Hodgdon v. Mt. Mansfield Co., Inc., No. 91-346

Docket NºNo. 91-346
Citation624 A.2d 1122, 160 Vt. 150
Case DateNovember 06, 1992

Page 1122

624 A.2d 1122
160 Vt. 150, 63 Empl. Prac. Dec.P 42,876,
61 USLW 2337,
2 A.D. Cases 499, 3 NDLR P 303
Mary HODGDON
v.
MT. MANSFIELD COMPANY, INC.
No. 91-346.
Supreme Court of Vermont.
Nov. 6, 1992.
Motions for Reargument and Clarification
Denied March 19, 1993.

Page 1124

[160 Vt. 153] David J. Mullett of Cheney, Brock & Saudek, P.C., Montpelier, for plaintiff-appellant.

David L. Cleary of David L. Cleary Associates, Rutland, and P. Kevin Connelly of Connelly, Sheehan & Moran, Chicago, IL, for defendant-appellee.

Edwin L. Hobson of Linton & Hobson and Richard Cassidy, Chair, Employment Lawyers Ass'n, Burlington, for amicus curiae Vermont Employment Lawyers Assn.

Jeffrey L. Amestoy, Atty. Gen., and Robert Appel, Asst. Atty. Gen., Montpelier, for amicus curiae Office of the Attorney General.

Before [160 Vt. 150] ALLEN, C.J., GIBSON, DOOLEY and MORSE, JJ., and PECK, J. (Retired), Specially Assigned.

[160 Vt. 153] GIBSON, Justice.

Plaintiff Mary Hodgdon appeals the superior court's decision that defendant Mt. Mansfield Company, Inc., did not discriminate against her on the basis of sex or handicap and did not invade her privacy when it fired her from her position as a chambermaid. Plaintiff also appeals the trial court's decision to grant defendant's motion for a trial before the court on the handicap-discrimination claim. We affirm the superior court's decision regarding plaintiff's claim of invasion of privacy and reverse the court's rulings on the sex- and handicap-discrimination claims. We also hold that parties are entitled to trial by jury on claims for legal damages brought under the Fair Employment Practices Act (FEPA), but we affirm the decision to have trial by court in this case because plaintiff did not request such damages.

Defendant operates a ski resort in Stowe. Plaintiff began working for defendant as a chambermaid in August 1986. She has not had natural upper teeth since 1981, but had a set of dentures made before she went to work for defendant. She did not wear them, however, because they hurt her.

During the fall of 1987, defendant hired Marguerite Pearson as its executive housekeeper. Pearson was responsible for [160 Vt. 154] housekeeping schedules and standards, and reviewing staff performance. She participated in discussions on upgrading the image of the resort in order to obtain a "four-star" rating. Patty Clark, her supervisor, mentioned that the appearance of members of the housekeeping staff, including plaintiff, needed improvement, and Pearson communicated this concern to her staff members.

Pearson asked plaintiff to volunteer for layoff in October 1987, but assured her that she would be rehired in six weeks. In the meantime, however, management personnel decided that plaintiff would not be allowed to return to work without dentures, despite her neat and clean appearance and her good work record. On November 24, Pearson sent plaintiff a letter informing her that Mt. Mansfield was concerned about upgrading "the way employees are seen by the public" and that "employees will be expected to have teeth and to wear them daily to work."

Plaintiff called Pearson upon receipt of the letter and explained that she had dentures but had not been able to wear them because they did not fit. She asked to be allowed to return to work so that she could earn enough money to purchase a new set. Pearson told plaintiff that she could not come back to work without dentures, but that she would hold plaintiff's job open until December 21. The company fired plaintiff when she did not report to work on that date.

