Mayhew v. Hermitage Club, LLC

Filing 60

OPINION AND ORDER granting in part and denying in part 49 Motion for Summary Judgment. Signed by Judge William K. Sessions III on 11/30/2016. (jam)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

EFFIE MAYHEW,

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Plaintiff,
v.
HERMITAGE CLUB, LLC,
Defendant.

Case No. 2:15-cv-00147

OPINION AND ORDER
Plaintiff Effie Mayhew (“Mayhew”) brings this action
against her former employer, Defendant Hermitage Club, LLC
(“Hermitage Club”), alleging that she was wrongfully discharged
in violation of public policy, that Defendants failed to pay her
for time worked in violation of the Fair Labor Standards Act and
Vermont wage and hour laws, and that she was wrongfully
discharged in violation of an implied modification to her atwill contract established by promissory estoppel. Defendant
filed a motion for summary judgment on each of these claims. For
the reasons outlined below, the Court denies summary judgment on
Plaintiff’s claim of wrongful discharge in violation of public
policy, but grants summary judgment on Plaintiff’s wage and hour
and promissory estoppel claims.

1 

FACTS
Mayhew began working as a groundskeeper for the Hermitage
Club in mid-April of 2014. Her supervisors were Benjamin Fritz
(“Fritz”), the Building and Grounds manager at the time, and
Michael Quinn (“Quinn”), Vice President and Operations Manager
of the Hermitage Club. As part of her search for a renewed sense
of meaning in her work, Mayhew took an interest in the company’s
horses, Will and Bill. At that time, Defendant had engaged
outside contractors to feed and care for the horses. Mayhew
observed deficiencies in the horses’ care: notably, she
testified that the horses’ hooves were overgrown, cracked, and
improperly shod, that their chestnuts were not properly trimmed,
that their manes and coats were matted and unkempt, and that the
horses had sores on their legs that were oozing and appeared
infected. She shared some of these concerns and observations
with Fritz. Although Fritz has testified that he did not recall
these physical markers of neglect, he expanded Mayhew’s duties
to include care for Will and Bill.
Mayhew spoke to Hermitage Club management about the horses
at a social gathering shortly thereafter and began to discuss
the company’s possible plans for their use as working horses
with several different managers in the company. After Hermitage
Club managers expressed interest in getting the horses to become
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commercially useful, Mayhew began taking driving lessons to be
able to provide carriage and sleigh rides for guests at the
Hermitage Inn. Mayhew also researched selections of a horse
wagon, sleigh and carriage for management to consider, which
Defendant’s manager later purchased. Over the months of June and
July, Mayhew had further conversations with these managers about
their future plans for Will and Bill. Defendant’s managers
informed Mayhew that the Inn was considering building a high-end
Equestrian Center that would offer clinics, riding lessons and
training. Mayhew researched possible materials and design of a
suitable equestrian center.
On August 4th, 2014, Mayhew sent Defendant’s managers an
email laying out her estimates for the amount of time that she
believed would be required to properly care for the horses in
order to prepare them to give carriage and sleigh rides. She
stated that she was working with the horses “on her own time.”
Based on the responsibilities laid out in that email, Mayhew
requested that the company create a full-time equine manager
position and give that job to her. On August 14th, Quinn sent an
email to Fritz and Rob Aubin, the manager who had initially
engaged Mayhew on the idea of providing carriage and sleigh
rides. In that email, Quinn requested an account of the training
hours and other duties that would be necessary per day and week
for the company’s horse venture, stating that “the ultimate goal
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is to have the horses start making money, with limited expenses
at this time.” He then proposed an incentive agreement in which
a percentage of sales would be paid directly to Mayhew for her
involvement with revenue-generating horse activity. He requested
that Mayhew “commit to being the representative” for the Horse
Center in order to take responsibility for these tasks.
Fritz shared this information with Mayhew, and he and Quinn
encouraged her to develop a business plan for the profitable use
of horses in the future. Mayhew submitted a plan for their
consideration. At least some of this work was performed during
her time on-site, and Mayhew claims that some was performed offsite on her own time. Fritz testified that he did not know when
Mayhew worked on these projects. On August 20th, after submitting
the plan, Mayhew sent an email to Quinn and Fritz quantifying
the hours that she believed she needed to work with the horses
in order to accomplish the company’s business objectives and
requesting support with the horse-care tasks. In that email,
Mayhew also expressed frustration with Fritz’ modifications to
the horses’ pasture. Quinn responded by stating that he was also
growing frustrated and offering to talk. Quinn met with Mayhew
on August 21st, and sent her a follow-up email on August 22nd
suggesting an interim plan for the horses until management made
a decision about their future plans. He explained that the care

