Noel v. Wal-Mart Associates, Inc.

Filing 28

MEMORANDUM AND ORDER granting 15 Motion to Dismiss the Amended Complaint. Signed by Judge William K. Sessions III on 3/20/2018. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
WILLIAM D. NOEL
Plaintiff,
v.
WAL-MART STORES EAST, L.P.
Defendant.

)
)
)
)
)
)
)
)
)

Case No.: 2:17-CV-125

MEMORANDUM AND ORDER
Defendant Wal-Mart Stores East, L.P. (“Defendant” or
“Walmart”) moves to dismiss Plaintiff William D. Noel’s
(“Plaintiff” or “Noel”) Complaint and Amended Complaint pursuant
to Fed. R. Civ. P. 12(b)(6), asserting that they fail to state
claims upon which relief can be granted. Plaintiff amended his
original Complaint as a matter of course under Fed. R. Civ. P.
15(a)(1). Thus, the original Complaint (ECF 6) is no longer
before the court, and Defendant’s motion to dismiss the original
Complaint (ECF 11) is denied as moot. Plaintiff’s Amended
Complaint (ECF 12) includes four counts: breach of contract,
wrongful discharge, violation of public policy, and promissory
estoppel. For the reasons set forth below, Defendant’s motion to
dismiss the Amended Complaint (ECF 15) is granted, and
Plaintiff’s Amended Complaint is dismissed without leave to
amend.

1 

BACKGROUND
Plaintiff Noel was employed by Defendant Walmart as a
pharmacist manager in its St. Albans, Vermont location. On April
8, 2016, Walmart announced a new policy: new hires in
Plaintiff’s position would need to be certified to administer
immunizations by April 16, 2016 and incumbents would need to be
certified by October 16, 2016. See ECF 12, p. 2. Plaintiff
suffers from trypanophobia, an extreme fear of needles. As a
result, he is unable to administer immunizations.
Plaintiff sought an exemption from this new policy, and he
completed Walmart’s seven step process for securing an
accommodation. On June 12, 2016, Plaintiff completed a
“Confidential-Request for Accommodation Form.” Along with this
form, Plaintiff submitted a “Confidential-Accommodation Medical
Questionnaire” form, in which Plaintiff’s physician described
Plaintiff’s condition.
On July 19, 2016, Walmart sent Plaintiff a letter stating
that he was granted an accommodation and would not have to
administer immunizations. On October 18, 2016, Plaintiff
participated in a phone call with Defendant’s Health and
Wellness Director and its Accommodation Service Center Manager.
Defendant’s representatives told Plaintiff that he would have to
be certified to administer immunizations to continue in his
position. Plaintiff asserts that “[b]y letter dated October 19,
2 

2016, Defendant, acting through the Accommodation Service Center
that had earlier granted the accommodation Plaintiff requested,
constructively terminated Plaintiff’s employment by requiring
that he become certified to administer immunizations as a
condition of retaining his employment.” ECF 12, p. 3.
PLAINTIFF’S COMPLAINTS
Plaintiff originally filed this case on June 28, 2017 in
Vermont Superior Court, Chittenden Civil Division. Defendant
removed the case to the United States District Court for the
District of Vermont.1 Plaintiff’s Complaint was filed in this
court on July 24, 2017. See ECF 6. Defendant filed a motion to
dismiss the Complaint on July 24, 2017. See ECF 11. Plaintiff
responded to the motion on August 23, 2017. See ECF 14.
Defendant replied to the response on September 6, 2017. See ECF
21. Plaintiff filed an Amended Complaint on August 14, 2017. See
ECF 12. Defendant filed a motion to dismiss the Amended
Complaint on August 28, 2017. See ECF 15. Plaintiff responded to
the motion on September 15, 2017. See ECF 24. Defendant replied
to the response on October 12, 2017. See ECF 26.
The dates of the responses and replies to the Complaint and
Amended Complaint overlap, leading to a slightly confusing
situation. Plaintiff amended his Complaint as a matter of course

