O'Neill v. Rutland County State's Attorneys Office et al

Filing 17

OPINION AND ORDER Granting 10 Defendants' Partial Motion to Dismiss. Plaintiff's EPA claim as set forth in Count I and her civil conspiracy claim set forth in Count II insofar as it relates to her EPA claim are not dismissed and shall remain pending in this court. Signed by Chief Judge Christina Reiss on 12/28/2016. (pac)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

2116 OEC 29 AM 8: 08

JANE O'NEILL,

)
)
Plaintiff,
)
)
)
v.
)
RUTLAND COUNTY STATE'S
)
ATTORNEYS OFFICE and THE
)
DEPARTMENT OF STATE'S ATTORNEYS )
AND SHERIFFS,
)
)
Defendants.
)

Case No. 2:16-cv-196

OPINION AND ORDER GRANTING
DEFENDANTS' PARTIAL MOTION TO DISMISS
(Doc. 10)
This matter came before the court on October 12, 20 16 for oral argument on the
partial motion to dismiss filed by Defendants Rutland County State's Attorneys Office
(the "Rutland SAO") and the Department of State's Attorneys and Sheriffs (the
"Department") (collectively, "Defendants") (Doc. 10). Pursuant to Fed. R. Civ. P.
12(b)(1) and the Eleventh Amendment to the U.S. Constitution, Defendants seek
dismissal of all state law claims asserted by Plaintiff Jane O'Neill, including her civil
conspiracy, constructive discharge, quantum meruit, and unjust enrichment claims as well
her claim that Defendants violated Vermont's Fair Employment Practices Act
("VFEPA"), 21 V.S.A. § 495(a)(7) and (8). 1 Plaintiff opposes the motion. On November
14, 2016, the parties filed post-hearing supplemental memoranda, whereupon the court
took the pending motion under advisement.

1

Originally, Defendants sought dismissal of all of Plaintiffs claims, including her claim that
Defendants violated the Equal Pay Act ("EPA") set forth in the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201(d)(l). Defendants have amended their motion to exclude Plaintiffs
EPA claim. (Doc 13 at 9.)

John Paul Faignant, Esq. and Marie Peck Fabian, Esq. represent Plaintiff.
Assistant Attorneys General Kate T. Gallagher and Bartholomew J. Gengler represent
Defendants.
I.

Factual Background.

The following facts are derived from Plaintiff's Complaint and are accepted as
true for the purpose of this motion. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572
(2007) ("[A] judge ruling on a defendant's motion to dismiss a complaint must accept as
true all of the factual allegations contained in the complaint.") (internal quotation marks
omitted).
In 2009, the Rutland SAO hired Plaintiff as a deputy state's attorney. She
remained employed in that position through August of2014. When Plaintiff was hired,
her salary was established at the "entry level" by the Rutland SAO and the Department.
(Doc. 1 at 3, ,-r 14.) Plaintiff was allegedly told that her level of compensation was "not
negotiable." !d. Despite Plaintiff's repeated requests, Rutland County State's Attorney
Marc Brierre refused to discuss her compensation with her during her employment.
Plaintiff's position as a deputy state's attorney required her to routinely work fifty
to sixty hours per week, and to be on-call every night for one week per month from 4:30
p.m. until 8:30a.m. She was not compensated for her on-call hours. Defendants were
allegedly aware that Plaintiff was working in excess of forty hours per week, but did not
keep track of her hours worked and would not authorize her paycheck to be released
unless she signed an affidavit stating that she did not work in excess of forty hours.
Plaintiff did not receive compensation in addition to her salary for the excess hours she
worked, although a male deputy state's attorney allegedly received additional
compensation on this basis.
In 2011, the Rutland SAO hired "John Doe" as a deputy state's attorney to
perform essentially the same work as Plaintiff. John Doe's salary was set at a rate
approximately 26% higher than Plaintiff's. State's Attorney Brierre allegedly refused to
discuss John Doe's compensation with Plaintiff, including whether they were both paid
the same amount.
2