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of the horses would remain under Fritz’ leadership until that
point.
Between August 22nd and August 25th, Mayhew again raised
concerns with Fritz about the risks posed by the horses’ pasture
area, which she claimed might contain poisonous plants. Mayhew
stated that if the horses were harmed by his decision to let
them pasture in that area, she would disclose to everyone that
Fritz had disregarded her advice. Fritz disregarded these
concerns and took down a fence that Mayhew had erected to keep
the horses from pasturing in the area that she believed
contained poisonous plants.
At this point, Mayhew sent an email to Hermitage Club owner
Jim Barnes (“Barnes”). She alleged that Fritz was “forcing [her]
to turn [the horses] out in the wooded area that’s fenced in,
even though I have explain[ed] this is not good for them because
there are … poisonous plants growing in that area. Plants that
can cause ulcers, brain bleeding and death within hours.” She
also alleged that the horses were improperly fed, that other
staff did not appear to understand the importance of the horses’
health and that others had recognized the improved care that the
horses were receiving since she was assigned to look after them.
She stated that she would “probably lose [her] job for this but
[she] couldn’t in good conscience ‘walk away’ without telling
[Barnes] what is being done with YOUR horses.” Id. Barnes
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forwarded the email to Quinn and Fritz instructing them to
“please handle” and stating that “we can use brook bound
property also”. Id.
The day after Mayhew sent this email, Fritz terminated her
from her employment. Fritz stated that he was terminating her
because of her threatening conduct. He did not mention the email
to Barnes and did not claim that Mayhew had otherwise failed to
meet her other duties. Quinn testified that Mayhew’s email to
Barnes was a basis for terminating her employment. In a written
document that Fritz composed after he terminated Mayhew, he
alleged that Mayhew had fallen behind in her grounds keeping
work as a result of her horse-care duties and that, after Mayhew
sent the email to Barnes, the relationship between Mayhew and
her supervisors “appeared too far gone to repair as we would not
be able to reach common ground or agreement”.
STANDARD OF REVIEW
Summary judgment should be granted if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). “[O]n summary judgment the inferences to be drawn from
the underlying facts ... must be viewed in the light most
favorable to the party opposing the motion.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655
6 

(1962)) (internal quotations omitted). However, summary judgment
must be entered “after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
DISCUSSION
I.

Wrongful discharge in violation of public policy

a. Legal framework
In resolving claims of wrongful discharge in violation of
public policy, Vermont courts have relied on cases involving
claims under the Vermont Fair Employment Practices Act (VFEPA).
Adams v. Green Mountain Rlrd., 862 A.2d 233, 235 (Vt. 2004);
Regimbald v. Gen. Elec. Co., No. 2:05-CV-161, 2007 WL 128963, at
*3 (D. Vt. Jan. 12, 2007) (applying McDonnell Douglas standard
to wrongful discharge in violation of public policy claim).
“[U]nder VFEPA, the standard and burdens of proof are identical
to those under Title VII.” Gallipo v. City of Rutland, 882 A.2d
1177, 1182 (Vt. 2005) (internal quotations omitted); Hodgdon v.
Mt. Mansfield Co., 624 A.2d 1122, 1128 (Vt. 1992). Therefore,
Vermont courts require a plaintiff bringing a claim under VFEPA
to establish a prima facie case by applying the burden-shifting
framework established by the U.S. Supreme Court in McDonnell
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Douglas Corp. v. Green, 411. U.S. 792, 802-804 (1973). Plaintiff
must show that (1) she engaged in a protected activity; (2) the
employer was aware of the activity; (3) Plaintiff suffered
adverse employment consequences as a result of the activity; and
(4) there was a causal connection between the activity and the
consequences.” Griffis v. Cedar Hill Health Care Corporation,
968 A.2d 1141 (2008). A plaintiff’s burden at this stage is not
onerous, and a causal connection can be shown by circumstances
which give rise to an inference of unlawful discrimination.
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253,
(1981).
Generally, if the plaintiff makes out a prima facie case,
the burden shifts to the defendant to proffer a legitimate,
lawful reason for the adverse employment action. McDonnel
Douglas, 411 U.S. 802. If the defendant provides such a reason,
the burden then shifts back to the plaintiff. In mixed-motive
cases, the Second Circuit has found that “the plaintiff is not
required to show that the employer's proffered reasons were
false or played no role in the employment decision, but only
that they were not the only reasons and that the prohibited
factor was at least one of the ‘motivating’ factors”. Holcomb v.
Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (internal
quotations omitted) (quoting Cronin v. Aetna Life Ins. Co., 46
F.3d 196, 203 (2d Cir.1995)); see also Fields v. N.Y. State
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Office of Mental Retardation & Developmental Disabilities, 115
F.3d 116, 120 (2d Cir.1997) (finding that a plaintiff alleging
mixed motives may establish that the “impermissible factor was a
motivating factor, without proving that the employer's proffered
explanation was not some part of the employer's motivation”).

