Jobber v. Plumrose USA, Inc.
OPINION AND ORDER granting 37 Motion for Summary Judgment. Signed by Judge William K. Sessions III on 6/7/2021. (law)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
PLUMROSE USA, INC.,
Case No. 2:19-cv-169
OPINION AND ORDER
Plaintiff Scott Jobber brings this action against his
former employer, Defendant Plumrose USA, Inc. (“Plumrose”),
claiming unlawful retaliation in violation of the Vermont Fair
Employment Practices Act (“VFEPA”), and termination from his
employment in breach of the Plumrose employee handbook.
before the Court is Plumrose’s motion for summary judgment.
the reasons set forth below, the motion for summary judgment is
Plumrose owns and operates six meat manufacturing
facilities, including a facility in Swanton, Vermont where
Jobber was previously employed.
The Swanton facility had
approximately 25-40 employees during the time period relevant to
Jobber was hired by Plumrose in May 2012 as the
facility’s Maintenance Supervisor.
He was later promoted to
Plant Manager, a position he held for several years prior to his
termination in 2019.
While there is a dispute of fact about the
scope of his responsibilities as Plant Manager, including
whether he was responsible for the work culture at the plant, it
is undisputed that Mr. Jobber’s role included ensuring proper
In 2017, Plumrose was acquired by JBS.
acquisition, the company began to replace its corporate
leadership team, headquartered in Chicago, Illinois.
around March 2018, Steve Steiert was hired as Plumrose’s Head of
Operations and assumed oversight of six manufacturing
facilities, including the Swanton plant.
In or around September
2018, Jessica Uecker was hired as Plumrose’s Head of Human
Her duties included oversight of human resources
functions at Swanton.
Tonya Haggard was hired in or around
January 2019, assuming the position of Head of Environmental,
Health and Safety for Plumrose.
Ms. Haggard was tasked with
ensuring the company’s facilities were in compliance with
certain regulatory requirements, including OSHA mandates and
other regulations related to health and safety.
In addition to these changes at the corporate office, a
human resources supervisor position was created for the Swanton
Meredith Hansen was hired on or around October or
November 2018 to assume the role of Human Resources Manager at
Because the facility was so small, Ms. Hansen also
assumed responsibility for managing safety issues at the plant.
After the JBS acquisition, Mr. Jobber was sent for
leadership training at a JBS facility in Greeley, Colorado.
addition, Mr. Steiert worked with Mr. Jobber in one-on-one
meetings and during daily and weekly phone calls.
testified in his deposition that he believed Mr. Jobber had
moved up too quickly within the organization, and did not have
sufficient experience to work at the supervisory level.
Steiert also believed that Mr. Jobber was not well-suited for
the Plant Manager role.
Plumrose maintained an employee handbook that was provided
to salaried employees such as Mr. Jobber.
contained the general employment policies and procedures of the
A fundamental dispute in this case is whether the
employee handbook created a contract between JBS and its
employees, particularly with respect to the company’s
The handbook stated, in capitalized,
bold, and underlined type: “THE HANDBOOK CONTENTS DO NOT CREATE
A CONTRACT BETWEEN JBS AND ANY EMPLOYEE.”
Irrespective of the
contract question, Mr. Jobber admits that he was an at-will
employee who could be terminated at any time, with or without
cause and with or without notice.
The employee handbook contained an anti-harassment policy
which prohibited “all forms of discrimination and harassment,
including but not limited to, sexual harassment.”
advised employees that they should report all instances of
harassment to management, and stated that “supervisors and
management are expected to take immediate action to deal
promptly with situations involving harassment.”
The policy also
prohibited retaliation against employees who complain of sexual
It is undisputed that all complaints of sexual
harassment at Plumrose are taken seriously and investigated.
While Plumrose contends that it was Mr. Jobber’s responsibility
to administer and enforce the anti-harassment policy at the
Swanton plant, Mr. Jobber submits that the handbook placed that
responsibility on all employees.
The employee handbook also contained a discipline policy,
which provided for various levels of discipline depending on the
Those actions included: a verbal warning; a
written warning; a suspension or final warning; and discharge.
The policy stated that it offered “progressive discipline for
routine issues; however, each situation will be judged based on
its own particular merits.”
