certification.
Aldsworth volunteered to help Wyatt prepare for the written
examination.

However, “[w]hile doing so . . . he began to make

unwelcome comments of a sexual and suggestive nature.”
72.

Compl. ¶

These “sexual advances were not welcome and were not

encouraged,” and “after [Wyatt] repeatedly rebuked . . .
Aldsworth’s sexual advances, Aldsworth ‘suggested’ that
Plaintiff consider looking for a job in another Department.”
Compl. ¶¶ 74, 76.

Wyatt reported Aldsworth’s harassment to

Bombardier in May of 2010, but Aldsworth was not reprimanded,
despite his admission to sending sexually charged messages.
After this report against Aldsworth, Bombardier lifted Wyatt’s
suspension, but Aldsworth then informed her that “she still
would not be able to respond to emergency calls (or earn any
income) until she first completed forty hours of field
training.”

Compl. ¶ 80.

After Wyatt completed the field training, “Aldsworth told
her she would remain on restricted duty until she completed an
Emergency Vehicle Operator training, despite that she had
3

already been trained and frequently drove those vehicles as part
of her regular duty.”

Compl. ¶ 82.

Similarly situated male

coworkers were not subjected to the same restriction.
Additionally, Aldsworth prohibited Wyatt from participating in
“Rosie’s Girl’s,” a community service program designed to
encourage young girls to become firefighters.

Wyatt alleges

that “Aldsworth subjected [her] to these adverse employment
actions because [she] refused his sexual advances and in
retaliation for her reporting his sexual harassment.”

Compl. ¶

87.
The situation came to a head in July and August of 2010.
In July, 2010, Wyatt “made an anonymous [telephone] call to the
State’s Emergency Medical Services expressing concern about an
EMT-I colleague’s fitness for duty.”

Compl. ¶ 93.

While not

clear from the Complaint, memoranda filed by both parties
indicate that Wyatt did not speak to anyone when she made this
call, but left a recorded voice message.

“For reasons not

completely understood, the fact of the call was made known to
Chief Bombardier.

On August 31, 2010, [Wyatt] was summoned to

Chief Bombardier’s office, who asked whether she had made the
call.”

Compl. ¶ 95.

at that time.

Aldsworth was also present in the office

In an effort to protect her anonymity, Wyatt

denied making the call.

As a result, she was again suspended,

pending investigation.

Bombardier then obtained a copy of the
4

recorded call, and invited four other firefighters (including
Aldsworth) to listen to the recording for the purpose of
identifying Wyatt’s voice. Then, “[h]aving satisfied himself
that [Wyatt] was the anonymous caller, Chief Bombardier . . .
fired [her] for ‘lying.’”

Compl. ¶ 98.

Wyatt alleges that

“[t]he stated reason for [her] termination was a pretext,” and
that she “was terminated in retaliation for opposing and
reporting sexual harassment in the workplace.”

Compl. ¶ 99.

DISCUSSION
I. Standard of Review
The standard for reviewing a motion to dismiss pursuant to
Rule 12(b)(6) is well-known.

Citing Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007) and Fed. Rule Civ. Proc. 8(a)(2),
the Supreme Court has explained:
First, the tenet that a court must accept as true all
of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by
mere conclusory statements, do not suffice . . .
Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal
quotation marks and citations omitted).
II. Count Two: Breach of Contract
Aldsworth argues that Wyatt has failed to plead facts
sufficient to state a claim against him for breach of contract.
Wyatt “agrees that she has not alleged a breach of contract
5

action against either the Defendant Allsworth or any other
individual Defendant.

Accordingly, Aldsworth’s motion to

dismiss Count Two is GRANTED.
III. Count Three: Wrongful Discharge in Violation of Public
Policy
Aldsworth argues that Wyatt’s wrongful discharge claim
against him should be dismissed because such claims “can only be
asserted against one’s employer,” and not against fellow
employees.

(Def.’s Mem. at 4.) (citing United States ex rel.

Harris v. EPS, Inc.,  No. 2:05-CV-212, 2006 WL 1348173 (D. Vt.
May 16, 2006).

In Harris, the plaintiff sued his former

employer, EPS, Inc., for wrongful discharge in violation of
public policy.

Harris also sued the owner and manager of EPS in

their individual capacities.

