Straw v. Visiting Nurse Ass'n & Hospice of VT/NH

• Decision Date: 18 October 2013
• Docket Number: No. 12–149.,12–149.
• Citation: 86 A.3d 1016,2013 VT 102
• Parties: Michelle M. STRAW v. VISITING NURSE ASSOCIATION AND HOSPICE OF VT/NH.
• Court: Vermont Supreme Court

86 A.3d 1016

2013 VT 102

Michelle M. STRAW

v.VISITING NURSE ASSOCIATION AND HOSPICE OF VT/NH.

No. 12–149.

Supreme Court of Vermont.

Oct. 18, 2013.

Norman E. Watts and Stefan Ricci of Watts Law Firm, PC, Woodstock, for Plaintiff–Appellant.

Edward M. Kaplan and Sarah S. Murdough of Sulloway & Hollis, P.L.L.C., Concord, New Hampshire, for Defendant–Appellee.

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

DOOLEY, J.

¶ 1. Plaintiff Michelle Straw appeals the judgment order of the superior court, pursuant to a jury verdict, dismissing her case for breach of an implied employment contract against defendant Visiting Nurse Association and Hospice of Vermont and New Hampshire (VNA). She argues that the jury instructions in her case were erroneous and prejudicial because they failed to instruct on the standard for “just cause” termination. We affirm.

¶ 2. Plaintiff is a licensed Advanced Registered Nurse Practitioner who worked for a number of years as a hospice triage coordinator for VNA, answering patient and family calls to VNA's telephone hotline. During her years of employment, she generally received favorable performance evaluations.

¶ 3. Plaintiff was hired as an at-will employee, and the VNA employee handbook states in many instances that employment with the organization is “at will.” Despite those assertions, the handbook also contains a corrective-action disciplinary policy—though the language goes to great lengths to emphasize that it is not mandatory. The handbook introduces this policy by saying: “When, on occasion, an employee's performance or conduct standards are not acceptable, the [VNA] strives to preserve acceptable standards of conduct and job performance through constructive criticism and/or corrective action.” The “common course of constructive criticism/corrective action” begins with a verbal discussion between a supervisor and an employee and continues through a written warning, a suspension, and termination. According to VNA management, immediate termination is limited to severe misconduct that “impacts patient care and safety.”

¶ 4. In 2009, VNA received a complaint from the family member of a patient claiming that plaintiff had been rude and unprofessional to her. The result of the conversation with plaintiff was that the patient was transported to a hospital, where he died, despite his expressed wish to die in his home. Plaintiff's supervisor conducted an investigation, which included speaking with the family member of the patient and consulting with plaintiff to see what she remembered about the incident. Plaintiff sent an email with her recollection of the case based on her log and progress notes. After consulting with the family member of the patient, but without speaking with plaintiff, VNA's president decided to terminate plaintiff's employment without engaging in any of the steps of constructive criticism and/or corrective action described in the employee handbook.

¶ 5. Plaintiff disputes the family member's characterization of the event entirely. While she recognizes that the behavior detailed in the complaint, if true, would be unprofessional and could be grounds for termination, she denies any inappropriate behavior whatsoever. At the time that she made the decision to terminate plaintiff, VNA's president was not aware that plaintiff denied having acted in the way reported by the family member.

¶ 6. After being terminated, plaintiff brought suit against VNA for violation of the Vermont Fair Employment Practices Act and for wrongful termination, the latter claim being based on separate counts of promissory estoppel and breach of an implied employment contract that had been created by the dissemination of the employee handbook.¹ Summary judgment was granted to VNA on the age discrimination and the promissory estoppel claims, but the implied-employment-contract claim went to a jury trial.²

¶ 7. Plaintiff prepared proposed jury instructions and a proposed jury verdict form. The proposed instructions included a section on just cause for termination, indicating that the jury had to find whether plaintiff committed the acts the complainant alleged, and if she did, whether her conduct “constituted just cause warranting her termination.” The instruction went on to say that just cause required a determination that “it is reasonable to discharge an employee because of the alleged conduct” and that plaintiff had “fair notice” that the conduct would be grounds for discharge. Plaintiff's proposed jury verdict questions asked first whether an implied employment contract existed “concerning the terms of [plaintiff's] employment?” If the answer to this question was yes, it asked whether “defendant had just cause to terminate plaintiff[.]” The questions contained no other liability standard.

