Cole v. Foxmar Inc.

• Citation: 387 F.Supp.3d 370
• Decision Date: 16 May 2019
• Docket Number: Case No. 2:18-cv-00220
• Parties: Thomas COLE, Plaintiff, v. FOXMAR INC., d/b/a Education and Training Resources, Defendant.
• Court: United States District Courts. 2nd Circuit. District of Vermont

387 F.Supp.3d 370

Thomas COLE, Plaintiff,

v.FOXMAR INC., d/b/a Education and Training Resources, Defendant.

Case No. 2:18-cv-00220

United States District Court, D. Vermont.

Signed May 16, 2019

William J. Pettersen, IV, Esq., Pettersen Law PLLC, Colchester, VT, for Plaintiff.

Kevin L. Kite, Carroll, Boe & Pell P.C., Middlebury, VT, Mara D. Afzali, Esq., Pro Hac Vice, Michael D. Billok, Esq., Pro Hac Vice, Bond, Schoeneck & King, PLLC, Saratoga Springs, NY, for Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS, GRANTING PLAINTIFF'S MOTION TO AMEND THE COMPLAINT, AND GRANTING PLAINTIFF'S SUPPLEMENTAL MOTION TO AMEND THE COMPLAINT

Christina Reiss, District Judge

Plaintiff Thomas Cole brings this action against Defendant Foxmar, Inc. seeking damages arising out of Defendant's termination of his employment on July 27, 2018. In his initial four-count Complaint, Plaintiff alleges claims of wrongful termination in violation of the Vermont Occupational Safety and Health Act ("VOSHA"), 21 V.S.A. §§ 201 -32; wrongful termination in violation of public policy; breach of contract; and breach of the implied covenant of good faith and fair dealing.

Pending before the court are Defendant's motion to dismiss (Doc. 3), Plaintiff's motion to amend his Complaint (Doc. 12), and Plaintiff's supplemental motion to amend his Complaint (Doc. 13). Pursuant to Fed. R. Civ. P. 12(b)(6), Defendant seeks dismissal of Plaintiff's claims for failure to state a claim upon which relief can be granted. Plaintiff opposes dismissal.

In Plaintiff's first motion to amend his Complaint, he seeks to add a claim for wrongful termination in violation of the Vermont Earned Sick Time Act ("VESTA"), 21 V.S.A. §§ 481 -87. In Plaintiff's supplemental motion to amend his Complaint, he seeks to add a claim for promissory estoppel. Defendant opposes these proposed amendments on the grounds that they are futile.

Plaintiff is represented by William J. Pettersen, IV, Esq. Defendant is represented by Kevin L. Kite, Esq., Mara D. Afzali, Esq., and Michael D. Billok, Esq.

I. The Complaint's Allegations.¹

Plaintiff is a resident of Ferrisburgh, Vermont. Defendant is a corporation with headquarters in Kentucky that was awarded a Department of Labor contract to manage and operate the Northland Job Corps Center ("NJCC") in Vergennes, Vermont. The NJCC is an educational facility that provides training and employment services to disadvantaged youth and adults. On or about May 23, 2018, Defendant hired Plaintiff as a full-time residential counselor in the Department of Independent Living at NJCC. Plaintiff's duties included overseeing NJCC dormitories and ensuring that they were sanitary.

On or about Monday, July 23, 2018, a group of NJCC students reported to Plaintiff and the lead counselor, Angela Mobley, that they did not have any cleaning sanitizer. The students complained that the counselor who usually supervised their dormitory had failed to keep the dormitory properly stocked with sanitizer, although they did not specify how long this condition persisted. At the time, many of the students in that dormitory were sick, as was the counselor who usually supervised them. The students showed Plaintiff and Ms. Mobley an empty cleaning basket that purportedly should have contained cleaning supplies. Plaintiff alleges that counselors are required to ensure sanitizer is available to all students to clean their dormitories. Ms. Mobley thereafter obtained four spray bottles and sanitizer for the dormitory. At a meeting with counselors on the same day, she asked the counselors how they were doing and one of the counselors, Tori Ramos, stated that she was extremely sick. Ms. Mobley responded to the effect of "you people in Vermont need to take your medicine." (Doc. 6 at 3.) Ms. Mobley told Ms. Ramos that she could go home if she could find someone to assume her duties and responsibilities. Plaintiff alleges that "[u]pon information and belief, Ms. Ramos ended up working her entire shift on Monday." Id.

