McHugh v. University of Vermont

• Decision Date: 05 February 1991
• Docket Number: Civ. A. No. 90-174.
• Citation: 758 F. Supp. 945
• Court: U.S. District Court — District of Vermont
• Parties: Janet H. McHUGH v. UNIVERSITY OF VERMONT, Christopher Wheeler, and James P. Alexander.

758 F. Supp. 945

Janet H. McHUGH v. UNIVERSITY OF VERMONT, Christopher Wheeler, and James P. Alexander.

Civ. A. No. 90-174.

United States District Court, D. Vermont.

February 5, 1991.

COPYRIGHT MATERIAL OMITTED

Michael J. Gannon, Pierson, Wadhams, Quinn & Yates, Burlington, Vt., for plaintiff.

Robert L. Sand, Dinse, Erdmann & Clapp, Burlington, Vt., and Francine Bazluke, Associate Gen. Counsel, University of Vermont, Burlington, Vt., for defendant, University of Vermont.

Helen M. Toor, Asst. U.S. Atty., Burlington, Vt., for defendants Christopher Wheeler and James P. Alexander.

OPINION AND ORDER

PARKER, District Judge.

PROCEDURAL BACKGROUND

Plaintiff's initial complaint, filed in state court on June 12, 1990, contained four counts alleging sexual harassment by the University of Vermont (hereinafter "UVM") and the two individual defendants. Count I alleges a violation of the Vermont Fair Employment Practices Act by virtue of unfair sexual and religious discrimination in the workplace, a retaliatory discharge and an improper unfavorable evaluation. In count II, plaintiff alleges that defendants' conduct was so outrageous in character and so extreme in degree as to constitute intentional infliction of emotional distress. The third cause of action alleges violations of state and federal constitutional privacy rights as well as substantive and procedural due process rights. The fourth count alleges that defendants breached an implied covenant of good faith and fair dealing in employment. Each of the four counts is asserted against all three defendants. UVM removed the case to this Court pursuant to 28 U.S.C. §§ 1331, 1441-52 and Fed.R.Civ.P. 81(c). The two individual defendants, Wheeler and Alexander, have moved to dismiss counts I, III and IV for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). They also moved to substitute the United States as the defendant in count II and then to dismiss that count against the United States.¹ A hearing on the motions was held on November 14, 1990.

The standard for dismissal of a claim under Rule 12(b)(6) is that it must be apparent that plaintiff is unable to prove any set of facts which would entitle her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In making this determination, the court must accept the plaintiff's allegations to be true and view them in the light most favorable to plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Applying those standards, the Court grants the individual defendants' motion to dismiss as to the first and third causes of action. The Court grants defendant Alexander's motions to substitute the United States as defendant, to dismiss count II and to dismiss count IV. The Court denies defendant Wheeler's motion to substitute the United States as defendant and thereafter to dismiss count II and his motion to dismiss count IV.

FACTS

Taking the facts as alleged in the complaint, in the light most favorable to plaintiff, as we must do for purposes of the pending motion, they are as follows. Plaintiff was an employee of UVM working in the Military Studies Department as a Secretary III. Her co-worker, Major (now Lt. Colonel) Christopher Wheeler harassed her on account of her sex and her religion. Wheeler's conduct created a hostile work environment that caused her emotional and physical harm. Furthermore, Wheeler joked about plaintiff's contracting AIDS, stating that he hoped she would be able to avoid infection over the summer while he was away, and he repeatedly suggested that plaintiff must be living with someone. He told Ms. McHugh that his definition of a "secretary" was a paid whore and he said to plaintiff, it's "a good day to watch Catholic babies burn." Amended Complaint ¶ 6.

Plaintiff complained to her supervisor, Lt. Colonel James P. Alexander, about Wheeler's behavior. After hearing McHugh's grievances, defendant Alexander fired her on July 17, 1987. Plaintiff contends that Alexander sought to deprive plaintiff of her institutional remedies by unilaterally extending her four month probationary period before firing her. In an intramural hearing at UVM, the hearing officer found evidence of a retaliatory firing, but he did not find that Wheeler and Alexander had discriminated against Ms. McHugh. UVM agreed to rehire plaintiff, but she was not rehired until February 1988. Plaintiff received favorable evaluations in her new position in the Pharmacology Department until her supervisor learned that she was to be a possible witness in a claim by another employee against UVM, whereupon she was given an unfavorable recommendation. Plaintiff's resulting physical and emotional trauma from her treatment at UVM caused her to leave her job in the Pharmacology Department in late May of 1988.

