Terino v. The Woodstock Resort Corp. et al

Filing 72

OPINION AND ORDER denying 68 Motion for Reconsideration re 66 Order on Motion for Summary Judgment. Signed by Judge William K. Sessions III on 8/2/2017. (jam)

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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

MAR-RAE X. TERINO
Plaintiff,
v.
THE WOODSTOCK RESORT CORP.
and WTS INTERNATIONAL INC.,
Defendants.

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Case No. 2:15-cv-00143

OPINION AND ORDER
Introduction
Plantiff Mar-Rae Terino brought this action against her
former employer, WTS International Inc. (“WTS”), and the owner
and operator of her former place of employment, The Woodstock
Resort Corporation. Terino’s amended complaint alleged fourteen
causes of action. ECF 24. After Defendants filed their motions
for summary judgment, however, Plaintiff withdrew eight of these
claims. On June 28, 2017, the Court granted summary judgment in
favor of Defendants on Plaintiff’s remaining claims, including
her claim for (1) interference with leave rights under Vermont’s
Parental Family Leave Act (“PFLA”) (count one); (2) disability
discrimination under Vermont’s Fair Employment Practices Act
(count four); (3) retaliation for disability discrimination
complaints under Vermont’s Fair Employment Practices Act
(“FEPA”) (count five); (4) retaliation for filing a workers

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compensation claim (count six); (5) unpaid wages under FEPA
(count eleven); and (6) unjust enrichment (count twelve). ECF
66. Plaintiff subsequently filed a motion seeking
reconsideration of the Court’s order with respect to her claims
for (1) interference with PFLA rights; (2) disability
discrimination under FEPA; (3) retaliation for disability
discrimination complaints under FEPA; and (4) retaliation for
filing a workers’ compensation claim. For the reasons described
below, the Court denies Plaintiff’s motion. Nevertheless, the
Court takes the opportunity to correct a factual error which,
even upon reconsideration, would not alter the outcome of the
Court’s opinion.
Standard of Review
Rule 59(e) of the Federal Rules of Civil Procedure permits
a party to move the Court to alter or amend a judgment within 28
days after judgment is entered. A motion to alter or amend
judgment may be granted to “correct a clear error or prevent
manifest injustice.” Griffin Indus., Inc. v. Petrojam, Ltd., 72
F.Supp.2d 365, 368 (S.D.N.Y.1999) (internal quotation omitted).
However, such a motion “will generally be denied unless the
moving party can point to controlling decisions or data that the
court overlooked - matters, in other words, that might
reasonably be expected to alter the conclusion reached by the
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court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir.1995); see also Robins v. Max Mara, U.S.A., Inc., 923 F.
Supp. 460, 472 (S.D.N.Y. 1996). “[W]here the moving party seeks
to relitigate issues already considered thoroughly by the
court,” the motion should be denied. Chet's Shoes, Inc. v.
Kastner, 710 F. Supp. 2d 436, 454 (D. Vt. 2010), aff'd, 449 F.
App'x 37 (Fed. Cir. 2011). If the moving party cannot point to
overlooked, controlling decisions or factual matters, or clear
error or manifest injustice, the disagreement must be resolved
“in the normal appellate process.” Id. (internal quotations
omitted) (citing NL Indus., Inc. v. Comm'l Union Ins. Cos., 938
F.Supp. 248, 250 (D.N.J.1996)).
Discussion
For purposes of this discussion, the Court presumes the
reader’s familiarity with the facts adduced in discovery,
outlined more fully in the Court’s summary judgment order. ECF
66. After evaluating Plaintiff’s arguments, the Court finds that
Plaintiff has failed to identify controlling decisions or data
that would alter its conclusions.
1.

