Cheney v. New England Newspapers, Inc., No. 509-10-12 Wmcv (Wesley, J. Feb. 26, 2014) (Cross-Motions for Summary Judgment).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                                    STATE OF VERMONT
                                                     SUPERIOR COURT

                                                                    │
 CHRISTINE CHENEY,
       Plaintiff                                                    │
                                                                    │          WINDHAM UNIT, CIVIL DIVISION
 v.                                                                 │          Docket No. 509-10-12 Wmcv
                                                                    │
 NEW ENGLAND NEWSPAPER, INC.
       Defendant             │
                             │

               ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

        Plaintiff Christine Cheney was formerly employed by Defendant New England
Newspaper (“the Publisher”) in its advertising sales department. After a two-month
medical leave for an injury unrelated to her work, Cheney returned to find that she had
been replaced by two new hires, with her prior work assignments divided between them.
Cheney was given a different work assignment in the advertising sales department, but
she considered the offered position an unacceptable demotion and quit. She then brought
this lawsuit, asserting four counts: (1) violation of the Vermont Parental and Family
Leave Act (VtPFLA), 21 V.S.A. § 471; (2) violation of the federal Family and Medical
Leave Act (FMLA), 29 U.S.C. § 2612; (3) wrongful discharge in violation of public
policy; and (4) intentional infliction of emotional distress.

        Currently before the Court are the Publisher’s motion for summary judgment on
all four counts, and Cheney’s motion for partial summary judgment on her first two
counts based on the state and federal statutes governing medical leave rights.1 Viewing
the evidence in a light favorable to the non-moving party on each motion, the Court
concludes that there is a material issue in dispute regarding whether the position offered
Cheney when she returned from her protected leave was equivalent to the position she
had before she was injured. Thus, summary judgment cannot be granted to either party
on the first two counts. The Court further concludes, however, that wrongful discharge in
violation of public policy is not available as a matter of law where a statutory remedy is
available, and that even viewing the evidence favorable to Cheney, the Publisher’s
behavior was not outrageous enough to support an intentional-infliction-of-emotional-
distress claim as a matter of law. Accordingly, the Publisher’s motion for summary


           1
           Summary judgment is appropriate when the record clearly shows that there is no genuine issue
of material fact and that the movant is entitled to judgment as a matter of law. Madkour v. Zoltak, 2007 VT
14, ¶ 12. For purposes of deciding these summary judgment motions, the Court views the evidence
favorably to the non-moving party, giving it the benefit of all reasonable doubts or inferences. See id.;
Rappaport v. Banfield, 2007 VT 25, ¶ 12.
judgment is DENIED in part and GRANTED in part, and Cheney’s motion for partial
summary judgment is DENIED.

Background

        The following facts are undisputed, and provide a basic, general background.
Other facts will be presented in the context of the discussion of the issues below, based
on the evidence viewed favorably to the non-moving party on whichever motion is being
discussed.

       Cheney, an employee eligible for protected leave under both the federal FMLA
and the VtPFLA, seriously injured her hip and ankle in a non-work related fall in an icy
parking lot in mid-January 2011.

        Cheney had worked as an advertising sales representative for the Publisher since
May 2004, with the exception of about nine months in 2009. For most of her time as an
advertising sales representative, Cheney sold advertising in the Town Crier or Brattleboro
Reformer publications. Like almost all of the Publisher’s salespeople, she was assigned a
particular territory and would spend most of the day outside the office, driving around
and visiting customers and potential customers in her assigned territory to sell advertising
space. Sometime between November 2010 and her fall in mid-January 2011, however,
Cheney stopped having an assigned territory and stopped selling advertising space in the
Town Crier or Reformer. Instead, Cheney started selling advertising space in Publisher’s
Parts Finder, a publication devoted to automobiles and auto parts; and this sales position
was unique in that it allowed her to primarily stay in the office and make sales calls by
phone. At the same time, she started selling advertising on “niche” products, which are
non-newspaper items such as restaurant placemats. Like the Parts Finder sales, and
unlike the sales of ads for the Town Crier or Reformer that Cheney had been doing
previously, her “niche” sales were not limited to customers in a particular geographic
area.