¶ 8. There were two conferences on the jury instructions. Prior to the first, the court had prepared a draft that included reference to a just cause standard for termination. This conference was primarily a discussion that went on for about an hour. To the extent there were formal objections, they came from defense counsel. Defense counsel specifically objected to use of a just cause standard to determine whether the termination was lawful.

¶ 9. The second conference was conducted during the morning before the closing arguments and the charge to the jury. The court prepared a new draft that dropped any reference to just cause, instead referring more generally to whether the employer had breached the implied contract. Plaintiff's counsel specifically objected to the deletion of the just cause standard, arguing that the cases from this Court hold that once the jury finds a modification, they “then decide whether or not there was just cause.” Plaintiff's counsel summarized: “So we object on the basis of the court's continuing interpretation” of the Vermont Supreme Court cases. The court made no change in the instruction in response to this objection.

¶ 10. Following the jury charge, the court asked whether there were any objections. Plaintiff's counsel answered “I just reiterate the previous objections that I expressed.” The court further inquired, “About the just cause?” and plaintiff's counsel answered, “Yes.” The bench conference then went on to defendant's objections.

¶ 11. The court gave a special verdict form to the jury. The first question on the form was:

Has plaintiff ... proven by a preponderance of the evidence that her at-will employment status was modified by defendant VNA's employment handbook or by its policies and practices?

The second question was:

Has plaintiff ... proven by a preponderance of the evidence that defendant VNA obligated itself to follow certain disciplinary procedures, and that the VNA failed to follow those procedures in this case?

The jury answered “yes” to the first question and “no” to the second, so they did not proceed on to the third question, which asked them to compute back pay if they found that the employment contract had been breached. Pursuant to the jury finding, judgment was entered for defendant.

¶ 12. On appeal, plaintiff makes one central argument: that the jury instructions were erroneous and prejudicial because they included no instruction on “just cause.” The crux of her argument is that “[o]nce the employer modifies the ‘at-will’ employment relationship it is bound to terminate only for cause.” Consequently, because plaintiff believes that there is no difference between “just cause” and “cause,” and because this Court has previously defined “just cause,” plaintiff argues that the instructions were erroneous and “prevented the jury from evaluating the dismissal according to a commonly recognized standard.” Furthermore, she asserts that the exclusion of a “just cause” instruction from the jury instructions was prejudicial because it did not allow the jury to evaluate either (1) whether plaintiff engaged in the alleged conduct; or (2) whether the conduct was enough to merit termination under the Court's “just cause” standard as opposed to misconduct that impacts “patient care and safety” under VNA's standards.

¶ 13. Before we examine the substance of plaintiff's claims, we look at the preservation of the issue. V.R.C.P. 51(b) requires that to preserve an objection to a jury instruction, a party must object “thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Plaintiff's brief post-instruction objection—that plaintiff's counsel repeated his earlier objections—does not meet this standard. As we held in Winey v. William E. Dailey, Inc., 161 Vt. 129, 138, 636 A.2d 744, 750 (1993), “we do not believe that a blanket reference made after the charge to arguments made before the charge, even if allowed by the trial court, complies with Civil Rule 51(b).” See also Weaver v. Brush, 166 Vt. 98, 106, 689 A.2d 439, 445 (1996) (same). Nor does it state “distinctly” the matter objected to or “state the grounds of the objection.” See Winey, 161 Vt. at 138, 636 A.2d at 750; see also State v. Vuley, 2013 VT 9, ¶ 38, 193 Vt. 622, 70 A.3d 940 (decided under identical V.R.Cr.P. 30). The court's follow-up question—“About the just cause?”—added a little more specificity when answered affirmatively but did not at all specify the grounds for the objection.

¶ 14. Even if the post-instruction objection could be judged sufficient to comply with Rule 51(b), it refers back to a charge-conference objection that was only marginally more complete.³ The charge-conference objection stated that the precedents require that once the jury finds a modification, the jury must go on to decide “whether or not there was just cause.” With this very limited preservation, we are left only with the question of whether just cause, however defined, is required in every case where an employee is not an employee at will.⁴

¶ 15. Even if plaintiff had preserved an objection, we would affirm on the...