Wyatt v. City of Barre, Vermont et al

Filing 77

MEMORANDUM OPINION & ORDER granting 37 Motion for Judgment on the Pleadings as to Count 11 filed by Joe Aldsworth; granting in part and denying in part 49 Motion for Judgment on the Pleadings filed by Cindy Howarth, Robert Howarth; granting in part and denying in part 24 Motion for Judgment on the Pleadings filed by Timothy Bombardier, City of Barre/Barre City Fire Department. Signed by Judge William K. Sessions III on 8/6/2012. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

RACHEL WYATT,
Plaintiff,
v.

CITY OF BARRE,
TIMOTHY BOMBARDIER,
JOE ADLSWORTH,
ROBERT HOWARTH,
AND CINDY HOWARTH,
Defendants.

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Case No. 2:11-cv-297

Memorandum Opinion & Order:
Defendants’ Motions for Judgment on the Pleadings
Plaintiff Rachel Wyatt has sued the City of Barre/Barre
City Fire Department, Chief Timothy Bombardier, Deputy Chief Joe
Aldsworth, Captain Robert Howarth and Call Force Firefighter
Cindy Howarth for actions taken against her during her time as
an employee of the Barre City Fire Department (“BCFD”).
Plaintiff has alleged 14 counts: (1) Unlawful Sex Discrimination
in Violation of Title VII, (2) Breach of Contract, (3) Wrongful
Discharge in Violation of Public Policy, (4) Violation of Rights
under the First Amendment, (5) Violation of Rights under the
Vermont Constitution, Chapter 1, Article 13, (6) Violation of
the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §
2510 et seq., (7) Violation of the Stored Communications Act
(“SCA”), 18 U.S.C. § 2701 et seq., (8) Tortious Invasion of

Privacy, (9) Violation of Due Process Clause of the U.S.
Constitution, (10) Violation of Due Process under the Vermont
Constitution, (11) Violation of Vermont’s Occupational Safety
and Health Act (“VOSHA”), Vt. Stat. Ann. tit. 21, § 221 et seq.,
(12) Infliction of Emotional Distress, (13) Unlawful Conspiracy,
and (14) Violation of Vermont’s Fair Employment Practices Act
(“VFEPA”), Vt. Stat. Ann. tit. 21, § 495 et seq.
BCFD has filed a Motion for Judgment on the Pleadings under
Fed. R. Civ. P. 12(c) for all counts against it.

It also

requests its name be removed from the caption.
The City of Barre has filed a Motion for Judgment on the
Pleadings for Counts Six, Seven, Eight and Thirteen.
Defendant Timothy Bombardier has filed a Motion for
Judgment on the Pleadings for Counts Two, Three, Five through
Eight, and Ten through Fourteen.
Defendant Joe Aldsworth had previously filed a Motion to
Dismiss Counts Two, Three, and Five through Fourteen.

The Court

granted dismissal on Counts Two, Three, and Six through Ten.
Wyatt v. City of Barre/Barre City Fire Dept., No. 2:11–CV–00297,
2012 WL 1435708, at *9 (D. Vt. Apr. 25, 2012). The Court denied
dismissal on Counts Five and Eleven through Fourteen.
2012 WL 1435708, at *9.

Deputy Chief Aldsworth then filed a

Motion for Judgment on the Pleadings for Count Eleven.
2

Wyatt,

Defendant Robert Howarth has filed a Motion for Judgment on
the Pleadings for Counts One, Two, Three, Five through Twelve,
and Fourteen.
Defendant Cindy Howarth has filed a Motion for Judgment on
the Pleadings for Counts One through Twelve, and Count Fourteen.
Background
All facts in this section are taken from Plaintiff’s
Complaint and will be accepted as true for the purposes of this
motion.

Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009).

All individual parties to this lawsuit are employed by BCFD
in some capacity.

Timothy Bombardier is Chief of the Barre City

Police and Fire Departments.

He also oversees Barre’s EMT

services which are combined with the Fire Department.

Chief

Bombardier was appointed to his position after Plaintiff was
hired.
Joe Aldsworth is the Deputy Chief of BCFD.

At the time of

Plaintiff’s hiring, he was a firefighter/paramedic but was later
promoted.
Robert Howarth is a Captain in BCFD.

He was a Lieutenant

at the time of Plaintiff’s hiring and was frequently her direct
supervisor in both capacities.

Cindy Howarth is Captain

Howarth’s wife and also serves as a Call Force Firefighter.
3

On March 25, 2009, Plaintiff was hired as a BCFD Call Force
Firefighter.

The hiring required that Plaintiff pass a written

exam to obtain either EMT-B certification or Firefighter-1
Certification within 18 months.

Plaintiff was issued a pager

which transmitted several distinct tones depending on the nature
of the emergency call.

Plaintiff responded to all types of

calls regardless of certification, knowing that she could cover
for others at the station even if she was not yet certified to
respond at the scene.
According to Plaintiff, Robert and Cindy Howarth created an
atmosphere in the station that was severely and pervasively
offensive, demeaning and hostile to her.

The Howarths’ conduct

included calling Plaintiff a “dumb blonde” and stating publicly
their belief that Plaintiff was “just playing firefighter to
find a husband.”

Cindy Howarth frequently stared at Plaintiff

in an intimidating and uncomfortable fashion.

Cindy Howarth was

also responsible for hiding and/or disposing of Plaintiff’s time
sheets, her lunch, and on at least one occasion, her departmentissued firefighting gear.

Captain Howarth refused to interact

with Plaintiff altogether and would leave a lunch table if she
sat down.
Plaintiff frequently complained about the Howarths’ actions
to Chief Bombardier, but she believes that the conduct escalated
4

after the complaints.

Cindy Howarth filed a report that

Plaintiff had engaged in inappropriate contact with a married
male firefighter during a drill.

The complaint was investigated

and proven to be false, but Plaintiff found it degrading and
humiliating.

Cindy Howarth publicly posted demeaning statements

about Plaintiff on Facebook, saying that “women like her give us
real, women firefighters a bad name.”