This Court dismissed the claims

against the owner and manager “[b]ecause Vermont case law
provides no support for Harris's contention that he may bring an
action for discharge in violation of public policy against [the
owner and manager] in their individual capacities.”

Harris,

2006 WL 1348173 at *9.
Wyatt argues that Harris is no longer good law, citing the
Vermont Supreme Court’s decision in Payne v. U.S. Airways, 2009
VT 90, 987 A.2d 944 (2009).

Payne, however, did not involve a

claim for wrongful termination in violation of public policy.
Rather, Payne considered whether supervisors and coworkers may

6

be sued in their individual capacity for acts of discrimination
and retaliation under the Vermont Fair Employment Practices Act
(“VFEPA”).

Payne, 2009 VT 90, ¶ 1, 987 A.2d at 946.

Vermont Supreme Court held that they may.

Id.

The

The court’s

decision in Payne was based on a lengthy analysis of statutory
construction and legislative intent.
7-21, 987 A.2d at 947-53.

See Payne, 2009 VT 90, ¶¶

The question here is whether Payne

changed the rule articulated in Harris that plaintiffs may not
bring common law claims for wrongful termination in violation of
public policy against individual supervisors and coworkers.

It

did not.
The Vermont Supreme Court has adopted the following test to
assess claims of wrongful discharge in violation of public
policy:
The employee must show that (1) the employer directed
the employee to perform an illegal or unethical act as
part of the employee's duties; (2) the action directed
by the employer would violate a statute or clearly
expressed public policy; (3) he or she was terminated
as a result of refusing to perform the requested act
in violation of public policy; and (4) the employer
was aware or should have been aware that the
employee's refusal was based upon the employee's
reasonable belief that the act was illegal or in
violation of the employee's professional ethical code.
LoPresti v. Rutland Regional Health Servs., Inc., 865 A.2d 1102,
1112-13 (Vt. 2004) (citing Rocky Mtn. Hosp. & Med. Serv. v.
Mariani, 916 P.2d 519, 527 (Colo. 1996)) (internal quotation
marks omitted).

And this Court has observed that the term
7

“employer,” as understood in claims for wrongful discharge in
violation of public policy, refers to “companies and other
organizations” rather than to individuals.

See Harris, 2006 WL

1348173 at *8.
There are several reasons why this common law definition of
employer remains intact, notwithstanding the Vermont Supreme
Court’s ruling in Payne.

First, unlike the VFEPA statute, the

common law test for claims of wrongful discharge in violation of
public policy refers simply to the “employer,” and does not
account for agents of the employer.

Second, the language of

Payne indicates that the court intended to leave the common law
definition of “employer” intact.

The Payne court reasoned that

“the Legislature's use of the conjunctive ‘and any agent’ in the
definition of ‘employer’ in the VFEPA signals that the
Legislature intended that, in addition to those traditionally
categorized as employers, agents of the employer can be held
liable.”
added).

Payne, 2009 VT 90, ¶ 9, 987 A.2d at 948 (emphasis
This statement indicates that the definition of

“employer” under the VFEPA is broader than under the common law,
but in no way implies that the common law definition should
itself be expanded.

Third, the Payne court did not attempt to

change the common law understanding of the word “employer”—its
analysis was limited to the construction of the VFEPA and
similar statutes.

Accordingly, coworkers such as Aldsworth are
8

not held individually liable for wrongful discharge in violation
of public policy.

Aldsworth’s motion to dismiss Count Three is

GRANTED.
IV. Count Six: Violation of the Electronic Communications
Privacy Act (“ECPA”)
The ECPA penalizes any person who “intentionally
intercepts, endeavors to intercept, or procures any other person
to intercept or endeavor to intercept, any wire, oral, or
electronic communication.”

18 U.S.C. § 2511(1)(a).

“‘[I]ntercept’ means the aural or other acquisition of the
contents of any wire, electronic, or oral communication through
the use of any electronic, mechanical, or other device.”
U.S.C. § 2510(4).

18

Thus, the plain language of the statute makes

clear that it is intended to prohibit wiretapping and other
forms of electronic surveillance.

And while the Second Circuit

has not addressed the issue, “a number of other circuits . . .
have held that a replaying of tapes containing recorded phone
conversations does not amount to a[n] . . . interception in
violation of the Wiretap Act.”