1

The removal was proper, as the parties are diverse and the
amount in controversy exceeds $75,000. See ECF 1, p. 2-4.
3 

under Fed. R. Civ. P. 15(a)(1) because he filed his Amended
Complaint within 21 days of Defendant’s motion to dismiss the
original Complaint. Thus, the Amended Complaint is controlling.
Plaintiff’s original Complaint is no longer before the court,
and Defendant’s motion to dismiss the original Complaint (ECF
11) is denied as moot.
Plaintiff’s Amended Complaint sets forth general
allegations and four specific counts.
Count I alleges breach of contract. Plaintiff contends that
his contract of employment with Defendant included, as of July
19, 2016, an exemption from the requirement to be certified to
administer immunizations. Plaintiff asserts that Defendant
breached that contract when it constructively terminated
Plaintiff’s employment on October 19, 2016 by requiring that he
become certified to administer immunizations.
Count II alleges wrongful discharge. Plaintiff erroneously
states that “Defendant is a qualified individual with a
disability” when he clearly meant to say “Plaintiff is a
qualified individual with a disability” (emphasis added).
Plaintiff contends that Defendant recognized him as disabled,
granted him an accommodation, and then willfully refused to
honor that accommodation—thereby unlawfully failing to
accommodate his disability and terminating his employment. In
the alternative, Plaintiff contends that Defendant discriminated
4 

against him “on account of his inability to perform a nonessential function of his position, which inability Defendant
knew to be caused by a physical or mental impairment within the
meaning of 21 V.S.A. § 495d.” Plaintiff argues that Defendant’s
conduct constitutes constructive discharge, failure to
accommodate Plaintiff’s disability, unlawful discrimination, and
wrongful discharge in violation of 21 V.S.A. § 495.
Count III alleges violation of public policy. Plaintiff
asserts that it is contrary to the public policy of Vermont for
employers to grant accommodations and then refuse to honor such
accommodations, resulting in constructive discharge.
Count IV asserts promissory estoppel. Plaintiff states that
he relied on Defendant’s accommodation procedures when he
completed all of the required forms and was granted an
exemption. Plaintiff argues that Defendant is estopped from
denying the accommodation it granted to Plaintiff. Plaintiff
also argues that in denying the accommodation that had
previously been granted, Defendant constructively discharged
him.
For all counts, Plaintiff alleges that he has suffered
economic loss, emotional distress, and other damages as a direct
and proximate consequence of Defendant’s actions.

5 

DOCUMENTS INCORPORATED BY REFERENCE
Generally, if the court is to consider material presented
to it that was not included in the complaint, the motion to
dismiss “shall be treated as one for summary judgment” and “all
parties shall be given reasonable opportunity to present all
material made pertinent to such a motion.” Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, “the
complaint is deemed to include any written instrument attached
to it as an exhibit or any statements or documents incorporated
in it by reference.” Id. (citing Int’l Audiotext Network, Inc.
v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)). “[W]hen
a plaintiff chooses not to attach to the complaint [] a
[document] [] which is integral to the complaint, the defendant
may produce the [document] when attacking the complaint for its
failure to state a claim, because plaintiff should not so easily
be allowed to escape the consequences of its own failure.”
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d
Cir. 1991).
Plaintiff Noel relies heavily on three documents which he
has failed to include with his Amended Complaint even though
they are integral to assessing the plausibility of his
allegations. The documents are: the April 8, 2016 announcement,
the July 19, 2016 letter, and the pharmacy manager job
description. Plaintiff relies on all three of these documents,
6 

and he is not prejudiced by the court’s recognition and
consideration of them. The Second Circuit has explained that
generally, the harm to the plaintiff when a court
considers material extraneous to a complaint is the
lack of notice that the material may be considered.
Cortec, 949 F.2d at 48. Accordingly, “[w]here
plaintiff has actual notice of all the information in
the movant’s papers and has relied upon these
documents in framing the complaint the necessity of
translating a Rule 12(b)(6) motion into one under Rule
56 is largely dissipated.” Id.
Chambers, 282 F.3d at 153.
Plaintiff certainly has notice of all three of these
documents. He personally received both the April 8, 2016
announcement and the July 19, 2016 letter. The court’s
consideration of the pharmacy job description is slightly more
complicated, as it is dated November 17, 2016—nearly one month
after Plaintiff asserts that he was constructively terminated.
However, this was essentially just a codification of the
immunization policy which was announced on April 8, 2016.
Further, Plaintiff’s Amended Complaint specifically refers to
the “alteration of his job description.” ECF 12, p. 2. Plaintiff
has not contended that the November 17, 2016 document is an
inaccurate job description, nor does he voice any concerns in
his opposition to the motion to dismiss about the court
considering any of the three documents Defendant submitted. See
ECF 24. To the contrary, Plaintiff acknowledges Defendant’s

7 

exhibits and uses them in his arguments opposing the motion to
dismiss.
Thus, the court will consider these three documents in
ruling on Defendant’s motions to dismiss.
DISCUSSION
I.

