Graff v. Eaton, No. 88-146

Docket NºNo. 88-146
Citation157 Vt. 321, 598 A.2d 1383
Case DateAugust 30, 1991
CourtUnited States State Supreme Court of Vermont

Page 1383

598 A.2d 1383
157 Vt. 321, 60 Fair Empl.Prac.Cas. (BNA) 990
Nancy GRAFF
v.
Milton EATON, Individually and as Secretary of Vermont
Agency of Development and Community Affairs, and
State of Vermont.
No. 88-146.
Supreme Court of Vermont.
Aug. 30, 1991.

William W. Pearson, John H. Tarlow and Andre D. Bouffard of Downs Rachlin & Martin, Burlington, for plaintiff-appellant.

[157 Vt. 322] Jeffrey L. Amestoy, Atty. Gen., Montpelier, Richard W. Norton, Special Asst. Atty. Gen., Rutland, and Geoffrey A. Yudien, Asst. Atty. Gen., Montpelier, for defendants-appellees.

Before [157 Vt. 321] ALLEN, C.J., PECK and GIBSON, JJ., BARNEY, C.J. (Retired) and SPRINGER, District Judge (Retired), Specially Assigned.

[157 Vt. 322] GIBSON, Justice.

Plaintiff appeals from a jury determination that defendants did not discriminate against her on the basis of gender when she was not hired on a flextime schedule as editor of Vermont Life magazine. We reverse and remand for a new trial.

Plaintiff was hired as acting editor of Vermont Life in June 1983, shortly after the acrimonious dismissal of the prior editor. She began her editorship on a part-time basis, but it gradually evolved into a full-time commitment. Pleased with her performance as acting editor, then Secretary of the Agency of Development and Community Affairs, Milton Eaton, encouraged plaintiff to apply for the permanent position. At first, plaintiff declined to do so, citing her desire to care for her infant son; eventually, she changed her mind. The Vermont Life advisory board found plaintiff to be the most qualified candidate, and Eaton offered her the job of permanent editor.

Plaintiff conditioned her acceptance on the State giving her a flexible work schedule. Although a certain degree of flexibility was inherent in the editor's position, a flextime schedule had never been officially sanctioned for any of the previous editors, all of whom had been men. Eaton refused to grant plaintiff a flextime schedule, stating

Page 1384

that it was inappropriate in light of the recent managerial instability following the prior editor's dismissal. At one point during the discussions, plaintiff claims Eaton stated that if he gave her flextime, every female state employee with small children would also want a flexible schedule. Eaton testified that he did not recall making the remark. Because the conflict over flextime was never resolved, plaintiff never accepted the State's offer. Eventually, a male was chosen as the magazine's editor and no flextime schedule was provided.

Plaintiff filed suit against Milton Eaton, individually and in his representative capacity, the Vermont Agency of Development and Community Affairs, and the State of Vermont, claiming that, in violation of Vermont's Fair Employment Practices Act, 21 V.S.A. §§ 495-496, the Agency refused to hire her on a flextime schedule because of prohibited sex stereotyping. Following[157 Vt. 323] a two-week trial, the jury returned a verdict for defendants. On appeal, plaintiff claims that (1) the jury instructions improperly allocated the burdens of proof, and (2) defendants' closing argument was improper and prejudicial.

Plaintiff first contends that the trial court erred by failing to instruct the jury that once a plaintiff proves that gender was a motivating factor in the employment decision, an employer may avoid liability only by proving that it would have made the same decision even if it had not taken the plaintiff's gender into account. 1 We agree and conclude that the omission requires that we reverse and remand the case.

The Fair Employment Practices Act, which makes it unlawful for an employer "to discriminate against any individual because of [her] ... sex," 21 V.S.A. § 495(a)(1), is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, State v. Whitingham School Board, 138 Vt. 15, 17, 410 A.2d 996, 997 (1979); "[t]he standards and burdens of proof under state law are identical to those existing under federal law." Cobb v. Dufresne-Henry, Inc., 603 F.Supp. 1048, 1053 (D.Vt.1985). Nevertheless, in contrast to the federal act, 2 jury trials are permitted in actions under the Vermont act; therefore, we need not follow every nuance of federal court pronouncements on Title VII in FEPA actions. See, e.g., Stork v. International Bazaar, Inc., 54 Wash.App. 274, 282-83, 774 P.2d 22, 26-27 [157 Vt. 324] (1989) (citing undue complexity and potential jury confusion, court declined to adopt federal method of allocating burden of proof for cases brought under state age discrimination law patterned after Title VII).