        It is undisputed that Cheney was eligible for protected leave and provided the
necessary notification and documentation to make her medical leave protected.
Nonetheless, when Cheney returned from her medical leave after approximately eight
weeks, she found that she had been replaced. Cheney was not reinstated in her prior
position of selling ads in the Parts Finder and on “niche” products, but was instead
offered a position like she had previously held, selling advertising in the Reformer. Her
salary, benefits, and commission structure would be the same as prior to her leave, but
she would go back to having her potential customers limited to a particular geographic
area, and her sales calls would be made primarily outside rather than inside the office.
Cheney asserted her right to reinstatement in her pre-leave position. When she was told
that she should get to work in the newly offered outside sales position or go home, she
quit.




                                             2
Cross-Motions for Summary Judgment on the Statutory Claims, Counts 1& 2

       Under both the federal FMLA (29 U.S.C.A. § 2601 et al.) and the Vermont PFLA
(21 V.S.A. § 470 et al.), a covered employer is required to allow an eligible employee to
take up to twelve weeks of unpaid medical leave without fear of losing their job. When
the employee returns from the unpaid leave, the employer must restore the employee to
the same position or to “an equivalent position with equivalent employment benefits, pay,
and other terms and conditions of employment.” 29 U.S.C.A. § 2614(a)(1). See also 21
V.S.A. § 472(f) (returning employee must be offered the same or “comparable job at the
same level of compensation, employment benefits, seniority or any other term or
condition of the employment existing on the day leave began.”)

        It is undisputed that the Publisher was a covered employer, that Cheney was an
eligible employee, and that Cheney was entitled to protected medical leave of up to
twelve weeks. It is further undisputed that when she returned after eight weeks she had
been replaced and was offered a different job. The pivotal issue here, then, is whether
the job the Publisher offered Cheney when she returned was equivalent and comparable
to the job she had when she went out on protected leave.2

        In analyzing this issue, the Court looks for guidance to the federal regulations on
what is an equivalent position: 29 C.F.R. § 825.215. “An equivalent position is one that
is virtually identical to the employee’s former position in terms of pay, benefits and
working conditions, including privileges, perquisites and status. It must involve the same
or substantially similar duties and responsibilities, which must entail substantially
equivalent skill, effort, responsibility, and authority.” 29 C.F.R. § 825.215(a). With
respect to the requirement that the equivalent position have substantially similar duties,
conditions, responsibilities, privileges and status, the regulations state that the employee
“must be reinstated to the same or a geographically proximate worksite (i.e., one that
does not involve a significant increase in commuting time or distance),” § 825.215(e)(1);
that the employee must have the same or an equivalent opportunity for bonuses, §
825.215(e)(3); and that “an employee cannot be induced by the employer to accept a
different position against the employee’s wishes,” 29 C.F.R. § 825.215(e)(4). The
apparent strictness of these provisions is somewhat mitigated by 29 C.F.R. § 825.215(f),
however, which provides for a de minimis exception: “The requirement that an employee
be restored to the same or equivalent job with the same or equivalent pay, benefits, and
terms and conditions of employment does not extend to de minimis, intangible, or
unmeasurable aspects of the job.”

         The Publisher’s Motion

        In its motion for summary judgment, the Publisher points out that Cheney’s pre-
leave job and the job she was offered on her return have the same pay, benefits, and
commission structure, and argues that any differences between the two jobs must be
considered de minimis as a matter of law.

2
 The parties treat the federal equivalency analysis and the state comparability analysis the same, and the
Court will also.