On the morning of Tuesday, July 24, 2018, Plaintiff met with Alisha Grangent, the Center Director of NJCC responsible for overseeing the NJCC campus, and expressed his concern that the failure of "one or more counselors" to properly supply a dormitory with cleaning supplies and Ms. Mobley's refusal to permit counselors to leave work when they were sick was placing students and employees at risk. Id. at 4. Ms. Grangent responded by noting that Christina Brace, the Acting Wellness Coordinator, had informed her about an abdominal virus that was "going around campus[.]" Id. That same day, Plaintiff left work before the end of his shift after informing Ms. Grangent and her executive assistant that he was leaving early because he felt ill.

Plaintiff was not scheduled to work on Wednesday, July 25, 2018 or Thursday, July 26, 2018. On Wednesday July 25, 2018, Plaintiff called Defendant's Human Resources Department, located at its corporate office in Kentucky, and left a voicemail indicating that there were "some difficulties on campus at NJCC that he would like to report." Id. Plaintiff alleges that he received no response to his voicemail.

On the morning of Friday, July 27, 2018, prior to arriving at work, Plaintiff called Mari Trybendis, a Human Resources Assistant, and asked how to submit a written complaint regarding his health and safety concerns. He also asked for reassignment from the Department of Independent Living to another unspecified department. Ms. Trybendis directed Plaintiff to email his complaint to her as well as his request for reassignment and to copy Ms. Grangent on those communications.

Plaintiff drafted a letter to Bernadette Brookes, Human Resources Manager, wherein he explained the health and safety issues that he had witnessed earlier in the week, noted that he believed those issues posed "an unnecessary risk to him and others[,]" and requested a reassignment from the Department of Independent Living. Id. at 5. Plaintiff emailed this letter to Ms. Trybendis and Ms. Grangent on Friday, July 27, 2018 and asked that they direct the letter to other appropriate supervisors.

A few hours after sending the July 27, 2018 email, Plaintiff received a voicemail from Ms. Brookes notifying him that she wished to speak with him about his continued employment. Plaintiff met with Ms. Brookes that afternoon, at which time Ms. Brookes terminated Plaintiff's employment. Plaintiff asked Ms. Brookes why she had not addressed any of his complaints. Ms. Brookes responded that she had not received any complaints from him.

Defendant thereafter issued Plaintiff a termination notice dated July 27, 2018 which stated that Plaintiff was terminated because he did not report for his scheduled shifts on Monday, July 23, Tuesday, July 24, and Wednesday July 25, 2018. The termination notice was signed by Ms. Mobley, Ms. Brookes, and Howard Harmon, Defendant's Executive Vice President and Chief Operating Officer. Plaintiff alleges that the claimed reason for his termination was false and pretextual and that he was actually terminated because he complained to his supervisors regarding health and safety violations he witnessed.

Defendant's Employee Handbook (the "Handbook")² states as follows in its introductory section:

All parties involved will adhere to ETR's Core Values in all that we do. This not only means that the expectation is that we will all operate in a safe environment, both physically and mentally, that will allow an open dialogue that leads to individuals taking accountability to proactively act in good faith to demonstrate a commitment to integrity and respect that allows growth for both the individual, the Center, and the Company.... You have the distinct privilege and responsibility to speak up when things are found out of compliance.

(Doc. 3-2 at 7.)

The Handbook includes a policy entitled "Free to Choose – (Employment-at-Will)" which states:

... we cannot make any guarantees about your continued employment at our Company.

Employees who do not have an individualized written employment contract or a collective bargaining agreement are employed at the will of the company. This means that you are free to quit at any time, for any reason, just as we are free to release you from employment at any time, for any reason with or without notice or cause.

Employees may be demoted or held accountable and the terms and conditions of their employment with ETR may be modified at the sole discretion of ETR with or without cause and with or without notice. Additionally, "Employment-at-Will" means that ETR has no obligation to continue your present position, pay, or benefits.

This is the entire agreement between you and ETR regarding the terms of your employment with the company. No statements made in pre-hire interviews or subsequent discussions are to alter the at-will nature of your employment. ETR's policies and practices with respect to any matter are not to be considered as creating any contractual obligation on ETR's part or as stating in any way that discharge will occur only for "just cause[.]" Statements of specific grounds for discharge set forth in this manual or in any other ETR documents are examples only, not all-inclusive lists, and are not intended to restrict ETR's right to discharge at-will. Similarly, completion of an introductory period does not change your status as an at-will employee.

Other than ETR's President/CEO, no one has the authority to make any agreement for employment other than for employment-at-will or to make any agreement limiting ETR's discretion to modify terms and conditions of employment. This policy may not be modified by any statements contained in this manual or any other employee handbooks, employment applications, recruiting materials, company correspondence, or other materials provided to applicants or employees in connection with their employment. With the sole exception of the above mentioned written employment contract or

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