Connolly v. Alderman et al

Filing 28

OPINION AND ORDER granting 24 Motion to Dismiss Count III of the Complaint. Signed by Judge Christina Reiss on 3/1/2018. (law)

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UNITED STATES DISTRICT COURT
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DISTRICT OF VERMONT
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DONALD CONNOLLY,
Plaintiff,
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Case No. 2:17-cv-79

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PHILIP E. ALDERMAN, ALDERMAN
MOTOR CAR, LLC, and ALDERMAN'S
AUTOMOBILE CORPORATION,
Defendants.

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OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
COUNT III OF THE COMPLAINT
(Doc. 24)
On May 4, 2017, Plaintiff Donald Connolly initiated this sexual harassment and
retaliation action against Defendants Philip Alderman, Alderman Motor Car, LLC, and
Alderman's Automobile Corporation (collectively, "Defendants"). In Count III of his
Complaint, Plaintiff alleges that Defendants negligently supervised, trained, and retained
employees. On December 4, 2017, Defendants filed a motion to dismiss Count III,
arguing that Plaintiffs claim is barred by the exclusivity provision of the Vermont
Workers' Compensation Act (the "VWCA"), 21 V.S.A. § 622, and preempted by the
Vermont Fair Employment Practices Act, 21 V.S.A. §§ 495-496a (the "VFEPA"). (Doc.
24.) On January 2, 2018, Plaintiff opposed the motion. On January 16, 2018, Defendants
filed their reply, at which time the court took the matter under advisement.
Plaintiff is represented by John D. Stasny, Esq. Defendants are represented by
F. David Harlow, Esq. and Elizabeth K. Rattigan, Esq.
I.

Factual Background and Procedural History.

The following facts are derived from the allegations in Plaintiffs Complaint.
Plaintiff was employed at Defendants' automotive dealerships in Vermont for
approximately three years. Plaintiff states that "[u ]pon information and belief, each

Defendant has at all relevant times been an 'employer,' as defined by 21 V.S.A. § 495d."
(Doc. 1 at 3, ,i 12.) During that time, Plaintiff contends that he was "subjected ... to
regular, graphic descriptions of [a co-worker's] sexual interests and preferred sexual acts;
sexual questions about [Plaintiff]; stories about other employees' sex acts; aggressive
sexual advances and demands; and other sexual harassment." Id. at 1, ,i 1. He further
alleges that he informed his supervisor at Alderman Toyota, Robert Atkinson, both orally
and in writing, about his co-worker's conduct in or about March of2014 and requested
assistance. Plaintiff claims that Mr. Atkinson warned him not to directly complain to Mr.
Alderman or his employment may be terminated. On May 16, 2014, after receiving a
promotion, Plaintiff was transferred from Alderman Toyota to Alderman Kia. Despite
the transfer, Plaintiff alleges that his co-worker "continued to harass [him] with sexual
remarks and messages" and that Mr. Alderman failed to prevent it. Id. at 6, ,i 37.
In Counts I and II, Plaintiff alleges Defendants' conduct violated the VFEP A. In
Count III, Plaintiff contends that, "[u]nder Vermont common law," Defendants owed him
a duty to use reasonable care to avoid harming him, as well as a duty to anticipate and
guard against "'human traits' of their employees which, unregulated, are likely to harm
others." Id. at 9, ,i,i 65-66. He alleges that Defendants negligently failed to properly train
employees and managers to appropriately report and respond to allegations of workplace
sexual harassment. He further alleges Defendants negligently retained employees whose
conduct they knew or should have known would put other employees at risk, as well as
negligently responded to his allegations of sexual harassment.

II.

Conclusions of Law and Analysis.
A.

Standard of Review.

Defendants seek dismissal of Count III pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a plausible claim for which relief may be granted.
In adjudicating a motion pursuant to Fed. R. Civ. P. 12(b)(6), the court is "guided by
'[t]wo working principles[.]"' Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (alteration in original). First, "a court must
accept as true all of the [factual] allegations contained in a complaint[,]" a "tenet" that is,
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however, "inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice." Id. Second, "only a complaint that states a plausible claim for relief
survives a motion to dismiss[,]" and a claim "has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. at 678-79.
"The plausibility standard is not akin to a 'probability requirement,' but it asks for
more than a sheer possibility that a defendant has acted unlawfully." Id. at 678 (quoting
Bell At!. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "Where a complaint pleads facts

that are merely consistent with a defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief." Id. (internal quotation marks
omitted). "Determining whether a complaint states a plausible claim for relief will[] ...
be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Id. at 679.
Because federal subject matter jurisdiction in this case is based on diversity of
citizenship, the court applies the substantive law of Vermont, the forum state. See Erie
R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also Omega Eng'g, Inc. v. Omega,
S.A., 432 F.3d 437,443 (2d Cir. 2005) ("In a diversity case we apply the substantive law

of the forum state").

B.

Whether the VWCA Preempts Plaintiff's Negligence Claim.

