*1 hearing, not perjury the December clarify it was ample evi- trial, The court at issue. that was the earlier plea impact of the nolo proper it to determine before dence veracity at trial. Garrow’s on the issue of scope Court’s beyond of this other issues are Defendant’s not re- sufficiency specific findings order, going to remand They testimony. falsity the Garrow to the truth lated appeal. in this not before us
Affirmed. Payne Rozendaal, et al. Jan W.
Paul Trepanier, Rozendaal, et al. Jan Albert et al. v. W. A.2d 586]
[520 No. 83-563 JJ., Hill, Peck, Hayes, Gibson and Present: Keyser, Assigned (Ret.), Specially J. September
Opinion Filed Reargument Denied December Motions *2 Maley, Inc., Sylvester Burlington, Michael S. Brow of & for Plaintiff-Appellant Payne. Murray McNeil, Leddy
Francis X. John Murray T. of & Sorrell, Inc., Burlington, Plaintiffs-Appellants Trepanier, for et al.
Dinse, Erdmann, &Allen Burlington, Defendants-Appellees for Rozendaal, Ford, Inc., Inc., Nordic Holdings, Nordic and Cidron Ford, Inc. Port, D. Roper, Paul,
Alan. William E. and John T. Sartore of Collins, Inc., Frank Burlington, & Defendants-Appellees for Get- ting Organized, Styles. Inc. and
Hill, plaintiffs, employees J. The all representatives former or employees Inc., of Ford, former action, of Nordic commenced court, in superior against plaintiffs the defendants. The claimed I of complaint they Count their discharged that were from employment solely their age, basis of their and that such discharge inis contravention of state law. to Pursuant a motion for summary judgment defendants, filed the court dis- plaintiffs missed this of claim the because it found no state law existence discharge time of the which would have restricted discharge plaintiffs defendants’ basis of their age. The plaintiffs’ court also dismissed claims for inten- claim and the distress negligent infliction emotional tional and plaintiff’s plaintiff well wrongful one for the death damages. consequential spouse’s for consortium and claim loss off they because determined these claims The court dismissed for a claim in the viable not be sustained absence could presented plaintiffs discharge. we find that wrongful Because discharge, wrongful for recovery under law state a viable claim these claims. court’s dismissal of superior we reverse defendants, Getting Organized, alleged plaintiffs also tortiously Tommy Styles, with the agent, interfered Inc. and Ford, contracts, Inc. by advising plaintiffs’ Nordic age. defendants because of their These claim, summary judgment to have to dismiss this moved they privileged favor, they granted in because claimed their determining motion The court denied the after act as did. relation- interference with contractual justification for an defense, as a ship and that matter is an affirmative justification. We established the defense defendants summary judgment superior agree and affirm the court’s denial on this claim.
I. plaintiffs’ appeal granting from the of We will first address the defendants, summary judgment, of all but one favor plaintiffs’ complaint. count of the appeal summary judgment, we granting On from an order nonmoving party, if facts must assume that the asserted evidence, Braun supported by v. affidavits or other true. Humiston, 1388, 302, 306, 140 When Vt. 437 A.2d 1389 light, in this facts viewed are as follows.