Plaintiff filed suit, claiming that defendant violated FEPA, 21 V.S.A. §§ 495-496, by firing her because of a perceived handicap and because of her sex. Plaintiff also brought claims for invasion of privacy, intentional infliction of emotional distress and wrongful discharge. The trial court granted defendant's motion for summary judgment on the sex-discrimination and invasion-of-privacy claims and defendant's motion for trial before the court on the handicap-discrimination charge. Plaintiff dismissed the infliction-of-emotional-distress

Page 1125

and wrongful-discharge claims, and the case proceeded to trial solely on the handicap-discrimination claim.

Plaintiff claims that the trial court erred by (1) granting defendant's motion for trial by court on the handicap-discrimination claim, (2) granting defendant's motion for summary judgment on the sex-discrimination and invasion-of-privacy claims, and (3) finding, as a matter of law, that plaintiff is not a handicapped individual under FEPA.

[160 Vt. 155] I.

Plaintiff first argues that, to the extent there were factual issues to resolve, she was entitled to trial by jury on her sex- and handicap-discrimination claims brought under FEPA. In response, defendant argues that because FEPA did not exist at the time the Vermont Constitution was adopted, and because the statute does not provide for trial by jury, plaintiff has no right to a jury trial in her FEPA actions.

Chapter I, Article 12 of the Vermont Constitution provides: "That when any issue in fact, proper for the cognizance of a jury is joined in a court of law, the parties have a right to trial by jury, which ought to be held sacred." This provision guarantees a right to jury trial to the extent that it existed at common law at the time of the adoption of the constitution in 1793. State Department of Taxes v. Tri-State Industrial Laundries, Inc., 138 Vt. 292, 297, 415 A.2d 216, 220 (1980). The right to trial by jury is not, however, restricted to those common-law causes of action recognized by the Vermont courts in 1793. Rather, we look at the nature of the action and whether it is the type of controversy that would have been tried by a jury under common law at that time. Plimpton v. Town of Somerset, 33 Vt. 283, 291-92 (1860). As we stated in Plimpton:

All the rights, whether then or thereafter arising, which would properly fall into those classes of rights to which by the course of the common law the trial by jury was secured, were intended to be embraced within this article. Hence it is not the time when the violated right first had its existence, nor whether the statute which gives rise to it was adopted before or after the constitution that we are to regard as the criterion of the extent of this provision of the constitution; but it is the nature of the controversy between the parties, and its fitness to be tried by a jury according to the rules of the common law that must decide the question.

Id. (emphasis in original).

The United States Supreme Court has applied a similar test in construing the Seventh Amendment to the federal constitution, 1[160 Vt. 156] 1 preserving the federal right to trial by jury. In Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), the Court held that the Seventh Amendment guaranteed the right to trial by jury in a housing discrimination action brought under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3612, in which the plaintiff sought actual and punitive damages. 415 U.S. at 195, 94 S.Ct. at 1008. The Court declared that "[a]lthough the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time." Id. at 193, 94 S.Ct. at 1007. The term "common law" in the Seventh Amendment means those suits in which legal rights or relief were determined as opposed to equitable rights or relief. Id. Because the plaintiff in Curtis sought actual and punitive damages, the traditional form of relief granted by courts of law, the Court determined that she was enforcing "legal rights" within the meaning of the Seventh Amendment and was entitled to a trial by jury. Id. at 195, 94 S.Ct. at 1008.

Thus, we look to the nature of a FEPA suit and the forms of relief available

Page 1126

under that Act to determine whether there is a right to trial by jury. FEPA makes it unlawful for an employer "to discriminate against any individual because of [her] ... sex ... or against a qualified handicapped individual." 21 V.S.A. § 495(a)(1). It provides that any person aggrieved by a violation of the Act may bring an action to seek "damages or equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees and other appropriate relief." 21 V.S.A. § 495b(b) (emphasis added). 2 The meaning of this statute is plain on its face; it is clear that the Legislature intended to include legal [160 Vt. 157] damages among the remedies available under FEPA. 3 Because this "is the traditional form of relief offered in the courts of law," Curtis, 415 U.S. at 196, 94 S.Ct. at 1009, we hold that parties claiming such damages under FEPA are entitled to trial by jury pursuant to Chapter I, Article 12.

