2013 VT 64


Cate v.
City of Burlington (2012-227)
 
2013 VT 64
 
[Filed 02-Aug-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 64

 

No. 2012-227

 

Adam Cate


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Civil Division


 


 


City of Burlington


January Term, 2013


 


 


 


 


Geoffrey
  W. Crawford, J.


 

Susan J. Flynn of Clark, Werner & Flynn, P.C.,
Burlington, for Plaintiff-Appellant.
 
Pietro J. Lynn and Scarlett S. MacIlwaine of Lynn, Lynn
& Blackman, P.C., Burlington, for
  Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
ROBINSON, J.   Plaintiff filed suit for breach of
contract and intentional infliction of emotional distress (IIED) against his
former employer, the City of Burlington, claiming that the City disciplined him
for actions and in a manner not authorized by the City’s personnel
manual.  The trial court granted the City summary judgment, concluding
that the manual unambiguously allowed the City to place plaintiff on paid
administrative leave pending an investigation and proscribed plaintiff’s
conduct of viewing other employees’ emails.  The court also concluded that
plaintiff had failed to demonstrate outrageous conduct sufficient to support an
IIED claim.  On appeal, plaintiff argues that summary judgment was
inappropriate because the court misconstrued the personnel manual, there were
disputed issues of fact, and there was sufficient evidence of outrageous
conduct to send the IIED claim to the jury.  We affirm.
¶ 2.            
The following facts are undisputed.[1]  At the time of the relevant events,
plaintiff was employed by the City of Burlington in the Parks and Recreation
Department as the Waterfront Manager.  Plaintiff supervised approximately
thirty seasonal employees and one full-time employee, and he oversaw daily
operations of the Boathouse, a City-owned property on the waterfront. 
Plaintiff’s immediate supervisor was the Superintendent of Park Operations, Ben
Pacy, who eventually left the Department to work at City Hall.  After Pacy
left, Cate reported directly to Robert Whalen.  Wayne Gross, the Director
of the Department, supervised Pacy before his departure and subsequently
Whalen.  When Pacy left the Department, Gross was in the process of
preparing a plan to reorganize the Department.  Cate believed that, from
his new position in City Hall, Pacy was doing things to undermine Wayne Gross’s
reorganization effort. 
¶ 3.            
In January 2008, after Pacy left, plaintiff moved into Pacy’s former
office.  At that time, he turned on the computer formerly used by Pacy and
gained access to Pacy’s email by, according to plaintiff, correctly guessing
Pacy’s password.  Over the ensuing months, plaintiff accessed Pacy’s email
account in this way approximately six times.  Plaintiff also began
accessing the email account of department employee and plaintiff’s coworker
William Rasch, who was the union shop steward, after plaintiff discovered the
account was not password protected.  He accessed Rasch’s account without
authorization approximately eight times.  Plaintiff printed emails from
these accounts and shared them with Gross, but plaintiff lied about how he got
them, telling his supervisor that he found the emails sitting on the office
printer.  On June 19, 2008, upon learning that plaintiff had apparently
accessed other employees’ email accounts, the City’s human resources department
placed plaintiff on paid administrative leave while it investigated further. 
During the ensuing investigation of plaintiff’s accessing others’ emails,
plaintiff, who said he did so at the direction of his immediate supervisor,
initially lied and told the investigator that he found the emails left on the
printer.  
¶ 4.            
In the meantime, immediately after plaintiff was informed that he was
being investigated and placed on paid administrative leave, he telephoned two
coworkers under his supervision at the Boathouse.  He instructed one
employee to remove approximately $2500 in cash from the safe and another
employee to hide a City laptop that he had been using.  The employees
reported these requests to management who in turn reported the matter to the
Burlington Police Department, which began investigating a possible embezzlement
at the Boathouse.  Ultimately, the police determined that all money was
accounted for and closed the investigation.  
¶ 5.            
After law enforcement finished its investigation, the City hired an
investigator to do an independent investigation concerning plaintiff’s
management of the Boathouse.  The City placed plaintiff on further
indefinite administrative leave pending that investigation.  The
investigator ultimately concluded that plaintiff had misused his City computer
and had mismanaged Boathouse finances.  
¶ 6.            
On September 22, 2008, the City sent plaintiff a letter indicating that
it was considering serious discipline, including the possibility of
termination, on several bases.  Among other things, the City concluded
that plaintiff had repeatedly gained unauthorized access to other employees’
email accounts, had lied to both his supervisors and investigators about how he
got the emails in question, was insubordinate when he called Boathouse
employees immediately after he was put on administrative leave and told not to
attempt to influence the investigation, misappropriated the City’s laptop for
personal use, accessed pornography on the City’s laptop, and used irregular
accounting procedures.  The City subsequently terminated plaintiff by
letter in October 2008.  
¶ 7.            
Plaintiff appealed that decision to the Parks and Recreation Commission
