Kelly v. The Univ. of Vt. Med. Ctr., 21-AP-264

Docket Nº21-AP-264
Citation2022 VT 26
Case DateJune 10, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 26

Sean Kelly
The University of Vermont Medical Center

No. 21-AP-264

Supreme Court of Vermont

June 10, 2022

On Appeal from Superior Court, Chittenden Unit, Civil Division Helen M. Toor, J.

William Pettersen of Pettersen Law PLLC, Colchester, for Plaintiff-Appellant.

F. David Harlow of Downs Rachlin Martin PLLC, Brattleboro, for Defendant-Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Waples, Supr. J., Specially Assigned


¶ 1. Plaintiff Sean Kelly appeals an order granting summary judgment to the University of Vermont Medical Center (UVMMC) on employment discrimination and breach-of-contract claims arising from UVMMC's decision not to extend his one-year medical fellowship. We affirm.

¶ 2. The following material facts are undisputed. Each year the Sleep Medicine Program at UVMMC offers one fellowship to a physician who has completed a medical residency. Each year, the fellowship begins on July 1 and ends on June 30. UVMMC has never trained more than two fellows at once. UVMMC selected plaintiff for the 2017-18 fellowship. UVMMC was aware that plaintiff suffered from an adrenal deficiency that had delayed the completion of his


residency. Prior to beginning the fellowship, plaintiff signed a contract with UVMMC called "University of Vermont Medical Center Conditions of Appointment and Training for GME Residents/Fellows, 2017-2018," outlining many aspects of his training, including describing his position as an "educational experience and training program." The contract provided that the fellowship would run from July 1, 2017, through June 30, 2018, and his annual base salary would be $65, 981. Plaintiff's benefits included three weeks of paid time off, five sick or personal days, and five days off for employment interviews. The contract contained provisions for family medical leave and unpaid absences of up to six months for fellows with more than one year of service. The contract also contained the following clause: "[e]xtended leave of absences [sic] may require the resident/fellow to extend their training program to satisfy their program's certifying Board and Accreditation Council for Graduate Medical Education Requirements." Finally, the contract explained that plaintiff would be awarded a certificate of completion if he completed all requirements for sleep-medicine board eligibility "and as determined by the program director." However, the contract did not guarantee a certificate of completion.

¶ 3. In the first five months of the fellowship, plaintiff missed nineteen full days and parts of nine more days for various reasons, including job interviews, medical appointments, sick days, a dog-walking injury, and car trouble. By February 2018, after missing several more days and expressing that he felt "frustrated with [his] absences" and "overall inadequate as a fellow," program personnel became concerned that plaintiff was falling behind in his training. In a March 30 meeting set to discuss plaintiff's options, the program director told plaintiff that his performance had "deficiencies and these need[ed] to be addressed." At some point during this period, the director also told plaintiff that he "should plan on extending [his] fellowship due to [his] time out and some minor deficits through August." Plaintiff sent an email to other program personnel expressing frustration at the prospect of staying through August to complete his training. The director gave plaintiff a written plan for improvement on April 3.


¶ 4. On April 14, 2018, plaintiff suffered a stroke, and on April 19th he attempted suicide. He was hospitalized from April 14 through May 3 and was not cleared to return to work until June 1, 2018. In all, plaintiff missed approximately six more weeks of the fellowship. On or about May 31, the director called plaintiff and told him that while UVMMC had determined he needed six more months of training to finish the fellowship, it could not accommodate additional training for that length of time. UVMMC paid plaintiff his remaining salary.

