Fromson v. State, 2004 VT 29 (Vt. 4/2/2004)

• Decision Date: 02 April 2004
• Docket Number: No. 2003-262, October Term, 2003,2003-262, October Term, 2003
• Citation: 2004 Vt. 29
• Parties: D. Michael Fromson v. State of Vermont, Department of Corrections and Celeste M. Girrell, Superintendent
• Court: Vermont Supreme Court

Page 1

2004 VT 29

D. Michael Fromson v.State of Vermont, Department of Corrections and Celeste M. Girrell, Superintendent

No. 2003-262, October Term, 2003

Supreme Court of Vermont

April 2, 2004

On Appeal from Caledonia Superior Court, Mark J. Keller, J.

Sten M. Lium of Law Office of Jay Abramson, St. Johnsbury, for Plaintiff-Appellant.

William H. Sorrell, Attorney General, and David K. Herlihy, Special Assistant Attorney General, Montpelier, for Defendants-Appellees.

PRESENT: Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.

DOOLEY, J.

¶ 1.Plaintiff, D. Michael Fromson, appeals two rulings by the Caledonia Superior Court in favor of defendants, Vermont Department of Corrections and Celeste M. Girrell, Superintendent of the Northeast Regional Correctional Center: (1) grant of defendants' motion for summary judgment dismissing plaintiff's claim for intentional infliction of emotional distress (IIED); and (2) denial of plaintiff's request to amend his complaint to add a prima facie tort claim because Vermont has not recognized such a tort.We affirm.

¶ 2.Plaintiff claims that from July 21, 1999 until mid-October 1999, defendants"engaged in a campaign to harass, intimidate, and oppress the plaintiff, for the purpose of breaking his spirit and rendering him unable or unfit or unwilling to continue in his employment."Plaintiff alleges that defendants engaged in this course of conduct in retaliation for plaintiff's reporting of several junior officers' complaints that two supervisors often reported to work under the influence of alcohol.In support of his allegation, plaintiff claims defendants: (1) filed work rule violations against him in bad faith; (2) investigated claims and allegations against him in bad faith; (3) discriminatorily altered his work schedule; (4) imposed unfair disciplinary action and other punishment; and (5) made remarks and insinuations calculated to threaten, harass, intimidate, and oppress him.Because this is an appeal from summary judgment we present the facts most favorably to plaintiff, giving him the benefit of all reasonable inferences.Denton v. Chittenden Bank, 163 Vt. 62, 63, 655 A.2d 703, 705(1994).The facts come primarily from plaintiff's affidavit in opposition to summary judgment, supplemented by his deposition and his answers to interrogatories.

¶ 3.Plaintiff was employed by the State as a senior corrections officer in the Northeast Regional Correctional Center in Saint Johnsbury from November 1, 1993 until October 18, 1999.Up until July, 1999, plaintiff had never been subject to employee disciplinary actions.During that period, he received excellent evaluations, was frequently consulted by defendant superintendent, and was in line to become a supervisor.In the fall of 1998, plaintiff was selected as a facility steward for the Vermont State Employees Association(VSEA).

¶ 4.In mid-July 1999, several junior officers approached plaintiff as union steward and informed him that two supervisors were coming to work under the influence of alcohol.Plaintiff reported these concerns to defendant superintendent, who stated that she was pleased that the situation had been brought to her attention.

¶ 5.A few days after plaintiff made this report, he was summoned to meet with the superintendent and told that he should bring a union representative to the meeting.At the meeting, plaintiff was informed that the superintendent was investigating a complaint brought against him by a supervisor — not one of the supervisors plaintiff reported — for using demeaning language about a supervisor.Plaintiff became concerned that the alleged incident was being blown out of proportion and not being handled by the normal procedure of informing plaintiff's supervisor.Around this same time, plaintiff noticed that the other officers and supervisors were treating him less congenially than they had before he reported the supervisors.

¶ 6.Also around this time, plaintiff experienced several changes in his working conditions.First, plaintiff was no longer given breaks during his shift as he had been prior to July 1999.Second, during his shift, several of the more experienced officers were moved to more menial jobs, and replaced with less experienced officers, creating more demands on plaintiff.Third, plaintiff's name was removed from the acting supervisor's list.Finally, when plaintiff signed up for overtime shifts he would be reassigned to shifts he had not specified.