pursuant to procedures outlined in the employee manual.  In November 2008,
after a hearing, the Commission concluded that the City had not met its burden
with respect to its claims that plaintiff had been dishonest with his
supervisors, had been insubordinate, had appropriated City property for
personal use, and had practiced irregular accounting procedures.  However,
the Commission concluded that the City had met its burden of demonstrating that
plaintiff committed misconduct by accessing coworkers’ emails without
authorization, lying to investigators, and making improper requests of two
employees supervised by him.  It found that plaintiff’s misconduct
deserved sanction, but not termination.  The Commission placed plaintiff
on an unpaid thirty-day suspension and a six-month probation period following
suspension.  Plaintiff did not appeal this decision. 
¶ 8.            
Plaintiff served his suspension and returned to work on probationary
status.  Four months into his probation, a Boathouse employee complained
that plaintiff had repeatedly harassed him by calling him names.  After
investigating the complaint, the City fired plaintiff in April 2009.  As a
probationary employee, plaintiff had no right to appeal his dismissal.  
¶ 9.            
In March 2010, plaintiff filed suit against the City, alleging that the
City breached its employment contract with him by placing him on paid administrative
leave and for disciplining him for viewing other employees’ emails because he
claimed that this behavior was not proscribed by the personnel manual.  He
also claimed that the City’s actions toward him, including its institution of a
criminal investigation, were politically motivated and amounted to intentional
infliction of emotional distress.  Plaintiff alleged that the City knew
there was no merit to the allegations of financial impropriety and initiated
the investigation based solely on political motives.[2]  Plaintiff sought compensatory and
punitive damages.  
¶ 10.        
The City moved for summary judgment.  Plaintiff opposed this motion
and cross-moved for partial summary judgment.  In May 2012, the court
granted the City’s request.  The court concluded that plaintiff had failed
to establish a genuine issue of material fact with respect to the question of
whether the City breached the employment contract by placing plaintiff on paid
administrative leave, and that the personnel manual unambiguously proscribed
plaintiff’s action of viewing other employees’ emails without
authorization.  The court further concluded that plaintiff had failed to
proffer evidence of any outrageous behavior by the City in support of his IIED
claim.  Plaintiff filed a timely notice of appeal.
¶ 11.        
On appeal from a decision granting summary judgment, this Court applies
the same standard as the trial court.  White v. Quechee Lakes
Landowners’ Ass’n, 170 Vt. 25, 28, 742 A.2d 734, 736 (1999).  Summary
judgment will be granted where the moving party shows “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”  V.R.C.P. 56(a); White, 170 Vt. at 25, 742 A.2d at
736.  The moving party must support its factual assertions with a concise
statement of undisputed facts with citations to particular materials in the
record.  V.R.C.P. 56(c)(1)(A).  A party opposing summary judgment may
not rest on allegations or denials, but must demonstrate, with citations to the
record, that a fact is genuinely disputed.  Id.; White, 170
Vt. at 25, 742 A.2d at 736.
I.
¶ 12.        
We begin with plaintiff’s breach-of-contract claim.  We note at the
outset that the parties’ presentation of the breach-of-contract case raises
questions not expressly addressed by the parties, and frames our analysis on
review in a way that may not be generally applicable to other similar
cases.  Plaintiff does not challenge his actual termination, and concedes
that, given his probationary status at that time, his termination for using
inappropriate language with a subordinate was supportable.  Although plaintiff
argues that he was subjected to a “cascade of punitive measures” for conduct
that he says did not violate any provision in the personnel manual, the only
action of the City concerning his employment status that he expressly
challenges is its decision to place him on paid administrative leave during its
investigation—a decision that does not connect up in the causal chain with his
ultimate termination, and which thus resulted in no lost wages to him.
 See Herrera v. Union No. 39 Sch. Dist., 2006 VT 83, ¶ 26, 181
Vt. 198, 917 A.2d 923 (explaining that public employee suffers no deprivation
of interest where he receives economic benefits of employment).
¶ 13.        
Plaintiff’s arguments implicate the Commission’s unappealed order
overriding the City’s initial termination of him and imposing a period of
probation instead, but plaintiff does not expressly challenge that order even
though it set the stage for his ultimate termination for speaking
inappropriately to a subordinate while on probation.  To the extent that
his breach-of-contract claim is essentially a collateral challenge to the
Commission’s decision to put him on probation, his claim may be barred on the
basis of collateral estoppel.  See Delozier v. State, 160 Vt. 426,
429, 631 A.2d 228, 229-30 (1993) (explaining that administrative adjudicatory
decisions rendered in processes incorporating essential elements of
adjudication have res judicata effect and citing Restatement (Second) Judgments
§ 83 (1982)).  We need not and do not reach the question of whether
plaintiff’s breach-of-contract claim seeks an impermissible “second bite at the
apple,” because the City does not make an estoppel argument, and has instead