Defendants seek dismissal of Count III, which purports to arise out of "Vermont
common law," on the basis of the VWCA's exclusivity provision, which they contend is
the exclusive remedy for negligence-based harms in the workplace. (Doc. 1 at 9, ,-r 65.)
The VWCA, which provides compensation to employees who suffer "a personal
injury by accident arising out of and in the course of employment by an employer[,]" 21
V.S.A. § 618(a)(l), is an employee's exclusive remedy against his or her statutory
employer for work-related injuries:
the rights and remedies granted by [the VWCA] to an employee on account
of a personal injury for which he or she is entitled to compensation under
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the provisions of this chapter shall exclude all other rights and remedies of
the employee[] ... at common law or otherwise on account of such injury.
21 V.S.A. § 622.
Section 622's exclusivity provision "has been given broad effect." Buote v.
Verizon New England, 190 F. Supp. 2d 693, 705 (D. Vt. 2002); see also 21 V.S.A. § 709
("In construing the provisions of this chapter, the rule of law that statutes in derogation of

the common law are to be strictly construed shall not be applied."). "Absent an exception
to the general rule, the Vermont Workers' Compensation Act prohibits an employee from
suing his employer in tort for a workplace accident." Stamp Tech, Inc. ex rel. Blair v.
Ludall/Thermal Acoustical, Inc., 2009 VT 91, ,i 25, 186 Vt. 369, 381, 987 A.2d 292,299
n.3. "The general rule, which provides an exclusive remedy for injured employees,
reflects a deliberate legislative balancing of interests; the employee receives
compensation for his workplace injuries without regard to fault, and the employer
receives, in return, limited liability." Id. (citing Kittell v. Vt. Weatherboard, Inc., 417
A.2d 926, 926 (Vt. 1980)); see also Garger v. Desroches, 2009 VT 37, ,i 4, 185 Vt. 634,
635, 974 A.2d 597, 599 ("The [YWCA] allows employees to receive workers'
compensation for injuries sustained while working, but prevents them from bringing
negligence claims against their employer for the injuries").
As Defendants observe, the VWCA's exclusivity provision applies only to injuries
arising out of the "common law[.]" 21 V.S.A. § 622. Indeed, "[n]othing short of a
specific intent to injure falls outside the scope of the [YWCA]." Kittell, 417 A.2d at 927;
see also Dunham v. Chase, 674 A.2d 1279, 1281 (Vt. 1996) (recognizing "the [VWCA's]
exclusivity provision bars any claim against an employer short of intentional injury"). 1
To the extent that Plaintiff relies on cases addressing the question of whether statutory
discrimination claims are preempted by 21 V.S.A. § 622, those cases are inapposite. See,
e.g., Gallipo v. City ofRutland, 789 A.2d 942,952 (Vt. 2001) (holding "that VFEPA
actions are not subject to the exclusive remedy provision of the WCA, 21 V.S.A.

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Defendants note that, at this time, they do not seek dismissal of Plaintiffs VFEP A claims or his
intentional infliction of emotional distress claims, both of which allege intentional conduct.
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§ 622. "). While Plaintiff is correct that the Gallipo court "did not reach the issue of
whether common law claims arising out of the same facts as VFEP A claims would ...
fall outside the scope of§ 622," (Doc. 25 at 3), the Vermont Supreme Court has held in
other analogous contexts that a plaintiff may not bring a common law negligence claim
where the YWCA applies. See Candido v. Polymers, Inc., 687 A.2d 476,480 (Vt. 1996)
(concluding a statutory employer under the YWCA was "immune from common-law
liability under § 622").
Viewing the allegations in the light most favorable to Plaintiff, Count III fails to
plausibly allege conduct that is not preempted by§ 622 of the YWCA. Although
dismissal of Count III is warranted on this basis alone, the court nevertheless considers
whether the VFEP A acts as a bar to Plaintiff's requested relief in Count III.

C.

Whether Plaintifrs Negligence Claim is Subsumed by the VFEPA.

Defendants assert that the VFEP A preempts Plaintiff's common law claims of
negligent supervision, training, and retention of employees. Under Vermont law:
A person conducting an activity through servants or other agents is subject
to liability for harm resulting from his conduct if he is negligent or
reckless[] ... in the employment of improper persons or instrumentalities
in work involving risk of harm to others[;] in the supervision of the activity;
or ... in permitting, or failing to prevent, negligent or other tortious
conduct by persons, whether or not his servants or agents, upon premises or
with instrumentalities under his control.
RESTATEMENT (SECOND) OF AGENCY§ 213 (1958) (quoted in Haverly v. Kaytec, Inc.,
73 8 A.2d 86, 91 (Vt. 1999)). The VFEP A prohibits employers from "discharg[ing] or in
any other manner discriminat[ing] against any employee because the employee ... has
opposed any act or practice that is prohibited under" the VFEPA. 21 V.S.A. § 495(a)(8).
The VFEPA further prohibits sexual harassment in the workplace. See 21 V.S.A. § 495h.
"Anti-discrimination rights are creations of constitution and statute, and were
unknown at common law." Decker v. Vt. Educ. Television, Inc., 13 F. Supp. 2d 569, 573
(D. Vt. 1998). "It is a general rule of construction in Vermont that where a statute
confers a remedy unknown to common law, and prescribes the mode of enforcing it, that
mode alone can be resorted to." Winney v. Ransom & Hastings, Inc., 542 A.2d 269,270
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(Vt. 1988) (internal quotation marks and alteration omitted). To the extent that Plaintiffs
common law claims in Count III are based upon assertions of retaliatory discharge and
workplace sexual harassment, they are preempted by the VFEPA, which provides a
statutory remedy for such conduct. See Haverly, 73 8 A.2d at 91 (concluding common
law claim for negligent supervision was "subsumed" by the Vermont Occupational
Safety and Health Act ("VOSHA") where "the wrongful act underlying the claim of
negligent supervision [was] discrimination and retaliation resulting in constructive
discharge[]" and alleged "the same claim of discrimination as set forth in" plaintiffs
VOSHA claim). On this alternative basis, dismissal of Count III is also warranted.
CONCLUSION
For the foregoing reasons, the court GRANTS Defendants' motion to dismiss
Count III of the Complaint (Doc. 24).
SO ORDERED.

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Dated at Burlington, in the District of Vermont, this _l_ day of March, 2018.

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Christina Reiss, District Judge
United States District Court

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