Motion to dismiss standard
Under Rule 12(b)(6), a complaint may be dismissed for

“failure to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
facial plausibility standard requires that a plaintiff plead
sufficient “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
The court must take a complaint’s factual allegations to be
true and must draw all reasonable inferences in the plaintiff’s
favor. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009);
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). However, the
court is not required to credit “mere conclusory statements” or
“[t]hreadbare recitals of the elements of a cause of action.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
8 

II.

ADA case law provides guidance in analyzing claims brought
under the VFEPA
The Vermont Fair Employment Practices Act (“VFEPA”) makes

it unlawful for an employer to discriminate against a “qualified
individual with a disability.” 21 V.S.A. § 495(a)(1); see Colby
v. Umbrella, Inc., 2008 VT 20, ¶ 9, 184 Vt. 1, 8, 955 A.2d 1082,
1088. A “qualified individual with a disability” is a person
“who is capable of performing the essential functions of the job
or jobs for which the individual is being considered with
reasonable accommodation to the disability.” § 495d(6)(A).
The VFEPA and the Americans with Disability Act (“ADA”) are
closely related. Defendant contends that “VFEPA is construed
consistently with the Americans with Disabilities Act, and,
therefore, it is proper to consider case law interpreting the
ADA when assessing claims brought under the analogous state
law.” ECF 15, p. 5-6 n.3. This court has previously highlighted
the similarities between the VFEPA and the ADA. See Mueller v.
Rutland Mental Health Servs., Inc, 2006 WL 2585101, at *2 (D.
Vt. Aug. 17, 2006) (“The standards and burdens of proof under
the VFEPA are identical to those under the ADA. Plaintiff's
state-law disability-discrimination claim survives or fails on
the same basis as his ADA claim.)” (citing Violette v. IBM
Corp., 962 F.Supp. 446, 449 (D. Vt. 1996)). In an unpublished
entry order, the Vermont Supreme Court explained that the VFEPA

9 

standards are “borrowed” from the ADA. See Vail v. Vt. Agency of
Transp., 2013 WL 2631328, at *5 (Vt. 2013).
While there are some differences between the VFEPA and the
ADA, the disability provisions of VFEPA “are patterned after §
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.” Terino
v. Woodstock Resort Corp., No. 2:15-CV-00143, 2017 WL 2804919,
at *6 (D. Vt. June 28, 2017) (citing State v. G.S. Blodgett Co.,
163 Vt. 175, 180 (1995)). Thus, “federal case law provides
guidance in construing them.” Connors v. Dartmouth Hitchcock
Med. Ctr., No. 2:10–CV–94, 2013 WL 3560946, at *5 (D. Vt. July
11, 2013).
III. Stevens v. Rite Aid
The Second Circuit recently issued an opinion in a case
with facts nearly identical to the case currently before the
court.2 In Stevens v. Rite Aid, Rite Aid revised its job
description to require pharmacists to hold a valid immunization
certificate. 851 F.3d 224, 227 (2d Cir. 2017), cert. denied, 138
S. Ct. 359 (2017). A pharmacist named Stevens received notice of
this new immunization policy and submitted a note from his
treating physician stating that he was “needle phobic and cannot

2

Except that the claims were brought under the ADA instead of
the VFEPA. Based on its discussion in Section II, the court
finds this case highly persuasive.
10 

administer immunization by injection.” Stevens, 851 F.3d at 227.
Stevens wrote a letter to his district manager
explaining that his trypanophobia causes him to
experience “lightheadedness, paleness, and a feeling
that I may faint” and that, as a result he “would
never even consider trying to become an immunizing
pharmacist.” Stevens also stated that he believed his
condition was a covered disability under the ADA, and
requested that Rite Aid provide him with a reasonable
accommodation.
Id. Rite Aid officials told Stevens that “the ADA did not apply
to trypanophobia, that Rite Aid was not required to accommodate
Stevens, and that Stevens would lose his job unless he
successfully completed immunization training.” Id. Stevens told
his district manager that he would not be able to complete the
training. Id. A Rite Aid official then gave Stevens a
termination later, “informing him that he was being terminated
for refusing to perform customer immunizations, which were an
essential function of his job.” Id. at 227-28.
Stevens brought claims under the ADA, asserting that Rite
Aid’s conduct constituted failure-to-accommodate, retaliation,
and wrongful termination. The Second Circuit disagreed. The
court explained that once Rite Aid made a business decision to
start requiring pharmacists to perform immunizations, this
became an essential part of the job of a pharmacist. Id. at 229.
Since Stevens’ disability made him unable to perform this
essential job task, he was not a qualified individual for that