On one occasion, Captain

Howarth stated, in the presence of others, that Plaintiff’s
perfume was too strong and she would not be allowed to work
unless she went home and showered.
Plaintiff enlisted the help of Deputy Chief Aldsworth who
had witnessed the Howarths’ treatment towards her.

Plaintiff

had a meeting with Deputy Chief Aldsworth and Chief Bombardier
and the Chief indicated he would bring a mediator into the
station to resolve the conflict.

A mediator did come to the

station once and provided department employees with
questionnaires to complete.

Mediation proved to be

unsuccessful.
After the meeting, Captain Howarth refused to allow
Plaintiff to respond to calls on multiple occasions, depriving
her of the pay she otherwise would have earned.

In one

instance, he ordered Plaintiff to return home after she had
arrived at the station, saying in front of other Department
5

personnel that she was “useless.”

In another, Captain Howarth

laughed mockingly when others told him Plaintiff had arrived at
the station and he refused to allow her to respond to the call.
On February 23, 2010, Plaintiff had a meeting with Chief
Bombardier during which he suspended her from responding to
calls until she received her EMT-B Certification.

At this

point, Plaintiff still had seven months left to complete her
certification within 18 months of her hiring.

At the time of

the suspension, there were other Call Force Firefighters without
EMT-B Certifications who were not suspended and the 18-month
period for certification had not been shortened for any other
employee.

Without Plaintiff’s knowledge, Chief Bombardier

directed Captain Keith Cushman to send a staff-wide memo
informing BCFD employees that Plaintiff was not permitted in any
part of the station other than the classroom and the restroom.
Deputy Chief Aldsworth met with Plaintiff during her
suspension to help her study for the written EMT-B exam.

Deputy

Chief Aldsworth began to make unwelcomed sexual comments and
advances towards her.

Plaintiff reported Deputy Chief

Aldsworth’s sexual harassment to Chief Bombardier on May 6,
2010.

6

After three months, Chief Bombardier revoked Plaintiff’s
suspension and she returned to the station with full access to
every room.

After she returned, Deputy Chief Aldsworth informed

Plaintiff that she would have to complete forty hours of field
training before she could respond to any calls.

Once Plaintiff

completed field training, Deputy Chief Aldsworth informed her
that she would remain on restricted duty until she completed
Emergency Vehicle Operator training, even though Plaintiff had
already received this training.
In July 2010, BCFD circulated a memo asking for female
volunteers in “Rosie’s Girls,” a program designed to teach young
girls that women have a place in fire service and other maledominated professions.

Deputy Chief Aldsworth, with Chief

Bombardier’s endorsement, refused to let Plaintiff participate
in the program.
Also in July 2010, Plaintiff made an anonymous call to the
State’s Emergency Medical Services expressing concern about an
EMT colleague’s fitness for duty.

Plaintiff had previously seen

the colleague break down emotionally at a response scene and
Plaintiff was aware that the colleague had been hospitalized for
a suicide attempt.

7

On August 31, 2010, Plaintiff met with Chief Bombardier and
Deputy Chief Aldsworth about the anonymous phone call.
asked directly, Plaintiff denied making the call.

When

In response

to the denial, Plaintiff was suspended pending an investigation.
As part of the investigation, Chief Bombardier obtained a copy
of the recorded call and played it for four other firefighters,
including Deputy Chief Aldsworth, to identify the voice on the
call.

Upon being satisfied that Plaintiff was the voice on the

recorded call, Chief Bombardier fired Plaintiff for lying.
Plaintiff alleges that the stated grounds were a pretext and the
firing was actually retaliation for placing the call and for her
previous reports of sexual harassment.
Discussion
I.

Standard for Motion for Judgment on the Pleadings
All of the pending motions are for judgment on the

pleadings under Fed. R. Civ. P. 12(c).

In deciding a Rule 12(c)

motion, courts employ the same standard applicable to Motions to
Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
Paterson, 594 F.3d 150, 160 (2d Cir. 2010).

Hayden v.

Thus, the Court

will accept all factual allegations in the Complaint as true and
draw all reasonable inferences in the plaintiff’s favor.
Hayden, 594 F.3d at 160.

To survive a Rule 12(c) motion,

“Plaintiffs' Complaint must contain sufficient factual matter,
8

accepted as true, to state a claim to relief that is plausible
on its face.” Id. (quoting Iqbal, 556 U.S. at 678).

If the

plaintiff has not nudged her claims across the line from
conceivable to plausible, her Complaint must be dismissed.

Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007).
II.

Barre City Fire Department
BCFD contends that it is not a suable entity and is not a

properly named party to this suit.

Consequently, it claims all

counts against it should be dismissed and the Plaintiff should
be limited in her suit to the City of Barre alone.

Plaintiff

agrees that the City of Barre is the real party in interest but
contends that the current caption serves to clarify the nature
of the action.
It is well-settled law that municipal departments in
Vermont cannot be sued separately from their municipalities.
Hee v. Everhoff, 812 F. Supp. 1350, 1351 (D. Vt. 1993); Gorton
v. Burlington Police Dep’t, 23 F. Supp. 2d. 454, 456 (D. Vt.
1998).

The only debatable question is whether the department

can be included in the caption.
The Court finds that BCFD should not be named in the
caption.

The desire on the part of the Plaintiff to clarify the

nature of the action is understandable.

However, including BCFD

in the caption implies a legal liability that it does not and
9

cannot have.

To the extent that any claims were filed against

BCFD, those claims must be dismissed.
The Barre City Fire Department’s Motion for Judgment on the
Pleadings on all counts is GRANTED and the caption shall be
amended.
III. City of Barre
The City of Barre has filed Motions for Judgment on the
Pleadings for Counts (6) Violations of the ECPA, (7) Violations
of the SCA, (8) Tortious Invasion of Privacy and (13) Unlawful
Conspiracy.
a. Count Six: Violations of the Electronic Communications
Privacy Act
Plaintiff alleges that Chief Bombardier, an employee of the
City of Barre, obtaining and playing the voicemail message that
she left with Emergency Medical Services violated the ECPA.

