Payne v. U.S. Airways, Inc.

• Decision Date: 25 September 2009
• Docket Number: No. 08-128.,08-128.
• Citation: 987 A.2d 944,2009 VT 90
• Court: Vermont Supreme Court
• Parties: Kimberley PAYNE v. US AIRWAYS, INC., Michael Cline, Tony Stanley and Deb Ansaldi.

987 A.2d 944

2009 VT 90

Kimberley PAYNE v. US AIRWAYS, INC., Michael Cline, Tony Stanley and Deb Ansaldi.

No. 08-128.

Supreme Court of Vermont.

September 25, 2009.

Motion for Reargument Denied October 20, 2009.

Thomas C. Nuovo of Bauer, Gravel, Farnham, Nuovo, Parker & Lang, Burlington, for Plaintiff-Appellant.

John A. Serafino and Glenn S. Morgan of Ryan Smith & Carbine, Ltd., Rutland, and Jeffrey I. Kohn of O'Melveny & Myers, LLP, New York City, for Defendant-Appellee Cline.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. BURGESS, J.

Plaintiff appeals from a superior court order granting summary judgment to defendant Michael Cline on plaintiff's claims that he is not personally liable to her for acts of discrimination and retaliation under the Vermont Fair Employment Practices Act (VFEPA) and the Workers' Compensation Act (WCA). The central issues on appeal are whether the acts provide a right of action against a coemployee or supervisor in an individual capacity, rather than imposing direct and vicarious liability on employers only for unlawful discrimination by their supervisors and employees. The superior court concluded that the acts provide a right of action against employers alone, and not against individual employees or supervisors. We reverse and remand.

I. Background

¶ 2. Plaintiff originally sued her former employer, U.S. Airways, M. Cline, her former supervisor at U.S. Airways, and several former coworkers for: sexual harassment and discrimination against a person with a disability under the VFEPA, discrimination for filing a complaint under the VFEPA, discrimination for filing a workers' compensation claim, and several other claims. After U.S. Airways filed for bankruptcy, which placed an automatic stay on her action, plaintiff settled with U.S. Airways so that she could proceed with her claims against the individual defendants. Plaintiff eventually dropped her former coworkers as defendants and, consequently, the sole remaining defendant in this action is her former supervisor, whom plaintiff now seeks to hold liable under the VFEPA and the WCA.

¶ 3. When reviewing a grant of summary judgment, we use the same standard as the trial court. Savage v. Walker, 2009 VT 8, ¶ 5, ___ Vt. 969 A.2d 121 (mem.). We must take all allegations of the nonmoving party as true, and uphold the grant of summary judgment only when "there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id.; see also V.R.C.P. 56(c). Accordingly, we recite the background facts of this case as they have been alleged by plaintiff.

¶ 4. The events giving rise to this lawsuit began in the spring of 1999, when, during her employment with U.S. Airways, plaintiff suffered a work-related back injury. After learning of her injury, plaintiff's supervisor did not observe WCA mandates when he failed to promptly investigate her complaint to determine whether compensation was due, forced her to use sick leave as compensation for the work days she missed while recovering from the back injury, interfered with her course of treatment, and then, after she requested WCA benefits, told her she could not receive any compensation retroactively. According to the record, supervisor did not allow plaintiff worker's compensation for missed work until she filed a claim with the Department of Labor, complaining of U.S. Airways' failure to compensate her through the WCA system.

¶ 5. When plaintiff returned to work in June 1999, she was on a limited work schedule to accommodate her recovery. Supervisor interfered with plaintiff's medical treatment by calling her physical therapist to request that the therapist approve longer work hours. Additionally, supervisor began to have individual meetings with plaintiff to criticize her performance, to take away some of her supervisory duties, and to consult about her—as he had not before—with the employees she was supposed to supervise. Prior to these actions, plaintiff and supervisor maintained a problem-free work relationship, and plaintiff's employment record, covering about ten years with U.S. Airways, reflected only positive evaluations of her work. In July 1999, plaintiff complained directly to U.S. Airways about supervisor's treatment of her. About a month after her written complaint to the company, when she felt that the company was not responding appropriately, she filed a complaint for workplace discrimination against U.S. Airways with the Vermont Attorney General.

