Boulton v. CLD Consulting Engineers, Inc.

• Decision Date: 29 August 2003
• Docket Number: No. 02-290.,02-290.
• Citation: 834 A.2d 37
• Court: Vermont Supreme Court
• Parties: Leslie G. BOULTON v. CLD CONSULTING ENGINEERS, INC.

834 A.2d 37

Leslie G. BOULTON v. CLD CONSULTING ENGINEERS, INC.

No. 02-290.

Supreme Court of Vermont.

August 29, 2003.

Norman E. Watts, Woodstock, for Plaintiff-Appellant.

Karen McAndrew and Amy M. McLaughlin of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee.

Present: AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and GIBSON, J. (Ret.), Specially Assigned.

JOHNSON, J.

¶ 1. Plaintiff Leslie Boulton appeals from the Windsor Superior Court's order granting summary judgment in favor of defendant CLD Consulting Engineers on plaintiffs claims against CLD for breach of implied contract, wrongful termination, gender discrimination, and intentional infliction of emotional distress. Boulton resigned from CLD after being informed that she was being demoted from her position as branch manager. Following her resignation, she brought suit, claiming she had been constructively discharged and that CLD's treatment of her amounted to several actionable violations of her rights as an employee. The trial court granted summary judgment to CLD on all of her counts. On appeal, Boulton contends that she presented sufficient evidence to survive summary judgment on her claims that (1) CLD wrongfully terminated her in violation of its personnel policies; (2) CLD violated the associated covenant of good faith and fair dealing in an implied employment contract; (3) CLD committed gender discrimination in treating plaintiff, a female employee, differently from similarly situated male employees; and (4) CLD's treatment of plaintiff was so outrageous that CLD could be found liable for intentional infliction of emotional distress. We affirm.

¶ 2. Plaintiff had worked for CLD for thirteen years. She started in 1985 as an entry-level engineer. In 1992, she left her position with CLD to pursue a graduate degree in environmental engineering. She returned in 1994, and quickly became a manager. Her performance review dated June 2, 1999, is positive, with the exception of a note that plaintiff, while an excellent mentor and teacher, sometimes went on "minor rampages" and "sometimes trie[d] to do it all" rather than delegating work to others. In 1999, plaintiff applied for the position of branch manager of CLD's Norwich office. According to plaintiff's deposition testimony, CEO Tim Golde did not consider her suitable for the branch manager position. Golde told Boulton that he felt that she was "unapproachable" and "intimidating." Nevertheless, Golde and the other CLD partners were willing to give Boulton an opportunity to try as Norwich branch manager. She served in this position from November of 1999 until September of 2000. ¶ 3. As reflected in her performance review dated April 12, 2000, senior management perceived that plaintiff had difficulty "settling into the branch manager position." While she received excellent ratings for technical knowledge and client service, the review noted that she was having trouble solving personnel problems and delegating work and authority to others. A number of employees resigned during plaintiff's tenure as branch manager, and several of them expressed the belief that plaintiff's management style created a stressful work environment. In June of 2000, plaintiff met with Golde and CLD's business consultant Leslie Kagan to discuss management style. After a period of improvement following the Kagan meeting, employees indicated that the situation in the Norwich office continued to deteriorate. In September, another employee resigned and sent a letter criticizing plaintiff's management. Following this episode, CLD notified plaintiff that she was being relieved of the position of branch manager and transferred back to the Manchester, New Hampshire office where she was offered a position as a project engineer.

¶ 4. Plaintiff was provided with a letter outlining the options available to her at the Manchester office. The letter stated that the exact terms of this position would require further discussion, but that it could be on one of the highway design teams or working directly with Tim Golde. Her salary was to be decreased from $72,000 to $60,000 per year. Plaintiff's complaint states that this demotion was "a complete surprise to plaintiff and an extreme professional humiliation for her." She did not consider the work she was being offered in Manchester a realistic option. She asserts that as a result of intolerable working conditions, she was forced to resign. Plaintiff filed this suit seeking compensation for damages suffered as a result of the circumstances surrounding her demotion and subsequent resignation, which she alleges to have been a constructive discharge. CLD moved for summary judgment on all counts. The trial court granted the motion, concluding that plaintiff's evidence, consisting largely of her own deposition, did not establish genuine issues of material fact and failed to articulate specific acts of wrongdoing by CLD to support her claims for compensation.