The

ECPA provides both civil and criminal penalties against any
person who intentionally (i) “intercepts, endeavors to
intercept, or procures any other person to intercept or endeavor
to intercept” any oral communication; (ii) uses an “electronic,
mechanical, or other device” to do so; (iii) discloses or
endeavors to disclose the contents of such intercepted
communication to any other person; or (iv) uses or endeavors to
use the contents of such intercepted communications.

Arias v.

Mutual Cent. Alarm Serv., 202 F.3d 553, 556-57 (2d Cir. 2000)
10

(citing 18 U.S.C. § 2511(1)(a)-(d)).

Courts have defined

“intercept” narrowly to mean captured contemporaneously during
the actual transmission.

See Konop v. Hawaiian Airlines, Inc.,

302 F.3d 868, 878 (11th Cir. 2002).

A consent exception to the

ECPA applies if the person recording is a party to the
conversation or if either party has given prior consent to its
recording.

18 U.S.C. § 2511(2)(d).

A business use exception

applies if the recording is done in the ordinary course of
business.

18 U.S.C. § 2510(5)(a)(i).

Plaintiff has alleged insufficient facts to support
unlawful contemporaneous recording.

Her version of the facts is

that Chief Bombardier learned about the phone call and then
obtained a copy.

Moreover, Plaintiff concedes that she

consented to the recording of the original anonymous voicemail.
Under this set of facts, the recording was not unlawful because
it was done with Plaintiff’s consent and it was not
contemporaneous because Defendants were not listening as the
call was being made.
Plaintiff objects to the message being replayed for her coworkers without her consent, which she categorizes as new
interceptions.

As this Court has previously said, replaying a

legally recorded message is not an interception under the ECPA.
Wyatt, 2012 WL 1435708, at *4 (citing Noel v. Hall, 569 F.3d
11

743, 749 (9th Cir. 2009)).

Absent any allegation of unlawful

contemporaneous recording, no “interception” occurred within the
meaning of the ECPA.
Plaintiff has failed to state a plausible set of facts
under which the Defendants violated the ECPA.

The City of

Barre’s Motion for Judgment on the Pleadings for Count Six is
GRANTED.
b. Count Seven: Violations of the Stored Communications
Act
In addition to a claim under the ECPA, Plaintiff also
alleges violation of the SCA.

The SCA is broader than ECPA in

that it prohibits unauthorized access, not interception.

The

SCA applies to whoever:
(1) intentionally accesses without authorization a
facility through which an electronic communication
service is provided; or
(2) 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 shall be punished as provided in
subsection (b) of this section.
18 U.S.C. § 2701(a).

The SCA allows for authorization to access

the facility (1) by the person or entity providing a wire or
electronic communications service, or (2) by a user of that
service with respect to a communication of or intended for that
user.

18 U.S.C. § 2701(c).

In addition, the SCA only applies
12

if the communication is in storage within a facility provided by
an electronic communication service.

See Thompson v. Ross, No.

2:10–cv–479, 2010 WL 3896533, at *4 (W.D. Pa. Sept. 30, 2010).
“Electronic communication service” means any service which
provides to users thereof the ability to send or receive wire or
electronic communications.

18 U.S.C. § 2510(15).

There is no dispute that Chief Bombardier, an employee of
the City of Barre, accessed the voicemail.

According to the

Complaint, Chief Bombardier was made aware of the voicemail, he
questioned Plaintiff about it and then he obtained a copy.

The

only questions are whether he was authorized to access the
recording and whether it was in a facility provided by an
electronic communication service at the time.
In order to have violated the SCA, Chief Bombardier would
need to have listened to the recording while it was still in the
voicemail system.

Thompson illustrates this point well.

In

that case, the plaintiff had downloaded personal emails from his
email account and stored them in his laptop hard drive.
Thompson, 2010 WL 3896533, at *1.
laptop and accessed the emails.

The defendants stole his

Id.

The court found that once

the plaintiff saved the emails to his laptop, they were no
longer within a facility provided by an electronic communication
service.

Id. at *3-5.

In order for there to be a violation of
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the SCA, the defendants would have had to view the emails while
still in the storage provided by plaintiff’s internet service
provider.

Id.

Once the plaintiff removed them from his

personal email and downloaded them to his laptop, the SCA no
longer applied.

Id.

Likewise, the Court does not find a plausible allegation
that Chief Bombardier accessed the recording within a facility
provided by an electronic communication service.

The Complaint

states only that he had knowledge of the call before he obtained
a copy and listened to it.

Plaintiff does not allege that Chief

Bombardier listened to the call while it was still within the
voicemail system.

Once the copy was made, the recording was no

longer within a facility provided by an electronic communication
service.

Chief Bombardier was free to access the copy without

violating the SCA.
Moreover, the Court finds it reasonable to consider Chief
Bombardier one of the intended recipients of the voicemail.

In

reporting concerns about the mental stability of an EMT,
Plaintiff was not intending to reach any one specific person.
Her audience included anyone charged with ensuring the
competence and integrity of EMT services.

As Chief of the

combined Fire and EMT Department in Barre, Chief Bombardier is
included in that group.

It was entirely reasonable for the
14

Plaintiff to expect that Chief Bombardier would be informed of
the call and foresee that he would have an interest in
investigating its contents.

The Court finds that Chief

Bombardier had authorization to access the voicemail as one of
its intended recipients.
The City of Barre’s Motion for Judgment on the Pleadings
for Count Seven is GRANTED.
c. Count Eight: Tortious Invasion of Privacy
While there are several forms of invasion of privacy, See
Restatement (Second) of Torts § 652A (1977), Plaintiff claims
only that the City of Barre has committed the “intrusion upon
seclusion” type.

Plaintiff’s privacy claim is limited to Chief

Bombardier obtaining and playing her anonymous phone call in
front of her co-workers.

The Court has already dismissed the

invasion of privacy claim against Deputy Chief Aldsworth who
merely listened to the call.

Wyatt, 2012 WL 1435708, at *6

(finding Plaintiff had no reasonable expectation of privacy once
she voluntarily left the recording).
To state a cause of action for intrusion upon seclusion,
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
15

highly offensive to a reasonable person.”