Interference with Medical Leave under the PFLA
Plaintiff raises four arguments in support of her assertion

that the Court erred in dismissing her claim for interference

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with her PFLA rights. First, she points to an investigative
report from the Vermont Human Rights Commission which applied
the standard for an interference claim under the federal Family
and Medical Leave Act (“FMLA”) to a claim under the state PFLA,
without discussing why such a claim would be permissible under
the language of the PFLA. See Thissell, Vermont HRC Case No.
E16-0004 (Jan. 28, 2016) (investigative report). The Human
Rights Commission later held that there were reasonable grounds
to believe that the employer in that case had interfered with
the complainant’s PFLA rights, without discussing the legal
standard employed or the factual issues in dispute. Next,
Plaintiff reiterates her argument that the Court must construe
the language of the state statute to provide for an interference
claim. Third, Plaintiff asserts that she alleged restrictions on
her time during her on-call hours, without providing any further
legal argument about why that time is compensable. Finally,
Plaintiff asserts that, under Vermont law, the Court was
required to consider her affidavit concerning uncompensated
hours, despite her prior deposition testimony stating that she
could not estimate those hours. None of these arguments
withstand scrutiny.
First, the investigator’s report, which applied the federal
standard for an interference claim to the PFLA without

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discussion of its applicability under state law, does not
provide a binding interpretation the scope of the PFLA. In fact,
Plaintiff does not set forth a cogent legal argument about the
weight of this authority at all, other than to contend that “the
Vermont Supreme Court would agree or [sic] that this issue needs
to be decided by the high court.” ECF 68, p. 3. 1 Nor could this
Court find authority to suggest that a contrary conclusion
offered without discussion by an administrative agency would
weigh on the Vermont Supreme Court’s willingness or desire to
take on a certified question. 2 Moreover, while Vermont courts do
grant deference to the legal interpretations of administrative
agencies, those conclusions are still subject to judicial
review. See State v. Grenier, 198 Vt. 55, 67 (2014) (“We employ
a deferential standard of review of an agency's interpretation

1

In her reply, Plaintiff implies that because the Vermont Supreme Court has
ruled in favor of employees on certain questions where federal courts had
previously ruled in favor of employers, this Court should certify the case to
state court. See ECF 71, p. 2-3 (citing Sargent v. Columbia Forest Products,
Inc., 75 F.3d 86 (2d Cir. 1996); Egri v. U.S. Airways, Inc., 174 Vt. 443
(2002)). However, the cases Plaintiff cites do not deal with the PFLA, and
Plaintiff makes no effort to discuss any particular legal issue in those
cases that pertains to the legal question in this case. As such, Plaintiff’s
reference is unpersuasive.
2
The absence of such authority presumably stems from the fact that federal
courts, not the state court, initially determine whether or not to certify a
question for resolution. However, in reply, Plaintiff notes the federal
standard for determining when certification is appropriate, without
explaining how these criteria apply to the case at hand. See ECF 71, p. 3;
State Farm Mut. Auto. Ins. Co. v. Mallela, 372 F.3d 500, 505 (2d Cir. 2004)
(“We have deemed certification appropriate where state law is not clear and
state courts have had little opportunity to interpret it, where an unsettled
question of state law raises important issues of public policy, where the
question is likely to recur, and where the result may significantly impact a
highly regulated industry.”) (internal citations and quotations omitted).
Here, the Court finds that state law is not sufficiently unclear to warrant
certification.

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of its own regulations, and the presumption that an agency's
interpretation is valid may be overcome only by compelling
indications of error.”) (internal quotations omitted); In re
Vill. Assocs. Act 250 Land Use Permit, 188 Vt. 113, 119
(2010)(“where we are not reviewing a decision by an agency
charged with promulgating and interpreting its own rules, we
employ the familiar de novo standard of review for matters of
law.”). Thus, regardless of the standard of review to be
employed to the determination in Thissell, it is clear that the
Human Rights Commission’s conclusory application of a different
standard is not binding on this Court. Nor does the
investigative report in Thissell make state law so uncertain
that the Court could not make a reasonable prediction based on
statutory construction, given the dearth of analysis contained
therein.
In fact, immediately following her reference to Thissell,
Plaintiff argues that this Court should engage in statutory
construction to reach a different conclusion. This argument,
too, is unavailing. In particular, Plaintiff asserts that the
PFLA and the FMLA contain parallel language –namely, they both
prohibit retaliatory conduct for a party’s attempt to exercise
his or her rights under those laws –and that this language
should lead the Court to reason that similar claims are