responded to plaintiff’s challenges on their merits.  Accordingly, we
address the issues as framed by the parties—accepting for the purposes of this
appeal the premise that plaintiff can make a breach-of-contract claim
challenging the merits of the Commission’s decision to discipline him by
putting him on probation.  
¶ 14.        
Both sides litigated this case pursuant to the general principle that
through written policies or practices, an employer may bind itself to
discipline employees, including termination, only for specified reasons and
pursuant to specific procedures.  Dillon v. Champion Jogbra, Inc.,
175 Vt. 1, 5, 819 A.2d 703, 707 (2002).  In this case, both parties rely
on the City’s personnel manual as the source of the written policies or
practices binding the City.  Plaintiff argues that the City breached the
requirements of its personnel manual in two ways.  First, the City
disciplined him for accessing the email accounts of two coworkers even though,
plaintiff argues, the personnel manual did not explicitly prohibit viewing
other coworkers’ emails.  Second, the City placed him on paid
administrative leave even though the personnel manual does not list any such
status.
A.
¶ 15.        
With respect to his viewing coworkers’ email accounts, plaintiff does
not dispute the City’s characterization of his conduct in any material way; the
“genuine issue of fact” relied upon by plaintiff is really the parties’
divergent interpretations of the personnel manual.  This is not, however,
a factual determination.  The manual says what it says.  In
interpreting the language of the employment contract, we are guided by general
contract principles.  See John A. Russell Corp. v. Bohlig, 170 Vt.
12, 16, 739 A.2d 1212, 1216 (1999) (applying contract principles to
interpretation of employment contract).  Ordinarily, the interpretation of
a contract is a question of law.  Dep’t of Corrs. v. Matrix Health
Sys., P.C., 2008 VT 32, ¶ 11, 183 Vt. 348, 950 A.2d 1201.  If,
however, the meaning of a contract is ambiguous the issue then becomes a mixed
question of law and fact and summary judgment may not be appropriate.  See
id. (explaining that where parties’ agreement is ambiguous, material
fact remains in dispute and summary judgment is inappropriate).  
¶ 16.        
Plaintiff argues that he can only be disciplined for conduct expressly
proscribed in the personnel manual, and that the manual does not expressly
prohibit employees from accessing other employees’ email accounts.  He
asserts that the manual contains only generalized statements regarding employee
conduct, and these statements are insufficient to create a prohibition against
such behavior.  In support, he cites several cases holding that statements
of general policy do not create a binding employment contract.  See, e.g.,
Ross v. Times Mirror, Inc., 164 Vt. 13, 20, 665 A.2d 580, 584 (1995)
(“General statements of policy will not meet the requirements of a unilateral
contract.”).  
¶ 17.        
Plaintiff’s reliance on these cases is misplaced.  They concern
whether an employer through manuals or policy statements creates an enforceable
binding employment contract in the first place.  See id.
(explaining that employer binds itself to particular employment terms where
policy is in definitive form and communicated to employees and employer
manifests intent to comply with policies).  As we explained in Ross,
an employer does not bind itself to act in a particular way if it merely
expresses vague goals or values; it must include sufficiently definite terms to
be bound by those policies.  Id.  Here, there is no question
that the City was bound by the terms of the personnel manual.  The
relevant question is what do the terms of the manual require?
¶ 18.        
We need not consider whether the personnel manual’s more general
exhortations to good behavior would support the City’s disciplining of
plaintiff for accessing others’ email accounts; the personnel manual in this
case specifically, clearly and unambiguously proscribes such conduct. Section §
12.7(d),[3]
entitled “Computer System,” provides in relevant part: 
  2) The computer system is provided
to City employees in order to conduct official City business.  Occasional,
brief, and appropriate personal use that does not interfere with City business
or employees’ duties is permitted consistent with compliance with this policy. 
Examples of inappropriate and prohibited personal use include but are not
limited to the following: game playing or gambling; administering,
promoting, advertising or soliciting commercial businesses or activities; accessing
or attempting to gain unauthorized access to internal or external sources by
hacking or any unauthorized method; chain letters or communications. 
The group e-mail and all-user e-mail system shall be used only for the
transmission of official City Business.  The transmission of harassing,
embarrassing, indecent, profane, pornographic, obscene or unlawful materials or
accessing sites containing such information is expressly prohibited. . . . 
  3) Employees have no right or
expectation of privacy regarding anything created, sent or received on the City
computer system including e-mail, sites accessed on the Internet or WWW, or any
other use of computer equipment.  The City may monitor any and all
computer transactions and communications in order to evaluate the use of the
City’s computer system and to ensure compliance with this policy.  All
files and documents created on the City computer systems shall be considered
City property.  All computer communications are subject to public
disclosure laws.  
(Emphasis added.)
¶ 19.        