Hodgdan v. Mt.

Mansfield Co., 624 A.2d 1122, 1129 (Vt. 1992) (quoting
Restatement (Second) of Torts § 652A (1977)).
intrusion must be substantial.

Moreover, the

Hodgdan, 624 A.2d at 1129.

However, it does not require publicity of a person’s private
interests or affairs.

Id.

The Court continues to find Plaintiff’s privacy claim to be
baseless.

“[A] person has no legitimate expectation of privacy

in information he voluntarily turns over to third parties.”
Smith v. Maryland, 442 U.S. 735, 743-44 (1979).

By leaving a

recorded voice message, Plaintiff waived any right to the
privacy of its contents.

This is as true for the City of Barre

as it was for Deputy Chief Aldsworth.
The City of Barre’s Motion for Judgment on the Pleadings
for Count Eight is GRANTED.
d. Count Thirteen: Unlawful Conspiracy
Plaintiff alleges that the Defendants in this case
conspired among themselves and with others to deprive Plaintiff
of her First Amendment rights, as prohibited by 42 U.S.C. §
1985.

The City of Barre has filed a Motion for Judgment on the

Pleadings, arguing that the intra-enterprise doctrine bars
Plaintiff’s claim.

16

To state a cause of action under 42 U.S.C. § 1985(3),
plaintiffs must allege: “(1) a conspiracy (2) for the purpose of
depriving a person or class of persons of the equal protection
of the laws, or the equal privileges and immunities under the
laws; (3) an overt act in furtherance of the conspiracy; and (4)
an injury to the plaintiff's person or property, or a
deprivation of a right or privilege of a citizen of the United
States.”

Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999).

A

conspiracy “need not be shown by proof of an explicit agreement
but can be established by showing that the ‘parties have a tacit
understanding to carry out the prohibited conduct.’”

Thomas,

165 F.3d at 146 (quoting United States v. Rubin, 844 F.2d 979,
984 (2d Cir. 1988)).

Furthermore, the conspiracy must also be

motivated by “some racial or perhaps otherwise class-based,
invidious discriminatory animus behind the conspirators'
action.”

Thomas, 165 F.3d at 146 (quoting United Bhd. of

Carpenters, Local 610 v. Scott, 463 U.S. 825, 829 (1983)).
In this case, Plaintiff has alleged sufficient facts that a
conspiracy existed.

She has made a plausible case that there

was a tacit agreement among multiple people to subject her to
harassment.

She has also alleged that this harassment was

motivated by her gender with the desire to deprive her of First
Amendment rights.

She has alleged overt acts including her
17

firing, preventing her from responding to emergency calls, and
repeated acts of taunting and verbal abuse.
Once a conspiracy is sufficiently pled, the question
becomes whether it is barred by the intra-enterprise doctrine.
The intra-enterprise conspiracy doctrine holds that a conspiracy
does not exist when multiple members of the same entity are
enforcing a single act on behalf of the entity and within the
scope of their employment.

Girard v. 94th St. & Fifth Ave.

Corp., 530 F.2d 66, 71 (2d Cir. 1976).
The intra-enterprise doctrine does not apply to the
allegations in this case.
a single act.

Plaintiff has alleged more than just

In addition to her firing after the phone call,

she has also alleged verbal abuse and being denied the
opportunity to respond to emergency calls.

Moreover, Defendants

were not always acting within the scope of their employment.
The alleged sexual harassment from Deputy Chief Aldsworth and
the taunting from Cindy Howarth would both fall outside of the
scope of employment.
Since she has alleged multiple acts by multiple members of
the fire department acting outside the scope of their
employment, Plaintiff has alleged sufficient facts to state a
plausible claim that is not barred by the intra-enterprise
conspiracy doctrine.
18

The City of Barre’s Motion for Judgment on the Pleadings is
DENIED.
IV.

Chief Timothy Bombardier

Chief Bombardier has filed a Motion for Judgment on the
Pleadings for Counts (2) Breach of Contract, (3) Wrongful
Discharge in Violation of Public Policy, (5) Violation of Free
Speech rights under the Vermont Constitution Chapter One Article
Thirteen, (6) Violation of the ECPA, (7) Violations of the SCA,
(8) Invasion of Privacy, (10) Violation of Due Process rights
under the Vermont Constitution, (11) Violation of VOSHA, (12)
Infliction of Emotional Distress, (13) Unlawful Conspiracy, and
(14) Violation of VFEPA.
a. Immunity under Vermont Law
Chief Bombardier argues that he is absolutely immune from
all claims under Vermont law pursuant to Vt. Stat. Ann. tit. 24,
§ 901.

This Court has previously considered a similar motion to

dismiss from Deputy Chief Aldsworth but denied the motion
because it was not clear that he was acting within the scope of
his duties.

Wyatt, 2012 WL 1435708, at *8-9.

Vt. Stat. Ann. tit. 24, § 901 states:
(a) Where an action is given to any appointed or
elected municipal officer or town school district
officer, the action shall be brought in the name of
the town in which the officer serves and in the case
of a town school district officer in the name of the
19

town school district. If the action is given against
such officers, it shall be brought against such town
or town school district, as the case may be.
The Vermont Supreme Court has previously found that a Fire Chief
is an appointed officer for the purposes of the statute.
Gallipo v. City of Rutland, 789 A.2d 942, 954 (Vt. 2001).
The Vermont Supreme Court has established that an employee
was acting within the scope of his employment if the conduct
“(a) is of the kind the servant is employed to perform; (b)
occurs substantially within the authorized time and space
limits; (c) is actuated, at least in part, by a purpose to serve
the master; and (d) in a case in which force is intentionally
used by the servant against another . . . is not unexpectable by
the master.”

Doe v. Forrest, 853 A.2d 48, 54 (Vt. 2004)

(quoting Restatement (Second) of Agency § 229(1) (1958).

The

conduct of an employee falls outside the scope of employment if
it is “different in kind from that authorized, far beyond the
authorized time or space limits, or too little actuated by a
purpose to serve the master.”

