Rainville v. Blake, Case No. 2:20-cv-0051

CourtUnited States District Courts. 2nd Circuit. District of Vermont
Writing for the CourtChristina Reiss, District Judge United States District Court
Decision Date12 March 2021
Docket NumberCase No. 2:20-cv-0051


Case No. 2:20-cv-0051


March 12, 2021

4, 23, 27, 34)

Plaintiff Christina Rainville brings this action against Defendant Boxer, Blake & Moore PLLC (the "Firm") alleging five causes of action against the Firm as her former employer: violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101; breach of contract; violation of Vermont's Fair Employment Practices Act, 21 V.S.A. § 495(a); breach of implied covenant of good faith and fair dealing; and fraudulent inducement.

On May 29, 2020, the Firm moved to dismiss Plaintiff's fraudulent inducement claim pursuant to Fed R. Civ. P. 12(b)(6). Plaintiff opposed the motion and the Firm replied on July 7, 2020. Thereafter, Plaintiff filed an Amended Complaint without consent of the Firm or leave of the court. On October 20, 2020, the Firm moved to strike the Amended Complaint and on November 3, 2020, Plaintiff opposed the motion.1

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On November 9, 2020, Plaintiff sought to rectify her error and moved for leave to amend the Complaint, seeking to add claims of negligent misrepresentation and omissions, violation of the Lanham Act, 15 U.S.C. § 1125, conversion, and respondeat superior liability for negligence. The Firm opposed the motion on November 23, 2020, and Plaintiff replied on December 4, 2020.

On January 13, 2021, before the court decided her motion, Plaintiff moved again for leave to amend her Complaint, seeking to add claims of conspiracy to intentionally inflict emotional distress, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent supervision (the proposed "SAC"). In her SAC, Plaintiff seeks to add as Defendants Andrew Boxer, Esq., David Harlow, Esq., Downs Rachlin Martin, PLLC ("DRM"), and John Doe Insurance Companies (the proposed "New Defendants"). The Firm opposed the motion on January 26, 2021, and Plaintiff replied on February 8, 2021, at which time the court took the pending motions under advisement.

Plaintiff is self-represented. The Firm is represented by F. David Harlow, Esq., and Pietro J. Lynn, Esq.2

Rather than decide Plaintiff's serial motions in piecemeal fashion, the court considers leave to amend and the pending motion to dismiss in the context of the proposed SAC. Although Plaintiff is self-represented, the leniency the court typically affords to self-represented litigants does not apply when the litigant is an attorney. See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (holding that "a lawyer representing himself ordinarily receives no [special] solicitude at all.").

I. Allegations in the Proposed SAC.

Plaintiff is a lawyer admitted to practice in Vermont who was employed by the Firm which operates as a partnership limited liability corporation in Springfield, Vermont. At the time of Plaintiff's employment, the Firm was known as Ellis Boxer & Blake, PLLC but is now known as Boxer Blake & Moore PLLC.

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From June 1, 2016 until November 9, 2018, the Firm employed Plaintiff as Senior Counsel to manage partner Stephen Ellis, Esq.'s legal practice in the Springfield, Vermont area after Attorney Ellis moved to Burlington, Vermont. At the time of her hiring, Plaintiff had a reputation as a prosecutor in Vermont state courts. The Firm's offer of employment3 to Plaintiff stated in relevant part:

Your job title will be "Senior Counsel." Initially, you will provide support for the other senior lawyers in the firm in specific matters assigned to you. It is our expectation that you will assume primary responsibility for some matters in the very near future, and that you will work diligently to develop your own client base. You will also be expected to help train and mentor associate lawyers and support staff. We will endeavor to support you in these efforts. So long as you remain employed by our firm, you will practice law exclusively on behalf of our firm and its clients.

While it is our hope that your relationship with the Firm will be lasting and mutually beneficial, your employment with the Firm will remain at will and may be terminated by either you or the Firm at any time without notice or cause. In addition, the Firm may change any of the terms and conditions of employment, at the Firm's sole discretion.

(Doc. 4-1 at 2-3.)

Plaintiff alleges that during the first eighteen months of her employment, she was given a substantial raise, had excellent employment reviews, and was a highly profitable lawyer at the Firm. However, she was not permitted to represent any criminal clients in state courts while employed by the Firm due to an alleged conflict of interest with the State of Vermont even though the Firm allowed another attorney to represent a client in state court on a criminal matter. Attorney Boxer, a partner at the Firm, encouraged Plaintiff to handle federal criminal cases although she did not have experience in federal court.