Noel v. Hall, 568 F.3d 743, 749

(9th Cir. 2009) (citing United States v. Hammond, 286 F.3d 189,
193 (4th Cir. 2002); Reynolds v. Spears, 93 F.3d 428, 432–33
(8th Cir. 1996); United States v. Shields, 675 F.2d 1152, 1156
(11th Cir. 1982); United States v. Turk, 526 F.2d 654, 658 (5th
Cir. 1976)).

This Court follows the Fourth, Fifth, Eighth,

9

Ninth, and Eleventh Circuits to hold that “[n]o new interception
occurs when a person listens to . . . [a] communication that has
already been captured or redirected.”
Wyatt alleges only that Aldsworth listened to a recorded
phone message.

She does not allege that Aldsworth “acquired”

the recording “through the use of any electronic, mechanical, or
other device.”

In support of her argument that Aldsworth

“intercepted” the recording when he listened to it, Wyatt cites
the Second Circuit’s holding that “the place where the contents
of a wire communication are first to be heard and understood by
human ears, other than those of the parties to the conversation,
is the situs of an interception within the meaning of [18
U.S.C.] § 2510(4).”

United States v. Rodriguez, 968 F.2d 130,

136 (2d Cir. 1992) (emphasis added).

This holding from

Rodriguez, however, dealt with determining where an interception
occurred, rather than if an interception occurred.
inapposite here.

It is

When Aldsworth listened to the recording, that

act did not constitute an “interception” under the ECPA.
Wyatt then argues, however, that “it is irrelevant that the
subsequent replaying may or may not constitute ‘new
interceptions’ because the latter replaying does constitute
unlawful use and disclosure of the unlawfully intercepted
communication.”

Pl.’s Mem. 11.

Along with prohibiting certain

interceptions of communications, the ECPA prohibits the “use” or
10

“disclosure” of unlawfully intercepted communications.
U.S.C. § 2511(c)-(d).

18

However, other Courts have determined

that “merely listening to tape recordings of illegally
intercepted phone calls does not constitute use within the
meaning of” the ECPA.

Peavy v. Harman, 37 F. Supp. 2d 495, 513

(N.D. Tex. 1999) (citing Fields v. Atchison, Topeka, and Santa
Fe Railway Co., 985 F.Supp. 1308, 1314 (D. Kan. 1997); Reynolds
v. Spears, 857 F.Supp. 1341, 1345 n. 5 (W.D.Ark.1994), aff'd, 93
F.3d 428 (8th Cir.1996)).

Nor can it be said that listening to

a recording constitutes “disclosure” under any understanding of
the word.

Accordingly, this Court holds that listening to a

recording does not constitute “use” or “disclosure” within the
meaning of the ECPA.
Since Aldsworth merely listened to a recorded telephone
call, he did not impermissibly “intercept” the communication,
nor did he “use” or “disclose” the communication in violation of
the ECPA.

Thus, Wyatt has failed to state a claim against

Aldsworth under the ECPA, and Aldsworth’s motion to dismiss
Count Six is GRANTED.

1

1

 It should be noted that the above analysis rests on the assumption that
Wyatt’s claim refers to an interception in addition to the original voicemail
recording she left with EMS, and a use or disclosure of that additional
interception. To the extent that Count Six may rely on the original
voicemail, it is still dismissed. “An intentional interception of a
telephone conversation is not actionable if a party to the conversation gives
prior consent to the interception.” George v. Carusone, 849 F. Supp. 159,
164 (D. Conn. 1994). Wyatt consented to the recording of her phone call by
leaving a voice message on a recording device. Accordingly, that
interception was not unlawful, nor was any use or disclosure of the contents

11

V. Count Seven: Violation of the Stored Communications Act
(“SCA”)
The SCA penalizes anyone who “intentionally accesses
without authorization a facility through which an electronic
communication service is provided; or intentionally exceeds an
authorization to access that facility; and thereby obtains,
alters, or prevents authorized access to a wire or electronic
communication while it is in electronic storage in such system.”
18 U.S.C. § 2701(a).

Wyatt alleges that “[o]ne or more of the

Defendants intentionally accessed, without authorization, the
facility through which [the EMS voicemail system] was provided
and/or intentionally exceeded an authorization to access that
facility, and thereby obtained access to plaintiff’s anonymous
phone call regarding the impaired EMT, in violation of the
[SCA].”

Compl. ¶ 157.