Forrest, 853 A.2d at 54 (quoting

Restatement (Second) of Agency § 228(2)).

Whether an employee

was acting within the scope of his employment tends to be a
question of fact to be resolved by a jury but can be resolved as
a matter of law if the facts and inferences drawn are not in

20

dispute.

See Sweet v. Roy, 801 A.2d 694, 705 (Vt. 2002) (citing

Ploof v. Putnam, 75 A. 277, 279 (Vt. 1910)).
In this case, it is not clear that Chief Bombardier was
acting within his official duties at all times.

The Chief

cannot be held liable for merely using poor judgment in
adjudicating disputes between employees.

However, the Complaint

alleges that the Chief’s goal in investigating Plaintiff’s phone
call was solely to harass and embarrass her.

Taken as true,

this states a plausible claim that the Chief was acting outside
the scope of his employment.
Chief Bombardier’s Motion for Judgment on the Pleadings for
all counts arising under Vermont law is DENIED.

This includes

Counts (3) Wrongful Discharge in Violation of Public Policy, (5)
Violation of Free Speech rights under the Vermont Constitution,
(10) Violation of Due Process rights under Vermont Constitution,
(11) Violation of VOSHA, (12) Infliction of Emotional Distress,
and (14) Violation of VFEPA.
b. Count Two: Breach of Contract
Both parties agree that Plaintiff has not alleged a Breach
of Contract claim against Chief Bombardier in his individual
capacity.

Chief Bombardier’s Motion for Judgment on the

Pleadings for Count Two is GRANTED.
21

c. Count Six: Violations of the Electronic Communications
Privacy Act
Plaintiff has alleged violations of the ECPA against Chief
Bombardier in his individual capacity for listening to her
anonymous voicemail message.

Much like the allegation against

the City of Barre, Plaintiff must allege unlawful
contemporaneous recording in order to state a plausible claim
under the ECPA. Konop, 302 F.3d at 878.

Instead, she alleged

that Chief Bombardier learned of the call and then obtained a
copy.

This set of allegations does not meet the terms of the

ECPA.
Chief Bombardier’s Motion for Judgment on the Pleadings for
Count Six is GRANTED
d. Count Seven: Violations of the Stored Communications
Act
Plaintiff has also alleged violation of the SCA against
Chief Bombardier in his individual capacity for accessing her
anonymous voicemail.

In order to state a claim under the SCA,

Plaintiff must allege that Chief Bombardier accessed the
voicemail without authorization while it was in a facility
provided by an electronic communication system.
2701(a).

18 U.S.C. §

Instead, Plaintiff has alleged that he obtained a copy

of the call outside of the facility provided by the voicemail
carrier.

Furthermore, his status as head of the combined Fire
22

and EMT services in Barre grants him authorization as one of the
intended recipients of the voicemail.
Chief Bombardier’s Motion for Judgment on the Pleadings for
Count Seven is GRANTED.
e. Count Eight: Tortious Invasion of Privacy
Plaintiff alleges invasion of privacy against Chief
Bombardier in listening to her anonymous voicemail message.
Just as with the allegations against the City of Barre,
Plaintiff has no legitimate expectation of privacy in
information she voluntarily turned over to third parties. Smith,
442 U.S. at 743-44.
Chief Bombardier’s Motion for Judgment on the Pleadings for
Count Eight is GRANTED.
f. Count Thirteen: Unlawful Conspiracy
Plaintiff has alleged a conspiracy among all Defendants to
deprive her of her First Amendment rights in violation of 42
U.S.C. § 1985.

Along with the City of Barre, Chief Bombardier

has filed a Motion for Judgment on the Pleadings, arguing that
the claim is barred by the intra-enterprise doctrine.
Plaintiff has stated a plausible claim that there was a
tacit station-wide agreement to deprive her of her rights.
Furthermore, she has alleged multiple acts by employees acting

23

outside of their employment.

The intra-enterprise doctrine does

not apply to this case.
Chief Bombardier’s Motion for Judgment on the Pleadings for
Count Thirteen is DENIED.
V.

Deputy Chief Joe Aldsworth
After the Court denied him immunity from all claims arising

under Vermont law, Deputy Chief Aldsworth moved for judgment on
the pleadings for Count Eleven, Violation of VOSHA.
a. Count Eleven: Violation of Vermont’s Occupational
Safety and Health Act
Plaintiff alleges that her termination was retaliation for
a complaint of workplace safety in violation of VOSHA, Vt. Stat.
Ann. tit. 21, § 221, et seq.

The Act states:

No person shall discharge or in any manner
discriminate against any employee because such
employee has filed any complaint or instituted or
caused to be instituted any proceeding under or
related to this chapter or has testified or is about
to testify in any such proceeding or because of the
exercise by such employee on behalf of himself,
herself, or others of any right afforded by this
chapter.
Id. § 231(a).

The Act also provides for a private right of

action for any aggrieved employee.

Id. § 232.

The Vermont

Supreme Court has stated the elements of a VOSHA retaliation
claim as: (1) the plaintiff was engaged in a protected activity;
(2) the defendants knew of that activity; (3) plaintiff suffered
an adverse employment action; and (4) a causal connection exists
24

between plaintiff's protected activity and the adverse
employment action.

Mellin v. Flood Brook Union Sch. Dist., 790

A.2d 408, 417-18 (Vt. 2001).1
As it ruled in his previous motions, the Court finds that
Deputy Chief Aldsworth cannot be held liable for Plaintiff’s
termination.

Wyatt, 2012 WL 1435708, at *7.

Despite his role

in questioning Plaintiff and investigating the contents of the
call, Deputy Chief Aldsworth did not have the authority to
terminate Plaintiff’s employment.

Any liability for termination

is limited to those responsible for making the decisions, Chief
Bombardier and the City of Barre.
Plaintiff has alleged that Deputy Chief Aldsworth engaged
in discriminatory actions other than her firing that were the
direct result of her phone call to EMS.