The policy further explained that
the disciplinary procedure was for guidance only, that any steps
in the procedure could be skipped at the discretion of
management, and that “if the circumstances warrant, an employee
may be terminated on the first offense.”
Mr. Jobber conceded in
his deposition that the company did not have to follow the
progressive discipline steps.
His summary judgment papers,
however, cite Mr. Steiert’s testimony that the company did not
“typically” terminate without a suspension and investigation.
ECF No. 44-7 at 15 (cited at ECF No. 44-2 at 27).
In or around December 2018 and January 2019, Mr. Jobber was
on vacation and Tom Kleckner, Plumrose’s Business Development
Director, was overseeing the Swanton facility in his absence.
After Mr. Jobber returned from vacation, Mr. Kleckner advised
him that Ms. Hansen, the Human Resources Manager, had used
inappropriate language at the facility.
Mr. Jobber was also
told that Ms. Hansen had engaged in inappropriate behavior
toward Production Supervisor Steve Martin.
Mr. Kleckner advised
Mr. Jobber to speak with Ms. Hansen about her behavior.
Mr. Jobber initiated a discussion with Ms. Hansen on
January 7, 2019.
He also emailed Ms. Uecker, head of Plumrose’s
Human Resources Department, to inform her about Ms. Hansen.
Uecker then traveled to Swanton to conduct an investigation.
The investigation revealed other inappropriate behavior by Ms.
Hansen, including texting hourly employees, asking them to watch
movies outside of work hours, engaging in innuendo, and
snapchatting pictures to employees.
The investigation also
found that Production Supervisor Martin had been engaged in
inappropriate and unprofessional conduct.
allegedly included using unprofessional language, inviting other
employees to get drunk after work, smoking marijuana with hourly
employees in his garage, and making racist jokes.
There is a factual dispute about whether this sort
misconduct pre-dated Ms. Hansen’s arrival at the Swanton plant,
and whether the record supports Plumrose’s assertion that
inappropriate conduct by Ms. Hansen and Mr. Martin pre-dated Mr.
Jobber’s vacation in January 2019.
Ms. Uecker concluded that
this sort of behavior was an ongoing part of the culture at the
Ultimately, Ms. Hansen was issued a written
warning for unprofessional behavior, lack of leadership and lack
Mr. Martin was given a similar written
While Mr. Jobber wrote the warning to Mr. Martin, he
testified that it was based upon an investigation in which he
did not participate, and on conduct of which he was not aware.
Mr. Jobber himself also received a written warning.
warning was a result of the January 2019 investigation, and
cited lack of leadership and accountability.
Mr. Jobber now
contends that he was punished for the misdeeds of others.
Mr. Jobber was counseled in January 2019 by Mr. Steiert and
Ms. Uecker as to his responsibility for the culture and
expectations at the Swanton facility.
He was also advised that
he needed to be more aware of what was happening at the plant.
Specifically, Mr. Steiert told him, “you can’t have your head
under the sand, you’re the plant manager, you’re responsible.”
Mr. Steiert and Ms. Uecker told Mr. Jobber to reach out to them
in any future situations where he needed assistance.
In March 2019, the Swanton facility received legal papers
containing allegations by a former temporary employee, Ashley
Ms. Tremblay claimed that several hourly employees
had sexually harassed her.
She also claimed sexual harassment
by her supervisor, Steve Martin.
After Ms. Hansen showed the
legal papers to Mr. Martin, he left the Swanton facility and
tendered his resignation.
Ms. Tremblay’s allegations also included a claim that Mr.
Jobber had terminated her temporary assignment because, in his
words, she had become a “distraction” at the Swanton facility.
Several male employees had expressed a desire to move their work
areas next to Ms. Tremblay’s, and Mr. Jobber suspected that they
might be interested in her sexually.
Mr. Jobber admits that he
told Ms. Tremblay she should not return because she was becoming
a “distraction,” and concedes that his statement was a “poor
choice of words.”
Plumrose executives believed that Mr. Jobber’s handling of
Ms. Tremblay’s situation was unacceptable.
Plumrose faulted Mr. Jobber for removing Ms. Tremblay instead of
addressing the conduct of her male co-workers.
submits that Mr. Jobber should have known about Ms. Tremblay’s
situation in relation to her co-workers given the small size of
the Swanton plant.