This section unambiguously prohibits employees from “accessing” other
employees’ emails by “any unauthorized method.”  Plaintiff did just
that.  He does not dispute that he accessed other employees’ emails, and
does not contend that he received authorization to do so.  
¶ 20.        
Plaintiff maintains that § 12.7(d) is not sufficiently clear to put him
on notice that his behavior was prohibited.  He contends that the City
could have explicitly stated “Viewing coworkers’ email accounts is prohibited,”
but chose not to do so.  There is, however, no question that a reasonable
person could only understand § 12.7(d) to prohibit one employee from secretly
viewing the email account of another employee.  See In re Towle,
164 Vt. 145, 150, 665 A.2d 55, 60 (1995) (explaining that there is objective
standard for determining whether employee had notice that conduct was
prohibited).  
¶ 21.        
Plaintiff further argues that because § 12.7(d) warns employees
that there is no expectation of privacy in the content of their emails, he did
not do anything improper by accessing others’ accounts.  We
disagree.  The manual’s caution that employees should not expect that
their emails are private does not open the door for anyone to access any
employee’s email without specific authorization, or for one employee to
secretly view the emails of another.  Instead, it puts all employees on
notice that their employer, the City, may monitor the content of their emails
and that the emails may be subject to public records requests.  The undisputed
facts show that plaintiff was neither acting on behalf of the City when he
accessed the accounts, nor was he doing so in response to a public records
request.  
¶ 22.        
Plaintiff also argues that his actions were not proscribed by § 12.7(d) because
he did not actually “hack” into the accounts.  The question of whether
plaintiff’s behavior amounted to “hacking” is not determinative of whether
plaintiff violated § 12.7(d) in accessing the email accounts of other employees
without their permission.  Section 12.7(d) states that an inappropriate
use includes accessing sources by “hacking or any unauthorized
method.”  (Emphasis added.)  The choice is disjunctive, and here
plaintiff’s access was undisputedly unauthorized.  Plaintiff did not have
Pacy’s or Rasch’s permission to access their email accounts.  He also was
not instructed to access the accounts by a superior, and review of others’
email accounts was not within the scope of his job responsibilities.  
¶ 23.        
Plaintiff argues that he did not act for personal reasons, but for
work-related justifications.  He portrays himself as a whistleblower and
describes his conduct in accessing the accounts as “official business” because
he was trying to help in the restructuring of his department by calling
attention to what he believed to be improper interference from outside the
department.  Whatever plaintiff’s subjective motivation, plaintiff has not
provided any evidence that suggests that his actions were “official City
business.”  As noted above, neither his job description nor directions
from supervisors suggested that he was authorized to access others’ accounts.
 In fact, when asked by his superiors how he obtained the emails, he lied
about their origin.  Because the access was not for official business and
was accomplished using an unauthorized method, it was prohibited by § 12.7(d). 
B.
¶ 24.        
Plaintiff next argues that the City violated the employment contract by
placing him on paid administrative leave during its investigation.  According
to plaintiff, this decision violated the employment contract because paid
administrative leave is not among the disciplinary measures included in the
personnel manual. 
¶ 25.        
Other courts have held that placement of an employee on administrative leave during a period of investigation is not a disciplinary or adverse-employment
action.  See, e.g., Joseph v. Leavitt, 465 F.3d 87, 90-91 (2d Cir.
2006) (holding that employee does not suffer adverse employment action when
placed on paid administrative leave pending investigation and citing
cases).  This Court has likewise held that, although public employees may
have a property interest in their jobs, which is protected by due process, that
interest is limited to the pay and benefits associated with the job, and is not
implicated by placing the employee on paid administrative leave.  See Herrera,
2006 VT 83, ¶ 26, (principal’s property interest in his job “extends only as
far as the economic benefits that flow from his employment,” and “[a] public employee
does not have any right to actually hold a position and execute the duties of
the office” (quotation and alteration omitted)).  
¶ 26.        
In this case, even assuming for the purposes of this appeal that
plaintiff can predicate a breach-of-contract claim on the City’s decision to
put him on paid administrative leave, and even assuming that putting someone on
paid leave during an investigation could be characterized as “discipline,” we
conclude that nothing in the manual can be construed to limit the City’s
ability to place an employee on temporary paid administrative leave pending an
investigation.  As the trial court noted, the manual includes an expressly
nonexhaustive list of disciplinary measures available to the City including
warnings, reprimands, suspension, demotion and dismissal.  This list
describes the scope and kinds of tools available to the City; given the breadth
of the list, its nonexhaustive character, and the fact that suspension without
pay is among the employment actions authorized, plaintiff cannot reasonably
argue that the contract should be interpreted to preclude the City from