11 

job. Id. at 231. Thus, no reasonable juror could conclude that
Rite Aid’s conduct constituted failure to accommodate,
discrimination, or wrongful discharge. Id.
There are two primary differences between the instant case
and Stevens. First, in the instant case, Walmart initially gave
Noel a letter stating that administering immunizations was not
an “essential” function of his job (even after the immunization
policy was enacted). See ECF 15-2, p. 3. Noel places a
considerable amount of weight on this letter in his Amended
Complaint and his pleadings. Noel has not submitted this letter
to the court, but it is incorporated by reference as discussed
above. Noel contends in his Amended Complaint that “[b]y letter
dated July 19, 2016, Defendant granted the accommodation
Plaintiff had requested, without qualification or condition. In
doing so, Defendant acknowledged that Plaintiff was capable of
performing the essential functions of his position, and that it
was reasonably accommodating his disability.” ECF 12, p. 2-3.
This is plainly not accurate. The July 19, 2016 letter
specifically stated that “the company reserves the right to
revisit this approval at any time to review the effectiveness of
the accommodation, its impact on business operations and coworkers, and/or if there is a material change in either your
situation or in the business needs of the facility.” ECF 15-2,

12 

p. 3. Thus, this letter has little value to Plaintiff in
attempting to distinguish his situation from that in Stevens.
Second, the Stevens case took place in New York and the
claims were brought under the ADA, not the VFEPA. Plaintiff
contends that this sets Stevens totally apart from the instant
case. However, as discussed above, the VFEPA standards are
derived from the ADA. Thus, even if Stevens does not completely
control the outcome of this case, it provides persuasive
guidance for how to rule on the present motion to dismiss.
IV.

Plaintiff is not a qualified individual with a disability
because administering immunizations is an essential job
function
A.

“Qualified individual” and “essential job function”
standards

In Stevens, the Second Circuit explained that “employers
may not discriminate against people with disabilities that do
not prevent job performance, but when a disability renders a
person unable to perform the essential functions of the job,
that disability renders him or her unqualified.” 851 F.3d at
229. The Second Circuit also explained that in evaluating
whether a particular job function is “essential,” courts should
consider “the employer’s judgment, written job descriptions, the
amount of time spent on the job performing the function, the
mention of the function in a collective bargaining agreement,
the work experience of past employees in the position, and the

13 

work experience of current employees in similar positions.” Id.
at 229 (citing McMillan v. City of New York, 711 F.3d 120, 126
(2d Cir. 2013)).
Courts “must give considerable deference to an employer’s
judgment regarding what functions are essential for service in a
particular position,” but “no one listed factor will be
dispositive.” Id. (citations and internal quotation marks
omitted). Courts must conduct “a fact-specific inquiry into both
the employer’s description of a job and how the job is actually
performed in practice.” Id. (citing McMillan, 711 F.3d at 126).
B.

Discussion

Administering immunizations is an essential function of
Walmart’s pharmacy manager position. Thus, Plaintiff is not a
qualified individual because his disability prevents him from
being able to perform this essential function.
Plaintiff argues that administering immunizations is not an
essential function, and largely bases his argument on the July
19, 2016 letter he received from Defendant. In that letter,
Defendant stated that administering immunizations “is not
considered to be an essential function of . . . [Plaintiff’s]
position.” ECF 12, p. 2. However, Defendant clearly qualified
this statement by explaining that “[t]his approval is subject to
further review in case your job description is revised in the
future” and that the company reserves the right to revisit the
14 

