Gallipo v. City of Rutland

• Decision Date: 29 July 2005
• Docket Number: No. 04-041.,04-041.
• Citation: 882 A.2d 1177
• Court: Vermont Supreme Court
• Parties: Raymond GALLIPO v. CITY OF RUTLAND.

882 A.2d 1177

Raymond GALLIPO v. CITY OF RUTLAND.

No. 04-041.

Supreme Court of Vermont.

July 29, 2005.

Andrew Jackson, Middlebury, for Plaintiff-Appellant.

Joseph A. Farnham and Kevin J. Coyle of McNeil, Leddy & Sheahan, Burlington, for Defendant-Appellee/Cross-Appellant.

Present: REIBER, C.J., DOOLEY, J., and GREARSON, District Judge, ALLEN, C.J. (Ret.), and GIBSON, J. (Ret.), Specially Assigned.

¶ 1. DOOLEY, J.

Plaintiff, Raymond Gallipo, appeals a superior court order granting summary judgment to defendant, City of Rutland, on plaintiff's retaliatory discrimination claims, and defendant appeals the court's order dismissing its unjust enrichment counterclaim. Plaintiff argues that the court erred in (1) accepting defendant's requests to admit as fact and denying plaintiff a renewed chance to respond; (2) admitting defendant's statement of undisputed facts in its summary judgment motion for plaintiff's failure to comply with Rule 56(c)(2); and (3) determining that collateral estoppel applied to the workers' compensation proceedings. Defendant argues that the trial court erred in precluding it from recovering temporary workers' compensation benefits paid to plaintiff. We affirm both appeals.

¶ 2. The parties appear before this Court for the sixth time. See Gallipo v. City of Rutland, 173 Vt. 223, 225-26, 789 A.2d 942, 945 (2001) [hereinafter Gallipo V] (chronicling facts and procedural history of dispute). They have been involved in litigation for over fifteen years surrounding plaintiff's claims of discrimination against his former employer, the City of Rutland, where he worked as a firefighter. In 1995, a jury rendered a verdict in plaintiff's favor, finding that the City discriminated against plaintiff by refusing to promote him because of his religious practices and a learning disability. After this verdict, plaintiff continued to work for the City's fire department and in 1998 began this action.

¶ 3. This litigation is best viewed in two phases. The first began when plaintiff filed a complaint under the Vermont Fair Employment Practices Act, 21 V.S.A. §§ 495-496 (VFEPA), naming as defendants the City of Rutland and its fire chief, Gerald Lloyd, and claiming that, in response to his success in the previous trial, the City engaged in unlawful retaliatory employment practices. Plaintiff alleged that these practices included subjecting him to heightened scrutiny, resentment, withholding of computer privileges and training, denial of funeral leave, videotaping him at a training class, denial of workers' compensation, denial of sick leave credits and constant criticism and shunning.

¶ 4. Plaintiff particularly complained of an incident on September 13, 1996, when a fire department trainer attempted to videotape a training session at which plaintiff was present. Following a heated exchange with the person who was instructed to video the session, plaintiff left the training and did not return to work. Plaintiff claims that he was being targeted by the taping and that the incident caused him great stress. Defendant counters that the taping was routine, done for the benefit of those who could not attend, and not personally aimed at plaintiff.

¶ 5. Plaintiff never returned to work after the taping incident and on the day of the incident filed a workers' compensation claim alleging that he suffered anxiety and depression as a result of his treatment at the fire department. He articulated four stressors that caused his mental injury: ongoing ridicule from fellow firefighters; use of profane language by other employees; lack of a computer password to perform his role as computer specialist; and the confrontation over the videotaping. The Commissioner of Labor and Industry awarded interim benefits to plaintiff while his claim was pending. Ultimately, the Commissioner denied this claim, concluding that "plaintiff had failed to prove that the mental injury he alleged was caused by work-related stresses from any of the four specified events." Gallipo V, 173 Vt. at 226, 789 A.2d at 945.

¶ 6. During discovery, defendants deposed plaintiff on January 19, 1999 and thereafter served requests for admission on March 1, 1999. V.R.C.P. 36. Defendants then filed a motion for summary judgment on March 3, 1999. Although plaintiff responded to the summary judgment motion, he never submitted answers to the requests to admit. The superior court granted summary judgment on April 19, 2000, concluding that the fire chief was immune from suit and that the workers' compensation action exclusivity clause prevented plaintiff from bringing his employment discrimination action. Plaintiff appealed, and we affirmed the first ground and reversed the second. Gallipo V, 173 Vt. at 239, 789 A.2d at 954. As a result of our decision, fire chief, Gerald Lloyd, was dismissed as a defendant, and the action proceeded solely against the City. This ended the first phase of the litigation.