Wyatt further alleges that “Chief

Bombardier obtain[ed] a copy of the recorded call, and then
invit[ed] four other male Firefighters (including Aldsworth) to
listen to the recording, for the purpose of identifying
Plaintiff’s voice.”

Compl. ¶ 97.

The alleged facts are insufficient to state a claim.

With

respect to Aldsworth, Wyatt alleges merely that he listened to
the tape recording.

Nowhere in the Complaint does she allege

that Aldsworth accessed the EMS voicemail system.

Much as it

of that interception unlawful.
(d).

See 18 U.S.C. §§ 2511(1)(c)-(d), 2511(2)(c)-

12

does not constitute an “intercept” under the ECPA, the mere act
of listening to a recording does not constitute “accessing a
facility through which an electronic communication service is
provided.”
Conceivably, Aldsworth may be included in Wyatt’s
allegation that “[o]ne or more of the Defendants intentionally
accessed, without authorization, the facility through which [the
EMS voicemail system] was provided.”

Compl. ¶ 157.

However, in

light of her earlier allegation that it was Chief Bombardier who
obtained the recording, the latter, more general allegation does
not allow the inference that it was Aldsworth who accessed the
voicemail system to obtain the recording.

Wyatt’s “threadbare

recital of the elements” is insufficient to state a claim.
Iqbal, 556 U.S. at 678-79.

Because Wyatt has failed to allege

any facts to “permit the [C]ourt to infer more than the mere
possibility of misconduct,” Aldsworth’s motion to dismiss Count
Seven is GRANTED.
VI. Count Eight: Invasion of Privacy
“‘Invasion of privacy’ is a term applied to several
distinct types of harm.”

Staruski v. Cont’l Tel. Co. of Vt.,

581 A.2d 266, 268 (Vt. 1990).

In her response to the present

motion, Wyatt asserts that her claim is of the “intrusion upon
seclusion” type described in Hodgdon v. Mt. Mansfield Co., 624
A.2d 1122, 1129 (Vt. 1992).

“To state a cause of action for
13

intrusion upon seclusion, the plaintiff must allege ‘an
intentional interference with her interest in solitude or
seclusion, either as to her person or as to her private affairs
or concerns, of a kind that would be highly offensive to a
reasonable person.’
substantial.”

Moreover, the intrusion must be

Hodgdon, 624 A.2d at 1129 (quoting Restatement

(Second) of Torts § 652B (1977).
Wyatt alleges that “[t]he Defendants intentionally
interfered with [her] right to privacy when they accessed the
voicemail recording, and played the recording in the presence of
Plaintiff’s colleagues, including her harassers.”

This

allegation fails to state a claim against Aldsworth.

As

described above, the only “Defendants” [sic] who Wyatt alleges
“accessed” and “played” the voicemail recording is Bombardier.
Other than to make a blanket allegation against all Defendants,
Wyatt does not allege that Aldsworth obtained or played the
recording, nor does she allege that her privacy was invaded by
the colleagues who merely listened to the recording.

Moreover,

by leaving a recorded voice message, Wyatt waived any right to
privacy with respect to that message.

See Smith v. Maryland,

442 U.S. 735 743-44 (1979) (“[A] person has no legitimate
expectation of privacy in information he voluntarily turns over
to third parties.”).

Because the Complaint fails to allege that

Aldsworth committed the act underlying the alleged tort—
14

accessing and playing the recording—and because Wyatt waived any
expectation of privacy in the message, Aldsworth’s motion to
dismiss Count Eight is GRANTED.
VII. Counts Nine and Ten: Deprivation of Property Interest in
Violation of Due Process
The Fourteenth Amendment provides that a state may not
“deprive any person of life, liberty, or property, without due
process of law.”

U.S. Const. amend. XIV, § 1.

Similarly,

Article 10 of the Vermont Constitution provides that no person
“can . . . be justly deprived of liberty, except by the laws of
the land.”

Vt. Const. ch. I, art. 10.

property interests.

Article 10 also protects

See e.g., In re Smith, 730 A.2d 605, 612

(Vt. 2001) (recognizing a nurse’s “interest in maintaining her
[professional] license, and thus her livelihood,” and observing
that “[t]he due process requirements imposed by Article 10 of
the Vermont Constitution mirror those imposed by the United
States Constitution.”).