Mr. Jobber argues that the Tremblay incident is not
material to this case.
He claims that at the time of his
firing, Plumrose informed him that the reason for his
termination was an incident involving a trash compactor.
Jobber also contends that he relied on the judgment and
characterization of the situation provided to him by Ms.
Tremblay’s direct supervisor, Kelly Domina.
In May 2019, Mr. Jobber received a call from the wife of an
hourly employee, Mark McLaughlin, who stated that Mr. McLaughlin
was having an affair with Human Resources Manager Hansen.
Jobber immediately advised Ms. Uecker at Plumrose corporate
headquarters about the claim.
Ms. Uecker and Ms. Haggard then
traveled to Swanton to investigate the allegation.
As part of that investigation, Ms. Uecker reviewed
screenshots of text messages she had received from Mr.
The text messages consisted of
communications between Mr. McLaughlin and Ms. Hansen.
Uecker also interviewed both Mr. McLaughlin and Ms. Hansen, each
of whom admitted exchanging inappropriate and flirtatious texts
with the other.
Mr. McLaughlin was placed on suspension and
Ms. Hansen was also placed on suspension, and
sent Ms. Uecker a resignation email before she could be
There is no dispute that Ms. Hansen was going to be
terminated for her behavior.
In her resignation email to Ms. Uecker, Ms. Hansen
complained about Mr. Jobber’s behavior at the Swanton plant.
That behavior allegedly included inappropriate sexual remarks.
Mr. Jobber denies making such remarks, and contends that a
reasonable juror could infer that Ms. Hansen was retaliating
against him for reporting her to management.
Ms. Uecker has stated in an affidavit that she had no
reason to doubt the credibility of Ms. Hansen’s reports.
22, 2019, she and Ms. Haggard held a follow-up meeting with Ms.
During that meeting, Ms. Hansen was critical of Mr.
Jobber’s leadership at the Swanton facility, explaining that
employees were afraid to talk to him out of fear that he would
scold or retaliate against them.
Ms. Hansen also reported that
Mr. Jobber stated openly that he did not want to interact with
employees, and would not go onto the production floor.
Jobber also allegedly stated that after Ms. Uecker’s January
2019 investigation, he would never report to her again.
reportedly referred to Ms. Uecker as an “evil fucking bitch,”
and said that “we will never fucking call her again.”
Ms. Uecker and Ms. Haggard interviewed two other witnesses
in addition to Ms. Hansen, each of whom allegedly corroborated
Ms. Hansen’s reports of verbal abuse and failed leadership.
of the witnesses also corroborated Ms. Hansen’s report that Mr.
Jobber had made sexually inappropriate comments.
concedes that Ms. Hansen raised these issues with Ms. Uecker and
Ms. Haggard, but denies the veracity of her claims and disputes
whether her criticisms were corroborated.
During that same May 22, 2019 meeting, Ms. Hansen reported
that an hourly employee had climbed into a trash compactor
without locking it out.
The lock out is reportedly required by
OSHA’s lockout/tagout requirements.
In his deposition, Mr.
Jobber testified that it was Ms. Hansen who ordered the employee
to act in violation of the OSHA requirements, and that she
concealed the incident for months.
After completing her follow-up investigation, Ms. Uecker
advised Mr. Steiert of the reports regarding Mr. Jobber’s
Mr. Steiert then travelled to Swanton himself.
May 23, 2019, he held a meeting with Mr. Jobber and informed him
that he was being terminated.
Plumrose contends that the firing
related solely to ongoing leadership issues that became apparent
during the various investigations between January 2019 and May
Mr. Jobber contends that Ms. Uecker and Mr. Steiert had
decided to fire him prior to the May 2019 investigation.
support, he references Mr. Steiert’s notes from May 19, 2019,
three days prior to Ms. Uecker’s arrival in Swanton.
notes allegedly reflect Ms. Uecker’s statement that, in addition
to firing Mr. McLaughlin and Ms. Hansen, Plumrose should fire
Mr. Jobber as well, and that she had obtained approval from
Plumrose corporate to do so.
ECF No. 44-15 at 1.
has testified that the decision to fire Mr. Jobber was not made
until May 22, 2019, ECF No. 38-17 at 56, and that it was
“ultimately” his decision whether to fire Mr. Jobber.