approval of Plaintiff’s accommodation at any time. ECF 15-2, p.
3.
In his Amended Complaint, Plaintiff specifically describes
the April 8, 2016 announcement which described administering
immunizations as a “minimum qualification” of his job. ECF 12,
p. 2. Plaintiff also states that he “sought exemption from this
alteration of his job description.” ECF 12, p. 2 (emphasis
added). However, despite referring to and relying on the
description of his job, Plaintiff failed to include with his
Amended Complaint a copy of the job description.
As discussed above, Defendant included a copy of the
pharmacy manager job description with its motion to dismiss, and
this document is incorporated in Plaintiff’s Amended Complaint
by reference. This job description, which was published on
November 17, 2016, states under the “Essential Functions”
heading that “[a]n individual must be able to successfully
perform the essential functions of this position with or without
a reasonable accommodation.” ECF 15-3, p. 1 (emphasis in
original). Listed as an essential function is: “Provides
comprehensive patient care to customers by . . . administering
immunizations[.]” ECF 15-3, p. 1. While this job description is
dated nearly a month after Plaintiff was informed that he would
be terminated if he did not comply with the new policy, it
clearly shows that Walmart has listed administering
15 

immunizations as an essential function of the pharmacy manager
job.
In Stevens, the Second Circuit explained that written job
descriptions are helpful in determining whether a task is an
essential job function. See 851 F.3d at 229. Here, we
essentially have the April 8, 2016 announcement and the November
17, 2016 job description (which both indicate that administering
immunizations is an essential job function) pitted against the
July 19, 2016 letter (which indicates that administering
immunizations is not an essential job function). While this
could ordinarily be viewed as a factual dispute that would need
to be sorted out through discovery and/or a trial, the court can
make a decision at this stage for the following reasons.
First, the July 19, 2016 letter was a conditional
determination—it stated that it was subject to revision in the
future. See ECF 15-2, p. 3. Second, the November 17, 2016 job
description came later in time than the July 19, 2016 letter,
and therefore even if administering immunizations was not
considered an essential job function as of July 2016, it
certainly was as of November 2016. See ECF 15-3, p. 1. Third, as
explained in Stevens, the court must give “considerable
deference to an employer’s judgment regarding what functions are
essential for service in a particular position.” Stevens, 851
F.3d at 229 (citation omitted). Walmart has listed administering
16 

immunizations as an essential function in the pharmacy manager
job description and vigorously asserts its essentiality in its
motion to dismiss. Finally, in Stevens, nearly this exact same
factual situation occurred—Rite Aid revised its job description
to state that administering immunizations was an essential
function. The Second Circuit held that the evidence, viewed in
the light most favorable to Stevens, compelled a finding that
administering immunizations was an essential job function. See
Stevens, 851 F.3d at 229.
A couple of differences exist between the present case and
Stevens that are relevant to the essential job function
determination. First, Stevens proceeded all the way through a
trial, with evidence being presented by both sides. In the
instant case, we are obviously at the motion to dismiss stage.
However, the court is comfortable finding that the documents
Plaintiff has incorporated in his Amended Complaint by reference
compel a finding that administering immunizations was an
essential function of his job. The second difference is that in
Stevens, there was no letter such as the July 19, 2016 letter
here conditionally stating that administering immunizations was
not an essential function. Again, while this ordinarily could be
a disputed question of fact, the court is confident that it can
find that there is no reasonable dispute here. The July 19, 2016
letter was a mere conditional exemption, explicitly subject to
17 

revision at any time. By contrast, Walmart currently asserts
that administering immunizations is an essential function, and
it has previously indicated so in its company-wide announcement
on April 8, 2016 and the company-wide job description on
November 17, 2016.
Thus, the court concludes that the documents Plaintiff
incorporated in his Amended Complaint by reference compel a
finding that administering immunizations was an essential
function. As Plaintiff is unable to perform this essential
function, he is not a qualified individual for the pharmacy
manager job. See Stevens, 851 F.3d at 229.
V.

Plaintiff’s Wrongful Discharge cause of action (Count II)
is dismissed for failure to state a claim
Plaintiff is not a qualified individual with a disability

because he is unable to perform the essential job function of
administering immunizations. As a result, Plaintiff has failed
to state necessary elements for his failure to accommodate and
disability discrimination claims. Since Plaintiff’s wrongful and
constructive discharge claims are predicated on the success of
his failure to accommodate and discrimination claims, all claims
in Count II must be dismissed.
A.

Plaintiff’s assertions and relevant legal standards

In Count II, under the heading of “Wrongful Discharge,”
Plaintiff alleges that “Defendant’s conduct constitutes

18 

constructive discharge, failure to accommodate Plaintiff’s
disability, unlawful discrimination and wrongful discharge in
violation of 21 V.S.A. § 495.” ECF 12, p. 4. It is a bit unclear
what exactly Plaintiff means to assert here, but upon
clarification in Plaintiff’s response to Defendant’s motion to
dismiss, it appears that plaintiff is asserting that Defendant
“either failed reasonably to accommodate what it recognized to
be a disability, or discriminated against Plaintiff on account
of that disability.” ECF 24, p. 5. Logically, Plaintiff is then
asserting that this failure to accommodate and/or discrimination
led to his wrongful and/or constructive discharge.
1.