1

A

plaintiff can show that a protected trait was a “motivating
factor” in an adverse employment action with either direct or
circumstantial evidence. Desert Palace, Inc. v. Costa, 539 U.S.
90, 101 (2003).
To establish that she engaged in protected activity for
purposes of a prima facie case, Mayhew must show that the
alleged reason for her termination violates public policy. Payne
v. Rozendaal, 520 A.2d 586 (Vt. 1986). “Public policy may be
said to be the community common sense and common conscience,
extended and applied throughout the state to matters of public
morals, public health, public safety, public welfare, and the
like. Id. at 588 (quoting Pittsburgh, Cincinnati, Chicago & St.

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Defendants argue in a footnote that to prevail on her retaliation claim,
Plaintiff must prove that her comments were the but-for cause of the
termination of her employment, citing the U.S. Supreme Court’s decision in
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2521 (2013). In that
case, the Court found that “Title VII retaliation claims require proof that
the desire to retaliate was the but-for cause of the challenged employment
action” and that mixed-motive claims would therefore not be recognized.
However, the case law on wrongful discharge in Vermont references VFEPA
precedents in establishing the appropriate standards, and VFEPA case law in
turn looks to Title VII’s anti-discrimination precedents. Moreover, in Adams,
the Supreme Court upheld a lower court jury instruction that would require
the jury to find that the protected activity was “the sole or principle
reason for the termination”, implicitly recognizing that the adverse
employment action could have more than one cause. Adams v. Green Mountain
Rlrd., 862 A.2d 233, 235 (Vt. 2004) (emphasis added).

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Louis Railway v. Kinney, 115 N.E. 505 (Ohio 1916)). “[S]ometimes
such public policy is declared by Constitution; sometimes by
statute; sometimes by judicial decision. More often, however, it
abides only in the customs and conventions of the people-in
their clear consciousness and conviction of what is naturally
and inherently just and right between man and man.” Id. at 492–
93. Even where the letter of the law would not have prevented an
employer’s actions, the Court may use this common law remedy to
advance the interests and values underlying statutory
provisions. Id. at 495 (finding a “clear and compelling public
policy” against age discrimination even though Vermont statutes
did not specifically prohibit age discrimination at the time,
because such behavior was already prohibited by the federal law
and was later prohibited by the state legislature); see also
Belline v. K-Mart Corp., 940 F.2d 184, 188 (7th Cir. 1991),
reh'g denied (Aug. 22, 1991) (“an employee's retaliatory
discharge claim should not turn on the happenstance of whether
the irregular conduct she reports is actually criminal. Public
policy favors the exposure of apparently criminal activity. That
the questionable conduct may later prove to be authorized and
therefore legitimate is not dispositive.”).

