Green v. Vermont Country Store, 1:01-CV-60.

Decision Date14 March 2002
Docket NumberNo. 1:01-CV-60.,1:01-CV-60.
Citation191 F.Supp.2d 476
CourtU.S. District Court — District of Vermont
PartiesSarah A. GREEN, Plaintiff, v. The VERMONT COUNTRY STORE, Defendant.

Norman E. Watts, Jr., Woodstock, VT, for plaintiff.

Heather Briggs, Gravel & Shea, Burlington, VT, for defendant.

OPINION AND ORDER

(Paper 24)

MURTHA, Chief Judge.

Defendant The Vermont Country Store ("VCS") moves for summary judgment on Plaintiff Sarah A. Green's claims for wrongful termination, breach of good faith, age discrimination and retaliation. For the reasons set forth below, VCS's motion is GRANTED.1

I. Background
A. The Outside Audit Recommendations and Green's Termination

Green was employed by VCS as Training and Development Manager from March 25, 1996 until January 3, 2001. In October of 2000, Gallagher, Flynn & Company ("GFC") conducted an audit of VCS's Human Resources Department for the purpose of "recommend[ing] the proper structure for the Human Resource department as VCS continues to grow." Paper 25, Ex. C. Among other recommendations, the audit concluded that

VCS should not have a separate position for Training and Development. We believe that most of the training that will take place in the organization will be conducted by outside companies. The VP of HR, as part of the Organizational Development function, should be responsible for the development and implementation of the training and development plan for VCS. The incumbent in the Training and Development position today is not seen by the people we interviewed as being effective in this role. The positive feedback she received was by managers who use her as an HR Generalist regarding one-on-one employee issues. Most of the people we interviewed were not sure as to the overall contribution that has been made by the incumbent. Several thought that the programs that have been delivered were not followed through properly. Given this reality, we believe that VCS would be better served by a Manager of Compensation and Benefits than Training and Development. As VCS grows, this position could be added in the future. Typically, you do not see in-house Training and Development managers until the company reaches 750-1000 employees.

Id. The audit also recommended "establishing a structure whereby every department in the company has a [human resources] representative assigned to it." Id. This representative, a so-called "Human Resources Generalist" "would handle virtually all the HR needs for his/her assigned departments[,]" by "develop[ing] a close working relationship with each of the supervisors and managers whom he/she is assigned to[,]" and "knowing the `pulse' and issues of the non-management employees in his/her assigned areas." Id.

During her deposition, Green testified that she lacked qualifications and training needed for the position of Benefits and Compensation Manager. Green also conceded that prior to her dismissal she told her immediate supervisor, Vice-President for Human Resources Pamela Nemlich, that she preferred not to spend a large amount of her time at VCS "dealing with hourly employees," since she "had done that for many years ... and ... wanted to move in to the next level." Id., Ex. B, at 102-03.

On January 3, 2001—without prior warning that her job performance was lacking or notice about the recommendations contained in the GFC audit2—Green was terminated from her position. When Green questioned why she was being terminated, Nemlich told her that the decision was based on Green's "value" to VCS and the GFC audit recommendation that VCS eliminate Green's position in favor of a benefits and compensation position. Green later testified that her termination was a "direct" result of the GFC audit's criticism of her job performance, as well as the recommendation that the Human Resources Department would operate more effectively with a Manager of Benefits and Compensation position.

B. VCS's Personnel Policies

The first page of VCS's Employee Handbook contains an isolated paragraph that states: "The Vermont Country Store is an equal opportunity employer. The Vermont Country Store subscribes to an employment at will policy. This handbook establishes guidelines only. It does not constitute a contract in any way, shape, or form." Paper 25, Ex. E. The Handbook elsewhere states: "The Vermont Country Store reserves the right to dismiss an employee with or without cause and with or without notice at any time." Id.

With respect to VCS's employee policies, Green testified that: (1) she received and read the Employee Handbook; (2) she was never told the Handbook constituted an employment contract; (3) she understood VCS could terminate its employees "on the spot," but that VCS sometimes chose to give its employees a warning instead; (4) she was never told she could only be fired for just cause or only if she received a prior warning.