DISCUSSION

I. VERMONT FAIR EMPLOYMENT PRACTICES ACT

Plaintiff alleges that defendants discriminated against her because of her sex and her religion, that her dismissal was a retaliatory discharge, and that she was given an improper unfavorable evaluation, all of which were unfair employment practices under Vt.Stat.Ann. tit. 21, § 495(a)(1), (a)(5) and (b) (1987). Plaintiff alleges that the individual defendants Wheeler and Alexander were "employers" within the meaning of Vt.Stat.Ann. tit. 21, § 495d(1). We rule as a matter of law that they were not.

The Vermont Fair Employment Practices Act (hereinafter "FEPA") makes it unlawful "for any employer, employment agency or labor organization to discriminate against any individual because of his race, color, religion, ancestry, national origin, sex, place of birth, or age or against a qualified handicapped individual." Vt.Stat. Ann. tit. 21, § 495(a)(1) (1987). FEPA defines "employer" as:

any individual, organization, or governmental body including any partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air or express company doing business in or operating within this state, which has one or more individuals performing services for it within this state.

Vt.Stat.Ann. tit. 21, § 495d(1) (1987). The act provides for private enforcement, authorizing an aggrieved person to bring an action in superior court "seeking damages or equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees and other appropriate relief." Vt.Stat.Ann. tit. 21, § 495b(b) (1987). These remedies are available only against employers, employment agencies or labor organizations. There is no Vermont case law addressing the scope of the term "employer." As this Court has noted, however, the Vermont statute "is patterned after title VII of the Civil Rights Act of 1964 ... and the standards and burdens of proof to be applied to an FEP case are identical to those for a title VII case." Sprague v. University of Vermont, 661 F.Supp. 1132, 1140 (D.Vt.1987) (Billings, J.) (citing Cobb v. Dufresne-Henry, Inc., 603 F.Supp. 1048, 1053 (D.Vt.1985)). See also State v. Whitingham School Board, 140 Vt. 405, 407, 438 A.2d 394, 396 (1981).

Title VII defines "employer" as: a person engaged in an industry affecting commerce who has fifteen or more employees for each working day on each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person....

42 U.S.C.A. § 2000e(b) (West 1981). Plaintiff argues, and this Court agrees, that under both FEPA and Title VII, an employer may be an "individual." Although Alexander and Wheeler are "individuals," they were not Ms. McHugh's employer(s). Plaintiff was an employee of UVM. The individual defendants were two active-duty members of the Department of the Army who were assigned by the Army to the Reserve Officers' Training Corps ("ROTC") Program at UVM, also known as the Military Studies Department. See 32 C.F.R. §§ 562.3(k), 562.7(a)(4)(i) and 562.7(a)(6)(ii) (1989). Hence, defendants were employees of the federal government.

Cases holding that individual employees or supervisors may be liable under Title VII are inapposite. Those cases turn on the Title VII definition of "employer" as including "any agent of such a person." 42 U.S.C.A. § 2000e(b) (West 1981). See Goodman v. Board of Trustees of Community College Dist. 524, 498 F.Supp. 1329, 1332 (N.D.Ill.1980) (citing the statutory language "any agent of such a person"); Dague v. Riverdale Athletic Ass'n., 99 F.R.D. 325, 327 (N.D.Ga.1983) (officers of an employer should be treated in the same fashion as "agents, who are clearly subject to liability under the Act"). The Vermont FEPA definition of "employer" does not include the Title VII language of "any agent of such a person." See State of Vermont v. R.S.D. Leasing, Inc., No. S822-86 CnC, slip op. at 4-5 (Chittenden Super.Ct., April 28, 1988) ("Vermont's statute does not include this `agent of employer' language or concept."); Richerson v. Jones, 551 F.2d 918, 928 (3d Cir.1977) (where a statute "contains a given provision, the omission of such provision from a similar statute is significant to show a different intent existed").

Nor does FEPA's "legal representative" language provide any assistance to plaintiff in this case. Even if we were to construe the term "legal representative" to mean "agent" (which we specifically do not), Wheeler and Alexander were employees of the United States government. As such, they certainly were not "agents" of UVM and accordingly did not come within any definition of plaintiff's employer.

For the foregoing reasons, plaintiff's claims against the individual defendants of violations of the Vermont Fair Employment Practices Act are dismissed for failure to state a claim upon which relief may be granted....