Straw v. Visiting Nurse Ass’n & Hospice of Vt./N.H., No. 741-10-09 Wrcv (Eaton, J., Jan. 12, 2010)

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                                                   STATE OF VERMONT
                                                   WINDSOR COUNTY, SS

                                                                    │
Michelle Straw                                                      │
                                                                    │
 v.                                                                 │           Docket No. 741-10-09 Wrcv
                                                                    │
Visiting Nurse Association and Hospice                              │
of Vermont/New Hampshire                                            │
                                                                    │

                                     DECISION ON MOTION TO DISMISS

        Plaintiff Michelle Straw is a licensed nurse who was recently fired from her
employment with defendant Visiting Nurse Association and Hospice of Vermont and
New Hampshire. In her complaint, Ms. Straw alleges that the adverse employment action
was the result of unlawful age discrimination. She also alleges in the second count that
the termination was wrongful because defendant promised her at one point that it would
“have a definite place and need for you.”

       The present matter before the court is defendant’s motion to dismiss the second
count. Defendant contends that the promise alleged in the complaint is not specific
enough to be enforceable as a matter of Vermont law.

        Motions to dismiss are designed to test the law of the claim, rather than the facts
that support them. Powers v. Office of Child Support, 173 Vt. 390, 395 (2002). “A court
should not dismiss a cause of action for failure to state a claim upon which relief may be
granted unless it appears beyond doubt that there exist no circumstances or facts which
the plaintiff could prove about the claim made in his complaint which would entitle him
to relief.” Ass’n of Haystack Property Owners, Inc. v. Sprague, 145 Vt. 443, 446 (1985)
(quotations omitted).

        Here, plaintiff alleges in her complaint that defendant made a promise of
continued employment, and that the termination was a breach of that promise. It is well
established that promissory estoppel is a valid and independent cause of action that may
be raised by at-will employees in order to prove wrongful discharge. Foote v. Simmonds
Precision Products Co., Inc., 158 Vt. 566, 571 (1992). The cause of action requires the
employee to demonstrate that “the termination was in breach of a specific promise made
by the employer that the employer should have reasonably expected to induce detrimental
reliance on the part of the employee, and that the employee did in fact detrimentally rely
on the promise.” Dillon v. Champion Jogbra, Inc., 175 Vt. 1, 9 (2002).

       Defendant contends that the promise was not specific enough to meet the
elements of promissory estoppel. Evaluating this contention, however, would require the
court to engage in a factual analysis regarding the content of the promise and the
circumstances under which the promise was made. Such an evaluation amounts to a
determination of whether plaintiff’s claim has merit, rather than whether plaintiff has
stated a claim in the first instance.

        As the Vermont Supreme Court has made clear, motions to dismiss are not the
appropriate time or place to consider the factual strength of the plaintiff’s case. Colby v.
Umbrella, Inc., 2008 VT 20, ¶ 14, 184 Vt. 1. It is better to undertake an assessment of
the merits of the promissory estoppel claim at the summary judgment stage, after an
adequate period of discovery. See, e.g., Dillon, 175 Vt. at 9–10 (evaluating on summary
judgment whether promise was specific enough to modify plaintiff’s at-will status). For
this reason, the motion to dismiss is denied.



                                         ORDER

       Defendant’s Motion to Dismiss Count II (MPR #2), filed Dec. 4, 2009, is denied.

       Dated at Woodstock, Vermont, this ____ day of January, 2010.


                                             _________________________________
                                             Hon. Harold E. Eaton, Jr.
                                             Presiding Judge




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