providing paid administrative leave—essentially suspension with pay.
¶ 27.        
For the above reasons, we affirm the superior court’s summary judgment
in favor of the City on plaintiff’s breach-of-contract claims.
II.
¶ 28.        
We turn to plaintiff’s claim for intentional infliction of emotional
distress.  To avoid summary judgment on a claim for IIED, plaintiff must
show that the City “engaged in outrageous conduct, done intentionally or with
reckless disregard of the probability of causing emotional distress, resulting
in the suffering of extreme emotional distress, actually or proximately caused
by the outrageous conduct.”  Fromson v. State, 2004 VT 29,
¶ 14, 176 Vt. 395, 848 A.2d 344 (quotation omitted).  This is a heavy
burden that requires plaintiff to show that the City’s conduct “was so
outrageous in character and so extreme in degree as to go beyond all possible
bounds of decent and tolerable conduct in a civilized community and be regarded
as atrocious and utterly intolerable.”  Id. (quotation omitted).
 The standard for outrageousness is objective.  Id. ¶
15.  Therefore, an employer’s conduct must be assessed with an objective
standard based on the employer’s actions and words, not on what the employee
personally believed motivated the employer’s conduct.  See Baldwin v.
Upper Valley Servs., Inc., 162 Vt. 51, 57, 644 A.2d 316, 319 (1994)
(holding that standard for IIED is objective and there was no outrageous
conduct where plaintiff simply made vague assertions about employer’s motives
for his dismissal).  
¶ 29.        
Plaintiff’s complaint and motion for summary judgment asserted that the
City was motivated by politics in sparking a criminal investigation against
plaintiff, and that the City’s actions tarnished plaintiff’s reputation and
caused him distress.  
¶ 30.        
Plaintiff argues that employees are entitled to special IIED protection
against insult and discrimination from an employer, citing Alcorn v. Anbro
Eng’g, Inc., 468 P.2d 216, 218 n.2 (Cal. 1970).  Although we have not
addressed this question directly, this Court’s IIED cases include several
between employees and employers and, like other states, we have not employed a
stricter approach to IIED claims for actions arising in the workplace. 
See Fromson, 2004 VT 29, ¶ 14 (applying traditional IIED standard to
claim of workplace IIED); accord Baldwin, 162 Vt. at 55, 644 A.2d at
318; Denton v. Chittenden Bank, 163 Vt. 62, 66, 655 A.2d 703, 706
(1994); Gallipo v. City of Rutland, 163 Vt. 83, 94, 656 A.2d 635, 643
(1994); see also GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex.
1999) (citing cases).
¶ 31.        
In any event, even under plaintiff’s proposed standard, plaintiff failed
to provide any evidence to support his allegation of outrageous conduct. 
Merely disciplining an employee is insufficient to support an IIED claim; an
employee must demonstrate that “the manner of termination evinces circumstances
of oppressive conduct and abuse of a position of authority vis-à-vis
plaintiff.”  Crump v. P & C Food Mkts., Inc., 154 Vt. 284, 296,
576 A.2d 441, 448 (1990).  In Crump, this Court concluded that the
plaintiff had produced sufficient evidence for his claim to go to the jury
where his employer “summoned plaintiff to a lengthy meeting without notice,
continued the meeting without a break for rest or food, repeatedly badgered him
to amend and sign a statement,” the plaintiff did not feel free to leave, and
immediately afterwards the plaintiff was dismissed.  Id. at 296-97,
576 A.2d at 449.  
¶ 32.        
Here, plaintiff has failed to provide evidence of conduct by the City
that could be construed by a reasonable person as outrageous.  Plaintiff
claims that the City acted with improper motives in investigating and
disciplining him, particularly in referring financial concerns to the police
when, according to plaintiff, the City was aware there was a history of
informal accounting practices at the Boathouse.  Knowingly initiating an
unfounded criminal investigation of someone for political motives may well rise
to the level of IIED, but plaintiff fails to provide any evidence beyond his
general allegations that that is what happened here.  He does not dispute
that immediately after he was notified that he was being placed on
administrative leave and was told not to “attempt to influence” the ongoing investigation,
plaintiff contacted two subordinates at the Boathouse and requested that they
hide a laptop and remove cash from a safe.  The City’s reaction in
referring the matter to police was not unreasonable given these objective
facts, and plaintiff offers nothing more than conclusory allegations to support
his claim. 
¶ 33.        
In contrast to the employer in Crump, the City here conducted its
investigation without “oppressive conduct” or “abuse of a position of
authority.”  Id. at 296, 576 A.2d at 448.  Plaintiff was
placed on paid leave while an independent investigation was completed. 
Plaintiff had notice of the allegations against him, a full opportunity to
participate in the investigation, and the right to appeal from the initial
termination decision and present his case at a hearing.  Plaintiff has not
presented any evidence that creates a genuine issue of fact as to whether
defendant engaged in conduct that was so outrageous as to surpass “ ‘all
possible bounds of decency.’ ”  Dalmer v. State, 174 Vt. 157,
171, 811 A.2d 1214, 1227 (2002) (quoting Restatement (Second) of Torts § 46
cmt. d (1965)).  Accordingly, we affirm the court’s decision granting
summary judgment to the City on plaintiff’s claim for IIED.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 





