Cole v. Foxmar, Inc., 2:18-cv-00220

CourtUnited States District Courts. 2nd Circuit. District of Vermont
Writing for the CourtChristina Reiss, District Judge United States District Court
Docket Number2:18-cv-00220
Decision Date22 March 2022

THOMAS COLE, Plaintiff,


No. 2:18-cv-00220

United States District Court, D. Vermont

March 22, 2022


(DOC. 131)

Christina Reiss, District Judge United States District Court

Pending before the court is a renewed motion for judgment as a matter of law or, in the alternative, motion for a new trial filed by Defendant Foxmar, Inc., d/b/a Education and Training Resources. (Doc. 131.) Plaintiff Thomas Cole brought this suit against Defendant seeking damages as a result of Defendant's termination of Plaintiff s employment on July 27, 2018. The jury considered two claims: retaliation in violation of the Vermont Occupational Safety and Health Act ("VOSHA"), 21 V.S.A. §§ 201-32, and retaliation in violation of the Vermont Earned Sick Time Act ("VESTA"), 21 V.S.A. §§ 481-87, and returned a verdict for Plaintiff on both claims. It awarded Plaintiff $215, 943 in compensatory damages, comprised of $55, 305 in back pay, $85, 638 in front pay, and $75, 000 in emotional distress damages. The jury also awarded Plaintiff $3 million in punitive damages, for total damages of $3, 215, 943. The court entered judgment on the verdict on August 2, 2021.

Defendant filed the pending motion on August 27, 2021. Pursuant to a stipulated briefing schedule, Plaintiff opposed the motion on October 29, 2021, and Defendant replied on November 29, 2021. The court held oral argument on January 18, 2022, at


which time it took the pending motion under advisement.

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

I. Factual and Procedural Background.

Defendant is a company that partners with the U.S. Department of Labor, Office of Job Corps, and local Workforce Investment Boards for the management and operation of Job Corps Centers and customized workforce development programs that serve both youth and adults. On June 1, 2018, Defendant assumed management of the Northland Job Corps Center ("NJCC") located at 100A MacDonough Drive, Vergennes, Vermont. Prior to Defendant's management of NJCC, it was managed by Chugach Education Services, Inc. ("Chugach").

Plaintiff was hired as a Residential Counselor ("RC") in 2018 under Chugach's management and was rehired in that position when Defendant assumed management of NJCC. As an RC, Plaintiffs duties included interacting with students and overseeing dormitory maintenance.

Defendant's employee handbook (the "Handbook") identifies job abandonment as a "[dischargeable [o]ffense" and contains an Attendance and Punctuality policy which notes that "[a]bsence from work for three (3) consecutive days without notifying your manager or the Human Resources Department will be considered a voluntary resignation and job abandonment." (Doc. 58-13 at 28, 40.) Although the Handbook includes an "accountability schedule" that distinguishes between minor, major, and dischargeable offenses, it also states that "[a]t management's discretion, any violation of policies or any conduct considered inappropriate or unsatisfactory may subject the offender to accountability action, up to and including losing your job." Id. at 38, 40 (italics omitted).

The Handbook further states:

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. Id. at 20 Plaintiff did not have an express individualized employment contract and was not covered by a collaborative bargaining agreement

In dismissing Plaintiffs claims for breach of contract and breach of implied covenant of good faith and fair dealing claim based on an alleged contract, the court held that he was an at-will employee as a matter of law and that the Handbook did not guarantee progressive discipline. Cole v. Foxmar, Inc., 387 F.Supp.3d 370, 386 (D. Vt. 2019).

On July 23, 2018, Plaintiffs supervisor, Angela Mobley, assigned him to Dorm 24, which was not his typical dormitory assignment. The students in Dorm 24 informed Plaintiff and Ms. Mobley that the dormitory was out of sanitizer and had been for an unknown period of time. When asked to clean the dormitory, some of the students told Plaintiff that they could not perform this task because they were sick. Plaintiff testified that cleaning supplies were often missing and RCs were forced to purchase them with their own money.