Here, Wyatt alleges that she was

deprived of a property interest in her job with BFD.
“It is well settled in this Circuit that ‘personal
involvement of defendants in alleged constitutional deprivations
is a prerequisite to an award of damages under [42 U.S.C.] §
1983.’”

Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)

(quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.
1977)).

And as Wyatt points out, it is also well settled that
15

“[t]he personal involvement of a supervisory defendant may be
shown by evidence that . . . the defendant participated directly
in the alleged constitutional violation.”

Colon v. Coughlin, 58

F.3d 865, 873 (2d Cir. 1995) (citing Williams v. Smith, 781 F.2d
319, 323-24 (2d Cir. 1986)).

Wyatt argues that “Aldsworth

participated directly in the circumstances giving rise to
[Wyatt’s] firing, including his role as harasser, retaliator,
and co-conspirator in the invasion of Plaintiff’s privacy to
further the employer’s efforts in pursuing a pretextual
discharge.”

Pl.’s Mem. 9.

However, the alleged constitutional violation here is
termination of employment without due process.

Wyatt must

allege that Aldsworth participated directly in that deprivation.
It is not enough to allege that he participated directly “in the
circumstances giving rise” to the situation in which the alleged
deprivation occurred.

This Court has repeatedly held that city

employees who are not directly responsible for termination
procedures afforded subordinates may not be held liable for the
fired employee’s alleged deprivation of due process.

See Bearss

v. Wilton, Civil Action No. 2:08-CV-248, slip op. at 29 (D. Vt.
Aug. 10, 2010); Martin v. Town of Brattleboro, No.
2:07-cv-260, 2008 WL 4416283, at *1 (D. Vt. Sep. 24, 2008)
(Sessions, J.) (“accept[ing]” Report and Recommendation with
respect to procedural due process issue).
16

The Complaint fails to allege that Aldsworth had any say or
part in the procedures used to terminate Wyatt.

And under

Vermont law, only the “chief engineer” may dismiss or suspend a
fireman.

Vt. Stat. Ann. tit. 24, § 1954.

At the time of the

firing, Bombardier was the Chief of the Barre City Fire
Department, and Aldsworth was the Deputy Chief.
6.

Complaint ¶¶ 5-

As Deputy Chief, Aldsworth did not have the authority to

terminate Wyatt, or to establish the procedures used to terminte
her.

Accordingly, he cannot be held liable for Wyatt’s alleged

deprivation of due process, and his motion to dismiss Counts
Nine and Ten is GRANTED.
VIII. Count Thirteen: Unlawful Conspiracy
“In order to maintain an action under Section 1985, a
plaintiff must provide some factual basis supporting a meeting
of the minds, such that defendants entered into an agreement,
express or tacit, to achieve [an] unlawful end.”

Webb v. Goord

340 F.3d 105, 110 (2d Cir. 2003) (internal quotation marks
omitted) (citing Romer v. Morgenthau, 119 F.Supp.2d 346, 363
(S.D.N.Y. 2000)); Warburton v. Underwood, 2 F.Supp.2d 306, 319
(W.D.N.Y. 1998).
Aldsworth argues that the conspiracy claim against him
should be dismissed because it is barred by the “intraenterprise
conspiracy doctrine.”

The intraenterprise conspiracy doctrine

holds that “there is no conspiracy if the conspiratorial conduct
17

challenged is essentially a single act by a single corporation
acting exclusively through its own directors, officers, and
employees, each acting within the scope of his employment.”
Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978).

However,

“[a]n exception to the intra[enterprise] conspiracy doctrine
exists when individuals pursue ‘personal interests wholly
separate and apart from the entity.’”

Orafan v. Goord, 411 F.

Supp. 2d 153, 165 (N.D.N.Y. 2006).
Wyatt has alleged that Aldsworth sexually propositioned her
on a number of occasions.

The Complaint does not specifically

allege that these activities fell outside the scope of
Aldsworth’s employment.

However, in at least one instance, the

Vermont Supreme Court has held that sexual misconduct is outside
the scope of employment as a matter of law.

Doe v. Forrest, 853

A.2d 48, 55 (Vt. 2004) (“[C]oercing plaintiff to perform
fellatio was [not] conduct that was actuated, even in part, by a
purpose to serve the county sheriff . . . [A]n act rooted in
prurient self-interest-cannot properly be seen as intending to
advance the employer's interests.”)