In the late fall sales of Motor Com- of automobile Ford Ford, pany time, were on a nationwide. At this Nordic decline large inventory Inc. had a of 1979 automobiles. With interest time, high general rates and a slowdown the national economy, Nordic forced to with sell its automobiles a margin profit. Consequently, profits small Nordic’s expected. were lower
Early president, Rozendaal, sought Nordic’s Jan “efficiency Birmingham, firm” advice of an from Alabama named representative Getting Organized, Tommy Styles, a from Inc.. firm, visited Nordic interviewed number of Nordic’s employees. interviews, day Styles At the conclusion met general manager, Trepanier. with Rozendaal and Nordic’s Albert Styles said to the them two of that Nordic’s new used car departments image” had “a retirement home with two em- ployees age thirty employee sixty- or under and with one who was years Styles seven old. then recommended he be allowed to change suggested people this. He he from use his firm to inter- people employees view replace “young new the current with go-getters.” following day, Trepanier
The with met Rozendaal and Trepanier Styles’ told that he thought good Rozendaal advice was and that “we will do what he said.” Rozendaal also informed Trepanier Styles Trepanier fired, had recommended be along Trepanier resigned, refusing others. then to fire employees. age fifty, other employees, Six Nordic’s all over were employees then fired. The Nordic all con- retained siderably younger. purposes
For ruling summary judg- the motions for ment, parties employees conceded that all the were dismissed solely age, employees on the basis of and that all the were work- ing at Nordic under an “at will” contract. Thus no questions preclude factual remained which would an order of summary judgment being entered. V.R.C.P. 56. Vermont, employment contract, under an “at will”
employee may discharged cause, time with or without compelling “unless there is a clear and public policy against the reason discharge.” Keogh, advanced for the Jones Vt. (1979) 409 A.2d (emphasis in original). plain tiffs claim that from employment solely on the basis public contravenes a clear and compelling policy. agree. We
Although parties an at will employment contract neces- sarily leeway contract, in terminating substantial their such vary are not absolute. Courts on the extent to which con- *4 public policy siderations of employer’s will right curtail an to dis- charge at will employee. Kovalesky See v. A.M.C. Associated Merchandising Corp., (S.D.N.Y. 1982) F. Supp. 544, 551 547-48 (under Y. discharge N. specific must public pol- contravene icy laws, clearly expressed orders, regulations executive or con- stitution); Wagenseller v. Scottsdale Hospital, Memorial 147 370, 378-79, 1025, (1985) Ariz. (constitution, P.2d 710 1033-34 492 public policy); form basis decision and court
statutes 130, 124, 421 Co., Ill. 2d Harvester 85 Palmateer v. International pol (1981) public 876, (discharge may contravene 878-79 N.E.2d provi statutory specific or constitutional expressed in icy not 691-93, 688, N.E.2d Platt, App. 386 sions); Ind. 179 Martin v. legislative (1979) exceptions limited to 1026, (public policy 1028 Co., 121 Tea directives); Atlantic & v. Great Cloutier Pacific (1981) policy excep (public 915, 922, 1144 436 A.2d N.H. may based statutory pronouncements and not limited to tions Bradstreet, Brockmeyer & v. Dun nonstatutory policies); (1983) (discharge must be 2d 335 N.W.2d Wis. policy public as evi “contrary well-defined to a fundamental and law.”). by existing denced policy in public is no Vermont argue that
Defendants there employee solely on the ba- at will prohibiting the of an statu- discharge, there was no at the time of sis of because concerning It was until the tory age discrimination. directive Legisla- plaintiffs’ the Vermont year following the dismissals that Employment Act and Practices amended the Vermont Fair ture practice against to discriminate made it an unlawful age. 495. individual on the basis of V.S.A. § concerning statutory do find the absence of a directive We public policy dispositive to be of whether age discrimination discharges. As practices the time of the against such existed at Cincinnati, Pittsburgh, Chi Supreme Court of Ohio stated cago Railway Kinney, St. St. & Louis Ohio 115 N.E. (1916): substance, may [public policy] to be the commu- be said conscience,
nity common sense and common extended morals, applied public throughout the state matters health, welfare, public public safety, public It is and the like. public general opinion relating and well-settled men, plain, palpable duty having man’s to his due re- fellow gard particular all the circumstances of each relation situation. Constitution; by. public policy is
Sometimes such declared by statute; by judicial More sometimes sometimes decision. often, however, abides the customs and conven- people tions of the their clear and convic- consciousness —in naturally inherently just be- tion what
[493] regards primary principles tween man and man. It equity justice expressed and and is sometimes under the ti- justice, tle of social and industrial as it is conceived our body politic. shocking When a course of conduct cruel or average conception justice, to man’s such course of obviously contrary public pol- conduct must be held to be icy, though policy such has never been so written in the bond, Constitution, statute, whether it or decree of court. frequently public policy, It has been said that such is a com- posite provisions, statutes, judicial of constitutional de- cisions, gone and some courts have so far as to hold that it is fallacy limited to these. The obvious of such a conclusion is quite apparent superficial from the most examination. When contrary Constitution, a contract provision to some say prohibited by Constitution, we it is by public policy. statute, When contrary say a contract is to a we it is prohibited by statute, by public policy. a When con- contrary decisions, tract is judicial to a say settled line of we prohibited by land, it is say the law of the but we do not it is contrary public policy. policy Public is the corner- Constitutions, statutes, stone—the foundation —of all judicial decisions; longitude, and its height latitude and depth, greater and its If all of them. this be not true, whence judicial came the first decision on matter of public policy? precedent it, There was no for else it would not have been the first. 68-69,
Id. at
In accepting
“public
policy,”
definition of
we necessa
rily reject
argument,
courts,
holdings
defendants’
and the
of some
public policy exception
that the
employment
to at will
contracts
See,
legislatively
Kovalesky,
Martin,
must be
e.g.,
supra;
defined.