At trial, there was evidence that Defendant required employees to bring safety complaints only to their direct supervisor, which Howard Harmon, Defendant's Executive Vice President and Chief Operating Officer, testified was motivated in part by a desire to limit complaints to the United States Department of Labor (the "DOL"). Correspondingly, employees were discouraged from making complaints to the DOL, including with regard to an incident of a student with a weapon, substandard food quality, and mold in the dorms. There was also evidence that NJCC experienced problems in each of these sectors, and Mr. Harmon himself acknowledged that at the time Defendant took over NJCC, it was a "mess." (Tr. 645.)

On the morning of Tuesday, July 24, 2018, Plaintiff met with Alicia Grangent, NJCC's Center Director responsible for overseeing the NJCC campus and the highest-ranking on-site member of Defendant's staff. Plaintiff expressed his concerns about the failure to properly supply a dormitory with cleaning supplies. He also complained that RCs were not allowed to leave work when they were sick, placing students and other


employees at risk. At trial, he testified inconsistently regarding whether he discussed with Ms. Grangent the need for sick employees to find their own replacements. He stated that he overheard Ms. Mobley tell a sick RC that "[w]e will find somebody so that you can go home." (Tr. 152.) (internal quotation marks omitted). Plaintiff admitted that he had worked while he was sick in the past and did not believe it was a violation of the law.

Ms. Grangent notified Ms. Mobley and Bernadette Brookes, the Human Resources Director for NJCC, about her meeting with Plaintiff and the substance of his concerns. Ms. Grangent also claimed to have alerted Defendant's corporate officers. When Plaintiff returned to NJCC for his afternoon shift, he saw RC Paige Howell and another RC, both of whom were sick and one of whom was lying on a couch in a fetal position. Plaintiff also felt sick and decided to leave work. On his way to Ms. Grangent's office, Plaintiff encountered Ms. Grangent on campus. They spoke briefly, and Plaintiff informed her that he was leaving. When Ms. Grangent asked him to wait to discuss the matter further, he stated he needed to leave. Plaintiff then stopped by Ms. Grangent's office and spoke to her assistant, Brian Lacharite, to let Mr. Lacharite know he was leaving and would not be returning to work that day. Mr. Lacharite testified that on more than one occasion, Ms. Mobley informed staff to find their own replacements if they called out sick.

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 headquarters in Kentucky, and left a voicemail indicating that he was experiencing difficulties at NJCC and looking for assistance. He received no response to his voicemail. He also went to the NJCC campus to speak with Ms. Brookes. He was unable to speak to her but spoke to her assistant, Mari Trybendis, and explained he had safety concerns he wanted to share, including a lack of cleaning supplies and sick employees working.

On Thursday, Plaintiff called Defendant's corporate headquarters a second time and left a voicemail stating he was having difficulties at NJCC and was looking for assistance and direction. On the morning of Friday, July 27, 2018, Plaintiff drafted a letter to Ms. Brookes and at approximately 9:34 a.m. emailed it to Ms. Trybendis and to


Ms. Grangent. Plaintiffs letter stated:

I met with Northlands Center Director on Tuesday morning, 7/24/2018 to express my concerns of oversight on health and wellness related practices within the Department of Independent Living.
In particular, I cited a willingness on the part of the department lead to retain staff members for shift coverage after acknowledging that the staff member had symptoms of diarrhea, vomiting and dizziness.
I also spoke of reassignment the previous evening to a dorm that could be determined unsanitary. An address of the students by the Independent Living Coordinator during accountability resulted in the disclosure that there were no cleaning chemicals on site, to include sanitizer, and it was undetermined as to the length of time that had passed in the absence of proper sanitizing.
Not feeling well, I departed prior to my shift and again alerted the Center Director to my earlier concerns and to the presence of a staff member laying in the fetal position on a lounge couch at the time of their arrival for in briefing.
I believe these conditions present an unnecessary risk to my personal health and wellness and negatively impact the over all confidence in my role and presence within the Department of Independent Living.
I am asking for the consideration of a job reassignment out of the Department of Independent Living.

(Doc. 65-3 at 1.)

On Thursday, July 26, 2018, Ms. Brookes spoke with Ms. Mobley and told her that Plaintiff had not...

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