Following John Doe's hire, Plaintiff alleges that State's Attorney Brierre
"embarked on a course of retaliatory conduct to demean and marginalize" Plaintiffs job
duties, "including assigning much lesser tasks [to her], which should have gone to the
new[,] less experienced person" notwithstanding Plaintiffs "overwhelming existing
caseload." !d. at 5, ,-r 25. Plaintiffwas also not included in important office function
meetings and procedures and State's Attorney Brierre "lashed out" at her whenever she
inquired about her salary. !d. State's Attorney Brierre directed Plaintiffs salary
inquiries to Bram Kranichfeld, Esq., the executive director of the Department. Attorney
Kranichfeld was "non-committal" in response to Plaintiffs inquiries and directed her to
speak with State's Attorney Brierre. !d. at 5, ,-r 28.
In 2013, the Rutland SAO hired "Jane Doe" as a deputy state's attorney to perform
essentially the same work as Plaintiff and John Doe. Jane Doe's salary was set at a rate
approximately 25% lower than John Doe's.
In July of 2014, Plaintiff discovered that John Doe had earned approximately
$14,000 more than her for each year since his 2011 hire. Plaintiff alleges that Defendants
knew that she was being discriminated against on the basis of sex, and that she was being
paid less than her male coworkers "for equal work that required equal skill, effort[,] and
responsibility and [that] was performed under substantially similar working conditions."
!d. at 6, ,-r 32. Plaintiff further alleges that "[a]s the salary disparity continued over the

years[,] it perpetuated a sex based wage differential" between Plaintiff and John Doe. !d.
at 6, ,-r 33. On at least two occasions, State's Attorney Brierre "lost his temper over
[Plaintiffs] pressing him as to her pay status, to the point where [Plaintiff] believed
[State's Attorney Brierre] would fire her if she pressed further." !d. at 6, ,-r 34. Plaintiff
resigned at the end of July 2014 because the "working conditions had become so
intolerable, she felt she had no other choice but to resign." !d. at 7, ,-r 35.
Plaintiffs Complaint alleges the following causes of action: Count I (violation of
the EPA and VFEPA); Count II (conspiracy to violate the EPA and VFEPA); Count III
(retaliation); Count IV (constructive discharge); Count V (quantum meruit); and Count
VI (unjust enrichment). Citing Eleventh Amendment immunity, Defendants seek
3

dismissal of all claims set forth in Plaintiffs Complaint, except for her EPA claim set
forth in Count I.

II.

Conclusions of Law and Analysis.
A.

Standard of Review.

A case is properly dismissed for lack of subject-matter jurisdiction under Fed. R.
Civ. P. 12(b)(1) if the district court lacks the statutory or constitutional power to
adjudicate it. See Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (citing
Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d Cir. 2008)). Generally, on a 12(b)(l)

motion, the "plaintiff asserting subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). However, in cases where a governmental entity asserts the Eleventh
Amendment as the basis of dismissal, the burden falls to that entity to prove its
entitlement to immunity from suit. See Woods v. Rondout Valley Cent. Sch. Dist. Bd of
Educ., 466 F.3d 232, 237 (2d Cir. 2006) Uoining other circuit courts in "holding that the

governmental entity invoking the Eleventh Amendment bears the burden of
demonstrating that it qualifies as an arm of the state entitled to share in its immunity").

B.

Whether Defendants Are Entitled to Eleventh Amendment Immunity.