These include refusing

1

Plaintiff contends that the Mellin elements apply only to
employers and not fellow employees. The statute itself provides
“No person shall discharge or in any manner discriminate. . . .”
Vt. Stat. Ann. tit. 21, § 231(a). She argues that the third
prong of an adverse employment action is too high a bar to apply
to fellow employees and is not required by the statute. The
Court makes no determination on the validity of this argument.
Instead, it finds that the second prong of Mellin is not met.
Deputy Chief Aldsworth lacked knowledge of the call at the time
of every action alleged other than the termination. Therefore,
the call could not be the cause of any possible retaliation.
Whether an adverse employment action is required under the
statute is irrelevant for our purposes.
25

to allow her to respond to calls and refusing her participation
in the Rosie’s Girls program.

However, none of these other

actions are included in the Complaint for Count Eleven.

The

Complaint mentions only the termination as retaliation in Count
Eleven.
Regardless, there is insufficient evidence that Deputy
Chief Aldsworth had knowledge of the call in order to make it
the cause of any alleged discrimination.
July 2010.
31, 2010.
later.

The call was made in

Plaintiff was first questioned about it on August
Her identity as the caller was not revealed until

Every action alleged, other than her termination,

occurred in or before July 2010, well before there is any
evidence that Deputy Chief Aldsworth knew Plaintiff had placed
the anonymous call.

Without any evidence of Deputy Chief

Aldsworth’s knowledge, Plaintiff has failed state a plausible
claim that Deputy Chief Aldsworth acted in retaliation for her
workplace complaint.
Deputy Chief Aldsworth’s Motion for Judgment on the
Pleadings for Count Eleven is GRANTED.
VI.

Captain Robert Howarth

Captain Howarth has filed motions for judgment on the
pleadings for almost all counts.
26

The only counts that he did

not request judgment on are Count Four (Violation of First
Amendment Rights) and Count Thirteen (Unlawful Conspiracy).
a. Immunity under Vermont Law
Captain Howarth claims immunity from all counts under
Vermont law against him in his individual capacity.

He argues

that Vt. Stat. Ann. tit. 24, § 901 grants him immunity in his
position as Fire Captain.

As the Court has previously ruled,

Section 901 grants immunity to all appointed and elected
municipal officials so long as they are executing their official
duties.

Wyatt, 2012 WL 1435708, at *9.

In Hee, this Court looked to the text of Vt. Stat. Ann.
tit. 24, § 1931(a) to determine if police officers qualify as
appointed officers.

812 F. Supp. at 1351.

Vt. Stat. Ann. tit.

24, § 1931(a) states: “The legislative body . . . of a
municipality . . . may establish a police department and appoint
police officers and a chief of police who shall be a police
officer.”

The Court in Hee determined, based on this language,

that police officers were covered by Section 901.

812 F. Supp.

at 1351.
The Court finds in this case that Captains in a fire
department are appointed officers within the meaning of Section
901.

A similar statute governing fire departments states:

27

The officers of a fire department shall consist of a
chief engineer, an assistant chief engineer, and fire
captains in such number as the legislative body of the
municipality shall determine . . . . The legislative
body may appoint and remove such officers, and fix
their salaries or other compensation, subject to such
rules and regulations as the legislative body may
adopt.
Vt. Stat. Ann. tit. 24, § 1953.

The text of this statute makes

clear that Fire Captains are appointed officers within the
meaning of Section 901.
Plaintiff asserts Captain Howarth abused his official
position as her supervisor and discriminated against her by
refusing to interact with her and not allowing her to respond to
calls when she was qualified.

In each instance, however, he was

acting within his official capacity.

Captains in the Fire

Department are granted authority to determine who should respond
to emergency calls.

Plaintiff may feel that Captain Howarth

acted unfairly in making these decisions but she fails to allege
he acted outside of his official duties when engaging in the
offensive acts.
Since Captain Howarth is an appointed officer under Section
901 and he was acting within his official duties, his Motion for
Judgment on the Pleadings for all counts arising under Vermont
law against him in his individual capacity is GRANTED.

These

counts include Counts (2) Breach of Contract, (3) Wrongful
28

Discharge in Violation of Public Policy, (5) Violation of Free
Speech rights under the Vermont Constitution, (8) Tortious
Invasion of Privacy, (10) Violation of Due Process Rights under
the Vermont Constitution, (11) Violation of VOSHA, (12)
Infliction of Emotional Distress, and (14) Violation of VFEPA.
b. Count One: Violations under Title VII
Plaintiff has claimed violations of Title VII of the Civil
Rights Act of 1964 for discrimination against her because of her
sex.

Captain Howarth has filed a Motion for Judgment on the

Pleadings arguing that employees and supervisors cannot be held
liable in their individual capacities under Title VII.
Plaintiff does not object to dismissal of this count against the
Howarths.
Title VII does not impose liability on individuals.

Lore

v. City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012); Goldstein
v. Bombardier Capital, Inc., 167 F.R.D. 662, 667 (D. Vt. 1996).
The Court thus agrees, and Captain Howarth’s Motion for
Judgment on the Pleadings for Count One is GRANTED.
c. Count Six: Violations of the Electronic Communications
Privacy Act
Plaintiff has not alleged that Captain Howarth recorded,
listened to, or even knew of her anonymous call to EMS.

29

Captain

Howarth’s Motion for Judgment on the Pleadings for Count Six is
GRANTED.
d. Count Seven: Violations of the Stored Communications
Act
Similarly, Plaintiff has not alleged that Captain Howarth
accessed the EMS voicemail that contained the anonymous call.
Captain Howarth’s Motion for Judgment on the Pleadings for Count
Seven is GRANTED.
e. Count Nine: Violations of the U.S. Constitution’s Due
Process Clause
Plaintiff alleges that her termination deprived her of a
property interest in her job with BCFD.

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.
As the Court has previously said, it is not enough for
Plaintiff to allege that the Defendant participated in
circumstances that gave rise to the deprivation of
constitutional rights.

Wyatt, 2012 WL 1435708, at *7 (citing

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).

She must

also allege that Defendant directly participated in the
deprivation.

Id.

Plaintiff fails to meet this standard.