45-3 at 3.
After the exit interview, Mr. Steiert drafted a memorandum
summarizing the substance of his exit interview with Mr. Jobber.
That memorandum states, in part, that Mr. Steiert informed
Jobber: “we had found serious safety & training gaps as well as
unprofessional behavior including employees entering a compactor
without locking it out.
Additionally, I reminded [Jobber] that
we found some of the same issues in January and it continued to
I told [Jobber] that we had several management
terminations for unprofessional behavior and a lawsuit as well.”
ECF No. 44-8 at 1.
Those latter events presumably included Mr.
McLaughlin’s termination, Ms. Hansen’s resignation, and the
According to Mr. Jobber’s summary judgment filings, the exit
interview memorandum cited only the trash compactor incident as
the reason for termination. ECF No. 44-2 at 26 (response to
Defendants’ Statement of Undisputed Material Facts paragraph
The Complaint in this case asserts three legal claims.
first is for retaliatory discharge, alleging that Mr. Jobber was
fired for reporting unprofessional behavior, including sexual
harassment, at the Swanton plant.
Count Two of the Complaint
alleges breach of contract in the form of a retaliatory
discharge, claiming that the employee handbook barred Plumrose
from retaliating against employees who reported sexual
harassment and other unprofessional behavior.
alleges breach of contract for failure to comply with the
disciplinary process set forth in the employee handbook.
Plumrose now moves for summary judgment on all three causes of
Summary Judgment Standard
Pursuant to Rule 56 of the Federal Rules of Civil
Procedure, summary judgment is appropriate “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.”
Civ. P. 56(a).
The moving party bears the initial burden of
pointing to evidence in the record, “including depositions,
documents ... [and] affidavits or declarations,” Fed. R. Civ. P.
56(c)(1)(A), “which it believes demonstrate[s] the absence of a
61). The Court finds no disputed issues of fact with respect to
the contents of the memorandum, as it speaks for itself.
genuine issue of material fact,” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
The moving party may support an assertion
that there is no genuine dispute of a particular fact by
“showing ... that [the] adverse party cannot produce admissible
evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(B).
If the moving party fulfills its burden, the nonmoving
party must demonstrate a genuine issue of material fact.
R. Civ. P. 56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986).
A genuine dispute of material fact exists
when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
Courts must “draw all rational inferences in the non-movant's
Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d
Cir. 2014) (citing Anderson, 477 U.S. at 248).
At the summary
judgment stage “the judge must ask ... not whether ... the
evidence unmistakably favors one side or the other but whether a
fair-minded jury could return a verdict for the plaintiff on the
Anderson, 477 U.S. at 252.
of credibility and choices between conflicting versions of the
events are matters for the jury, not for the court on summary
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d
Cir. 2005); see also Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d
614, 619 (2d Cir. 1996) (“In applying th[e] [summary judgment]
standard, the court should not weigh evidence or assess the
credibility of witnesses.”).
VFEPA Claim of Retaliation
Mr. Jobber claims protection from retaliation under the
Vermont Fair Employment Practices Act.
The VFEPA is an anti-
discrimination statute “patterned after Title VII of the
[federal] Civil Rights Act.”
Lavalley v. E.B. & A.C. Whiting
Co., 166 Vt. 205, 209, 692 A.2d 367, 369 (1997).
the VFEPA’s burdens and standards of proof, the Vermont Supreme
Court follows federal case law.
See Hodgdon v. Mt. Mansfield
Co., 160 Vt. 150, 161, 624 A.2d 1122, 1128 (1992).
Supreme Court has noted, however, that “we may depart from
federal interpretations . . .
employment practices law.”
when we construe our own fair
Payne v. U.S. Airways, Inc., 2009 VT
90, ¶ 11, 186 Vt. 458, 464, 987 A.2d 944, 949.
To assert a viable retaliation claim under the VFEPA, “a
plaintiff bears the initial burden of proving that [he] was
engaged in a protected activity, that the employer was aware of
that activity, that [he] suffered an adverse employment action,
and that there was a causal connection between the protected
activity and the adverse employment action.”
Dartmouth Hitchcock Med. Ctr., 12 F. Supp. 3d 688, 699 (D. Vt.