supra; Brockmeyer, supra.
may
modify
Statutes
themselves
(federal
at will
E.g.,
doctrine.
29 U.S.C.
law
§
(Vermont
prohibiting age discrimination); 21 V.S.A. 495
Fair
Act).
Employment
modifications, however,
Practices
Such
separate
any public
from
policy exception. In the absence of a
state
providing
remedy
age
statute
for
discrimination
exis
discharges,
tence at the time of the
we do not
later
find that the
passage
preempts
of such a statute
a common law cause of ac-
Age
finding
that the Federal
courts
We
follow other
tion.*
also
(ADEA), 29 U.S.C.
621-
Employment Act
§§
Discrimination
age discrimina
of action for
preempt state causes
does not
(D.
Corp.,
Supp.
Standard
F.
Adler v. American
tion.
Stores, 672 F.2d
Department
Cancellier v. Federated
1982);
Md.
denied,
(9th Cir.), cert.
The instant case is different. Here we are faced with a matter age. of discrimination on the basis of Both the United States Congress recognized Legislature and the Vermont the exis- * statutory remedy age Since no state was available for discrimination at the time plaintiff’s’ discharges, express opinion regarding we here the circum- which, stances under or the factors to be taken into consideration for determin- when, ing statutory remedy preempts such a state a common law cause of action for discrimination. problem age tence of discrimination have taken action provide 623; remedies for such. 29 V.S.A. 495. In U.S.C. § Salmon, proclamation, Governor Thomas executive des- ignated doing, 9-15 as he March “Older Worker Week.” so rec- ognized problem age discrimination and stated that “the State of Vermont has initiated efforts hasten elimination of an against . . recognize unrealistic bias older . .” To fail to workers compel- a common law cause of action when there a clear and ling public policy against age and when there is no discrimination statutory provision providing state avenue of for relief responsibility our recognize would to shirk and act upon they changes help develop societal affect and law of interpreted by this state as its courts. superior dismissing plaintiffs’ court thus erred in claims claims, wrongful discharge. Plaintiffs’ other which court
also dependent upon dismissed because it determined wrongful discharge, valid claim for must now be reconsidered light today. the trial our holding court
II.
part
opinion
The second
appeals
addresses the
taken
defendants,
two of
Getting Organized,
Tommy
Inc. and
*7
Styles.
complaint, plaintiffs
alleged
their
that the conduct of
the two
in recommending
plaintiffs’
defendants
employ-
that the
ment
solely
be terminated
the basis of
constituted a tor-
plaintiffs’
tious interference
relationship
with
contractual
with
proximate
actions,
Nordic.
a
plaintiffs
As
result
such
claim to
employment,
suffered loss of
irreparable financial harm and
severe
physical
emotional and
distress. Defendants moved to dis-
They argued
miss
wrongfulness
these claims.
is an element in
the tort of intentional interference with a contractual relation-
ship,
allege any
failed
wrongful
conduct
by the defendants. The trial court denied defendants’ motion. It
“justification
determined that
in
interference
the business re-
for
lations of another is an affirmative defense which the defendant
has the
proving.”