                                                     3
        For purposes of the Publisher’s motion the Court views disputed facts favorably
to Cheney. Viewed in this manner, the evidence shows that Cheney went from being
primarily an “inside” salesperson with a three-desk work space and sales potential not
limited by geographic territory to being primarily an “outside” salesperson who would
spend her days out of the office, on the road, making sales calls on potential customers in
a limited, assigned geographic territory. Additionally, there is evidence that before her
leave Cheney was a supervisor with respect to the several other salespeople selling
advertising on “niche” products. She did not manage the other “niche” salespeople in
terms of hiring, firing, granting leave, etc.; but she was the senior person, providing
guidance and ideas for how to approach and achieve their goals, and as such, she was in a
position to potentially earn bonuses if those “niche” sales goals were met. She also had a
business card, provided by the Publisher, stating her position as “Niche Supervisor.” In
the Court’s view, the change from inside sales unlimited by geographic territory to
outside sales limited by geographic territory, coupled with the loss of supervisory title,
status, and concomitant bonus potential, cannot be deemed de minimus as a matter of law.

        The Publisher cites a number of cases in which courts have ruled that various
differences in jobs were de minimus as a matter of law, and have thus granted (or
affirmed grants of) summary judgment for defendants in FMLA failure-to-reinstate cases.
See, e.g., Breeden v. Novartis Pharmaceuticals Corp., 646 F.3d 43 (D.C.Cir. 2011)
(where new sales position has same title and duties, but different territory and accounts,
difference is de minimus as matter of law); Smith v. East Baton Rouge Parish School
Board, 453 F.3d 650 (5th Cir. 2006) (where new school auditor position performed same
auditing functions, but as result of reorganization, performed them in central office rather
than in the various schools being audited, difference is de minimus as matter of law);
Mitchell v. Dutchmen Manufacturing, Inc., 389 F. 3d 746 (7th Cir. 2004) (where new
assembly line position had primarily the same duties and tasks as the old, but required
employee to spend a relatively small amount of her time performing new tasks that
involved the use of small hand tools but were not overly time consuming or physically
demanding, difference is de minimus as matter of law); Hillstrom v. Best Western TLC
Hotel, 265 F.Supp.2d 117 (D. Mass. 2003) (where hotel rooms manager performed same
duties but, as result of addition of new level of management above him, he lost his private
office, had his title changed to more accurately reflect what he actually did, and no longer
reported directly to owner, difference is de minimus as matter of law). None of these
differences approach the extent of the differences here, however, and the Court does not
find them persuasive.

        As the Publisher points out, the protected medical leave acts were not intended to
provide the employee with any right, benefit or position the employee would not have
been entitled to if the employee had not taken the leave. See 29 U.S.C.A. §
2614(a)(3)(B); 21 V.S.A. § 472(f) & (f)(1). This means that if the employee’s position
would have been eliminated or modified during the employee’s leave due to
reorganization, consolidation, reduction in force, or some other business reason whether
or not the employee was out on leave, she has no greater rights than she would have had
she not been out on leave. That is not what happened here, however. Rather, the



                                             4
Publisher has conceded that it did not eliminate Cheney’s job for reasons unrelated to her
leave, but instead replaced her because she was out on leave.

       Cheney was entitled to reinstatement in her prior position or an equivalent one,
and there is at least a genuine issue of material fact regarding whether the position
offered Cheney was equivalent to the one she had before she went out on protected leave.
Accordingly, the Publisher’s motion for summary judgment on the statutory counts must
be denied.

Cheney’s Motion

        For purposes of Cheney’s motion for partial summary judgment on the statutory
counts, the Court views the evidence favorably to the Publisher. Since the Publisher has
presented testimony that Cheney never actually had the status, title, or bonus potential of
a supervisor, the asserted difference based on the loss of that status, title, and bonus
potential drops out of the analysis. Thus, the Court considers whether the undisputed
change from inside sales without geographic limitation to outside sales limited to a
particular geographic territory is alone enough to make the positions not equivalent as a
matter of law. The regulations state that an equivalent position cannot require a
significant increase in commuting time or distance, see 29 C.F.R. § 825.215(e)(1). This
is not exactly the same as an increase in driving time and distance while performing the
necessary job tasks, but it does suggest that the necessity to spend more time in the car is
a valid consideration weighing in Cheney’s favor.

