Boynton v. ClearChoiceMD, MSO, LLC

• Decision Date: 02 August 2019
• Docket Number: No. 2018-169,2018-169
• Citation: 2019 VT 49
• Court: Vermont Supreme Court
• Parties: Dawn Boynton v. ClearChoiceMD, MSO, LLC and ClearChoiceMD, PLLC

2019 VT 49

Dawn Boynton v. ClearChoiceMD, MSO, LLC and ClearChoiceMD, PLLC

No. 2018-169

Supreme Court of Vermont

January Term, 2019

August 2, 2019

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Rutland Unit, Civil Division

Samuel Hoar, Jr., J.

James G. Levins of Tepper Dardeck Levins & Fitzsimons, LLP, Rutland, for Plaintiff-Appellant.

Kerin E. Stackpole of Paul Frank + Collins P.C., Burlington, for Defendants-Appellees.

PRESENT: Skoglund, Robinson, Eaton and Carroll, JJ., and Pearson, Supr. J. (Ret), Specially Assigned

¶ 1. CARROLL, J. Plaintiff appeals the trial court's dismissal of her wrongful-termination complaint against her former employer. In her amended complaint, plaintiff alleges that she was terminated from her employment as a medical assistant at defendants' medical office in Rutland in September 2017 in violation of the covenant of good faith and fair dealing and contrary to whistleblower protections.¹ We affirm.

¶ 2. Plaintiff worked as a medical assistant at defendants' clinic. During a shift in July 2017, plaintiff and other employees were attending to a patient in mental distress. She alleges that a senior staff member, a physician assistant named J.S., told the distraught patient to be quiet. The patient left the office, stating that he would walk into oncoming traffic. Plaintiff followed the patient outside and calmed him down. An ambulance was called to take the patient to the hospital. According to the amended complaint, after the patient departed in the ambulance, J.S. commented that "it would have been better to let [the patient] get hit by traffic." Plaintiff was upset by this comment and reported it to the general manager of the clinic. Defendants terminated her employment the following month, explaining that she had violated company policy by smoking just outside the facility entrance. Plaintiff denies that she was smoking outside the premises. She claims that she was actually terminated in retaliation for reporting J.S.'s comment and that her termination violated public policy and the covenant of good faith and fair dealing implied in her contract of employment.²

¶ 3. Defendants moved to dismiss plaintiff's amended complaint pursuant to Vermont Rule of Civil Procedure 12(b)(6), arguing that, because plaintiff was an at-will employee and the parties had not formed a contractual relationship, the claim of a breach of the covenant of good faith and fair dealing was not available to her. In addition, defendants argue that it was not a violation of public policy to terminate plaintiff because the comment made by J.S., which plaintiff reported, did not affect patient safety or care.

¶ 4. The trial court granted defendants' motion to dismiss. The court found that the employee handbook was unambiguous and established an at-will employment relationship that was fatal to plaintiff's claim of a violation of the covenant of good faith and fair dealing. The court also rejected plaintiff's assertion that defendants violated public policy by terminating her because she qualified as a "whistleblower" under the terms of the handbook, concluding that neither the handbook nor the whistleblower statute covered the conduct she reported. This appeal followed.

¶ 5. We review the trial court's dismissal of the amended complaint without deference. Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.). A court cannot grant a motion to dismiss for failure to state a claim "unless it appears beyond doubt that there exist no circumstances or facts which the plaintiff could prove about the claim made in [plaintiff's] complaint which would entitle [plaintiff] to relief." Gilman v. Me. Mut. Fire Ins., 2003 VT 55, ¶ 14, 175 Vt. 554, 830 A.2d 71 (mem.) (quotation omitted). We accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn from those facts. Id.

