387 F. Supp. 3d 370
D. Vt.2019Background
- Plaintiff Thomas Cole, hired May 23, 2018 as a residential counselor at the Northland Job Corps Center (NJCC), alleges he reported health/safety problems (lack of sanitizer; supervisor allegedly requiring sick counselors to find replacements) and was terminated July 27, 2018 shortly after emailing HR requesting reassignment and reporting concerns.
- Defendant Foxmar, Inc. operates NJCC under a Department of Labor contract; its employee handbook contains at-will disclaimers, safety-reporting language, an accountability schedule, and an acknowledgement form reiterating at-will status.
- Termination notice cited alleged failure to report for shifts (job abandonment); Cole contends that reason was pretextual and that he was fired in retaliation for reporting safety issues.
- Procedural posture: Defendant moved to dismiss under Fed. R. Civ. P. 12(b)(6). Cole moved to amend to add a VESTA (Vermont Earned Sick Time Act) retaliation claim and later promissory estoppel; the court considered the pending motion to dismiss together with the amendments.
- Court treated handbook as integral to the complaint and evaluated whether Cole plausibly alleged: VESTA retaliation, VOSHA retaliation, promissory estoppel, and whether other common-law claims were preempted or frustrated by at-will disclaimers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cole may add a VESTA retaliation claim for reporting that a counselor was required to find a replacement before leaving when sick | Cole alleges he complained orally and in writing about being required to find replacements and thus lodged a protected complaint under VESTA | Foxmar argues Cole fails to plausibly allege a VESTA violation or required complaint procedure compliance | Granted: Court finds oral and written reports to supervisors plausibly constitute "lodging a complaint" under VESTA; amendment allowed |
| Whether Cole's promissory estoppel claim (based on handbook reporting/safety language) is futile | Handbook statements encouraging reporting and prohibiting failure to report non-compliance created a definite promise Cole relied upon | Foxmar says handbook contains no enforceable promise and at-will disclaimers negate any such promise | Granted: Handbook language may reasonably be read as a promise not to terminate reporters; promissory estoppel claim may proceed |
| Whether Cole states a VOSHA retaliation claim for reporting unsafe conditions (lack of sanitizer; forcing sick employees to work) | Cole alleges a good-faith, reasonable belief that conditions violated workplace safety and he was terminated in retaliation | Foxmar contends the reported conditions are not VOSHA violations | Denied (motion to dismiss): Court holds Cole plausibly alleged protected activity, knowledge, adverse action, and causation; reasonable belief suffices at pleading stage |
| Whether Cole's common-law claims (wrongful termination/public policy, breach of contract, implied covenant) survive | Cole relies on handbook and public-safety policies to assert wrongful termination, breach of implied contract, and breach of covenant | Foxmar argues claims are preempted by VOSHA or fail because employment was at-will and handbook disclaimers negate an implied contract | Granted in part: Court dismisses wrongful termination (public policy), breach of contract, and implied covenant claims — public-policy and contract-related claims are preempted by VOSHA or fail because handbook does not create enforceable implied contract; implied covenant fails absent an enforceable contract |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (standard for plausibility on a motion to dismiss)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading must be plausible, not merely conceivable)
- Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (oral complaints can be protected under anti-retaliation statutes when employer has fair notice)
- Anderson News, L.L.C. v. American Media, Inc., 680 F.3d 162 (amendment futile standard)
- Dillon v. Champion Jogbra, Inc., 175 Vt. 1 (promissory estoppel can modify at-will employment; handbook may create enforceable promises)
- Ross v. Times Mirror, Inc., 164 Vt. 13 (requirement that handbook procedures be definitive to create enforceable promises)
- Mellin v. Flood Brook Union School Dist., 173 Vt. 202 (elements for VOSHA retaliation claim)
- Beckmann v. Edson Hill Manor, Inc., 171 Vt. 607 (oral complaints to supervisors can satisfy retaliation statutes)