        The question of Cheney’s entitlement to summary judgment on her statutory
claims is close. However, there is no case law directly addressing the difference between
inside and outside sales; and in the absence of regulatory or case law directly on point,
the evaluation of equivalence of inside and outside sales jobs should be based on a factual
comparison of the day-to-day duties and tasks the jobs involve. This is not, of course, an
evaluation the Court is in a position to make on summary judgment. Accordingly,
Cheney’s motion for partial summary judgment on the statutory counts will also be
denied.3

       The Publisher’s Motion for Summary Judgment on the Public Policy Claim –
Count 3

       The Publisher argues that Cheney’s claim for wrongful termination in violation of
public policy is precluded because the FMLA and the VtPFLA provide their own
remedies as part of a comprehensive statutory scheme. The Court agrees, as do the vast

3
  The Court notes that Cheney has filed a motion in limine for the admission of a report from a U.S. Dept.
of Labor investigator finding that the positions were not equivalent because of the switch to primarily
outside sales, and that the Publisher had violated the FMLA as a result. The motion in limine is addressed
in a separate order, issued contemporaneously. In deciding these cross-motions for summary judgment, the
Court has not considered this report; even if the report is eventually found admissible, upon proper
authentication, the investigator’s finding of lack of equivalence would not be binding. Thus, while it might
strengthen Cheney’s case, it could not negate the existence of a genuine issue of material fact regarding
whether the jobs were equivalent.

                                                     5
majority of courts that have addressed this question. See, e.g., Crevier v. Town of
Spencer, 600 F. Supp.2d 242, 265 (D. Mass. 2008); Lucht v. Encompass Corp., 491
F.Supp.2d 856, 866-67 (S.D. Iowa 2007); Perez v. Hospitality Ventures-Denver LLC, 298
F.Supp.2d 1110 (D. Colo. 2004); McClain v. Southwest Steel Co., Inc., 940 F.Supp. 295,
298 (N.D. Ok. 1996); Gall v. Quaker City Castings, 874 F. Supp. 161 (N.D. Ohio 1995)
(all holding that availability of statutory remedies under FMLA precludes cause of action
for wrongful discharge based on violation of public policy based on same alleged
misconduct).

        The purpose of the FMLA is to balance the demands of the workplace with the
needs of workers and their families, by entitling employees to take reasonable leave for
medical reasons in a manner that accommodates the legitimate interests of employers. 29
U.S.C.A. § 2601(b)(1),(2),&(3). The Act does this by, among other things, entitling
eligible employees of covered employers to take medical leave of up to twelve weeks and
be reinstated upon their return, to the same or an equivalent position. 29 U.S.C.A. § 2614
(establishing the right to leave and reinstatement) & 2615 (making it unlawful for
employer to deny or interfere with that right). Moreover, the Act specifies the remedy if
the employer interferes with or violates the employee’s rights under the Act: the wronged
employee may bring a civil action for wages, salary, benefits, or other compensation lost
to the employee by reason of the violation and interest. 29 U.S.C.A. §
2617(a)(1)(A)(i)&(ii). Additionally, the amount awarded will generally include a further
amount of liquidated damages equal to the lost wages, salary, benefits, and other
compensation plus interest (i.e., double damages), unless the employer proves to the
satisfaction of the court that the violation was in good faith and the employer had
reasonable grounds for believing it was not violating the Act. Id. at §2617(a)(1)(A)(iii).

        The public policy Cheney relies on is the same public policy underlying the
FMLA; and because that Act provides its own remedy, allowing a wrongful discharge
claim to vindicate that policy is unnecessary. At best allowing such an action would be
duplicative, and at worst it could upset the delicate balance between employee rights and
employer needs that the lawmakers shaping the policy were trying to achieve.