Defendant argues that the right to a jury under the Vermont Constitution does not apply to statutory actions but only to common-law causes of action. It maintains that because FEPA does not grant a right to jury trial, there is no such right in actions under the Act. The petitioner in Curtis advanced the same argument, but the Court held that "[t]he Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law." 415 U.S. at 194, 94 S.Ct. at 1008. Similarly, this Court has found that "[t]he [Vermont] [C]onstitution was intended to provide for the future as well as the past, to protect the rights of the people ... whether those rights then existed by the rules of the common law, or might from time to time arise out of subsequent legislation." Plimpton, 33 Vt. at 291 (emphasis added). Thus, we conclude that the right to trial by jury under the Vermont Constitution is not limited to...

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72 practice notes
  • Barefoot v. Sundale Nursing Home, No. 22165
    • United States
    • Supreme Court of West Virginia
    • April 13, 1995
    ...v. Nolan, 962 F.2d 791 (8th Cir.1992); Stender v. Lucky Stores, Inc., 780 F.Supp. 1302 (N.D.Cal.1992); Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 624 A.2d 1122 17 Having found the plaintiff has established a prima facie case and Sundale has offered rebuttal evidence, we must now exami......
  • 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
    ...The Vermont Supreme Court has consistently held that FEPA is patterned on Title VII. See, e.g., Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 161, 624 A.2d 1122 (1992). The standards established under the ADEA also may provide useful analytical guidance. Ross, 665 A.2d at In 1989, the Un......
  • Robertson v. Mylan Laboratories, Inc., No. 01-466.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 6, 2004
    ...applied under FEPA are identical to those applied under Title VII of the United States Civil Rights Act. See Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 161, 624 A.2d 1122, 1128 (1992). A. The Applicable Framework ¶ 17. Plaintiff's first claim of error is that the trial court applied the wro......
  • Davis v. State, Dep't of Corr., Case No. 2:11–cv–164.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • April 16, 2012
    ...of 1964, and the standards and burdens of proof under [V]FEPA are identical to those under Title VII.” Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 624 A.2d 1122, 1128 (Vt.1992). Plaintiff also alleges two counts of discrimination due to a hostile work environment on the basis of disabi......
  • Request a trial to view additional results
72 cases
  • Barefoot v. Sundale Nursing Home, No. 22165
    • United States
    • Supreme Court of West Virginia
    • April 13, 1995
    ...v. Nolan, 962 F.2d 791 (8th Cir.1992); Stender v. Lucky Stores, Inc., 780 F.Supp. 1302 (N.D.Cal.1992); Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 624 A.2d 1122 17 Having found the plaintiff has established a prima facie case and Sundale has offered rebuttal evidence, we must now exami......
  • 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
    ...The Vermont Supreme Court has consistently held that FEPA is patterned on Title VII. See, e.g., Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 161, 624 A.2d 1122 (1992). The standards established under the ADEA also may provide useful analytical guidance. Ross, 665 A.2d at In 1989, the Un......
  • Robertson v. Mylan Laboratories, Inc., No. 01-466.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 6, 2004
    ...applied under FEPA are identical to those applied under Title VII of the United States Civil Rights Act. See Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 161, 624 A.2d 1122, 1128 (1992). A. The Applicable Framework ¶ 17. Plaintiff's first claim of error is that the trial court applied the wro......
  • Davis v. State, Dep't of Corr., Case No. 2:11–cv–164.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • April 16, 2012
    ...of 1964, and the standards and burdens of proof under [V]FEPA are identical to those under Title VII.” Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 624 A.2d 1122, 1128 (Vt.1992). Plaintiff also alleges two counts of discrimination due to a hostile work environment on the basis of disabi......
  • Request a trial to view additional results

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