¶ 5. "In reviewing a grant of summary judgment, this Court applies the same standard as the trial court." Madden v. Omega Optical, Inc., 165 Vt. 306, 309, 683 A.2d 386, 389 (1996). Summary judgment is appropriate only when the moving party shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Bacon v. Lascelles, 165 Vt. 214, 218, 678 A.2d 902, 905 (1996); V.R.C.P. 56(c). All reasonable doubts and inferences are allowed to the nonmoving party. Samplid Enters. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996). It is not enough, however, for the nonmoving party to "rest on allegations in the pleadings to rebut credible documentary evidence or affidavits." Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 266, 438 A.2d 373, 375 (1981). "Where the moving party does not bear the burden of persuasion at trial, it may satisfy its burden of production by showing the court that there is an absence of evidence in the record to support the nonmoving party's case. . . . The burden then shifts to the nonmoving party to persuade the court that there is a triable issue of fact." Ross v. Times Mirror, Inc., 164 Vt. 13, 18, 665 A.2d 580, 583 (1995) (internal citations omitted). In this action, plaintiff has not met her burden on any of her claims.

I. Wrongful Termination

¶ 6. Plaintiff's first argument on appeal is that the trial court improperly dismissed her wrongful termination claim. She contends that the trial court (1) failed to address the wrongful termination issue as presented; (2) improperly ignored her constructive discharge claim; and (3) improperly concluded that evidence failed to demonstrate CLD had a policy of warning employees when their employment was in jeopardy.

¶ 7. The trial court concluded that plaintiff's wrongful termination claim could not survive summary judgment because facts alleged by plaintiff did not show that her employer had failed to provide her with a warning that she could be fired if she did not modify her conduct. On the contrary, the concerns raised in her April 2000 performance review and the meeting with a business consultant provided plaintiff with notice of her employer's concerns. We agree with the trial court's analysis. In her brief, plaintiff argues that the trial court mischaracterizes her claim for wrongful termination by considering only CLD's "obligation to warn employees in the abstract — absent the context of an impending termination from employment." Her brief further asserts that "[k]eeping one informed about an employer's `concerns over management style' is not the same as warning an employee that her job is in jeopardy .... General information about management's concern does not constitute a warning."

¶ 8. The undisputed facts in this case show that the company's CEO did advise plaintiff of her performance inadequacies. Plaintiff had reasonable warning that her performance was not meeting the company's needs, and this notice fulfilled any implied contractual obligation it might have had to provide warning before termination. Given that plaintiff had been offered an opportunity to try the position as branch manager over the objection of the company's CEO, and the CEO communicated to her several times that her management style was still a matter of concern, any reasonable person would have been on notice that her position as branch manager was in jeopardy. Plaintiff does not argue that an implied contractual agreement between her and CLD modified her at-will employee status, except to the extent that she claims that CLD's company-wide practices require that managers follow a procedure of warning employees who are at risk of termination. This is not a situation where the employee is claiming the company could not fire her except for cause. The only protection she claims is the right to warning that would give her an opportunity to correct behaviors that might otherwise lead to her termination. Although as the nonmoving party in a motion for summary judgment, plaintiff is entitled to the benefit of the inference that CLD was under a duty to warn her that her behavior subjected her to a risk of termination as manager, we agree with the trial court that she was given such warnings. See In re Towle, 164 Vt. 145, 150, 665 A.2d 55, 60 (1995) ("Knowledge that certain behavior is prohibited and subject to discipline is notice of the possibility of dismissal.").

¶ 9. Plaintiff also argues that the trial court ignored her argument that her demotion amounted to a constructive discharge. The trial court held that it was unnecessary to decide the constructive discharge claim, because even if plaintiff's demotion was a constructive discharge, plaintiff does not allege facts that support a cause of action. This logic is sound.

¶ 10. Constructive discharge "provides a mechanism to avoid the technical requirement that wrongful discharge be based on employer-initiated discharge." Balmer v. Hawkeye Steel, 604 N.W.2d...