The Eleventh Amendment provides: "The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State." U.S. Const. amend. XI. "Although the text of the amendment speaks
only of suits against a state by persons who are not citizens of that state, the Supreme
Court has interpreted the Eleventh Amendment to extend to suits by all persons against a
state in federal court." Mancuso v. N.Y. State Thruway A uth., 86 F .3d 289, 292 (2d Cir.
1996).
"It has long been settled that the reference to actions 'against one of the United

States' encompasses not only actions in which a State is actually named as the defendant,
but also certain actions against state agents and state instrumentalities." Regents of the
Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). As a result, "when the action is in
4

essence one for the recovery of money from the state, the state is the real, substantial
party in interest and is entitled to invoke its sovereign immunity from suit even though
individual officials are nominal defendants." !d. (citation and internal quotation marks
omitted).
Defendants argue that they are "arms of the state" and that Plaintiffs state law
claims against them therefore cannot be litigated in federal court. See Raygor v. Regents
of Univ. of Minn., 534 U.S. 533, 540-41 (2002) (affirming that "the Eleventh Amendment
bars the adjudication of pendent state law claims against non consenting state defendants
in federal court") (citing Pennhurst State Sch. & Hasp. v. Halderman, 465 U.S. 89, 120
( 1984)). Plaintiff contends that Defendants are not "arms of the state," and are more
appropriately considered municipal corporations or some other form of governmental
entity not entitled to Eleventh Amendment protection.
"While, on the one hand, it is well established that even though a State is not
named a party to the action, the suit may nonetheless be barred by the Eleventh
Amendment[;] on the other hand, courts have consistently refused to construe the
Eleventh Amendment to afford protection to political subdivisions such as counties and
municipalities, even though such entities exercise a slice of state power." Richards v.
State's Attorneys Office, 40 F. Supp. 2d 534, 536 (D. Vt. 1999) (citations, alterations, and
internal quotation marks omitted). Eleventh Amendment immunity thus depends on
whether a defendant is an "arm of the state." See Mancuso, 86 F.3d at 292 ("Although
the Eleventh Amendment does not apply to suits against counties, municipal
corporations, and other political subdivisions, [an entity] is entitled to immunity if it can
demonstrate that it is more like 'an arm of the State,' such as a state agency, than like 'a
municipal corporation or other political subdivision."') (quoting Mt. Healthy City Sch.
Dist. Bd. ofEduc. v. Doyle, 429 U.S. 274,280 (1977)).
In determining whether an entity is an "arm of the state," a court must analyze "the
relationship between the State and the entity in question." Regents of the Univ. of Cal.,
519 U.S. at 429.

5

Ultimately, of course, the question whether a particular state agency has the
same kind of independent status as a county or is instead an arm of the
State, and therefore "one of the United States" within the meaning of the
Eleventh Amendment, is a question of federal law. But that federal
question can be answered only after considering the provisions of state law
that define the agency's character.
!d. at 429 n.5.

In the Second Circuit, six "Mancuso factors" guide the court's inquiry:
(1) how the entity is referred to in the documents that created it; (2) how the
governing members of the entity are appointed; (3) how the entity is
funded; (4) whether the entity's function is traditionally one of local or state
government; (5) whether the state has a veto power over the entity's
actions; and (6) whether the entity's obligations are binding upon the state.

Mancuso, 86 F.3d at 293. "If these factors all point in one direction, then a court's
inquiry is complete." Woods, 466 F.3d at 240. If, however, the Mancuso factors provide
mixed results, the court must focus "on the twin reasons for the Eleventh Amendment:
(1) protecting the dignity of the state, and (2) preserving the state treasury." !d. (citing

Mancuso, 86 F.3d at 293). "Ifthe outcome still remains in doubt, then whether a
judgment against the governmental entity would be paid out of the state treasury
generally determines the application of Eleventh Amendment immunity." !d. at 241.
· Plaintiff acknowledges the Mancuso factors, but contends that the Vermont
Supreme Court's decision in In reElection Petitions, 2016 VT 7, 136 A.3d 213 controls
the outcome of whether Eleventh Amendment immunity is available to Defendants
because it holds that the Rutland SAO is a municipal entity and the Department is a
political subdivision of the State of Vermont. In Election Petitions, the Vermont
Supreme Court did not address whether Defendants are "arms of the state" for purposes
of Eleventh Amendment immunity. Instead, that court determined only whether "either
the individual state's attorneys or the legislatively created Vermont Department of State's
Attorneys and Sheriffs, or some combination thereof, are municipal employers" for
purposes of collective bargaining under Municipal Employee Relations Act ("MERA"). 2
2