burden of
It also determined
whether
an
occasion
justifies
exists which
question
defendants’
a
conduct is
that,
for
jury
consequently, summary
in
judgment
favor
inappropriate.
the defendants was
justification,
special
“[e]xcept
has stated that
This Court
intentionally
liability against one who
long recognized
the law has
Mitchell Al
disrupt
existing
an
contract
intrudes to
relation.”
liability
19, 22,
is
Such
drich,
A.2d
835-36
or unen
is
at will
imposed
though
contract
terminable
even
“the
at
.” Id.
A.2d
836.
promisor . . .
against the
forceable
Furthermore,
in the business rela
for interference
“[Justification
defense,
intruder
is an
and the
has
of another
affirmative
tions
proving
privilege to
Whether
occa
his
intervene.
burden
contract or
justifies the invasion of another’s
sion
which
exists
by
question for
generally
relations
the defendant
business
omitted).
(citations
jury.” Id. at
proceedings opinion. consistent Peck, dissenting. J., accept I cannot result reached majority. case I convinced that am it has been determined causa, view, pietatis clearly recent, my contrary so in since it long precedential as well as Court standing, decisions of this re- public policy employees. Today’s lating and at-will decision statutory rights legislature, also guaranteed violates plaintiffs’ employment those time the existed judici- The end compliment terminated. result here is no to the *8 ary. Speaking figuratively, knowing defendants went to bed law, they fully complied statutory prece- had both dential, only up morning to wake the next to learn that as slept, ignored precedent, this Court had both statutes and they, defendants, illegally. Rulings held acted like this do inspire public in, system, respect judicial confidence for the possibly engender any public security nor can it feeling of even acting legislative guarantees. when under the shield of is It ironic if post illegality lay this ex facto in the field of the criminal seems, law it would be In civil our unconstitutional. so protection against judicial citizens have no whims. talking age, per
We here about an se. action based effort, good The basis for defendants’ action was a faith made expert consultant, improve the recommendation of an a declin- ing gather by I upon major- business. such efforts are frowned ity, consequences appeal if the in action sufficient I entirely emotions. legal believe the defendants’ actions were proper; accordingly, I choice but to file this dissent.
I. Employment At Will disputed by is not parties, It acknowledged by and it is majority, employment that the was of indefinite was, therefore, questioned duration and “at will.” Nor can it that under employment the common law an at will terminable employee any either the or the at time. being contract of . in . . indefinite dura-
tion, country, by great doctrine laid down ma- them, jority having question of the courts before is that will, hiring it was party under which either had the employment. time to terminate the Mullaney Co., (1923). v. C. H. Goss 97 Vt. 122 A.
Mullaney
recognized as
the law Vermont and followed
recently
Inc.,
as 1981 Brower v.
Transportation,
Holmes
114, 116-17,
Vt.
Keogh,
435 A.2d
953-54
In
Jones
(1979),
Ever
extending
acceptance
rule
en-
of a
rule is the concern that
employee would de-
rights
an at will
contract
forceable
in such
mutuality
obligation extant
stroy
the
added).
relationships. (Emphasis
Thus,
regard-
563-64,
employee,
Id.
A.2d
an at-will
at 582.
at
the
employer,
the
to which
latter
to his
or
extent
less of his value
quit
any time
expertise,
his
could
without
or relied on
needed
Nevertheless,
today’s in-
impunity.
as a result of
with
notice and
by
employer,
latter
discharged
the
the
will
justice, if he had been
if
was
damages
with-
subject
to a civil action and
in
“mutuality”
consequences,
The
of such
ab-
good
out
cause.
statute, escapes me.