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Plaintiff alleges that the Firm failed to advertise her employment until she had worked there for over a year and declined her requests to advertise with the Bennington County newspapers and on Google Ads. Plaintiff was also not sent to any workers' compensation conferences in Burlington while her younger co-workers were.

Plaintiff alleges that the Firm and Attorney Boxer intentionally failed to disclose the following facts which would have resulted in Plaintiff rejecting the Firm's offer of employment:

• "Mr. Ellis's workload had historically ebbed and flowed and thus, there was a known substantial risk that his workload would not be able to consistently support Plaintiff" (Doc. 34-3 at 129-30, ¶ 744.)

• A "situation whereby there was not enough work to sustain a lawyer who had been hired to support Mr. Ellis had occurred in the past." Id. at 130, ¶ 744.

• The Firm "had no present intention of supporting her effort to develop her practice at the time of the signing of the contract." Id. at 130, ¶ 745.

• "[T]he Young Partners did not want to hire someone who was older than they were, and they had no present intent of allowing her to be successful at the Firm." Id at 130, ¶ 746.

• "[T]he Firm had previously hired a highly-experienced lawyer who was substantially older than the Young Partners at the Firm, and that the Firm had forced that lawyer out within approximately 13 months, despite the fact that she was (and remains) an esteemed member of the Vermont bar." Id. at 130, ¶ 747.

• "Mr. Blake and the Firm intended to bar Plaintiff from representing criminal clients regardless of whether there was a real conflict." Id. at 130, ¶ 748.

• "[T]he Firm (and certainly the Young Partners) strongly preferred to hire a younger lawyer" and "only acquiesced because Mr. Ellis was desperately in need of a senior lawyer who could run his cases[.]" Id. at 130-31, ¶ 749-50.

• "[T]he Firm never intended to keep Plaintiff long-term." Id. at 131, ¶ 751.

• "Mr. Ellis had missed deadlines in his cases." Id. at 131, ¶ 752.

She asserts that, as a result of accepting the Firm's offer of employment, she lost other potential employment opportunities.

On December 4, 2017, Plaintiff was preparing a client for mediation with the Firm's paralegal, Diane Drake, and proposed that they split a gluten-free pizza. Ms.

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Drake agreed and ordered a pizza. Plaintiff took three bites of the pizza before realizing that it was not gluten-free. She alleges that since consuming the pizza, she has suffered an array of medical conditions4 and her sleep disturbance and "lapses in daily functioning" due to eating the pizza caused her to make mistakes throughout her employment with the Firm. (Doc. 34-3 at 51, ¶ 276.) She brought a workers' compensation claim against the Firm which was resolved in the Firm's favor.5

According to the proposed SAC, in order to prevent her from requesting accommodations or filing a workers' compensation claim related to her illness, the Firm's partners told Plaintiff that there was insufficient work available to support her position. While Plaintiff was employed at the Firm, it advertised that it was seeking to hire a new lawyer and allegedly hired a new associate shortly after Plaintiff resigned from her position. Plaintiff contends that due to the alleged misrepresentations by the Firm about the amount of work available, her resignation on November 8, 2018 was not voluntary.

Plaintiff further alleges that on its webpage, the Firm states:

Appellate law requires a special kind of expertise. Our lawyers have successfully argued cases before the United States Supreme Court, the Vermont Supreme Court, and the United States Court of Appeals for the Second Circuit.

Id. at 134, ¶ 774. Plaintiff has previously successfully argued a case before the United States Supreme Court and asserts that no other lawyer at the Firm has done so. She alleges that the Firm "received financial benefits and reputational benefits at Plaintiff's

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expense due to the false advertising." Id. at 92, ¶ 546.

Plaintiff's allegations in the proposed SAC include claims pertaining to the Firm's conduct during the workers' compensation lawsuit and the instant litigation, including allegations that the emails of Justin Sluka, Esq., a former partner of the Firm, were intentionally destroyed less than ten weeks after Plaintiff notified the Firm that she had communicated to Mr. Sluka about her injury and illness. Plaintiff asserts that the Firm obstructed discovery in her workers' compensation case in order to conceal the destruction of these emails.

In a September 14, 2020 email to Plaintiff, Attorney Harlow, the Firm's counsel in this lawsuit, requested the return of all firm emails and documents which Plaintiff had retained after her...

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