Under MERA, a "municipal employer" is defined as a "city, town, village, fire district, lighting
district, consolidated water district, housing authority, union municipal district, or any of the
6

Election Petitions, 2016 VT 7, ,-r 3. The case thus turned on whether either the individual
state's attorneys or the Department, or some combination thereof, satisfied a specific
statutory definition of"employer."
The present case does not mandate this same inquiry. Election Petitions thus does
not determine whether, under federal law, Defendants are "arms of the state" for purposes
Eleventh Amendment immunity. See Regents of the Univ. of Cal., 519 U.S. at 429 n.5
("[T]he question [of] whether a particular state agency has the same kind of independent
status as a county or is instead an arm of the State ... is a question of federal law."). The
Mancuso factors therefore remain the controlling test. 3
Application of the first Mancuso factor, which asks how the entities are identified
in their documents of origin, reveals that the office of "State's Attorney" is established by
the Vermont Constitution. See Vt. Canst. ch. II, § 50 ("State's Attorneys shall be elected
by the voters of their respective districts as established by law."). However, as Plaintiff
points out, "[t]he constitution merely provides the date on which the State's Attorneys
shall be elected and the terms for which they shall serve." Office ofState's Attorney of
Windsor Cty. v. Office ofAttorney Gen., 409 A.2d 599, 602 (Vt. 1979). The powers and
duties of a state's attorney are established by a Vermont statute governing county
officers. See 24 V.S.A. § 361(a) ("A State's Attorney shall prosecute for offenses
committed within his or her county, and all matters and causes cognizable by the
Supreme and Superior Courts on behalf of the State, file informations and prepare bills of
indictment, deliver executions in favor of the State ... , and take measures to collect fines
and other demands or sums of money due to the State or county."). The Rutland SAO is
therefore created by Vermont's Constitution and governed by state statute, although it
operates primarily on a county-wide basis.
political subdivisions of the State of Vermont which employs five or more employees[.]"
Election Petitions, 2016 VT 7, ~ 4 (quoting 21 V.S.A. § 1722(13)).
3

Election Petitions, however, remains relevant in light of the Vermont Supreme Court's
description ofDefendants' organizational structures and functions. See Woods, 466 F.3d at 237
(recognizing that courts make "necessary reference to state law" in determining under federal
law whether a particular governmental entity is an arm of the state for Eleventh Amendment
purposes).
7

The Department is created by statute and "consist[s] ofthe 14 State's Attorneys
and 14 sheriffs." See 24 V.S.A. § 367(a). By virtue of its composition, the Department
operates on a state-wide as opposed to a county-wide basis. In describing the duties of
the executive director of the Department, § 367 requires that the executive director
"prepare and submit all budgetary and financial matters and forms which are required of
the head of a department of State government[.]" !d.§ 367(c).
As both Defendants are created by either the Vermont Constitution or Vermont
statute and as they are governed by Vermont law, the first Mancuso factor weighs in
favor of finding that Defendants are "arms of the state."
The second Mancuso factor examines how the governing members of the entities
are appointed. The Vermont Constitution provides that state's attorneys are "elected by
the voters of their respective districts[.]" See Vt. Const. ch. II, § 50; see also Town of
Stowe v. Lamoille Cty., 362 A.2d 159, 161 (Vt. 1976) ("The Vermont county is a unit of