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contemplated by both laws. But that argument ignores an obvious
difference between the two statutes: the FMLA expressly makes it
unlawful for an employer “to interfere with” such an attempt,
while the PFLA does not. See 29 U.S.C. § 2615(a)(1); 21 V.S.A. §
473. The Vermont statute, therefore cannot be described as
merely “combining ... into one section” two separate provisions
of federal law, as Plaintiff claims. As such, the Court sees no
reason to depart from its prior conclusion on this question of
statutory construction. 3
Since the law does not contemplate an interference claim to
begin with, the Court need not delve into the specific facts
Plaintiff references concerning the restrictions she faced
during on-call hours. Nevertheless, the Court notes that the
facts Plaintiff points to in her motion were available at the
time of the summary judgment opinion, and were contemplated by
the Court at the time. As in her first briefing on this
question, Plaintiff makes no attempt to argue that the relevant
facts warrant a conclusion that her on-call time was
compensable. See Singh v. City of N.Y., 524 F.3d 361, 368 (2d
Cir. 2008) (“whether an employee's expenditure of time is

3
Finally, in her reply, Plaintiff makes an additional argument concerning the
“irrational result” of construing the statute narrowly. However, the fact
that some forms of prejudicial employer conduct would not be proscribed by
the PFLA does not provide sufficient reason to interpret the law differently
when a comparison of the state and federal statutes supports the Court’s
conclusion.

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considered work under the FLSA turns in part on whether that
time is spent predominantly for the benefit of the employer or
the employee”). In fact, Plaintiff’s brief fails to include a
single reference to the applicable legal standard for
compensable work time. Having undertaken this effort of its own
initiative once, the Court sees no reason to upset its prior
analysis.
Finally, since interference claims are unavailable under
the PFLA, the Court need not consider the evidentiary question
of whether the Plaintiff may contradict her own, uncorrected
deposition testimony by preparing an affidavit for purposes of
summary judgment. Nevertheless, even if it did, Plaintiff’s
reference to Vermont law is unavailing in this case. See ECF 68
(citing Northern Security Insurance Company v. Mary L. Joseph
and Anthony Rossitto, 762 A.2d 861, 893 (Vt. 2000)). Although
this Court must apply state substantive law to a state law
claim, federal law continues to guide procedural determinations.
See Retained Realty, Inc. v. McCabe, 376 Fed. Appx. 52, 55 (2d
Cir. 2010) (summary order) (quoting Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 427 (1996)) (“Under the Erie
doctrine, federal courts sitting in diversity apply state
substantive law and federal procedural law.”). The Federal Rules
of Civil Procedure provide express guidance to this Court

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concerning the standard to be applied at summary judgment,
including the validity of affidavits submitted as evidence at
this stage. See Fed. R. Civ. P. 56. Therefore, the Court must
apply these rules, as interpreted by the Supreme Court, to
resolve the evidentiary dispute at issue here. See Cappiello v.
ICD Publications, Inc., 720 F.3d 109, 113 (2d Cir. 2013)
(holding that if a federal rule applies, the court need “not
wade into Erie’s murky waters.”)(quoting Shady Grove Orthopedic
Associates, P.A, 559 U.S. at 398). As such, to the extent that
Vermont law would provide a more lenient standard for evaluating
the evidence presented for summary judgment, the Court need not
apply that standard here.
Furthermore, Plaintiff’s reference to Gage v. Rymes Heating
Oils, Inc., Case No. 14-CV-480-PB, 2016 WL 843262, at *6 (D.N.H.
Mar. 1, 2016) is inapposite. In that case, the Court addressed
whether an admission made in a deposition would amount to the
“functional equivalent of an admission under Rule 36” of the
Federal Rules of Civil Procedure. Id. The Court concluded that
it was not. That question, however, is entirely distinct from
the situation at hand, in which the Court must determine what
evidence suffices to create a material dispute of fact. As the
Court stated in its prior order, the Second Circuit has directly
addressed that question. See Bickerstaff v. Vassar Coll., 196

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F.3d 435, 455 (2d Cir. 1999) (“[i]t is beyond cavil that a party
may not create an issue of fact by submitting an affidavit in
opposition to a summary judgment motion that contradicts the
affiant's previous deposition testimony.”). Accordingly, the
Court finds no reason to upset its prior ruling on this
question, either.
2.