[1] 
The City filed a statement of undisputed facts with its motion for summary
judgment with citation to supporting documents.  V.R.C.P. 56(c)(1)(A)
(requiring party asserting fact to file “a separate and concise statement of
undisputed material facts” with citation to supporting documents in the
record).  Plaintiff responded with his own motion for partial summary
judgment and his own statement of undisputed facts.  Plaintiff responded to
the facts set forth in the City’s motion, arguing generally that the facts set
forth by the City were not material to plaintiff’s claims and improperly used
vague and general terms like “mismanaged” and “inappropriate.”  The
primary “factual” dispute identified by plaintiff in his statement of facts and
argument involved the proper interpretation of the personnel policies—the
actual terms of which are not in dispute.  Our account of the facts
construes the record in the light most favorable to the plaintiff, but accepts
the City’s statements of fact and supporting evidence where plaintiff has not
specifically contradicted the City’s evidence with contrary evidence of his
own.  V.R.C.P. 56(e) (explaining that when a party fails to address the
other party’s assertion of fact court may consider it undisputed for purposes
of the motion).


[2] 
Plaintiff’s complaint also included a claim for violation of public policy, but
plaintiff later withdrew this claim.  


[3] 
Plaintiff contends that the City is barred from relying on § 12.7 because the
City did not cite this particular section number in the body of its original
motion for summary judgment, but included it in its response to plaintiff’s
cross-motion for summary judgment.  In support, plaintiff cites cases
stating that this Court will not reach arguments raised for the first time in a
reply brief.  See In re Wal-Mart Stores, Inc., 167 Vt. 75, 86, 702
A.2d 397, 404 (1997).  We disagree.  The City did not fail to raise
the issue in its initial summary judgment motion.  Although the City did
not list the specific section number in its motion, it did cite the specific
section of the manual in its letter placing plaintiff on paid administrative
leave, the City’s letter notifying plaintiff of possible dismissal, and the
commission’s decision, all of which were cited in and attached as exhibits in
support of the City’s motion for summary judgment.  Even before plaintiff
filed suit, plaintiff had ample notice that the City relied in part on § 12.7
in disciplining him.  