However, where

“redress [is] sought for private concerns”, such as asserting
one’s rights to vacation and sick leave or a refusing to sign a
non-compete agreement, the Supreme Court has found no wrongful
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discharge claim. Id. at 495. Furthermore, an employee cannot
bring a wrongful discharge claim for a termination arising from
a mere difference of professional judgment. Dulude v. Fletcher
Allen Health Care, Inc., 807 A. 2d 390, 397 (Vt. 2002).
In this case, Mayhew alleges that she was wrongfully
discharged because she expressed concerns about the neglect and
mistreatment of the horses to the Hermitage Club management and
because of her comments in support of a coworker who was on
leave for military service. Under the standard set forth above,
however, Mayhew provides sufficient evidence to survive a
summary judgment motion only with respect to her first argument.
b. Claim of termination due to allegation of mistreatment of
horses
Mayhew has put forth sufficient facts to make out a prima
facie case of wrongful discharge in violation of Vermont’s
public policy on the treatment of animals. Vermont law penalizes
many forms of animal cruelty, including the acts of denying an
animal “adequate food, water, shelter, rest, sanitation, or
necessary medical attention” and restraining an animal when it
is detrimental to that animal’s welfare. 13 V.S.A. §352(4);
State v. Gadreault, 758 A.2d 781, 784–85 (2000) (explaining that
the Vermont legislature has gradually expanded the types of
animal cruelty that would be penalized). Mayhew’s behavior
advanced this state policy. The record shows that Plaintiff
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expressed concern about the horses’ minimal welfare, separate
and apart from the conditions necessary for their use for
commercial purposes and the conditions of her employment. She
repeatedly alleged that the attention that the horses had
received before she took over their care was inadequate, not
only in order to get the horses in a position to generate
revenue but also according to conventions for decent animal
care. Mayhew testified that the horses had sores on their legs
that were oozing and appeared infected and that their hooves
were overgrown, cracked and improperly shod, which could pose a
potential risk to the horses’ health. Although she did not
specifically reference the state’s animal cruelty laws, she
indicated that she believed that the conditions in which the
horses were kept before she was assigned to look after them
could have required the intervention of state authorities. She
also alleged that the grazing conditions could pose a risk of
death to the horses.

These comments clearly implicate the

values underlying Vermont laws prohibiting the mistreatment of
animals. The fact that Mayhew never actually reported the
Hermitage Club to the authorities during the time that she was
employed there, and only called the Humane Society months after
her employment at the Club had ended, does not bar her claim.
See LoPresti, 865 A.2d at 1106 (finding wrongful discharge in
violation of public policy in a case involving an internal
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dispute over conduct that could have violated a professional
ethics code, even though the violation was not reported to
outside authorities); Belline v. K-Mart Corp., 940 F.2d at 188
(employee “should not be penalized because he availed himself of
internal procedures rather than notifying the police”).
Similarly, Mayhew need not have explicitly referenced the
state’s animal cruelty laws or even identified an actual legal
violation in order for her statements to implicate public policy
concerns. See Payne, 147 Vt. at 492 (1986); Belline, 940 F.2d
184.
Moreover, there is no doubt that Mayhew’s employer knew of
Mayhew’s complaints, even though Fritz testified that he was not
aware of the horses’ mistreatment before Mayhew took over their
care. According to Mayhew, Quinn was aware that the Humane
Society had previously been called in to check on their
wellbeing. Certainly, however, both Quinn and Fritz were aware
that Mayhew made reports to this effect, thus engaging in
protected activity.
In order to make out the third and fourth elements of a
prima facie case, Mayhew must provide some evidence that she
suffered adverse employment consequences as a result of the
activity and that there was a causal connection between the
activity and her termination. Here, Mayhew has provided some
evidence that her concerns about the animals’ basic welfare
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triggered Defendant’s decision to fire her. Fritz’ statements
contained in the transcript of his conversation with Mayhew
about her termination2 explain that he was terminating her
because of her threatening behavior. In particular, Fritz
references her threat to “let everybody know” that there were
poisonous weeds in the horses’ pasture if anything were to
happen to the horses, saying that he “just can’t have it.” Fritz
also referenced her threatening behavior more generally, without
specifying which threats he was concerned about. However, in a
document drafted by Fritz entitled “Effie Mayhew Employment
Recap,” he identifies that Effie threatened to “call and report”
Fritz if the horses were to return to the condition they were in
before. Although Mayhew denies that she ever made this threat
directly, she stated that shortly after the horses were returned
to the Hermitage Club, she told Quinn that the Humane Society
might take a negative view of the horses’ treatment if they were
returned to the state that they had been in prior to her
intervention.
Finally, Quinn stated that Plaintiff’s email to Barnes was
one of the reasons for terminating her employment. In that
email, Mayhew expresses concern regarding the grazing area, but
also highlights the fact that “some of our members, other staff
and other people from the community” have told her “how great it

2

Defendants take this transcript to be accurate for the purposes of the
summary judgment motion. ECF No. 49, p. 3.