special functions. It operates as an electoral district for assistant judges, state's attorneys,
and sheriffs, as well as, in some cases, state senators and probate judges."). Because
state's attorneys are elected in county elections, this weighs against finding they are
"arms of the state." Compare Woods, 466 F.3d at 244 (finding that the second Mancuso
factor weighs against immunity where board of education members are elected locally by
voters in each school district), with Mancuso, 86 F .3d at 295 (concluding that
appointment of governing board members by the Governor of New York weighs in favor
of immunity).
The Department is governed by an executive committee of state's attorneys and an
executive committee of sheriffs, who in tum appoint an executive director.
Notwithstanding the state-wide scope of the Department's mandate, the Department's
membership, including its executive committees and executive director, consists entirely
of individuals elected in county elections without any direct involvement from the State
of Vermont. See Leitner v. Westchester Cmty. Col!., 779 F.3d 130, 138-39 (2d Cir. 2015)
(concluding that entity seeking to assert Eleventh Amendment immunity had not met its
burden with regard to the second Mancuso factor where the majority of the board's
8

governing members were selected at the local level). The second Mancuso factor thus
weighs against a finding of Eleventh Amendment immunity for both Defendants.
The third Mancuso factor asks how the entities are funded. Under the statutory
scheme for state's attorneys and the Department, 4 their respective budgets are derived
directly and exclusively from funds authorized and dispersed by the Vermont Legislature
as part of the state budget. See 24 V.S.A. § 367(c); see also Election Petitions, 2016 VT
7,

~

12 ("The budget is then presented to the Legislature as part of the entire state

government budget."); In re Wakefield, 177 A. 319, 323 (Vt. 1935) ("It is the state, and
not the county, that pays [a state's attorney's] salary and official expenses.").
Because Defendants are funded exclusively by the State of Vermont, the third

Mancuso factor weighs heavily in favor of finding Eleventh Amendment immunity for
both Defendants. See McGinty v. New York, 251 F.3d 84, 97 (2d Cir. 2001) (finding that
this factor weighs in favor of immunity even where the state was not the sole funder of
the entity because it made "significant payments" to the entity to cover benefits and
expenses).
The fourth Mancuso factor asks whether the entities' functions are traditionally
one of state or local government. The powers and duties exercised by a state's attorney
in the performance of his or her position are traditionally those of state government. See
Vt. Const. ch. II, § 39 (mandating that "[a]ll prosecutions shall commence, By the

authority of the State of Vermont" and that "[a]ll indictments shall conclude with these
words, against the peace and dignity of the State."); see also Office of State's Attorney of

Windsor Cty., 409 A.2d at 601 (noting that "the statutory grant clearly authorizes the
State's Attorney to act on behalf of the State" as a non-exclusive "arm of the state
4

The executive director of the Department "drafts a proposed budget that includes wages and
benefits for the deputy state's attorneys, victim advocates, and secretaries working in the SAOs
and covers operating expenses for the SAOs" and submits it to the governor for approval.
Election Petitions, 2016 VT 7, ~ 12. "The budget is then presented to the Legislature as part of
the entire state government budget." ld. The executive director may challenge the governor's
budget determinations and seek funding directly from the Legislature. "Once approved by the
Legislature, the budget is provided to the Department as a lump sum, which is then divided
among the counties." Id.
9

government to act with regard to initiating criminal prosecutions"); Wakefield, 177 A. at
323 ("A state's attorney in this state is not merely a prosecuting officer in the county in
which he is elected. He is also an officer of the state, in the general matter of the
enforcement of the criminal law."). Indeed, "there is little question that when prosecuting
a criminal matter, a State's Attorney is acting as a representative of the State." Bethea v.

