Marcoux-Norton v. Kmart Corp.

• Decision Date: 26 May 1993
• Docket Number: Civ. A. No. 5:91-CV-308.
• Citation: 907 F. Supp. 766
• Parties: Christopher MARCOUX-NORTON v. KMART CORPORATION.
• Court: U.S. District Court — District of Vermont

907 F. Supp. 766

Christopher MARCOUX-NORTON v. KMART CORPORATION.

Civ. A. No. 5:91-CV-308.

United States District Court, D. Vermont.

May 26, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Roger Emanuel Kohn, Kohn & Rath, Hinesburg, VT, for Plaintiff.

Thomas H. Somers, Moon, Moss, McGill & Bachelder, P.A., Portland, ME, Richard Thomas Cassidy, Hoff, Curtis, Pacht, Cassidy & Frame, P.C., Burlington, VT, for Defendant.

OPINION AND ORDER

BILLINGS, District Judge.

Plaintiff Christopher Marcoux-Norton brought suit against his former employer, Defendant Kmart Corporation ("Kmart"), claiming damages for wrongful discharge, intentional infliction of emotional distress, and breach of contract. Kmart moved for summary judgment. By leave of Magistrate Judge Jerome J. Niedermeier, Plaintiff amended his complaint to include counts for promissory estoppel, defamation, and tortious interference with contractual relations.

For the reasons set forth below,¹ Kmart's motion for summary judgment on Plaintiff's wrongful discharge, intentional infliction of emotional distress, contract, and promissory estoppel counts is granted, and is denied with respect to Plaintiff's defamation and interference with contract counts. Both Plaintiff's and Kmart's motion to strike are also denied, as is Kmart's motion for Rule 11 sanctions.

BACKGROUND

For the purpose of deciding a motion for summary judgment, we view the allegations of the non-moving party (Plaintiff) as true, and therefore will discuss the facts of this case in the light most favorable to Plaintiff. Plaintiff worked for Kmart on three separate occasions spanning a time period of over four years. He originally worked at Kmart's South Burlington, Vermont store for over one and one-half years. He then worked for Kmart for nearly one year at its Denton, Texas store. From December 20, 1989 until his employment was terminated on June 20, 1991, Plaintiff once again worked at Kmart's South Burlington store. Plaintiff enjoyed his work at Kmart and hoped to make a career there. He was promoted a number of times and was manager of the Sporting Goods/Automotive Accessories Department ("Sports/Auto Manager") at the time of his termination.

Plaintiff had difficulty working with his immediate supervisor, Store Manager Thomas Young. Young expressed dissatisfaction with Plaintiff's performance on a number of occasions and tended to show favoritism towards employees under Plaintiff's supervision. He also ordered two store employees to photograph work areas over which Plaintiff was responsible, in an effort to discover a hazard for which Plaintiff could be reprimanded or fired.

On at least one occasion Young, Personnel and Training Manager Gayle Messick, Loss Control Manager Tim Ryan, and Kmart employees Dave Evans and Francine Barbeau discussed Plaintiff in the break room at the South Burlington store. Young called Plaintiff a "son of a bitch," and Young and Messick discussed replacing Plaintiff with Dave Evans. Young stated that he would need some reason to fire Plaintiff.

Three days before Plaintiff was fired, Young became very upset with Plaintiff, yelled at him, and told him that he was no good as Sports/Auto Manager. He mentioned that Plaintiff might be good in another department of the store. While the circumstances surrounding this conversation were such that Plaintiff did not believe any response was appropriate at the time, he believed that Young was offering to transfer him to another position. Plaintiff's acceptance of any of the positions mentioned by Young would have constituted a demotion, but Plaintiff was willing to consider such an arrangement because the positions mentioned were not under the direct supervision of Young.

In May of 1991, Plaintiff and his fiancee Angela Erno, also a Kmart employee and now Plaintiff's wife, applied for a home loan with Vermont Federal Bank ("Federal"). As part of the application process, Plaintiff and his fiancee completed a "Request for Verification of Employment" form, which was mailed to Kmart for completion. The form contained questions concerning Plaintiff's salary and chances for continued employment. Gayle Messick, after consulting Thomas Young, entered "50-50 at this time" on the line marked "probability of continued employment" regarding Plaintiff's employment status. On Angela Erno's form, Messick stated "good" in response to the same question. While Messick filled out these forms regularly, District Manager John Meyer was the person who would ultimately determine whether Plaintiff would be fired, and therefore was the person best able to evaluate Plaintiff's chances of continued employment.