proper
a
sence of
plaintiff’s
expressly
if the
in Jones held
that even
The Court
faith,
prove to be
retaliation should
claim of bad
malice and
remedy lay
legislature:
her;
only
would not aid
with
fact it
legislature
pro
course,
say, of
could
“This is not to
(em
remedy plaintiff
Id. at
ployer guilty any malice even if was bad in appropriate are an concern for the courts these those factors contrary employer simply by was cases. On motivated replacement plaintiffs younger personnel might belief that improve public consequently to a image its contribute rever- experienced in sal the decline which had been its business. Moreover, arbitrarily, study by, was not after a done but of, which, consulting firm and the advice outside business anything contrary presumed appearing, without to the must be qualified upon assignment to have entered have any preconceived in without notions as to the cause of the decline consultant, business. From this it must also follow that the in a business, perfectly legitimate major- The good also acted faith. however, ity, if preposterous reaches that even conclusion was, expert of the in the valid and consultant’s factor, judgment, by contributing was law from forbidden so, saying and the likewise forbidden to act on it. absurdity holding compounded by at least two employer, guided by facts: first neither the consultant nor the Jones, Mullaney, any Brower reason know that what they way; doing illegal protected were Court, both common law as enunciated through legislature expressly statutes which the affirmed those Second, Mullaney rights. will this Court indicated it not limit the faith, egregious even in rule the face such conduct as bad mal- retaliation, Keogh, supra, now, ice or Jones but a master- piece illogical reasoning, hesitation do- *10 good ing attempts, improve so faith, when an to his business, while upheld at the same time the would have time, quit any employees of these same had that case, regardless employer’s effect their busi- ness. enough any
It is majority, bad when the without demonstrated so, qualifications arrogates power to do to itself the to determine i.e., public policy, people or social to declare what the need and demand, evidence, any pub- without that such is in fact what wants, except purely subjective, sympathetic lic its own and emo- response. egregious tional It becomes an and an inexcusable abuse when, here, judicial power ignores of or a court defies clear and specific legislative enactments subject. which control the legislative preemption matter but demonstrate as well. Such ac- restraint, principles judicial tion violates the of and violates the powers. separation constitutional doctrine of of At the discharged subject time the of matter statutes, proceeding this was controlled least two V.S.A. 495, and 21 V.S.A. 495c. Both of these statutes were included § § V.S.A., 5, 6, chapter subchapter Employment “Fair entitled At that time
Practices.” extent it is relevant to this inquiry, read follows: employment practice, except
It shall be unlawful [an] occupational qualification requires per- where fide bona race, color, sex, particular sons religion, origin, national ancestry: or
(1) any employer, employment For agency organi- or labor against any zation discriminate his individual because of sex, place race, ancestry, origin, color, national religion, birth; express prohibi- list of clear and
Conspicuously from this absent “age.” tions is statute, long estab- if no more
Even there were construction, inclusio statutory applied maxim of lished ex- alterius,2 sufficient to more than should be est exclusio unius prohib- (exclusio) by the courts as a age from consideration clude compiled its list very carefully legislature ited concern. of em- clearly guidance for the expressing prohibitions, thus as well as the agencies unions ployers, employment and labor courts, law was to be modi- the common the limits within which this Court stated: fied. 332, 338,3 Co., Dewey v. Albans Trust 57 Vt. St. said
[A]s statutes, “the rules of the speaking of the construction implication, changed law not to be doubtful common language,” except by unambiguous clear and nor overturned nor implication change, clear and is no certain and here unambiguous language overturn. Hildreth, Vt. 74 A.
State year; recently as last further interest is a case decided as Of pointed required to use words legislature Court out that the expressly modify language if is incon- the common law “its which Messier, interpretation.” State v. sistent with other *11 coin, flip of A.2d 742 The slide of 497 course, controlling statutes language is the instant case: the concerned; age far not inconsistent with common law as as above, they applicable expressly as the common law. noted affirm rights employer it an to hire and To the extent addresses the discharge employee, the referred to an at-will second statute (21 495c), above V.S.A. reads: § limiting subchapter as
This shall not be construed rights long employers to hire fire ... as as such rights subchapter. are not in exercised violation of added). (Emphasis
2 statute) (in the exclusion of others. thing implies The inclusion of one 3 (later Justice). Opinion in written Justice Chief Decided 1885. Rowell rights common employ-
This is clear affirmation of the law termination, employees except ers to at-will when the formerly proper law, prohibited by under common statute. statutory prohibition, age, No such based existed at time plaintiffs were terminated.