¶ 7.Around the end of July or the beginning of August, plaintiff's supervisor told him that he feared what other supervisors might do to him because he was not hostile to plaintiff.He told him that supervisors were meeting about plaintiff and telling trusted workers and inmates to watch him.

¶ 8.On August 25, 1999, the superintendent gave plaintiff a reprimand letter stating he had "demeaned the reputation of supervisors using profane and inflammatory language."The letter ordered plaintiff to refrain from using profanity.Plaintiff found this restriction to be unreasonable because all employees in the correctional center used profanity on a regular basis.The superintendent also told plaintiff that he had to respond to another complaint about his handling of a disciplinary appeal.The complaint had been made by another corrections officer to the administrative supervisor.Plaintiff met with the administrative supervisor and explained his actions with regard to that complaint and two others from the officer.

¶ 9.A few days after this meeting, plaintiff"blew up" at his supervisor.Plaintiff then met with the superintendent to discuss this incident.Following this meeting, plaintiff was informed that he was going to be investigated to determine if at any time during his six years as a senior corrections officer his actions "reflected discredit upon the Department."Plaintiff was unaware of any other department employee ever being subject to this type of investigation.

¶ 10.In early fall 1999, plaintiff appealed the reprimand letter he received earlier that year.On October 13, 1999, plaintiff attended a grievance hearing before the department personnel officer.During the hearing, plaintiff was not allowed to see the witness statements or reports in the superintendent's file.At the conclusion of the hearing, plaintiff's grievance was denied.After the hearing, plaintiff was emotionally distraught.He did not return to work and was admitted to the VA hospital psychiatry wing.

¶ 11.On November 2, 2000plaintiff filed a complaint against defendants for intentional infliction of emotional distress (IIED).On June 5, 2002, plaintiff filed a motion to amend his complaint to supplement the IIED allegations and add a prima facie tort claim.The trial judge allowed the amendments to the IIED allegations, but denied the motion to add a prima facie tort count because this cause of action has not been recognized in Vermont.On October 18, 2002defendants filed a motion for summary judgment arguing, as they do here, that plaintiff's complaint did not allege actions sufficiently outrageous to support an IIED claim.Defendants further argued that even if the trial court found the alleged conduct sufficiently outrageous, sovereign immunity barred plaintiff's claim against the State and the superintendent in her official capacity and the doctrine of qualified immunity barred plaintiff's claim against the superintendent in her individual capacity.

¶ 12.In March 2003, the Caledonia Superior Court granted defendants' summary judgment motion.Plaintiff then, pursuant to V.R.C.P. 59(e), asked the trial court to amend its opinion and consider plaintiff's renewed motion to amend his complaint.The trial court granted plaintiff's motion in part, making minor edits to the order, and denied plaintiff's renewed motion to amend the complaint.This appeal followed.

¶ 13.In reviewing a grant of summary judgment we apply the same standard as the trial court.Ross v. Times Mirror, Inc., 164 Vt. 13, 17-18, 665 A.2d 580, 582(1995).For a grant of summary judgment to be upheld, the moving party must show "that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law."Denton, 163 Vt. at 66, 655 A.2d at 706.If the nonmoving party alleges specific facts that raise a triable issues and establish a prima facie case, the trial court's finding will be reversed; however, if the nonmoving party fails to establish an essential element of his or her claim, the ruling will be affirmed.Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 79, 807 A.2d 390, 395(2002).

¶ 14.To sustain a claim for IIED plaintiff must show defendants engaged in "outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct."Sheltra v. Smith, 136 Vt. 472, 476, 392 A.2d 431, 433(1978).Plaintiff's burden on this claim is a "heavy one" as he must show defendants' conduct was "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decent and tolerable conduct in a civilized community and be regarded as atrocious and utterly intolerable."Dulude, 174 Vt. at 83, 807 A.2d at 398.The court makes the initial determination of whether a jury could reasonably find that the alleged conduct satisfies all the elements of an IIED claim.Jobin v. McQuillen, 158 Vt. 322, 327, 609 A.2d 990, 993(1992)(citingRestatement (Second) of Torts§ 46, comment h (1965)).

¶ 15.The trial court ruled that the evidence plaintiff presented did not show conduct "so outrageous in character and so extreme in degree to go beyond all possible bounds of decency and tolerable conduct in a civilized community."In reviewing this determination, we note that our IIED cases have often been brought by employees against employers for actions...