C. Green's Alleged Replacement

Green was 52 years of age when she was terminated. Six weeks prior to her termination, VCS hired Kelly Moriarty to be a Human Resources Specialist. Moriarty was 30 years old when she was hired and had no prior experience in the field of human resources. See Paper 25, Ex. I. Moriarty testified that she "felt that [she] was hired to do half training and half employee relations." Id. As of July 2001, however, Moriarty's job responsibilities, job title, and pay level differed from those held previously by Green. In particular, Moriarty's job responsibilities primarily encompassed employee relations, including recruitment, orientation and retention. Id.

II. Discussion
A. Count I: Wrongful Termination/Breach of Contract

Under Vermont law, there is a presumption that employment for an indefinite period is employment "at will." See Havill v. Woodstock Soapstone Co., 783 A.2d 423, 427 (Vt.2001). "At will" employment relationships are "terminable at any time, by either party, for any reason or for no reason at all." Trombley v. Southwestern Vt. Med. Ctr., 169 Vt. 386, 738 A.2d 103, 108 (1999). "At-will employees are thus barred from bringing wrongful discharge claims." Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1242 (2d Cir. 1995) (applying Vermont law).

The presumption of "at will" employment, however, is only a "basic precept of employment contract construction ...[,]" "that can `be overcome by evidence to the contrary.'" Taylor v. Nat'l Life Ins. Co., 161 Vt. 457, 652 A.2d 466, 470 (1993) (quoting Foote v. Simmonds Precision Prods. Co., 158 Vt. 566, 613 A.2d 1277, 1279 (1992)); see also Havill, 783 A.2d at 427 (the "at will" presumption is a "rule of construction, and not of substantive law, which the parties can modify according to the usual rules of contract").

"In determining whether the at-will status has been modified, a court may consider a variety of factors, including the personnel policies or practices of the employer, and actions or communications by the employer reflecting assurances of continued employment." Brace v. Int'l Bus. Machines Corp., 953 F.Supp. 561, 567 (D.Vt.1997) (citing Benoir v. Ethan Allen, Inc., 147 Vt. 268, 514 A.2d 716, 718 (1986)); see Havill, 783 A.2d at 428. Personnel policy manuals may create an enforceable employment contract if they are distributed to employees and contain "`definitive policies, which expressly or impliedly include a promise for specific treatment in specific situations....'" Trombley, 738 A.2d at 109 (quoting Ross v. Times Mirror, Inc., 164 Vt. 13, 665 A.2d 580, 584 (1995)); see Havill, 783 A.2d at 428 ("Personnel policies that commit an employer to a progressive discipline system present a triable issue of fact on whether an employer may terminate an employee only for just cause."); Ross, 665 A.2d at 585 ("The critical inquiry is ... whether the procedure amounted to an enforceable promise of specific treatment in a specific circumstance."). Similarly, an employer's practice may create an enforceable employment contract so long as "it is clearly established and uniformly and consistently applied throughout the company." Ross, 665 A.2d at 585.

In this case, Green argues she was not an "at-will" employee and that her termination was wrongful because of a "general spirit of fairness contained in the handbook pronouncements and practices pursued by VCS." Paper 25, Ex. B, at 97-98. She maintains that three separate statements in the Handbook create an implied employment contract with VCS: First, Green cites the "President's Welcome" section of the Handbook, which reads in relevant part:

We pride ourselves on excellent relationships with two groups of people—our employees and our customers.

***

We believe that an employee who is proud of the company, satisfied with his or her job, compensation, benefits, and working conditions, happy with co-workers, and challenged for personal growth, will be most likely to offer exemplary service to our customers. Therefore, in order for our customers to come first, our employees really have to come first.

*** I strongly encourage every person in this organization to never be afraid to care.... Care that the company's future success is yours also. This company values these things and supports individuals whose actions exhibit that kind of attitude. You will always have my support when you conduct yourself this way.

Paper 25, Ex. E.

Second, Green cites the Handbook section entitled "Ambassadors," which states:

This message is from [the VCS President] to every current employee and is intended to help new and prospective employees understand our company.

The comment I hear the most from people outside VCS is, `What nice people you have working with you.' Each of us is an ambassador and obviously people have noticed and will continue to notice. Just think how good it made you feel when you were first joining VCS to be welcomed and assisted by the people already on the job. And think about what made you decide to join us. Use these personal thoughts in conducting your ambassadorial...

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