Plusch, 2011 WL 5967180, at *5 (D. Vt. Nov. 29, 2011); see also Baez v. Hennessy,
853 F.2d 73, 77 (2d Cir. 1988) ("When prosecuting a criminal matter, a district
attorney ... represents the State not the county.").
The Department "oversees the administration, budget, information technology,
and many human resource services for the SAOs" in the State of Vermont. See Election

Petitions, 2016 VT 7, ,-r 12; 24 V.S.A. § 367(c). Its executive director is "involved in the
legislative process: monitoring and providing input on legislation, testifYing on
legislation, and generally acting as an advocate for the SAOs and sheriffs' offices";
administers the annual training program for SAO employees; and has the authority to
adopt personnel regulations applicable to SAO employees. See Election Petitions,
2016 VT 7, ,-r 13; see also 24 V.S.A. § 367(c). In this manner, the Department furthers
the business of the State of Vermont by assisting with the administrative needs of the
SAOs. See, e.g., McGinty, 251 F .3d at 98 ("Although the Retirement System does not
service state employees exclusively, it assists in the business of the state by enabling the
state to meet its pension and benefits obligations, and immunity should accordingly be
extended to the Retirement System.").
As both Defendants perform functions that either are traditionally those of state
governments or are in furtherance of State of Vermont business, the fourth Mancuso
factor also weighs in favor of granting Defendants Eleventh Amendment immunity.
The fifth Mancuso factor examines whether the State of Vermont has veto power
over the actions of the entities in question. Although it "exerts significant authority" over
the SAOs, the State of Vermont does not have veto power over their actions. See

Richards, 40 F. Supp. 2d at 537 (citing Office ofState's Attorney of Windsor Cty.,
409 A.2d at 601-02). Similarly, although the Vermont Legislature exerts significant
10

control over the Department, both in enacting the laws enforced by the state's attorneys
and by controlling the Department's budget, this "does not unequivocally equate to veto
authority, which implies the power to halt a decision, however lawful, for no reason other
than disagreement with the choice made." Woods, 466 F.3d at 248.
"The fifth Mancuso factor looks for evidence of the state's authority actually to
veto the decisions" of Defendants. Woods, 466 F.3d at 248. As the State of Vermont
lacks such authority, this factor weighs against a finding of immunity for both
Defendants.
The final Mancuso factor requires the court to determine whether Defendants'
financial obligations are binding upon the state. Plaintiff's citation to the State Liability
Self-Insurance Fund5 as evidence that any judgment recovered against Defendants would
not come directly from the State of Vermont is misplaced. As the Supreme Court has
observed:
[W]ith respect to the underlying Eleventh Amendment question, it is the
entity's potential legal liability, rather than its ability or inability to require
a third party to reimburse it, or to discharge the liability in the first instance,
that is relevant. Surely, ifthe sovereign State of California should buy
insurance to protect itself against potential tort liability to pedestrians
stumbling on the steps of the State Capitol, it would not cease to be "one of
the United States."
Regents ofthe Univ. ofCal., 519 U.S. at 431. Because the operating budgets ofboth
Defendants are derived exclusively from the State of Vermont, and no other funding
source is apparent, payment of Defendants' financial obligations is ultimately the
responsibility of the State of Vermont. This Mancuso factor therefore also weighs in
favor of finding Defendants are arms of the state.
While the majority of the Mancuso factors weigh in favor of finding Eleventh
Amendment immunity, because all of the Mancuso factors do not "point in one
direction," the court must examine the "twin reasons" for the Eleventh Amendment:
(1) protecting the dignity of the state and (2) preserving the state treasury. Woods,
5

Vermont's self-insurance statutory provision requires that all covered entities "contribute to the
Fund." 29 V.S.A. § 1406(c).
11

466 F.3d at 240. The Supreme Court has held that the integrity of a state's fisc is entitled
to "dispositive weight." See Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48-49
(1994).
Here, even if the dignity of the State of Vermont would not be offended if
Defendants were forced to litigate Plaintiff's state law claims in federal court, because
any money judgment against Defendants would risk exposing the State of Vermont's fisc
to liability, this factor is dispositive in finding that Defendants are entitled to Eleventh
Amendment immunity. See Mancuso, 86 F.3d at 293 (explaining that "'the vulnerability
of the State's purse [is] the most salient factor"' and that "[i]f all the elements are evenly
balanced, this concern will control") (quoting Hess, 513 U.S. at 48). The court therefore
GRANTS Defendants' partial motion to dismiss Plaintiff's state law claims against them.