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is that the Hermitage is finally taking care of the horses
properly.” Thus, she explains her concern about her supervisors’
lack of interest in the horses’ well-being in the context of
their prior neglect and her concern at the time about their
exposure to poisonous grazing area. In this sense, both Mayhew’s
report to Barnes and the purported threats that Fritz appeared
to cite as the grounds for her termination center on Mayhew’s
expressed concerns about the animals’ welfare, not on her
negotiations over the conditions of her potential new role as
the person primarily responsible for the horses if the company
were to expand their commercial use. Since at least some of
Mayhew’s statements cited by Defendant’s managers as the reasons
for her termination relate to the animals’ welfare, the evidence
demonstrates that her protected activity motivated Defendant’s
decision to terminate her. Because a reasonable jury could find
a causal connection between those statements and Mayhew’s
ultimate termination, Mayhew has can make out a prima facie case
of wrongful discharge on this record.
Nevertheless, while there are sufficient facts in the
record to permit Plaintiff to establish a prima facie case that
she was discharged due to her complaints about her employer’s
mistreatment of the horses, there is also evidence showing that
other factors weighed into the Hermitage Club’s decision to
terminate her. Defendant also claims that Mayhew was fired
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because her two-page email to Barnes “disparaged her
supervisors”, because she was too aggressive in the way she made
her demands regarding the terms and conditions of her work and
because she displayed behavior that Fritz viewed as loud, angry
and aggressive. These behaviors, which Defendant characterizes
as “insubordination”, certainly constitute legitimate grounds to
terminate an employee. The record provides support for
Defendant’s proffered reason. Barnes testified that in general,
Mayhew should have approached her supervisors about her work
concerns. Quinn and Fritz also stated that Plaintiff was
aggressive, loud and angry in discussing their allegation that
Mayhew was insubordinate. However, the Court need not determine
whether Defendant’s evidence regarding their proffered reason is
convincing. Rather, it must ask whether Defendant has introduced
evidence that, “taken as true, would permit the conclusion that
there was a nondiscriminatory reason.” Holcomb v. Iona Coll.,
521 F.3d 130, 141 (2d Cir. 2008)
(quoting St. Mary's Center v. Hicks, 509 U.S at 509 (1993).
Here, the statements put forth by the three witnesses would
support the conclusion that Mayhew was fired for insubordination
if they were true.
However, because Plaintiff alleges that Defendant acted
with mixed motives, she need not prove that Defendant’s
proffered reason was pretextual, as Defendant claims she must.
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Rather, Plaintiff need only put forth sufficient evidence upon
which a reasonable jury could conclude by preponderance of the
evidence, and without the aid of the initial presumption raised
by the prima facie case, that Hermitage Club’s decision to
terminate Mayhew was based, at least in part, on her reports of
potential animal cruelty. Holcomb v. Iona Coll., 521 F.3d 130,
138 (2d Cir. 2008). Mayhew has satisfied this standard. Quinn
recognized that Mayhew was terminated due to her email to
Barnes, while Fritz references Mayhew’s threats as a reason for
her termination. Both Mayhew’s threats and her email to Barnes
expressed concerns about the horses’ basic welfare. Therefore, a
reasonable jury could conclude that Mayhew’s allegations of
animal mistreatment were at least a motivating factor for
Defendant’s decision to terminate her.
c. Termination resulting from Mayhew’s support for coworker on
military leave
Mayhew also claims that her termination was motivated in part
by her response to her supervisor’s statement that he wasn’t
going to let an employee who was away on military leave “get
away” with his behavior again. Mayhew responded that terminating
an employee because that person is in the National Guard and
took military leave might be unlawful. However, even assuming
that the Mayhew’s comment constitutes protected activity, Mayhew
has failed to meet her burden to establish a causal connection

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between this statement and Defendant’s decision to terminate
her. Fritz did not mention the incident to Mayhew when he
terminated her or in the document that he subsequently drafted
regarding the reasons for her termination. Mayhew testified that
she did not know whether her expressed concerns over Fritz’
statement about this employee had anything to do with why she
was fired. The mere fact that the incident preceded her
termination is insufficient to make out a prima facie showing of
wrongful discharge. Adams v. Green Mountain Rlrd., 862 A.2d 233,
235 (Vt. 2004). Therefore, the Court denies summary judgment on
Count One, but holds that Mayhew may proceed only on her claim
of wrongful discharge in violation of Vermont’s public policy on
neglect and cruelty towards animals.
II.