She has not alleged

sufficient facts that Captain Howarth played any role in the
30

decision to terminate her employment.

The authority for that

decision was Chief Bombardier’s alone.
Captain Howarth’s Motion for Judgment on the Pleadings for
Count Nine is GRANTED.
VII. Call Force Firefighter Cindy Howarth
Cindy Howarth has filed Motions for Judgment on the
Pleadings for almost all of the fourteen counts.

The only Count

which did not request judgment on is Count Thirteen (Unlawful
Conspiracy).
a. Immunity under Vermont Law
Cindy Howarth claims immunity on all counts arising under
Vermont law against her in her individual capacity.

Unlike her

husband, Cindy Howarth has claimed immunity under Vt. Stat. Ann.
tit. 24, § 901a which covers municipal employees.

Section 901a

grants qualified immunity and does not apply to an act or
omission of a municipal employee that was willful, intentional,
or outside the scope of the employee's authority.

Vt. Stat.

Ann. tit. 24, § 901a(e).
Like Deputy Chief Aldsworth, it is not clear from the
alleged facts that Cindy Howarth was acting in the scope of her
employment.

Mrs. Howarth is alleged to have engaged in repeated

acts of harassment including calling the Plaintiff a “dumb
blonde,” posting demeaning messages on Facebook, and spreading
31

false rumors about the Plaintiff being intimate with other male
firefighters.

None of these actions were part of her official

duties as a Call Force Firefighter.
Since it is not clear whether Cindy Howarth was acting
within the scope of her duties, she is not entitled to immunity
from all claims arising under Vermont law.
b. Count One: Violation under Title VII
Both parties agree that Count One does not state a claim
against Cindy Howarth in her individual capacity.

Cindy

Howarth’s Motion for Judgment on the Pleadings on Count One is
GRANTED.
c. Count Two: Breach of Contract
Both parties agree that Plaintiff has not alleged Breach of
Contract against Cindy Howarth in her individual capacity.
Cindy Howarth’s Motion for Judgment on the Pleading is GRANTED.
d. Count Three: Wrongful Discharge in Violation of Public
Policy
Plaintiff has not alleged that Cindy Howarth played any
role in the decision to terminate her employment.

Cindy

Howarth’s Motion for Judgment on the Pleadings for Count Three
is GRANTED.
e. Count Four: Violation of First Amendment Rights

32

Plaintiff claims that once she reported the Howarths’
harassment to Chief Bombardier, the harassment escalated in
retaliation and in violation of her First Amendment rights as
protected by 42 U.S.C. § 1983.

That statute states:  

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured. . .
42 U.S.C. § 1983.

The U.S. Supreme Court has held the

traditional definition of acting “under color of state law”
requires that the defendant in a § 1983 action have
exercised power “possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the
authority of state law.”

West v. Adkins, 487 U.S. 42, 49

(1988) (quoting United States v. Classic, 313 U.S. 299, 326
(1941)).
In the context of workplace harassment claims, courts
generally require that the harasser be a supervisor or have some
degree of control over the plaintiff.

Quinn v. Nassau County

Police Dep’t, 53 F. Supp. 2d 347, 355 (E.D.N.Y. 1999).
Otherwise, it is difficult to establish that the abusive action
was perpetrated “under color of state law” rather than as an
33

essentially private act of harassment.

Quinn, 53 F. Supp. 2d at

355.
In Cindy Howarth’s case, it cannot be said that her alleged
harassment occurred under color of state law.

She was not the

Plaintiff’s supervisor and was not exercising any authority
granted to her by the state.

Therefore, Cindy Howarth’s actions

are not covered by 42 U.S.C. § 1983.
Cindy Howarth’s Motion for Judgment on the Pleadings for
Count Four is GRANTED.
f. Count Five: Violation of Free Speech Rights under
Vermont Constitution
Similar to First Amendment retaliation claims, Vermont law
allows for a private remedy against deprivation of free speech
rights under its Constitution.

However, this remedy is only

available when the legislature has fashioned no other adequate
remedial scheme.

Shields v. Gerhart, 658 A.2d 924, 930 (Vt.

1995).
As Cindy Howarth has pointed out, the Vermont legislature
has provided adequate protection for Plaintiff’s speech.

Her

anonymous phone call is protected by VOSHA and her reports of
sexual harassment are protected by VFEPA.

The text of these

statutes and subsequent court decisions make clear that each law
34

applies to co-workers in their individual capacities.

See Payne

v. U.S. Airways, 2009 VT 90, ¶ 24, 987 A.2d 944, 954.
Plaintiff contends that Defendant cannot argue that
adequate statutory avenues exist while also asking for dismissal
under these statutes.

However, Shields does not require these

options to be successful, only available. 658 A.2d at 934-35.
Plaintiff’s speech is protected against co-worker retaliation by
statute for both her reports of harassment and her reports about
workplace safety.

She is limited to proving her case under

those remedies provided by the Vermont legislature.
Cindy Howarth’s Motion for Judgment on the Pleadings for
Count Five is GRANTED.
g. Count Six: Violation of the Electronic Communications
Privacy Act
There is no allegation that Cindy Howarth played any role
in recording or listening to Plaintiff’s anonymous voicemail to
EMS.

Cindy Howarth’s Motion for Judgment on the Pleadings for

Count Six is GRANTED.
h. Count Seven: Violation of the Stored Communications
Act
Likewise, there is no allegation that Cindy Howarth
accessed the EMS voicemail system.

Cindy Howarth’s Motion for

Judgment on the Pleading for Count Seven is GRANTED.
35

i. Count Eight: Tortious Invasion of Privacy
The invasion of privacy claim has been limited to the
“intrusion upon seclusion” type that Plaintiff believes resulted
from playing the voicemail message for co-workers.

However,

there is no allegation that Cindy Howarth played any role in the
playing of the message.
Cindy Howarth’s Motion for Judgment on the Pleadings for
Count Eight is GRANTED.
j. Count Nine: Violation of the U.S. Constitution’s Due
Process Clause
Plaintiff has alleged that her termination violated a
property right to her employment without due process, in
violation of the Fourteenth Amendment to the U.S. Constitution.
However, a due process claim requires the direct personal
involvement of the defendant in order to be successful.