        The Vermont statutory scheme is similarly detailed with respect to purpose, right
to reinstatement, and remedy, so a similar reasoning and conclusion applies. Moreover,
the remedies secion of the VtPFLA (21 V.S.A. § 474) adopts and incorporates the
remedies section of the Vermont Fair Employment Practices Act (VtFEPA)(21 V.S.A. §
495b); and while no Vermont court has addressed whether the FMLA or VtPFLA
preempt wrongful discharge in violation of public policy claims based on the same
alleged misconduct, the federal District Court in Vermont has held that a plaintiff’s
common law discrimination claim based on the same employer misconduct as his FEPA
claim was preempted. See Violette v. IBM Corp., 962 F.Supp. 446, 449-50 (D.Vt. 1996),
citing Winney v. Ransom & Hastings, Inc., 149 Vt. 213, 214 (1988) (“Where a statute
confers a remedy unknown to common law, and prescribes the mode of enforcing it, that
mode alone can be resorted to.”) Like the plaintiff’s right to be free from discrimination
in Violette, an employee’s right to take medical leave and be reinstated after that leave



                                            6
did not exist until created by statute, and the remedy provided by the statute is the
exclusive remedy for violation of that right.

       The Publisher’s motion for summary judgment on Count 3 will therefore be
granted.4

The Publisher’s Motion for Summary Judgment on the Emotional Distress Claim – Ct 4

        Lastly, the Publisher moves for summary judgment on Cheney’s claim for
intentional infliction of emotional distress (IIED), arguing that even viewing evidence
favorably to Cheney, there is no evidence of any conduct on its part that would be
outrageous enough to support such a claim.

        To establish a claim for IIED, a plaintiff must show, among other things, that the
defendant engaged in extreme and outrageous conduct. Dalude v. Fletcher Allen Health
Care, Inc., 174 Vt. 74, 83 (2002). This is not an easy thing to show, as the defendant’s
conduct “must be 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., citing Denton v. Chittenden Bank, 163
Vt. 62, 66 (1994). See also Restatement (Second) of Torts § 46, cmt.d (1965).

       Viewed favorably to Cheney, the evidence here shows that the Publisher replaced
Cheney with two new hires several weeks into her protected medical leave, even though
it knew she was expected to return in less than twelve weeks. The Publisher did not
inform Cheney of her replacement, however, so she discovered it only by walking to her
work station and finding the replacements doing her job there. Then, when Cheney
objected to her reassignment and cited her legal rights, the Publisher rudely screamed at
her and sarcastically mocked her legal rights, saying it could simply give her back her old
job and then transfer her five minutes later, implying “so what’s the difference.” The
Publisher then refused to discuss it further, telling Cheney to “get to work” in her
reassigned position or go home.

       The alleged behavior of the Publisher was thoughtless, rude, and shows a
fundamental misunderstanding of an employee’s right to protected medical leave.5
However, the Court concludes as a matter of law that it does not rise to the level of
extreme outrageousness necessary to provide the basis for an IIED claim. Thus, the
Publisher’s motion for summary judgment on this claim will also be granted.



4
   The Publisher also argued that there can be no wrongful discharge as a matter of law because it did not
discharge Cheney; she quit. Because of the Court’s conclusion on the preemption question, it need not
address this argument. Instead, for purposes of this motion, the Court has assumed that where an employer
fails to reinstate and instead offers the employee a less desirable position, causing her to quit, this failure to
reinstate can be considered a discharge.
5
  While it is true that as a general matter the Publisher could have transferred Cheney from one position to
another for almost any reason or no reason at all, at any time, such a transfer would still have been a
violation of the FMLA and VtPFLA if there was a causal connection between the transfer and her leave.

                                                        7
                                       ORDER

       Cheney’s motion for partial summary judgment on Counts 1 and 2 is DENIED.
       The Publisher’s motion for summary judgment is DENIED with respect to
Counts 1 and 2, and GRANTED with respect to Counts 3 and 4.


        Dated and signed electronically at Newfane, Vermont, this 26th day of February,
2014.




                                            _____________________________
                                            John P. Wesley
                                            Superior Court Judge




                                           8