¶ 6. We first consider plaintiff's claim that defendants breached the implied covenant of good faith and fair dealing by terminating her without good cause and by falsely stating that she was being discharged for failure to comply with the smoking policy. Plaintiff appears to have conceded on appeal that she was defendants' at-will employee despite alleging otherwise in the complaint. She has not argued on appeal that the handbook created an express or implied contractual modification to her at-will employment arrangement.³ "It is axiomatic that an at-willemployee 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 modified." Ross v. Times Mirror, Inc., 164 Vt. 13, 23, 665 A.2d 580, 586 (1995) (quotation and emphasis omitted). For this reason, we have "decline[d] to recognize the implied covenant of good faith and fair dealing as means of recovery where the employment relationship is unmodified and at-will and the employee is challenging the dismissal based on a right to tenure." Id.; see also LoPresti v. Rutland Reg'l Health Servs., Inc., 2004 VT 105, ¶ 39, 177 Vt. 316, 865 A.2d 1102 ("[T]he covenant does not apply to at-will employment agreements when the plaintiff's argument amounts to no more than an objection to the other party's freedom to avail itself of the at-will arrangement by terminating the agreement for reasons that the other party does not accept."). Because plaintiff was an at-will employee and she has admitted on appeal that the handbook does not modify her status as an at-will employee, her argument that defendants violated the covenant of good faith and fair dealing by terminating her for a pretextual reason fails. Defendants' decision to do so was squarely within their prerogative.⁴

¶ 7. We turn next to plaintiff's claim that her termination violated public policy. In support of this claim, she alleged that the professional guidelines governing physician assistants require them to treat all persons equally, to provide compassionate and effective care to patients, and to report illegal or unethical conduct by health-care professionals. She also alleged that the code of ethics applicable to medical assistants required her to "[r]ender service with full respect for the dignity of humanity; [u]phold the honor and high principles of the profession and accept its disciplines; [and] [s]eek to continually improve the knowledge and skills of medical assistants for the benefit of patients and professional colleagues." Plaintiff alleged that these provisions are evidence of a public policy encouraging health-care workers to report conduct that is harmful to patient care and that her termination for reporting J.S.'s comment violated this policy.

¶ 8. An at-will employee may not be terminated for reasons that violate "a clear and compelling public policy." Payne v. Rozendaal, 147 Vt. 488, 492, 520 A.2d 586, 588 (1986) (defining public policy in employment context as "the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public heath, public safety, public welfare, and the like" (quotation omitted)). Whether an activity violates public policy is a question of law. Madden v. Omega Optical, Inc., 165 Vt. 306, 314 n.3, 683 A.2d 386, 391 n.3 (1996). This Court has recognized that "public policy in the employment context may be found in sources other than statutes and constitutions," such as professional ethical codes. LoPresti, 2004 VT 105, ¶ 22. However, "employees who invoke such codes . . . still bear the burden of demonstrating that such codes are clear and compelling in their mandates to employeeswho claim that their professional ethical obligations supersede those owed to their employers." Id. ¶ 23 (quotation omitted). An employee seeking to invoke the public-policy exception to at-will employment must demonstrate that her employer's conduct was " 'cruel or shocking to the average [person's] conception of justice.' " Payne, 147 Vt. at 493, 520 A.2d at 589 (quoting Pittsburgh, Cincinnati, Chi. & St. Louis Ry. v. Kinney, 115 N.E. 505, 507 (Ohio 1916)).

¶ 9. Accepting as true plaintiff's allegation that she was fired for reporting J.S.'s comment, the code provisions cited in plaintiff's complaint are too vague to support "an objective, good faith belief that the comment violated an ethical rule or was conduct that plaintiff was obligated to report. LoPresti, 2004 VT 105, ¶ 23. Even if we were to interpret the quoted provisions as requiring plaintiff to report actions by medical providers that are harmful to patient care, such a requirement would be inapplicable here because J.S. made the comment at issue after the patient left the premises. Therefore, the comment—about what should have happened to a patient in the past—did not negatively affect patient care. See id. ¶ 24 ("[A] professional employee must show that the specific provisions contained in the ethical code relied upon apply in the particular professional context in which the employee is working.").

¶ 10. Tellingly, plaintiff does not make any allegations in the amended complaint that J.S.'s comments caused harm to patients. Rather, the complaint asserts that "[t]he termination violates public policy which encourages workers to report [i]ncidents which are harmful to patient care." There is no allegation that this incident was indeed harmful, or that it would cause harm in the future. And, although the complaint asserts that plaintiff's termination caused her "anxiety and stress, worry about finances, [and] loss of sense of achievement and...