Federal rarely receives unfavorable responses to its inquiry concerning chances of continued employment and therefore phoned Kmart's South Burlington store to confirm that the information they had provided was correct. In two conversations with Federal, Messick and Young confirmed that "50-50" was the answer they intended to give the bank. Plaintiff's application was then denied based on the tenuousness of his prospects for continued employment.

Plaintiff received notification at work on June 19, 1991 that his loan was denied. He lost his composure, was crying, and decided to leave work. He handed over his keys to a subordinate, stated he was resigning his position, and walked to the front of the store. At the front of the store he encountered Thomas Young. Plaintiff told Young, "I resigned the position," and that he was very upset and had to leave. He began to walk away, but then turned around and told Young that he wasn't quitting, just resigning his position. By stating that he was resigning his position, Plaintiff believed he was accepting an offer by Young to take a demotion by transferring to another department of the store. Young said nothing when Plaintiff walked away. The next day, District Manager John Meyer informed Plaintiff that he was fired.

DISCUSSION

I. Jurisdiction

Jurisdiction is based on diversity of citizenship and an amount in controversy exceeding $50,000. 28 U.S.C. § 1332(a). Plaintiff is a resident of Vermont. Kmart is a Michigan corporation authorized to do business in the State of Vermont. Plaintiff requests actual damages in the amount of $150,000, and additional punitive damages.

II. Standard of Review

This court will grant summary judgment when it determines that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988). A material fact is genuinely in dispute if a reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If the non-moving party fails to make a showing sufficient to establish an essential element of its case on which it bears the burden of proof at trial, however, summary judgment will be granted to the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

III. Motion for Summary Judgment

In this diversity suit, whether Kmart is entitled to judgment is a matter of law to be determined under the law of Vermont.

A.1. Wrongful Discharge

Plaintiff's first count alleges that Kmart wrongfully terminated him for accepting Kmart's offer of a demotion, and failed to follow company procedures and guidelines specifying the proper procedures and circumstances for the termination and discipline of employees. Kmart denies Plaintiff's allegations and asserts that Plaintiff was an at will employee, terminable at any time for any reason. Plaintiff's claim that Kmart procedures were not properly followed will be covered in our discussion of Plaintiff's contract claim, where it more appropriately belongs. His claim that he was discharged for an improper reason is discussed immediately below.

In Vermont, an employer may dismiss an employee at any time and for any reason, in the absence of an employment contract for a specific term, unless there is a clear and compelling public policy against the reason given for the discharge. Burt v. Standard Register Co., No. 90-295, slip op. at 5 (D.Vt. June 19, 1992) (Coffrin, J.); Jones v. Keogh, 137 Vt. 562, 409 A.2d 581 (1979). In looking to the public policy of the state, a court is not limited to legislative pronouncements or judicial decisions. Public policy may be said to abide "in the customs and conventions of the people—in their clear consciousness and conviction of what is naturally and inherently just and right...." Payne v. Rozendaal, 147 Vt. 488, 492, 520 A.2d 586 (1986) (quoting Pittsburgh, Cincinnati, Chicago & St. Louis Ry. v. Kinney, 95 Ohio St. 64, 68-69, 115 N.E. 505, 507 (1916)).

Plaintiff alleges he was terminated in response to his request for a demotion. (Amended Complaint ¶ 7.) Even assuming that Plaintiff's demotion request is the reason for his termination, and not the fact that he left Kmart's premises without obtaining permission, as Kmart asserts, we find that Plaintiff's termination violates no clear and compelling policy in Vermont. In Payne, supra, the Vermont Supreme Court found that termination solely on account of age violates a compelling public policy, particularly in light of national and local legislation prohibiting age discrimination. 147 Vt. at 494, 520 A.2d 586. In Burt, supra, this Court found plaintiff's termination because he had "blown the whistle" on his employer violative of a compelling public policy. Burt, No. 90-295, slip op. at 6.

While courts applying Vermont law have upheld the exercise of these public rights, the same courts have been reluctant to reprimand employers for terminating employees who exercised merely private rights. For example, the Vermont Supreme Court in Jones v. Keogh, 137 Vt....