Failure to accommodate standard

“To make [out] a prima facie failure to accommodate claim,
Plaintiff must show that (1) Plaintiff is a person with a
disability under the meaning of the VFEPA; (2) Plaintiff's
employer had notice of [his] disability; (3) with reasonable
accommodation, Plaintiff could perform the essential functions
of her position; and (4) the employer refused to make such
accommodations.” Connors v. Dartmouth Hitchcock Med. Ctr., 12 F.
Supp. 3d 688, 699–700 (D. Vt. 2014) (citing McBride v. BIC
Consumer Products Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir.
2009)). The Second Circuit has explained that
[i]t is important to bear in mind that the issue is
whether a reasonable accommodation would have enabled
[Plaintiff] to perform that essential function, not
19 

whether [] he could perform his other duties as a
pharmacist. “A reasonable accommodation can never
involve the elimination of an essential function of a
job.” Shannon [v. New York Transit Auth.], 332 F.3d
[95,] 100 [(2d Cir. 2003)].
Stevens, 851 F.3d at 230.
2.

Disability discrimination standard

Disability discrimination claims under the VFEPA are
subject to the burden-shifting analysis established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Boulton v. CLD Consulting Eng’rs, Inc., 2003 VT 72,
¶ 15, 175 Vt. 413, 421, 834 A.2d 37, 44. Pursuant to this
framework, “[a]t the outset, the plaintiff has the burden of
establishing a prima facie case of employment discrimination.”
Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 24, 176 Vt. 356,
366, 848 A.2d 310, 320. To establish a prima facie case of
disability discrimination, the plaintiff must show that he is a
qualified disabled individual, that he suffered an adverse
employment action, and the action occurred under circumstances
that give rise to an inference of discrimination. Ross v. Times
Mirror, Inc., 665 A.2d 580, 586-87 (Vt. 1995).
If the plaintiff is able to present a prima facie case of
discrimination, the burden shifts to the defendant to present a
legitimate, non-discriminatory reason for the adverse employment
action. This burden is one of production, not persuasion.
Boulton, 2003 VT 72 ¶ 15. If the defendant meets this burden,
20 

the burden shifts back to the plaintiff to prove by a
preponderance of the evidence that the legitimate reasons given
are merely a pretext for discrimination. Id.
B.

Discussion

As discussed in Section IV above, the documents Plaintiff
has incorporated by reference in his Amended Complaint compel a
finding that administering immunizations is an essential
function of the pharmacy manager job. Plaintiff is unable to
perform this essential function and therefore has failed to
plead plausible failure-to-accommodate and disability
discrimination claims.
To plead a plausible failure to accommodate claim,
Plaintiff must show that “with reasonable accommodation,
Plaintiff could perform the essential functions of her
position.” Connors, 12 F. Supp. at 699–700 (citing McBride, 583
F.3d at 97. It is important to note that “[a] reasonable
accommodation can never involve the elimination of an essential
function of a job.” Stevens, 851 F.3d at 230 (citation omitted).
Plaintiff has failed to allege that there was a reasonable
accommodation available that would have allowed him to perform
the essential function of administering immunizations. See
Stevens, 851 F.3d at 230; Vail, 2013 WL 2631328, at *8 (citing
McBride v. BIC Consumer Prod. Mfg. Co., Inc., 583 F.3d 92, 97
(2d Cir. 2009) (“The plaintiff bears the burdens of both
21 

production and persuasion as to the existence of some
accommodation that would allow her to perform the essential
functions of [his] employment.”). Instead, Plaintiff fully
admits that there is no scenario in which he would be able to
perform this function. See ECF 12, p. 2. An accommodation is not
reasonable if it would eliminate an essential job function. See
Mueller, 2006 WL 2485101, at *3 (“reasonable accommodation []
does not mean elimination of any of the job’s essential
functions.”) (citation and quotation marks omitted). Since there
is no accommodation that would lead to Plaintiff being able to
perform this essential function, Plaintiff has failed to state a
plausible failure to accommodate claim.
Plaintiff’s disability discrimination claim also fails.
Being a qualified individual is an essential element of a
disability discrimination claim. See Ross, 665 A.2d at 586-87.
Since Plaintiff is not a qualified individual for the pharmacy
manager position, he is unable to state a plausible disability
discrimination claim. Further, to the extent Plaintiff means to
assert a discrimination claim along the lines of disparate
treatment, he has wholly failed to allege such a claim. The
essential job function of administering immunizations was a
company-wide policy, as demonstrated by the April 8, 2016
announcement and the November 17, 2016 job description.