Nevertheless, reading together being pari these statutes as materia, First, beyond argument. two conclusions are clear not, legislature had question, at the time in an em- included ployer’s employee’s age legally action based on as an discrimina- tory an practice.” “unlawful That conclusion so, being that, 495c, provisions it follows even without of § right common law of termination at will was still the law on employers, advisors, which attorneys, as well as business trial others, fully rely. courts and entitled to Section cannot be looked at in sense of a statute which exceptions amorphous, creates subjective from some and unde- concept legal fined contrary, discrimination. On it is inclu- nature; is, fact, sive in it in the definitional sense of what con- (or then) and, duct does did constitute discrimination a result solely being statute, included in the became an “unlawful em- ployment practice.” any proper It follows that conduct under the not, by definition, common law and not included 495 is le- § gally discriminatory. Age was not included.
There ais second conclusion must which be drawn from read- ing together employer, and 495c. Since action §§ based employee, legally discriminatory of an was not under § 495, discharge age, subjective sympathy based on however much may emotion dislike result4 did violate statute. was, therefore, here rely entitled to on its common rights. law Its as it act did under common law expressly legislature, affirmed particularly by language only changed 495c. The has not § common open has done so legislative defiance of the will. Obviously, rights” employers “the reserved to under 495c re- rights ferred to the common law to hire and fire as existed at question. the time in possibly What other could have been contemplated? We be legis- cannot concerned here with what relating language sympathy compared This based on decisions should language faith, the more sober in Jones-. “Nor is the fact that malice bad retaliation are motives . . . . . . .” sufficient 137 Vt. at A.2d at 582. subjectively objectionable What can be more these motives? *12 502 not, time, indicate what thereafter; 495 did
lature did § it, i.e., based on employer action majority claim that an terminated, public was, against at the time by legislature. policy as established (as existed) 495c, only ignores it 495 The §§ subsequently and now amended by relying on as it has 495 § preexisting stat- protections afforded ignored are the stands. Also 214(b)(2), which, ex- to the utory guaranteed by 1 V.S.A. rights § here, applicable reads: it is tent
(b) statutory provision The ... of ... amendment [a] . . . shall not: liability
(2) obligation ac- any right, privilege, Affect date of the quired, prior or incurred to the effective accrued amendment ....
Since, opinion, there is no I the outset of this as indicated at occurred, at the time that, employer had an whatever it doubt servant, right common law of master and absolute under the done, statute, plaintiffs’ services as affirmed to terminate independently recommendation existed Any subsequent to the discrimination amendments consultant. statutory rights. preexisting had no statutes effect case, 214(b)(2) is, pari context of this V.S.A. (as time) at the material materia with V.S.A. it existed §§ individually, together, Taken or indeed almost these and 495c. irrefutably correctness of the lower provisions demonstrate unjust ruling, egregious as the result reached court’s well majority. only ignores express direc- This result not statutes, usurps powers of primary it tives of public legislature policy. to determine
II. Party Third Intrusion possible, majority’s issue If it is on the second is decision regrettable primary more Its fault lies even first. plucked support has fact that out of thin air and applicable. Aldrich, Mitchell exclusively opinion almost relies cursory the most review A.2d 833 Even point. The fac-
that case is sufficient to disclose that it is not *13 bar, ex- the tual situation is far different than the case and cerpts quoted out of context. person.”