¶ 6. In November 1999, plaintiff took another medical leave from her job, this time claiming anxiety and depression from her workplace conditions, not because of her back injury. For the next two years, plaintiff did not return to work. During this time, plaintiff's doctor and therapist submitted letters to U.S. Airways stating she was suffering anxiety and depression "clearly related to and aggravated by her ongoing stressful work situation," and recommending that plaintiff not return to work until her workplace problems could be successfully mediated. US Airways terminated plaintiff's employment in October 2001. In its termination letter, the company stated that plaintiff failed to abide by the U.S. Airways policy of providing supplemental medical reports and seeking an extension of medical leave every ninety days, and this failure led the company to conclude that she had apparently abandoned her employment. The Attorney General's Office completed its investigation of plaintiff's discrimination complaint in April 2002 and agreed that plaintiff had been subject to discrimination for asserting a workers' compensation claim, but determined that there was insufficient evidence to support plaintiff's claim that U.S. Airways discriminated against her based on gender. Plaintiff filed this lawsuit in May 2002.

II. Individual Liability under the Vermont Fair Employment Practices Act

¶ 7. Plaintiff's amended complaint states VFEPA claims against supervisor for: sexual harassment, 21 V.S.A. §§ 495(a)(1), 495d(13), discrimination for lodging complaints against U.S. Airways with the Vermont Attorney General's Office and with the Vermont Department of Labor and Industry, id. § 495(a)(5), and discrimination for being perceived to suffer from a handicap, id. § 495(a)(1). Supervisor's motion for summary judgment on these claims argued first, that there is no provision for individual liability under the VFEPA and second, that plaintiff failed to make a prima facie showing of sexual harassment or discrimination based on disability or handicap. The superior court granted summary judgment for supervisor based on its determination that there is no individual liability under the VFEPA.¹

¶ 8. The VFEPA prohibits "any employer, employment agency, or labor organization" from engaging in a range of discriminatory acts and practices. Id. § 495(a). The term "employer" refers to "any individual, organization, or governmental body . . . whether domestic or foreign . . . and any agent of such employer, which has one or more individuals performing services for it within this state." Id. § 495d(1) (emphasis added). Plaintiff argues that the term "any agent of such employer" extends liability to employees, as individuals, who engage in discriminatory actions forbidden by the VFEPA.

¶ 9. This Court has yet to construe the term "any agent" in the context of the VFEPA. While the question has been raised here in at least two earlier cases, we have never reached it before today. See Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 49, 176 Vt. 356, 848 A.2d 310 (upholding summary judgment for defendants on other grounds, thus not reaching the issue of individual liability); Gallipo v. City of Rutland, 173 Vt. 223, 238-39, 789 A.2d 942, 953-54 (2001) (not reaching the issue because separate statutory provision dictated that municipal officers could not be sued in their individual capacities).² As with any issue of statutory construction, we seek here to give effect to legislative intent. To do so, we start with the language of the statute and read it according to its plain and ordinary meaning. Burlington Elec. Dep't v. Vt. Dep't of Taxes, 154 Vt. 332, 335, 576 A.2d 450, 452 (1990). Under this approach, the Legislature's use of the conjunctive "and any agent" in the definition of "employer" in the VFEPA signals that the Legislature intended that, in addition to those traditionally categorized as employers, agents of the employer can be held liable. The employer-employee relationship is a traditional, common-law agency relationship. Restatement (Third) of Agency § 1.01 cmt. c (2006). Thus, an ordinary reading of the language "any agent" supports the conclusion that the statute allows for suits against employees acting as agents for the employer. Although no ambiguity exists on the face of this statutory definition, and thus we would ordinarily simply enforce the statute according to its plain meaning, State v. O'Dell, 2007 VT 34, ¶ 7, 181 Vt. 475, 924 A.2d 87, supervisor entreats us to consider the large body of federal law reaching the opposite conclusion with respect to the federal Fair Employment Practices Act. 42 U.S.C. § 2000e(b).

¶ 10. Our construction of the VFEPA, which is patterned on Title VII of the federal Civil Rights Act protecting against employment discrimination based on race, color, religion, sex, or national origin, is often guided by the federal courts' interpretations of Title VII. Lavalley v. E.B. & A.C. Whiting Co., 166 Vt. 205, 209, 692 A.2d 367, 369 (1997). Indeed, we have said that "[the V]FEPA is patterned on Title VII of the Civil Rights Act of 1964, and the standards and burdens of proof under [V]FEPA are identical to those under Title VII." Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 161, 624 A.2d 1122, 1128 (1992). Supervisor points out that it is settled law in every federal circuit that has considered the meaning of the term "any agent" in Title VII's definition of "emplo...