¶ 7. The second phase commenced with the remand to the superior court. Plaintiff sought successfully to amend his complaint to allege that he was terminated by defendant as part of its retaliatory actions against him. The motion to amend was ultimately granted in October 2002. Meanwhile, defendant filed three motions for summary judgment as follows: (1) the first alleged that based on the undisputed facts — particularly those shown by defendant's requests to admit in phase one of the litigation and its statement of undisputed facts in support of its summary judgment motion — defendant was entitled to judgment as matter of law on plaintiff's discrimination claims; (2) the second alleged, as discussed below, plaintiff's claims were barred by the preclusive effect of the Commissioner of Labor and Industry's decision; and (3) the third sought reimbursement for temporary workers' compensation benefits the City paid to plaintiff.

¶ 8. Defendant's issue preclusion argument was based on the fact that on July 12, 2000, the Commissioner of Labor and Industry denied plaintiff's workers' compensation claim because she found that none of the alleged stressors created stress greater than that for other employees. Following the Commissioner's decision, defendant counterclaimed against plaintiff seeking reimbursement of temporary workers' compensation benefits paid to plaintiff under an interim order requiring the City to pay benefits while plaintiff's claim was pending. Defendant argued that reimbursement was appropriate under a theory of unjust enrichment and moved for summary judgment, the third motion described above, for the return of $67,413 plus interest in August 2002.

¶ 9. In response to defendant's first summary judgment motion, plaintiff relied upon a statement of contested facts filed in 1999 and attached new affidavits, and an "additional statement of contested material facts" based upon the affidavits. He also requested permission to submit untimely answers to the March 1, 1999 requests to admit. The court denied plaintiff's request to allow a renewed chance to respond and further held that plaintiff had failed to file a proper statement of disputed material facts as required by Rule of Civil Procedure 56(c)(2). Because of the civil rule violation, the court deemed defendant's statement of undisputed material facts as admitted. It did not, however, grant summary judgment on this record alone; instead the court combined this first motion with the second one.

¶ 10. The court's decision on the second summary judgment motion parallels its decision on the first. Again, it held that plaintiff had failed to comply with Rule 56(c)(2) when he filed new material in response to the motion and held, as a result, that defendant's statement of undisputed facts was deemed admitted. It also ruled that the Commissioner of Labor and Industry's decision on plaintiff's claim for workers' compensation preclusively established the same facts.

¶ 11. Combining the undisputed facts established by plaintiff's admissions, and those submitted in support of the two motions, the court held that defendant was entitled to judgment as a matter of law on all of plaintiff's claims. Specifically, the court held that since "plaintiff did not suffer a compensable stress-related injury arising out of the course of his employment and that his perceived mistreatment was subjective," plaintiff's discrimination claim could not go forward.

¶ 12. The court denied the third summary judgment motion, under which defendant sought return of the amounts paid as temporary workers' compensation benefits based on a theory of unjust enrichment. The court concluded that, even if defendant's claim could be maintained on a theory of unjust enrichment, the facts did not support application of the theory because defendant failed to file medical evidence in opposition to plaintiff's supported motion for interim benefits. Thus, the court reasoned that defendant slept on its rights, and plaintiff was not unjustly enriched. This appeal and cross-appeal followed.

I.

¶ 13. We first address plaintiff's argument that the court erred in granting defendant summary judgment on plaintiff's retaliation claim. On appeal, we review summary judgment de novo and use the same standard as the trial court. Springfield Terminal Ry. v. Agency of Transp., 174 Vt. 341, 344, 816 A.2d 448, 451 (2002). We will affirm if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, referred to in the statements required by Rule 56(c)(2), show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." V.R.C.P. 56(c)(3); Springfield Terminal Ry., 174 Vt. at 344, 816 A.2d at 451. All reasonable doubts and inferences are resolved in favor of the nonmoving party, and "[s]ummary judgment is required when, after adequate time for discovery, a party fails to make a showing sufficient to establish the existence of an element...