In Mitchell intruder a true The con- the was “third by “in- mortgagor. involved for the cattle a The tract was sale of simply by mortgagee appraise was the bank to truder” retained However, persuaded the he an when he cattle. became intruder pur- prospective to sell cattle him rather the the seller the to agreement chaser under an the latter and the seller. This between contract; nothing it act was clear interference with the appraiser purpose whatever to do the for which had been the employed by appraiser departed purpose the The from the bank. of on a his own. his and went off frolic of (con- Quite contrary Organized, Getting the is true here. Inc. sultant) employed was It legitimate business consultant. was to study might, hopefully, make a and recommendations which re- employer’s verse the decline in the Unlike the business. defend- Mitchell, nothing sepa- ant consultant did to its advance own purpose scope specific rate interests the the which outside of it employed, qualified perform. had been and it was to which majority confuse issue as far as consultant is concerned. It whether, fact, plaintiffs is age as a matter of of had an “public image” effect employer’s adverse on the and on thus consultant, only question business. The expert is whether as an field, entitled, perform very was as a matter is, employed do; it was qualified function and that to form opinion decline, contributing to the factors to the business make recommendations based thereon. The holds that privilege However, no such exists in is con- Vermont. trary great weight authority. Piping to the Co. See Kecko Monroe, 197, 202, (1977) Town 172 Conn. 374 A.2d contract, (pursuant to its was obligation architect under an to ad- suitability vise defendant Town as to of contractors and subcon- tractors); Frischling, App. Olivet v. Cal. 3d Cal. (1980) Rptr. (agent may properly counsel the of a breach by principal reasonably contract his he which believes harmful to interests, employer’s prin- his if best itself even breach tortious); Prosser, cipal may W. Law of at 943-46 Torts § (4th 1971), ed. text and annotations.
Surely, startling parody new is a law semblance of justice expert, under perform the law. It holds that an retained to expertise, his neverthe- parameters must a function within the advice, opinion however remain and withhold his less dumb issue), dragged before legitimate is or be (again not the opinion recom- anyone disgruntled who is court mendations, and seeks retribution. “solely
Apparently agreed discharged it was is a wise concession age.” basis was on the of their Whether goes; as far as it point; it must be taken as true irrelevant at this termi- age, appears would not “but for” their story even half the Nevertheless this concession nated. which, in majority opinion recognizes. It their consultant, decline opinion contributing factor was a and, employer’s accordingly, led to the termina- business case, although recognized This element of the tion that basis. record, swept under by majority clearly evident *14 carpet majority. ignored the III. Summary legal summary, majority’s first issue is decision on this we cut swashbuckling of the most unfortunate order. When through camouflage exposed as policy, it stands an indica- supposed protection tion that no safe to even under the one is act question not legislature, even of the when constitutional issue, post judiciary. is sim- an the ex facto whims of the It from that, time ply majority at the of the em- not true as the state here, ployer’s Legislature recognized the “Vermont action [had] discrimination,” problem age at in the the existence of a least employer-employee relationship. context of the That did not 495c, relies majority ignores come until Yet the it later. § today, plaintiffs 495 as it was time it exists not as at the § discharged.
Further, sweeping recognize fail to statement that “[t]o responsi- common law cause of action . . . would be to shirk our bility . . recognize upon changes societal . .” is noth- act legalese. high-sounding ing demagoguery but couched It is said, everyone cover-up really being for what is but enactments; by legislative are courts free to courts bound follow, ignore, modify statutory rights or wish. amend will, Here, right employer otherwise, right because of or was a it had under the common law; any V.S.A., provision chapter did violate 21of sub- chapter right recognized 6. It was a protected 495c. § “rights” possibly What other could 495c have referred to? § Conceivably, although it, I prepared argu- am not to concede ment here, could be made for a limitation of the common law if there existed controlling statute. The commit the ad- saying ditional error of that no such statute existed. That conclu- simply wrong; obviously sion is pushed 495c has been behind policy ignored smoke screen and as an element of the case entirety appears as it in the record before this Court. What I have written above concerning of the em- ployer law, protected under the common as affirmed and cited applies equally, course, statutes Titles 1 and consultant. Since prece- had the under these plaintiffs will, dents and statutes to terminate the consultant since, nothing illegal, particularly did opinion, expert in its as an field, employer’s being adversely business was affected. Additionally, undisputed a matter of under the factual pattern here, consultant was not an intruder within the contem- plation Aldrich, supra, Mitchell other case that I have discovered.