Colon,

58 F.3d at 873 (citing Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994)).

There has been no allegation in this case that

Cindy Howarth played any direct role in the decision to
terminate Plaintiff’s employment.
Cindy Howarth’s Motion for Judgment on the Pleadings for
Count Nine is GRANTED.
k. Count Ten: Due Process Rights under Vermont
Constitution

36

Similarly, Plaintiff also alleges violations of due process
under Article 10 of the Vermont Constitution arising from the
decision to terminate her employment.

Article 10 states, “[N]or

can any person be justly deprived of liberty, except by the laws
of the land, or the judgment of the person's peers. . . .” Vt.
Const. ch. I, art. 10.

While Article 10 only specifically

mentions liberty, the Vermont Supreme Court has held that the
Article protects the ability to pursue one’s chosen profession.
In re Smith, 730 A.2d 605, 612 (Vt. 1999).

However, this Court

has made clear that liability under Article 10 requires direct
responsibility for termination procedures.

Wyatt, 2012 WL

1435708, at *7 (citing Martin v. Town of Brattleboro, No. 2:07–
cv–260, 2008 WL 4416283, at *1 (D. Vt. Sept. 24, 2008)
(“accept[ing]” Report and Recommendation with respect to
procedural due process issue)).
There has been no allegation that Cindy Howarth was
directly involved in the decision to terminate Plaintiff’s
employment.

She cannot be held liable for a decision she did

not make.
Cindy Howarth’s Motion for Judgment on the Pleadings for
Count Ten is GRANTED.
l. Count Eleven: Violation of Vermont’s Occupational
Safety and Health Act

37

Plaintiff alleges that she was terminated in retaliation
for her phone call to EMS in violation of VOSHA.

VOSHA provides

“No person shall discharge or in any manner discriminate against
any employee because such employee has filed any complaint . . .
.” Vt. Stat. Ann. tit. 21, § 231(a). As previously discussed, the
Vermont Supreme Court has stated the elements of a VOSHA
retaliation claim as (1) the plaintiff was engaged in a
protected activity, (2) the defendants knew of that activity,
(3) plaintiff suffered

an adverse employment action, and (4) a

causal connection exists between plaintiff's protected activity
and the adverse employment action.

Mellin, 790 A.2d at 417-18.

There has been no allegation that Cindy Howarth
discriminated against Plaintiff as a result of the call to EMS.
At no point in the Complaint did Plaintiff allege that Cindy
Howarth knew about the phone call.

In addition, all of Cindy

Howarth’s acts of harassment occurred before July 2010 when the
call was made.
Cindy Howarth’s Motion for Judgment on the Pleadings for
Count Eleven is GRANTED.
m. Count Fourteen: Violations of Vermont’s Fair
Employment Practices Act
Plaintiff has alleged violations against all defendants
under VFEPA.

Cindy Howarth has filed a Motion for Judgment on
38

the Pleadings arguing that the law applies to employers and
supervisory agents but not to fellow co-employees like her.
The Vermont Supreme Court has decided that VFEPA allows for
suits against supervisors in their individual capacities.
Payne, 987 A.2d at 953.

It arrived at this conclusion despite

the fact that federal courts have interpreted the federal
version of the law under Title VII to preclude individual
liability against individual employees.

Payne, 987 A.2d at 948.

Both laws prohibit conduct by the employer and “any agent” of
such employer.

Id. at 947-49.

In Payne, the Court found two differences between Title VII
and VFEPA which became the basis for its decision: the small
business exception and the available relief.

Id. at 949-50.

The available relief discussion is particularly relevant here.
Under the federal law, relief includes back pay and equitable
relief such as reinstatement as well as compensatory and
punitive damages.

Id.

However, its compensatory and punitive

damages are tied to the size of the employer.

Id. at 950.

Courts took this consideration of size as an indication that the
law was not meant to apply to individuals.
950.

The Vermont Supreme Court explained how the relief

provisions under the VFEPA were different:

39

Payne, 987 A.2d at

In this subsection, any “person aggrieved by a
violation” may seek “damages or equitable relief,
including restraint of prohibited acts, restitution of
wages or other benefits, reinstatement, costs,
reasonable attorney's fees and other appropriate
relief.” In 1999, the Legislature specified that the
damages available under the private right of action
included “compensatory and punitive.” Any one of those
remedies can be extracted from an individual agent or
co-employee, as well as from the traditional employer.
Id. at 950-51 (emphasis added) (citations omitted).
While the Payne decision specifically dealt with a
supervisor being sued in an individual capacity, the
Vermont Supreme Court stated that VFEPA’s remedies could
apply against co-employees as is does to supervisors.

This

Court finds that VFEPA includes liability for co-employees
as well.
Cindy Howarth’s Motion for Judgment on the Pleadings
for Count Fourteen against is DENIED.
Conclusion
For the Barre City Fire Department, the Court grants
judgment all counts against it and orders its name removed from
the caption.
For the City of Barre, the Court grants judgment on Counts
Six, Seven, and Eight.

The Court denies judgment on Count

Thirteen.
40

For Chief Timothy Bombardier, the Court grants judgment on
counts Two, Six, Seven, and Eight.

The Court denies judgment on

Counts Three, Five, Ten, Eleven, Twelve, Thirteen and Fourteen.
For Deputy Chief Joe Aldsworth, the Court grants judgment
on Count Eleven.
For Captain Robert Howarth, the Court grants judgment on
Counts One, Two, Three, Five, Six, Seven, Eight, Nine, Ten,
Eleven, Twelve and Fourteen.
For Call Force Firefighter Cindy Howarth, the Court grants
judgment on Counts One, Two, Three, Four, Five, Six, Seven,
Eight, Nine, Ten and Eleven.

The Court denies judgment on

counts Twelve and Fourteen.
Dated at Burlington, in the District of Vermont, this 6th
day of August, 2012.
/s/William K. Sessions III
William K. Sessions III
U.S. District Court Judge

41