¶ 5. Plaintiff filed a grievance under the Graduate Medical Education rules. At a June 2018 hearing, the grievance committee affirmed UVMMC's decision. Plaintiff thereafter filed a complaint in the civil division in December 2018 alleging multiple causes of action. After plaintiff amended his complaint, UVMMC moved for summary judgment on each of plaintiff's claims, which included discrimination and failure-to-accommodate violations of the Vermont Fair Employment Practices Act (FEPA), breach of contract, promissory estoppel, and defamation.[1]UVMMC's overarching argument regarding plaintiff's two FEPA claims was that they involved academic decisions made by UVMMC, not employment decisions, and that courts accord academic decisions deference. UVMMC maintained that once it fulfilled its obligations to plaintiff with respect to any employment aspects of the fellowship, including providing him with his remaining salary, the decision not to extend his fellowship was an academic decision because the sole purpose of extending the fellowship was the opportunity to obtain an academic benefit-a certificate of completion. UVMMC argued that plaintiff could not establish a prima facie case for discrimination because one of the required elements was whether plaintiff suffered an "adverse employment action." Because the decision not to extend his fellowship was an academic decision, there was no employment action and consequently no adverse employment action. UVMMC


contended that plaintiff's accommodation claim failed because there was no reasonable accommodation that would have allowed him to finish his fellowship. Finally, UVMMC argued that it did not breach the contract when it declined to extend the fellowship, and plaintiff could not establish any damages arising from a purported breach. It pointed out that, although plaintiff could not take the Sleep Medicine Board Exam without a certificate of completion from a sleep-medicine fellowship program, he had twice failed the Internal Medicine Board Exam, another prerequisite for the Sleep Medicine Board Exam.

¶ 6. Plaintiff countered that he suffered an adverse employment action because UVMMC denied extending the fellowship and terminated him after he took medical leave in April and May 2018. He maintained that prior to his stroke and suicide attempt, the program director had offered to extend his fellowship through August. He relied heavily on certain terms in the contract that "required" UVMMC to extend the fellowship due to extended medical leave, and that even if there was no requirement, the mere possibility of an extension was enough to survive summary judgment.

¶ 7. Plaintiff argued that a six-month extension was a reasonable accommodation so that he could perform the essential functions of his fellowship. He contended that the fellowship contract contemplated at least a six-month extension, [2] that a fellowship itself is a non-essential position at the hospital, and that UVMMC had granted "dozens" of extensions in the past.

¶ 8. Plaintiff pointed to several provisions in the fellowship contract which UVMMC had allegedly breached. He maintained that the "ACGME Sleep Medicine Requirements," a set of national standards for programs like the one at UVMMC, and which the fellowship contract incorporated required fellows to suffer no "negative consequences" resulting from extended medical leaves. He interpreted the ACGME as requiring UVMMC to alert its fellows "with


accurate information regarding the impact of an extended leave of absence upon the criteria for satisfactory completion of the program." He characterized the contract's provision regarding extensions as "affirmatively guarantee[ing]" an extension if needed after medical leave. Plaintiff suggested that the word "may" in the "may be required to extend their training Program" clause pertaining to extended medical leave does not carry its ordinary meaning. Instead, "may" in this context means that a fellow may not need to extend a fellowship due to a medical leave "if they are far enough ahead in their proficiency that they are able to complete on time despite the medical leave."

¶ 9. Plaintiff argued he had provided sufficient evidence of contract damages when he offered an expert opinion showing that sleep-medicine physicians make approximately $20, 000 more than plaintiff was currently making as a hospitalist, and that he would have passed the Internal Medicine Board Exams if he had not been so frequently hospitalized, among other reasons, during the periods leading up to previous test attempts.

¶ 10. The civil division granted UVMMC's motion on all counts. It first agreed that it must accord UVMMC deference because the decision to not extend the fellowship was an academic decision. However, it concluded that academic deference "does not completely insulate [UVMMC] from liability" because deference to academic decision-making cannot be "blind" to discriminatory decisions made by an academic institution.

¶ 11. The court next considered UVMMC's contention that a six-month extension was not a "reasonable accommodation" of plaintiff's disability under the FEPA. It weighed evidence regarding UVMMC's limited resources to train multiple fellows simultaneously and that only one fellow gets trained a year, against plaintiff's evidence showing UVMMC had given extensions in the past and plaintiff had initially been offered an extension through August before his stroke and suicide attempt. The court concluded that the evidence was "capable of multiple interpretations."


¶ 12. Next addressing plaintiff's discrimination claim, the court reasoned that the fellowship was a hybrid position that included both employment and academic aspects. It cited federal case law for the proposition that the correct analysis was to focus on the "context of the cause of...

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