2014) (citing Gallipo v. City of Rutland, 2005 VT 83, 178 Vt.
244, 882 A.2d 1177).
Once a prima facie case is established,
“the burden shifts to the employer to articulate some
legitimate, nondiscriminatory reason for the employee’s
Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 26,
176 Vt. 356, 848 A.2d 310 (quotation omitted).
If the employer
produces evidence to satisfy its burden, the presumption of
discrimination disappears, and the plaintiff has the burden to
prove that the employer’s justification is a pretext for
Id. ¶ 27.
To show pretext, a plaintiff must
rebut “the proffered reason with facts from which a factfinder
could reasonably conclude that the proffered reasons are
unworthy of credence.”
Gauthier v. Keurig Green Mountain, Inc.,
2015 VT 108, ¶ 33, 200 Vt. 125, 129 A.3d 108.
Mr. Jobber claims that he was fired for reporting Ms.
Hansen to Ms. Uecker, and that the act of reporting was a
Plumrose contends that reporting Ms. Hansen
was part of Mr. Jobber’s job as Plant Manager, and was not a
protected civil rights activity under the VFEPA.
further argues that even assuming protected activity, Mr. Jobber
was terminated for other, legitimate reasons and thus cannot
show the required causal connection or pretext.
Plumrose cites federal civil rights law for the proposition
that “[t] o the extent an employee is required as part of her job
duties to report or investigate other employees’ complaints of
discrimination, such reporting or investigating by itself is not
a protected activity . . . .”
Littlejohn v. City of New York,
795 F.3d 297, 318 (2d Cir. 2015).
between “merely reporting or investigating other employees’
complaints of discrimination, which simply fulfills a personnel
manager’s daily duties, and communicating to the employer the
manager’s own ‘belief that the employer has engaged in ... a
form of employment discrimination,’ which ‘virtually always
constitutes’ opposition notwithstanding the employee’s
underlying job responsibilities.”
Id. at 318 (quoting Crawford
v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276,
(2009)); see also Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1082
(9th Cir. 1996) (holding that an “employee does not receive
special protection under Title VII simply because the employee
handles discrimination complaints”).
Here, it is undisputed that Mr. Jobber was counseled in
January 2019 by Mr. Steiert and Ms. Uecker to reach out to them
if he needed assistance with personnel matters.
of the alleged affair between Ms. Hansen and Mr. McLaughlin in
May 2019, he did just that.
Mr. Jobber was not expressing
displeasure with his employer, was not forwarding grievances on
behalf of other employees, and did not contend that he himself
was being subjected to discrimination or harassment.
in keeping with the mandate from the employee handbook that
supervisors take swift action in response to suspected
harassment, and consistent with his directions from corporate
management, Mr. Jobber reported what he knew to corporate
Such reporting is not the sort of activity that
is protected under the VFEPA.
Cf. Lewis-Smith v. W. Kentucky
Univ., 85 F. Supp. 3d 885, 909 (W.D. Ky. 2015) (“In order for
employees in human resources positions to claim retaliation they
need to first clearly establish that they were engaged in
protected activities other than the general work involved in
their employment.”)(citing McKenzie v. Renberg’s Inc., 94 F.3d
1478, 1486–87 (10th Cir. 1996)).
Accordingly, Mr. Jobber has
failed to satisfy the first requirement for a VFEPA claim –
engagement in a protected activity – as a matter of law.
Causation and Pretext
Plumrose argues in the alternative that, even assuming
protected activity, there are no genuine issues of material fact
with respect to questions of causation and pretext.
claims that he was a victim of retaliation from both Ms. Hansen
and Ms. Uecker.
With respect to Ms. Hansen, he contends that
her post-resignation email was an effort to “accus[e] the person
who was instrumental in her firing.”
ECF No. 44 at 25.
Ms. Uecker, Mr. Jobber argues that she was too “savvy” to
believe Ms. Hansen’s complaints about him, and that “[t]he far
more plausible explanation is that Ms. Uecker utilized facially
unreliable statements from Ms. Hansen to deflect blame away from
herself for having hired the sexual predator Ms. Hansen in the
Id. at 26.
It is undisputed that Ms. Hansen had no power to either
discipline or terminate Mr. Jobber.