Violation of wage and hour laws

Defendant has also moved for summary judgment on Mayhew’s
claim for unpaid wages under Vermont’s wage and hour statute, 21
V.S.A. §384 et. seq., and her claim for overtime under the Fair
Labor Standard Act (“FLSA”), 19 U.S.C. §201 et. seq. Because
Mayhew failed to meet her evidentiary burden in providing
estimates of her unpaid work, the Court grants Defendant’s
motion for summary judgment on this count.
a. There is a material dispute of fact regarding Defendant’s
knowledge of Mayhew’s overtime hours

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Defendant first argues that it is undisputed that the
Hermitage Club did not have the requisite knowledge of any hours
that Mayhew was allegedly working off the clock sufficient to
support a finding that the Hermitage Club suffered or permitted
Mayhew to work. To prevail on a claim for unpaid wages under FLSA
involving off-site work, a plaintiff must establish that her
employer knew or had reason to believe that she had worked hours
for which she had not been compensated. Holtzapfel v. Town of
Newburgh, N.Y., 145 F.3d 516, 524 (2d Cir. 1998). An employer’s
knowledge of the employee’s overtime work need not arise
concurrently with the performance of overtime. Chao v. Gotham
Registry, Inc., 514 F.3d 280, 287–88 (2d Cir. 2008).
Furthermore, “[a]n employer who has knowledge that an employee
is working, and who does not desire the work be done, has a duty
to make every effort to prevent its performance… This duty
arises even where the employer has not requested the overtime be
performed or does not desire the employee to work, or where the
employee fails to report his overtime hours.” Id. at 288 (citing
Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 718 (2d
Cir.2001)).
In this case, there is at least a dispute of fact regarding
Defendant’s knowledge that Mayhew was working additional hours,
sometimes off-premises. Defendant relies on Fritz’ testimony
that he had no knowledge that Mayhew was working on her own
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time. However, this statement was disputed by Mayhew, who
testified that she told Fritz that she was doing that work on
her own time, but that she was not asking to get paid for that
time. Moreover, in an email to her managers in which Mayhew
proposes that the Hermitage Club expand her responsibilities
with respect to the horses, she states that “I even work with
them … on my days off on my own time because that is what they
need in order to be [the] kind of horses we want to represent
the Hermitage.” Both Fritz and Quinn received the email.
Finally, in a later email to Quinn and Fritz, Mayhew indicates
that she is essentially willing to perform work for no pay for
some time. These statements put Defendant on notice that Mayhew
may have been performing uncompensated work.
To the extent that Defendant did not want this work to be
performed, it was the Hermitage Club’s duty to “make every
effort to prevent its performance.” Chao at 288. Here, Quinn met
with Mayhew to discuss the possibilities regarding her future
duties with the horses and determined that until a decision was
made, she should continue to exercise the horses for 1.5-2 hours
per day and take driving lessons for 1 hour per day. However,
Quinn did not provide this instruction until August 22nd,
although Mayhew first indicated that she was performing
additional, uncompensated work on August 4th. Therefore, up until