C.

Whether Plaintiff May Assert a Civil Conspiracy to Violate the EPA.

Count II of Plaintiff's Complaint alleges that Defendants were involved in a civil
conspiracy under the common law of the State of Vermont to violate the EPA and the
VFEP A. 6 Because Defendants are entitled to Eleventh Amendment protection on all of
Plaintiff's state law claims, Plaintiff's civil conspiracy claim, insofar as it pertains to her
VFEPA claim, must be dismissed. See Pennhurst, 465 U.S. at 120 ("[N]either pendent
jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment.").
Plaintiff's civil conspiracy claim as part of her EPA claim warrants further
scrutiny. Plaintiff argues that under this court's decision in Saunders v. Morton, her
claim for civil conspiracy should not be dismissed because it could provide a theory of
liability for the substantive allegations of her EPA claim. See Saunders v. Morton,
6

Plaintiffs Complaint states that her civil conspiracy claim in Count 2 is brought "under the
common law of the State of Vermont." (Doc. 1 at 1, ,-r 2.) Plaintiffs Complaint cites to no other
legal basis for this claim. Plaintiff also asserts that she is "entitled to pursue her conspiracy
claim under the auspices of a 42 U.S.C. § 1983 claim." (Doc. 15 at 17.) She has not, however,
cited § 1983 in her Complaint and may not amend her Complaint in an opposition to a motion to
dismiss. See, e.g., K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F. Supp. 2d 197,209
(S.D.N.Y. 2013) ("Plaintiffs cannot amend their complaint by asserting new facts or theories for
the first time in opposition to Defendants' motion to dismiss."). Instead, if Plaintiff wishes to
pursue such a theory, she must seek leave to amend her Complaint pursuant to Fed. R. Civ. P.
15(a).
12

2011 WL 1135132, at *9-11 (D. Vt. Feb. 17, 2011), report and recommendation adopted,
2011 WL 1114416 (D. Vt. Mar. 24, 2011) (noting that "[i]t is not entirely clear under
Vermont law whether the tort of civil conspiracy constitutes an independent cause of
action" but that this court "has issued decisions upon parties' claims of civil conspiracy in
which it has been assumed that the claim constitutes an independent cause of action in
Vermont"). She points out that since 1840, Vermont has recognized a cause of action for
civil conspiracy citing Sheple & Warner v. Page, 12 Vt. 519 (1840).
Defendants respond that the weight of more recent authority does not support a
separate cause of action for a civil conspiracy. They make a persuasive argument for
dismissal of this claim on the grounds that the relief Plaintiff seeks through a civil
conspiracy cause of action is not authorized by the EPA.
At this nascent stage of the proceedings, the court declines to dismiss Plaintiffs
civil conspiracy claim insofar as it relates to her EPA claim for failure to state a claim
under Fed. R. Civ. P. 12(b)(6). Defendants have not moved to dismiss on this basis, and
Plaintiff has not yet been afforded an opportunity to address Defendants' argument that
the relief she seeks through her civil conspiracy claim is not authorized by the EPA.
CONCLUSION

For the foregoing reasons, the court GRANTS Defendants' partial motion to
dismiss Count I and Count II insofar as they include Plaintiffs VFEP A claim, and
Counts III-VI on Eleventh Amendment immunity grounds. (Doc. 10.) Plaintiff may refile those claims in state court. Plaintiffs EPA claim as set forth in Count I and her civil
conspiracy claim set forth in Count II insofar as it relates to her EPA claim are not
dismissed and shall remain pending in this court.
SO ORDERED.
Dated at Burlington, in the District of Vermont, this

,<~ay of December, 2016.

Christina Reiss, Chief Judge
United States District Court

13