22 

Thus, Plaintiff has failed to state plausible failure-toaccommodate and discrimination claims. As any potential
wrongful/constructive discharge claim is predicated on
Plaintiff’s failure-to-accommodate and discrimination claims,
Plaintiff does not state a plausible wrongful or constructive
discharge claim. As a result, all claims in Count II of
Plaintiff’s Amended Complaint are dismissed for failure to state
a claim.
VI.

Plaintiff’s Violation of Public Policy cause of action
(Count III) is dismissed for failure to state a claim
Plaintiff’s violation of public policy claim is easily

dismissed upon review of the July 19, 2016 letter. Plaintiff’s
only assertion in support of this claim is that “[i]t is
contrary to the public policy of Vermont for employers to grant
accommodations and then refuse to honor such accommodations,
resulting in constructive discharge.” ECF 12, p. 5. Plaintiff
has wholly failed to address or even mention that the July 19,
2016 expressly states that Defendant reserves the right to
revisit the accommodation at any time in the future. Plaintiff
was fully put on notice that this was not a permanent, set in
stone accommodation. Thus, Count III of Plaintiff’s Amended
Complaint is dismissed for failure to state a claim.

23 

VII. Plaintiff’s Breach of Contract and Promissory Estoppel
causes of action (Counts I and IV) are dismissed for
failure to state a claim
Plaintiff’s remaining claims for breach of contract (Count
I) and promissory estoppel (Count IV) are also dismissed for
failure to state a claim.3 There was no new contract formed by
the July 19, 2016 letter, as there was no promise given to
Plaintiff that he would never have to administer immunizations
or that he could not be terminated in the future for failing to
administer immunizations. Further, Plaintiff has no grounds to
assert a promissory estoppel claim given the fact that he was
fully informed that the accommodation he received was subject to
change at any time.
The July 19, 2016 letter constituted a temporary exemption—
it specifically states that “the company reserves the right to
revisit this approval at any time.” ECF 15-2, p. 3. No promise
of a permanent accommodation or exemption was given. Thus, there
was no new contract formed by this letter. Even if there was a
new contract formed by this letter, Defendant did not breach it
given that Defendant explicitly reserved the right to alter the

3

Defendant asserts that these claims are based on the common law
and are entirely duplicative of the rights and remedies set
forth in the VFEPA. See ECF 15, p. 13-15. Defendant argues that
these claims are therefore preempted by the VFEPA. See id. The
court does not need to analyze this preemption issue because the
claims so clearly fail on the merits.
24 

accommodation in the future. Thus, Plaintiff has failed to state
a plausible claim for breach of contract.
With respect to the promissory estoppel claim, Plaintiff
claims that he relied on Defendant’s established procedure for
securing accommodations, completed all of the required forms,
and was granted an exemption from the immunization policy. See
ECF 12, p. 5. Plaintiff alleges that “Defendant is estopped from
denying the accommodation it granted to Plaintiff” and that
“[i]n denying the accommodation Defendant granted to Plaintiff,
Defendant constructively discharged him.” Id. When Defendant
granted Plaintiff the accommodation in the July 19, 2016 letter,
Defendant clearly and unequivocally stated that the
accommodation was subject to change at any time in the future.
See ECF 15-2, p. 3. Thus, Plaintiff never received anything
along the lines of a permanent accommodation that would justify
the sort of reliance on which Plaintiff bases his promissory
estoppel claim. Plaintiff has therefore failed to state a
plausible promissory estoppel claim.
Plaintiff’s claims in Counts I and IV are dismissed for
failure to state a claim.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss
the Amended Complaint (ECF 15) is granted. Plaintiff has already
amended his Complaint in response to Defendant’s original motion
25 

to dismiss, and further amendment would be futile. Thus, all
counts in Plaintiff’s Amended Complaint are dismissed without
leave to amend.
DATED at Burlington, in the District of Vermont, this 20th
day of March, 2018.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

26