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that point, Quinn and Fritz failed to inquire into or make
efforts to prevent Mayhew’s uncompensated work time.
b. Mayhew failed to meet her evidentiary burden in providing
estimates of her unpaid work
An employee who sues for unpaid minimum wages or overtime
compensation has the burden of proving that the employer did not
compensate her for completed work. Grochowski v. Phoenix Const.,
318 F.3d 80, 87 (2d Cir. 2003). However, the U.S. Supreme Court
has created a burden-shifting framework applicable in
circumstances “where the employer's records are inaccurate or
inadequate and the employee cannot offer convincing
substitutes.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
687 (1946). The Court reasoned that requiring an employee to
prove “the precise extent of uncompensated work” where he or she
is deprived of proper and accurate records to prove his case
would run contrary to the remedial nature of the FLSA.
Therefore, the court found that “[i]n such a situation ... an
employee has carried out his burden if he proves that he has in
fact performed work for which he was improperly compensated and
if he produces sufficient evidence to show the amount and extent
of that work as a matter of just and reasonable inference. The
burden then shifts to the employer to come forward with evidence
of the precise amount of work performed or with evidence to
[negate] the reasonableness of the inference to be drawn from
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the employee's evidence. If the employer fails to produce such
evidence, the court may then award damages to the employee, even
though the result be only approximate.” Id. at 687–88.
Hermitage Club relies on a decision from the Western District
of New York to argue that the Anderson burden-shifting framework
should not apply to this case. Seever v. Carrols Corp., 528 F.
Supp. 2d 159, 170-171. There, the Court held that the Anderson
standard should not apply “where the time record deficiencies
alleged by the employee are admittedly and voluntarily selfcreated.” Id. However, Seever has been superseded by a
subsequent Second Circuit decision rejecting the logic
underlying that holding. Kuebel v. Black & Decker Inc., 643 F.3d
352, 361–64 (2d Cir. 2011). In Kuebel, the Court held that since
an employer's duty under the FLSA to maintain accurate records
of its employees' hours is non-delegable, once an employer knows
or has reason to know that an employee is working overtime, it
cannot deny compensation simply because the employee failed to
properly record or claim his overtime hours. Id. at 363.
Applying Kuebel’s rationale to this case, it is reasonable to
require that Defendant ensure proper record-keeping of off-duty
work hours where the employee has explicitly put her employer on
notice that she was working without pay on her own time and the
employer has not made a timely effort to prevent her from

22 

undertaking this work. Therefore, the Court will apply the
Anderson burden-shifting framework to this case.
“[I]t is possible for a plaintiff to meet [her] burden through
estimates based on [her] own recollection” under this standard.
Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir.2011).
However, there must be credible evidence that she performed
overtime work and of the amount of such work. Daniels v. 1710
Realty LLC, 497 F. App'x 137, 139 (2d Cir. 2012). Thus, the
Second Circuit has also upheld summary judgment in favor of an
employer where the employee’s testimony regarding his overtime
work was “too vague to be credible.” Id.
In this case, Mayhew provided no formal record or accounting
of the number of hours she spent working for the Hermitage Club.
She testified that she did not keep track of her hours. However,
she estimated based on her recollection that she spent about 10
hours riding horses on her days off. She could not estimate how
much of her research of the barns and carriages was done on the
clock and how much was off the clock, and she could not provide
further explanations about the additional 90 hours that she
claimed she worked over her regular hours without pay in her
complaint. She also did not provide any further breakdown or
description of the tasks that she performed during those 100
hours in her interrogatory responses. Based on this evidence,
there simply is not a sufficient basis for any jury to make a
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just and reasonable inference regarding the amount and extent of
that work. Therefore, Mayhew failed to meet her initial burden
of proof under Anderson. In the absence of a more specific state
standard, the Court finds that Plaintiff has also failed to
carry her burden to establish the elements of her case under
Vermont’s overtime law. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (summary judgment is warranted against a party who
fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial); see also Baldwin
v. Upper Valley Services, Inc., 644 A.2d 316, 320 (Vt. 1994)
(upholding summary judgment where “plaintiff still had no
specific factual support for his” overtime claim).3 Therefore,
the Court grants Defendant’s request for summary judgment on
Plaintiff’s state and federal overtime claims under Count Two.
c. Mayhew has failed to provide evidence of a minimum wage
violation
Neither party disputes that Mayhew reported working a total of
757.25 hours and that she was paid a total of $11,878.14.
Therefore, as Defendant points out, even assuming that she
worked a total of 100 hours in overtime, the rate that she would
have earned for her base pay still comes to $13.09 per hour,

3

In light of this holding, the Court need not address Defendant’s additional
argument that Mayhew’s activities would not constitute compensable work under
FLSA or that its offer of judgment would render this claim moot.

