Gallipo v. City of Rutland

• Decision Date: 21 December 2001
• Docket Number: No. 00-217.,00-217.
• Citation: 789 A.2d 942
• Parties: Raymond F. GALLIPO v. CITY OF RUTLAND and Gerald Lloyd.
• Court: Vermont Supreme Court

789 A.2d 942

Raymond F. GALLIPO v. CITY OF RUTLAND and Gerald Lloyd.

No. 00-217.

Supreme Court of Vermont.

December 21, 2001.

Andrew Jackson, Middlebury, for Plaintiff-Appellant.

Kevin J. Coyle of McNeil, Leddy & Sheahan, Burlington, for Defendants-Appellees.

Present: DOOLEY and MORSE, JJ., and KATZ, Superior Judge, COOK, District Judge and GIBSON, J. (Ret.), Specially Assigned.

DOOLEY, J.

Plaintiff Raymond Gallipo appeals from the Rutland Superior Court's order granting defendants, City of Rutland and Chief Fire Engineer Gerald Lloyd's, motions for summary judgment. Plaintiff argues on appeal that (1) the instant discrimination action under the Vermont Fair Employment Practices Act, 21 V.S.A. §§ 495-496 (VFEPA), is not barred by the Workers' Compensation Act's (WCA) exclusivity provision, 21 V.S.A. § 622; and (2) the Chief may be held personally liable under VFEPA because the municipal officer immunities law, 24 V.S.A. § 901, does not apply. We affirm in part, reverse in part, and remand for further proceedings.

This is the fifth time this protracted litigation, and related cases, have been before this Court. Plaintiff was a firefighter in the Rutland Fire Department, and all of his claims arise out of this status. The first case, Gallipo v. City of Rutland, 163 Vt. 83, 656 A.2d 635 (1994) (Gallipo I), dealt with plaintiff's claims that he was denied promotion for discriminatory reasons and was assigned menial work in retaliation for his discrimination complaints. We held that plaintiff's VFEPA claims that he was denied the promotion on account of his religious activities and disability, and his retaliation claim, were sufficiently supported to withstand defendants' motion for summary judgment. On remand, the jury found that defendants had discriminated against plaintiff based on his religious practices and his disability, and had also retaliated against him because of his discrimination claims; it awarded substantial damages. We affirmed in Gallipo v. City of Rutland, 168 Vt. 646, 712 A.2d 394 (1998) (unpublished mem.) (Gallipo II).

Because of a dispute over insurance coverage, defendants sought successfully to delay paying the judgment, and plaintiff appealed the stay of execution. The parties reached a settlement of the payment issues, and we dismissed the appeal in Gallipo v. City of Rutland, 169 Vt. 650, 729 A.2d 723 (1999) (unpublished mem.) (Gallipo III). The judgment was eventually satisfied, ending the initial phase of the litigation.

This phase of the litigation arose as a result of a series of four events culminating in a September 1996 incident in which the department videotaped a training session at which plaintiff was present. Plaintiff objected to the taping, and a confrontation developed between him and the training instructor. He left work that day, after filing a workers' compensation claim, and has never returned. Plaintiff alleges that as a result of the events, and the stress caused by ongoing acts of retaliation and discrimination, he suffers from "anxiety disorder with somatization and depression with physical manifestations." On February 12, 1998, after receiving interim workers' compensation benefits, and while his claim was pending before the Commissioner of Labor and Industry, he brought this VFEPA action alleging that defendants had again discriminated against him based on his religious practices and disability, and retaliated against him for successfully maintaining his original VFEPA case.

The case proceeded on two tracks: one before the Commissioner regarding workers' compensation and the VFEPA action and one in the superior court. On the workers' compensation track, the Vermont Department of Labor and Industry ordered in October 1997 that the city compensate plaintiff while his workers' compensation claim was pending. On July 12, 2000, the Commissioner of Labor and Industry denied plaintiff's workers' compensation 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. The decision is based on the standard for proving mental injuries in workers' compensation claims we approved in Bedini v. Frost, 165 Vt. 167, 678 A.2d 893 (1996). Plaintiff failed to file a timely appeal from this ruling. On July 20, 2001 in Gallipo v. City of Rutland, 172 Vt. ___, 782 A.2d 86 (2001) (unpublished mem.) (Gallipo IV), we affirmed the superior court dismissal of plaintiff's untimely attempted appeal of the Commissioner's decision.