The causation and pretext
analyses therefore turn to Ms. Uecker and Mr. Steiert, as they
were the Plumrose executives most closely associated with Mr.
Mr. Jobber contends, without any record
support, that Ms. Uecker was acting in retaliation for his
reports of misconduct by Ms. Hansen.
Plumrose denies this
speculative assertion, and submits instead that Mr. Jobber was
warned, counseled, and then terminated by Mr. Steiert for poor
The undisputed record at summary judgment displays mounting
evidence of Mr. Jobber’s poor job performance.
In January 2019,
he was warned about a lack of leadership and accountability.
Though he claims the warning was unfair, it nonetheless
reflected the opinion of Plumrose management with respect to the
unacceptable work culture, and the role of the Plant Manager at
the Swanton facility.
In March 2019, when it was revealed that
Mr. Jobber had removed Ms. Tremblay from her position because,
in his words, she was a “distraction,” Plumrose corporate was
Finally, in May 2019, Ms. Hansen’s email to
Ms. Uecker was highly critical of Mr. Jobber’s management style,
reporting that plant employees were afraid of him, that he
refused to go onto the production floor, and that he had made
sexually inappropriate remarks.
Though Mr. Jobber denies Ms.
Hansen’s allegations and any alleged corroboration, Ms. Uecker
reports receiving corroboration from more than one witness.
Mr. Steiert’s exit interview memorandum set forth several
grounds for Mr. Jobber’s termination, including: safety and
training issues; unprofessional behavior, which included the
trash compactor incident; terminations of other managers at
Swanton for unprofessional behavior; and the filing of a lawsuit
The memo also stated that some of the
problems identified in the January 2019 warning had continued.
In his deposition, Mr. Steiert cited inappropriate behavior at
the plant as a primary cause of Mr. Jobber’s termination, ECF
No. 44-7 at 10, while Ms. Uecker’s testimony identified poor
leadership, ECF No. 44-6 at 13-14.
Mr. Jobber now contends that “the only reason identified in
the exit interview memo drafted by Steve Steiert was the trash
compactor incident involving a particular employee.”
ECF No. 44
That statement does not square with the text of the
Steiert memo, which Mr. Jobber has attached to his summary
judgment opposition as an exhibit.
ECF No. 44-8 at 1.
Mr. Jobber argues that summary judgment should not be granted
where there are “‘weaknesses, implausibilities, inconsistencies,
or contradictions in the employer’s proffered, legitimate, nonretaliatory reason for its action,” and viewing the facts in his
favor, he has failed to establish such flaws in this case.
No. 44 at 24 (quoting Kwan v. Andalex Grp., LLC, 737 F.3d 834,
846 (2d Cir. 2013)).
The record of warnings and discipline, the
exit memorandum, and the deposition testimony each support
Plumrose’s argument that Mr. Jobber’s termination was not
motivated by, or a pretext for, retaliatory intent.
Mr. Jobber also argues that the decision to terminate him
was made prior to Ms. Uecker’s May 2019 investigation, and that
the investigation itself was pretextual.
testimony made clear, however, that he bore the ultimate
responsibility for firing Mr. Jobber, and that he did not make
the decision until May 22, 2019.
Whether the decision to terminate Mr. Jobber was correct,
or was fully justified by the circumstances, is not before the
Nor is the question, raised by Mr. Jobber, of whether
the allegations against him were credible or corroborated.
question instead is what motivated his employer.
v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir.
2006) (courts “are decidedly not interested in the truth of the
allegations against plaintiff. [They] are interested in what
‘motivated the employer’; the factual validity of the underlying
imputation against the employee is not at issue.”) (quoting
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 716 (1983) (emphasis in McPherson)).
While Mr. Jobber argues that Plumrose was motivated to
retaliate against him, he offers only conjecture to support his
claim, while the record evidence shows a pattern of questionable
performance underlying his eventual termination.
even assuming a prima facie showing that he was engaged in
protected activity when he reported to Ms. Uecker, Mr. Jobber
cannot show either that such activity was a cause of his
termination, or that his termination was pretextual.
the undisputed evidence supports Plumrose’s contention that Mr.
Jobber was fired for legitimate, non-retaliatory reasons.