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exceeding the federal and state minimum wage. See Lundy v.
Catholic Health System of Long Island Inc., 711 F.3d 106, 116
(2nd Cir. 2013) (“So long as an employee is being paid the
minimum wage or more, FLSA does not provide recourse for unpaid
hours below the 40–hour threshold, even if the employee also
works overtime hours the same week.”). Thus, the Court also
grants summary judgment on Plaintiff’s state and federal minimum
wage claims.
III. Promissory estoppel
Plaintiff appears to put forth two theories for her
promissory estoppel claim. In her amended complaint, she claims
that she “reasonably relied upon Defendant/ Hermitage
management’s promise of shared revenues and a promotion”
regarding the future business plans for the horses and that
“Defendant’s decision to terminate her under these circumstances
gives rise to a claim for wrongful discharge.” In her opposition
to Defendant’s instant motion, however, Plaintiff puts forth a
different theory for this claim, asserting in a footnote that
“this pleading has been amended through discovery by mutual
consent of the parties.” She now argues that the Hermitage
Club’s decision to terminate her “for adhering to the Club’s own
governing principles was unlawful” because Defendant’s request
that its employees sign its Business Ethics policy constituted

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“an inherent promise not to discipline those employees who acted
in accordance with its provisions.”
Under Vermont law, “promissory estoppel may modify an atwill employment relationship and provide a remedy for wrongful
discharge.” Foote v. Simmonds Precision Products Co., 613 A. 2d
1277, 1280 (Vt. 1992). However, contract modifications arising
from a claim of promissory estoppel must be specific to the type
of promise the employer allegedly made unless the promise itself
centers on requiring just cause for termination. In cases
alleging specific modifications, “employees for an indefinite
term are still considered at-will employees, who may be
discharged for any number of reasons not prohibited by the
modifications.” Id. In Foote, for example, the court upheld a
decision in which an at-will relationship was modified by an
employer’s handbook, so as to prohibit the plaintiff from being
discharged specifically for the pursuit of grievances in
accordance with the handbook.
Plaintiff’s first theory fails to point out specific
modifications to the at-will relationship. In other words, even
assuming that management had sufficiently promised shared
revenues and a promotion to induce her to work extra hours (a
fact which Defendant disputes), there is no evidence to suggest
that the Hermitage Club promised to somehow limit the grounds
upon which it could terminate Plaintiff. Therefore, even if the
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allegation that Plaintiff makes out in her amended complaint is
true, it would not give rise to a claim of wrongful discharge.
Plaintiff’s second theory addresses this oversight by
claiming that Defendant’s Business Ethics policy constituted an
implicit promise not to discharge employees for acting in
accordance with that policy, citing Foote to support her claim.
However, in Foote, the policy at issue explicitly stated that
“[i]f you follow these steps, you cannot be criticized or
penalized in any way.” Id. at 568, 1278. The Business Ethics
policy cited by Plaintiff does not make any similar promises or
assurances or provide employees with a procedure for making
complaints about activity that runs contrary to the terms of the
policy. Rather, the policy appears to establish basic ethical
conditions for an individual’s employment with the company, in
order to warn employees that they could be terminated for
failing to comply with it. The only instruction given to
employees who do have concerns is to “consult with their
supervisor” if they have doubts about whether their individual
behavior would violate the terms of the policy. Therefore, the
policy itself appears to lay out the basic requirements for the
job rather than create a promise not to terminate an employee on
a particular ground, including advancing the values embraced in
the document. Since neither of Plaintiffs’ theories of
promissory estoppel effectively give rise to a wrongful
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discharge claim in this case, the Court grants Defendant’s
motion for summary judgment on Count Three.
CONCLUSION
For the reasons set forth above, the Court denies
Defendant’s motion for summary judgment on Plaintiff’s claim of
wrongful discharge in violation of Vermont’s public policy on
the mistreatment of animals, but grants the motion insofar as
Plaintiff alleges that her termination violated public policy
regarding the employment rights of members of the National Guard
(Count One). In addition, the Court grants Defendant’s motion
with respect to Mayhew’s overtime and minimum wage claims (Count
Two) and her claim of promissory estoppel giving rise to
wrongful discharge (Count Three).
Dated at Burlington, in the District of Vermont, this 30th
day of November, 2016.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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