Disability Discrimination under FEPA
Plaintiff also requests that this Court “reconsider its

finding that [(1)] Defendants did not fail to engage in the
interactive process and [(2)] that their failure to accommodate
her request to apprentice another employee was justified because
she had not done i[t] before and it amounted to asking her to
recreate a new position.” ECF 68, p. 8. Plaintiff made each of
these arguments previously, based on identical facts. With
respect to the first argument, Plaintiff disregards the clear
conclusion of the very case she cites: that although an employer
should conduct an individualized inquiry to determine the
appropriate accommodation, “there is no authority imposing
liability for failure to conduct an adequate inquiry.”

State v.

G.S. Blodgett Co., 163 Vt. 175, 184 (1995); see also McBride v.
BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 101 (2d Cir. 2009)
(“The employer's failure to engage in such an interactive
process, however, does not relieve a plaintiff of her burden of
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demonstrating, following discovery, that some accommodation of
her disability was possible.”). Thus, the Court did not err in
failing to hold Defendants liable, even if their extensive back
and forth with Plaintiff concerning her shifting scheduling
needs were deemed to be insufficient.
Second, there is no dispute of fact that Plaintiff did not,
in fact, begin to apprentice her coworker, April, before the
injury. Although Adams testified that she and Plaintiff intended
to determine an apprentice schedule just before the injury, she
did not state that the apprenticeship had actually begun before
Plaintiff took leave (even according to the quote cited in
Plaintiff’s motion). See ECF 68 at 9 (citing ECF 54-20, p. 15). 4
Rather, Adams testified that WTS “didn’t have April start
apprenticing before Mar-Rae was injured.” Id. Moreover,
Plaintiff does not dispute that she acknowledged that her
apprenticeship had not actually begun prior to her taking leave.
Since the apprenticeship was not an essential function of
Plaintiff’s position prior to her injury, her employer’s failure

4

In her reply, Plaintiff cites ECF No. 56-6 to support her assertion that “the apprenticeship was something Ms.
Terino had done before.” ECF 71, p. 3. In that letter, WTS acknowledges that Terino was “an employee that WTS
relied on to conduct training of other staff members and she was compensated at a higher hourly rate for training
sessions.” However, the letter does not state that the apprenticeship in question began prior to Terino’s injury, or
that conducting such an apprenticeship was an essential function of Terino’s job prior to that point. In fact, the
letter states that Terino was compensated more for her training of others, while Adams testified that Plaintiff
would have earned less per hour apprenticing April. Thus, it is clear that her apprenticeship and training
responsibilities were distinct, and not part of a single essential job function.

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to alter her job duties cannot constitute a failure to provide
reasonable accommodations.
3.

Retaliation for Disability Discrimination Complaints under

FEPA
Next, Plaintiff asserts that because the Court erred in
finding that she had not begun to apprentice her coworker prior
to becoming injured, it should also reconsider its conclusion
with regard to her claim for retaliation for disability
discrimination complaints. However, as explained above, the
Court finds no new evidence that would alter its judgment on
this ground, and a renewed look at the evidence reveals no error
in the Court’s assessment of these facts. 5 Finally, even if
Plaintiff were able to demonstrate that she was deprived of a
task that was previously a component of her work, she has not
presented facts or arguments to contradict the Court’s prior
conclusion that no causal connection between the loss of
apprenticeship opportunity and her alleged protected activity
could exist because of the sequencing of these events.
Accordingly, Plaintiff’s motion for reconsideration on this
ground is also denied.
5

Although she failed to raise the issue in her initial motion, Plaintiff also re-hashes the facts underlying the Court’s
determination that she did not suffer other, alternative adverse employment actions in her reply brief. ECF 71, p.
5-8. The Court need not re-assess these facts at this stage, because Plaintiff did not dispute the Court’s conclusion
that there was no causal connection between these alleged adverse employment actions and her alleged
protected activity. Rather, the only argument Plaintiff made in reply concerns the causal connection between
these adverse employment action and her filing of a workers compensation claim.

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4.