Finally, even when viewing the facts in a light most favorable
to Mr. Jobber, the record fails to support his claim that
Plumrose’s reasons for termination “are unworthy of credence.”
Gauthier, 2015 VT 108, ¶ 33.
Plumrose’s motion for summary
judgment on the VFEPA claim is therefore granted.
III. Breach of Contract: Retaliatory Discharge
Mr. Jobber’s second claim for relief is for breach of
contract, asserting that the alleged acts of retaliation
discussed above violated the company’s employee handbook.
Plumrose moves for summary judgment on this claim as well,
arguing that the employee handbook was not a contract, that any
handbook statements about retaliation did not modify Mr.
Jobber’s status as an at-will employee, and that there was no
The employee handbook itself stated, in bold, underlined
and capitalized type, that it did not create a contract between
JBS and its employees.
The handbook also provided:
Nothing in this handbook binds JBS or any employee to
any specific procedures, policies, benefits, pay,
working conditions, or privileges of employment.
Employment at JBS is at-will which means that as an
employee, you are completely free to leave the Company
at any time you choose, and the Company has the same
right to end the employment relationship, with or
without notice, with or without cause.
The handbook further warned that “[r]etaliation against
individuals who raise concerns of all forms of violence and
harassment, including sexual harassment is strictly prohibited.”
“It is axiomatic that an at-will employee may be discharged
at any time with or without cause, unless there is a clear and
compelling public policy against the reason advanced for the
discharge, or unless the at-will relationship has been
Ross v. Times Mirror, Inc., 164 Vt. 13, 23, 665 A.2d
580, 586 (1995) (quotation, citation, and emphasis omitted).
With respect to modification of the employment relationship, the
Vermont Supreme Court has recognized that an employer may assume
legal obligations through written policies, including an
See Dillon v. Champion Jogbra, Inc., 175 Vt.
1, 5, 819 A.2d 703, 707 (2002); see also Raymond v. IBM Corp.,
954 F. Supp. 744, 748 (D. Vt. 1997) (noting that under Vermont
law “[a]t-will employment contracts may be modified by . . . the
personnel policies or practices of the employer”).
Such written policies, and any resulting obligations, are
not automatically nullified by disclaimer provisions.
Dillon, 175 Vt. at 8 (determining that provisions in employee
manual that were “inconsistent with the disclaimer at the
beginning of the manual” could form the basis for a cause of
action); Farnum v. Brattleboro Retreat, Inc., 164 Vt. 488, 494,
671 A.2d 1249, 1254 (1995) (“The mere inclusion of boilerplate
language providing that the employee relationship is at will
cannot negate any implied contract and procedural protections
created by an employee handbook.”).
“The effectiveness of a
disclaimer depends on the circumstances.”
Ross, 164 Vt. at 19.
In Ross, the Vermont Supreme Court clarified that “[g]eneral
statements of policy will not meet the requirements of a
In contrast, definitive policies, which
expressly or impliedly include a promise for specific treatment
in specific situations, especially when the employer expects the
employee to abide by the same, may be enforceable in contract.”
164 Vt. at 20 (citations omitted).
Mr. Jobber’s contract claim is based on the employee
handbook’s assurance that retaliation for reporting sexual
harassment is “strictly prohibited.”
Absent from the handbook
is any statement of specific steps to be taken in response to
such retaliation aside from “immediate action.”
therefore submits that the handbook contains only a general
statement of policy.
The Vermont Supreme Court, however, has
held that a company handbook’s prohibition on retaliation may
modify an at-will employment relationship.
Foote v. Simmonds
Precision Prod. Co., 158 Vt. 566, 571, 613 A.2d 1277, 1280
(1992) (upholding jury’s determination that handbook’s
prohibition on retaliation for using the company’s grievance
procedure constituted a modification).
Although Foote was an
action for promissory estoppel, it is arguable under Vermont law
that an express prohibition on retaliation in certain
circumstances can modify the at-will employment contract.
Nonetheless, as discussed above, the factual record does
not support Mr. Jobber’s claim of retaliation.
speculates that Ms. Hansen was retaliating against him because
he reported her to management, and that Ms. Uecker was
retaliating because she had hired Ms. Hansen, the undisputed
facts show a series of performance issues that ultimately
resulted in Mr. Jobber’s termination.