Defendants sought summary judgment in the superior court action, arguing among other grounds that the VFEPA action against the city is barred by the exclusive remedy provision of the WCA, 21 V.S.A. § 622, and that plaintiff cannot sue his supervisor, Chief Lloyd, under VFEPA both because Lloyd is not his employer and because of the effect of 24 V.S.A. § 901(a). On April 19, 2000, the superior court granted the motion, holding that § 622 prevents "an employee who has received compensation for his injuries under the WCA from bringing an action against the employer under a state statute, including FEPA," and holding that Lloyd could not be sued because he is not an employer under VFEPA, and that 24 V.S.A. § 901(a) requires that any action against him be brought against the city.

In appealing the superior court decision, plaintiff makes three arguments: (1) the WCA exclusivity provision, 21 V.S.A. § 622, does not bar an action against an employer where the employee's entitlement to benefits is contested and the Commissioner of Labor and Industry has not issued a decision;¹ (2) even if the Commissioner issues a decision favorable to plaintiff, the exclusivity provision does not bar a VFEPA action; and (3) defendant Lloyd is an employer for purposes of VFEPA, and a suit against him is not prevented by 24 V.S.A. § 901(a). We address these arguments in order.

The superior court held that plaintiff's VFEPA action is barred by the exclusivity provision of the WCA, 21 V.S.A. § 622, which provides:

§ 622. Right to compensation exclusive

[T]he rights and remedies granted by the provisions of this chapter to an employee on account of a personal injury for which he is entitled to compensation under the provisions of this chapter shall exclude all other rights and remedies of the employee, the employee's personal representatives, dependents or next of kin, at common law or otherwise on account of such injury.

The court held that § 622 applied because plaintiff had received workers' compensation benefits.

We do not have to get deep into plaintiff's appeal to hold that the superior court improperly applied § 622. The section applies only where the employee is "entitled to compensation under the provisions of this chapter." As of the time that the superior court acted, there had been no decision that plaintiff was entitled to workers' compensation, and the city was arguing that he was not so entitled.² Defendants have never argued in the superior court that plaintiff is entitled to workers' compensation benefits. Section 622 does not support the superior court's decision.

Defendants argue, however, that the superior court decision was correct for either of two additional reasons. First, they argue that § 622 applies because plaintiff sought workers' compensation benefits from the Commissioner even if he never received them. Here, defendants are invoking the common-law doctrine of election of remedies. Defendants argue that plaintiff elected his remedy in submitting a workers' compensation claim and should not be allowed to pursue an inconsistent remedy by suit in superior court. For purposes of this argument, we assume that the remedies are inconsistent. At the outset, we emphasize that defendants' argument is inconsistent with the wording of § 622, the exclusivity statute. See Danker v. Wilimek, 577 N.W.2d 634, 636 (Iowa 1998) (issue controlled by statute, and doctrine of election of remedies is not involved). Instead of denying a court remedy to an employee who is eligible for workers' compensation benefits, defendants would have us hold that an employee who files a workers' compensation claim is precluded from bringing a civil action against the employer on account of the employee's injury, whether or not the employee is eligible for workers' compensation. We believe that the statute controls and precludes the use of the doctrine of election of remedies as defendants propose.

In any event, the application of the doctrine, at least in its modern version, would not go as far as defendants urge. We explained the doctrine in terms directly applicable here in Sabourin v. Woish:

An unsuccessful attempt to claim a right, or pursue a remedy, to which a party is not entitled, will not deprive him of that to which he is entitled. So where a party, in ignorance of his rights, resorts to a supposed remedy and fails, he is not precluded from resorting to the remedy he in fact has.... Nor did that action constitute an election of remedies. Election exists when a party has two alternative and inconsistent remedies, and is determined by a manifestation of choice; but the fact that a party wrongly supposed he had two such rights, and attempted to choose the one to which he was not entitled is not enough to prevent his exercising the other, if entitled to it.

117 Vt. 94, 98, 85 A.2d 493, 496 (1952) (citations omitted); see also Lively v. Libbey Mem'l Physical Med. Ctr., Inc., 317 Ark. 5, 875 S.W.2d 507, 509 (1994) (party does not "elect between inconsistent remedies when he actually only has one available"); Patrick v. Highbaugh, 347 S.W.2d 88, 90 (Ky.1961) (election doctrine requires two valid but inconsistent remedies and is not applicable when only one in fact exists). Our pleading rules, modeled on the Federal Rules of Civil Procedure, specifically authorize making inconsistent claims. See V.R.C.P. 8(e)(2); see 5 Charles Alan Wright & Arthur R. Miller, Federal Practice...