Under current federal law, "[t]he critical inquiry ... is whether gender was a factor in the employment decision at the moment it was made." Price Waterhouse v. Hopkins, 490 U.S. 228, 241, 109 S.Ct. 1775, 1786, 104 L.Ed.2d 268 (1989). When the plaintiff proves that a discriminatory reason, such as gender, played a motivating factor in an employment decision, the burden of persuasion then falls upon, and remains with, the employer to prove "by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account." Id. at 258, 109 S.Ct. at 1794. Placing the burden of proof on the employer

Page 1385

in such situations is appropriate because, once the plaintiff has shown that an illegal, discriminatory motive was a factor in the employer's decision, the reason for applying the McDonnell Douglas formula 3--to uncover the motives involved in the employment decision--no longer exists. See Grant v. Hazelett Strip-Casting [157 Vt. 325] Corp., 880 F.2d 1564, 1568-69 (2d Cir.1989). In Price Waterhouse, the Court ruled that the following evidence was sufficient proof of a discriminatory motive to place the burden of persuasion on the employer: (1) the employer heavily relied on stereotypical comments submitted by colleagues in connection with the plaintiff's application for partnership; (2) female candidates for partnership in previous years had been evaluated in sex-based terms; and (3) the decisionmaker's spokesman told the plaintiff after the decision had been made that, in order to improve her future chances for partnership, she should "walk...

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22 practice notes
  • McKenny v. John V. Carr & Son, Inc., No. 2:94-CV-30.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • March 20, 1996
    ...applying the McDonnell Douglas formula — to uncover the motives involved in the employment decision — no longer exists." Graff v. Eaton, 157 Vt. 321, 324, 598 A.2d 1383 13 The Court notes that in 1991 Congress amended Title VII with respect to the burden of proof on mixed motives claims. Ti......
  • Robertson v. Mylan Laboratories, Inc., No. 01-466.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 6, 2004
    ...when the plaintiff initially establishes that her sex played a motivating part in an employment decision." Id.; see also Graff v. Eaton, 157 Vt. 321, 324-25, 598 A.2d 1383, 1384-85 (1991). If such direct evidence of discrimination is presented, "the burden of persuasion then falls upon, and......
  • Lavalley v. E.B. & A.C. Whiting Co., No. 94-657
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 17, 1997
    ...as the proper interpretation of FEPA. Defendant is correct that FEPA is patterned after Title VII of the Civil Rights Act, Graff v. Eaton, 157 Vt. 321, 323, 598 A.2d 1383, 1384 (1991), and makes it unlawful for any employer to discriminate against any individual because of his or her sex. 2......
  • Payne v. U.S. Airways, Inc., No. 08-128.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 25, 2009
    ...we allowed a suit for sex discrimination under the VFEPA to proceed against a supervisory employee as an individual. Graff v. Eaton, 157 Vt. 321, 598 A.2d 1383 (1991). 3. As of this writing, the United States Court of Appeals for the First Circuit has not considered the issue. 4. The cases ......
  • Request a trial to view additional results
22 cases
  • McKenny v. John V. Carr & Son, Inc., No. 2:94-CV-30.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • March 20, 1996
    ...applying the McDonnell Douglas formula — to uncover the motives involved in the employment decision — no longer exists." Graff v. Eaton, 157 Vt. 321, 324, 598 A.2d 1383 13 The Court notes that in 1991 Congress amended Title VII with respect to the burden of proof on mixed motives claims. Ti......
  • Robertson v. Mylan Laboratories, Inc., No. 01-466.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 6, 2004
    ...when the plaintiff initially establishes that her sex played a motivating part in an employment decision." Id.; see also Graff v. Eaton, 157 Vt. 321, 324-25, 598 A.2d 1383, 1384-85 (1991). If such direct evidence of discrimination is presented, "the burden of persuasion then falls upon, and......
  • Lavalley v. E.B. & A.C. Whiting Co., No. 94-657
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 17, 1997
    ...as the proper interpretation of FEPA. Defendant is correct that FEPA is patterned after Title VII of the Civil Rights Act, Graff v. Eaton, 157 Vt. 321, 323, 598 A.2d 1383, 1384 (1991), and makes it unlawful for any employer to discriminate against any individual because of his or her sex. 2......
  • Payne v. U.S. Airways, Inc., No. 08-128.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 25, 2009
    ...we allowed a suit for sex discrimination under the VFEPA to proceed against a supervisory employee as an individual. Graff v. Eaton, 157 Vt. 321, 598 A.2d 1383 (1991). 3. As of this writing, the United States Court of Appeals for the First Circuit has not considered the issue. 4. The cases ......
  • Request a trial to view additional results

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