In contrast, Mr. Jobber’s
claims of retaliation are largely unsupported.
even assuming a contractual retaliation provision in the
employee handbook, no reasonable jury could find retaliation,
and Mr. Jobber’s claim fails as a matter of law.
motion for summary judgment on the contract-based retaliation
claim is therefore granted.
Breach of Contract: Disciplinary Policy
Mr. Jobber’s second contract claim contends that the
employee handbook created a contractual agreement to engage in
Again, the existence of a contract
depends upon the circumstances.
Here, the disciplinary
procedures outlined in the employee handbook left management
with significant discretion as to which steps, if any, to employ
prior to terminating an employee.
As noted above, the handbook
allowed management to tailor discipline to “the degree of
seriousness of the particular circumstances,” and specifically
allowed that “if the circumstances warrant” an employee could be
terminated for a first offense.
The handbook also explained
that the disciplinary policy was merely “guidance,” and that any
steps could be skipped.
Mr. Jobber conceded in his deposition
that the steps outlined in the handbook were not required.
The Vermont Supreme Court has noted that “disciplinary
procedures are not inconsistent or in conflict with the at-will
Id. at 21.
And while a written policy may “create
an enforceable promise to use those procedures, . . . [t]he
critical inquiry is, of course, whether the procedure” was
specific enough to “amount to an enforceable promise.”
In Ross, the Vermont Supreme Court found that where “the
policy expressly leaves the disciplinary sanction to the
employer’s discretion . . . defendant’s handbook policy, by
itself, does not create an enforceable promise to terminate for
cause or only after disciplinary action had been taken.”
Ross also held that in order for the handbook to be
binding, it must contain statements that are “definitive in form
. . and demonstrate an objective manifestation of the employer’s
intent to bind itself.”
Id. at 20.
The employee handbook in this case made clear that
management was not bound to a specific disciplinary process.
Instead, the policy was set forth in terms of options, none of
which were mandatory and any of which could be bypassed.
Vermont law, that sort of policy does not create a contract or
alter the at-will employment relationship.
Mr. Jobber contends that, at the very least, the
disciplinary policy is ambiguous, thus creating a question of
fact for the jury about whether his at-will employment was
modified by a contractual agreement.
The Vermont Supreme Court
has explained that “[w]hen the terms of a manual are ambiguous .
. . or send mixed messages regarding an employee’s status, the
question of whether the presumptive at-will status has been
modified is properly left to the jury.”
Dillon, 175 Vt. at 6–7.
“The question of whether a written manual is ambiguous is a
determination of law.”
Id. at 7.
In Dillon, the court found
ambiguity where the employee handbook set out an “elaborate
system governing employee discipline and discharge” that was
“mandatory in tone.”
Id. at 3, 7.
Plumrose’s handbook, in
contrast, “was permeated with conditional and cautionary
language that communicated the absence of an intent to be bound
to the use of progressive disciplinary measures.”
Shaw’s Supermarkets, Inc., 809 F. App’x 30, 32 (2d Cir. 2020)
(concluding that employer “unambiguously . . . reserve[d] the
right to use progressive discipline at its discretion, rather
than binding itself to do so in every case”).
therefore finds no ambiguity for a jury to consider.
Mr. Jobber’s final argument at summary judgment is that his
termination violated public policy.
Briefly stated, he claims
that his treatment violated “community common sense and common
conscience,” and would be “cruel or shocking to the average
man’s conception of justice.”
Payne v. Rozendaal, 147 Vt. 488,
492-93, 520 A.3d 586, 588 (1986).
In Payne, the Vermont Supreme
Court held that a person could not be discharged from employment
solely on the basis of age.
Id. at 494.
At the time of the
employee’s termination, age discrimination was not unlawful
under the VFEPA.
Id. at 492.
Soon thereafter, the Vermont
Legislature amended the statute.
Id.; see 21 V.S.A. § 495.
This case carries no such broad policy concerns.
Jobber was an at-will employee who was discharged for poor
Prior to his termination he was warned and
counseled, and management found continued performance issues.
Nothing in those undisputed facts raises concerns of public
For the reasons set forth above, Plumrose’s motion for
summary judgment (ECF No. 37) is granted.
DATED at Burlington, in the District of Vermont, this 7th
day of June, 2021.
/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge
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