Retaliation for Filing a Workers Compensation Claim
Plaintiff accurately points out an error in the Court’s

assessment of the facts with regard to her claim for retaliation
for filing a workers’ compensation claim. Although Plaintiff did
not raise a dispute about her workers’ compensation award until
sometime after her injury, her first report of injury in
connection with her workers’ compensation claim was filed on
January 30, 2012. Id. at p. 32. Filing an initial report of
injury with a workers’ compensation insurance company
constitutes a protected activity, and the sequencing of this and
the alleged adverse action is sufficient to create a causal
connection for purposes of surviving summary judgment. Murray v.
St. Michael's Coll., 164 Vt. 205, 212, 667 A.2d 294, 300 (1995)
(“The timing of the alleged actions against plaintiff, relative
to his filing of the workers' compensation claim, is a
sufficient showing, for purposes of surviving summary judgment,
of a causal connection between the protected activity and the
adverse employment decisions.”).
That fact, however, does not alter the Court’s conclusion
on this count, because Plaintiff has failed to show that
Defendants’ proffered reasons for the adverse actions (in this
case, her loss of health insurance benefits and the reversal of
WTS’ decision to allow her to apprentice her coworker) were
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pretextual. 6 In her initial motion, Plaintiff offered no specific
facts to dispute the Court’s prior conclusion on this point. In
reply, she argues that Defendants did not comply with their own
policy in changing her employment status from part-time to fulltime, which led to her loss of health benefits. However, she
does not claim that she was entitled to have full-time status,
and therefore to retain her health benefits. As such,
Plaintiff’s argument that such the loss of full-time status was
a pretext for discrimination is unpersuasive. Furthermore,
Plaintiff contends, yet again, that her bosses contradicted
themselves about when the apprenticeship began. The Court,
however, reviewed and assessed the very evidence that Plaintiff
pointed to in its initial motion, and in fact, both witnesses
expressed reservations about knowing the exact date in the
testimony Plaintiff cites. Similarly Plaintiff has not pointed
to new facts to support her contention that Adams and D’Hooghe’s
explanations for why she was unable to begin an apprenticeship
were necessarily contradictory. In particular, Adams clarified
that her concern with commencing the apprenticeship while
Plaintiff’s time was limited centered primarily on ensuring that
6

Although Plaintiff failed to challenge the Court’s determination about which
of WTS’ decisions constituted adverse actions in her initial motion, she reraises facts previously available to the Court in her reply. Since Plaintiff
fails to point out any particular factual or legal error in the Court’s prior
decision on this question, the Court finds that these arguments are merely an
attempt to “relitigate issues already considered thoroughly by the court.”
Chet's Shoes, Inc., 710 F. Supp. 2d at 454 (D. Vt. 2010). As such, the Court
will deny the motion insofar as it relies on allegations that additional
types of conduct constituted adverse employment actions.

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Plaintiff’s limited work hours went to working with clients. See
ECF 54-20, p. 55. D’Hooghe did not contradict this testimony
about the root of the scheduling challenge, and testified that
she did not remember the exact conversation with Adams about
whether an apprenticeship required the participating employee to
be full-time. See ECF 15-21, p. 35.

Moreover, Adams testified

that Plaintiff’s ability to engage in the apprenticeship was
limited by her inability to do pedicures, an explanation that
Plaintiff doesn’t challenge at all. ECF 54-20, o. 16. Thus,
Plaintiff has not pointed to factual or legal errors showing
that material disputes of facts exist about whether the
proffered explanations were pretext.
Finally, Plaintiff points to her bosses’ expressions of
“animus” against her and their “lack of enthusiasm or
recollection about the apprenticeship” as grounds for harboring
“suspicion” that Defendants’ proffered explanations were
genuine. These allegations about Defendants’ emotional states,
however, do not call into question the consistency of the
explanations Plaintiff’s employer offered for conduct she
challenges. As such, the Court denies Plaintiff’s motion on this
claim, as well.
Conclusion

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For the foregoing reasons, the Court hereby denies
Plaintiff’s motion for reconsideration. ECF 68.
Dated at Burlington, in the District of Vermont, this 2nd
day of August, 2017.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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