Assuming Wyatt’s

allegations to be true, Aldsworth’s sexual advances could not,
as a matter of law, be said to be within the scope of his
employment.
Aldsworth also argues that “the Complaint alleges no
factual matters suggesting that [he] entered into an agreement
18

with anyone . . . to accomplish an unlawful purpose or to
accomplish a lawful purpose by unlawful means.”
Mem. 9-10.

The Court disagrees.

Def.’s Reply

“Determining whether a

complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.”
at 679.

Iqbal, 556 U.S.

Wyatt has alleged that

By the Summer of 2010, [she] had been compelled to
endure a hostile work environment based upon her sex,
had been subjected to quid pro quo sexual harassment,
and had been retaliated against for reporting both.
None of the perpetrators had been reprimanded; Chief
Bombardier publicly doubted that Aldsworth’s sexual
advances were unwelcomed by Plaintiff; and, Plaintiff
herself was suspended in humiliating and demeaning
fashion and was then subjected to an ever-expanding
list of arbitrary requirements that were not applied
equally to male firefighters.
Compl. ¶ 91.

The Complaint outlines numerous specific

facts which, when accepted as true, support these general
allegations.
The extensive facts alleged in the Complaint, when
considered in their entirety, support the plausible inference
that there was a station-wide agreement (tacit or otherwise) to
subject Wyatt to harassment, hostile working conditions, and
adverse employment actions, and that Aldsworth was a party to
that agreement.
Since Aldsworth acted outside the scope of his employment
when he allegedly propositioned Wyatt, and since the facts
19

stated in the Complaint support the inference that Aldsworth,
Bombardier, and others entered into an agreement to perpetrate
and permit that harassment, Aldsworth’s motion to dismiss the
conspiracy claim is DENIED.
IX. Immunity from State-Law Claims
Finally, Aldsworth asks that all state-law claims against
him be dismissed pursuant to Vt. Stat. Ann. tit. 24, § 901(a).
Section 901(a) provides that “[w]here an action is given
[against] any appointed or elected municipal officer . . . it
shall be brought against such town.”

Aldsworth argues that

because he is a municipal officer, § 901(a) protects him from
suit.

Wyatt argues that while § 901(a) may protect Aldsworth

from lawsuits arising out of his official duties, Ҥ 901 does
not . . . immunize municipal officers for unlawful conduct, such
as Aldsworth’s acts of sexual harassment, committed outside the
scope of their official duties.”

Pl.’s Mem. 19.

While it does not appear that the Vermont Supreme Court has
directly addressed this issue, some Vermont trial courts have.
One court found that several town officers were protected from
suit under § 901(a) because the “allegations all concern[ed]
[those] individuals acting in their official capacity” and
“there [were] no allegations that would support a cause of
action against [those] individuals in their individual
capacities.”

Livingston v. Town of Hartford, Trial Order, No.
20

482-9-06 Wrcv, 2007 WL 7632577 (Vt. Super. May 17, 2007).

A

second court—pursuant to § 901(a)—refused to find individual
liability where “[t]here was no evidence offered that the
actions of [the] individuals exceeded the power or official
duties of their respective offices and therefore the court
concludes that there is no individual liability.”

Hamilton v.

Dowland, Trial Order, No. 200-8-01 Ossc., 2005 WL 5872172 (Vt.
Super. Nov. 30, 2005).

These results comport with logic.

It

would be unreasonable to impose liability on municipalities for
all misdeeds of their officers irrespective of whether the
misdeeds were committed in the course of an officer’s execution
of his or her official role.
Counts Five, Eleven, Twelve and Fourteen are the state
claims that have yet to be dismissed.

Because § 901(a) does not

protect municipal officers from suits arising from acts
committed outside the scope of their official duties, and
because Aldsworth has failed to argue that the acts underlying
Counts Five, Eleven, Twelve and Fourteen fell within the scope
of his official duties—or that they should be dismissed for any
other reason, Aldsworth’s motion to dismiss counts Five, Eleven,
Twelve, Thirteen and Fourteen is DENIED.

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CONCLUSION
Aldsworth’s motion to dismiss Counts Two, Three, Six,
Seven, Eight, Nine and Ten is GRANTED.

His motion to dismiss

Counts Five, Eleven, Twelve, Thirteen and Fourteen is DENIED.

Dated at Burlington, Vermont this 25th day of April, 2012.

/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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