










2014 VT 134











Davis v. The American Legion,
Department of Vermont, et al. (2014-099)
 
2014 VT 134
 
[Filed 19-Dec-2014]
 
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.
 
 



2014 VT 134



 



No. 2014-099



 



Marilyn Davis


Supreme Court




 


 




 


On Appeal from




     v.


Superior Court, Washington
  Unit,




 


Civil Division




 


 




The American Legion, Department
  of Vermont, et al. 


September Term, 2014




 


 




 


 




Helen
  M. Toor, J.




 



Charles S. Martin of Charles S. Martin & Associates,
P.C., Barre, for Plaintiff-Appellant.
 
Robin A. Freeman of Law Office of Caroline S. Earle, PLC,
Montpelier, for 
  Defendant-Appellee The American Legion Department of
Vermont.
 
Stephen D. Ellis of Ellis Boxer & Blake PLLC,
Springfield, for Defendants-Appellees.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund and Robinson,
JJ., and Durkin, Supr. J.,         Specially
Assigned
 
 
¶ 1.            
SKOGLUND, J.   Plaintiff Marilyn Davis appeals the
trial court’s grant of defendants’ Vermont Rule of Civil Procedure 12(b)(6)
motions to dismiss her several claims, which seek to rectify alleged harms
stemming from disagreements among Davis and various American Legion officials
and staff.  We agree with the trial court’s ruling and affirm on
substantially the same grounds.
¶ 2.            
The allegations in Davis’s complaint and the exhibits attached thereto
explain the following.  Davis brought her four-year-old granddaughter to
karaoke night at The American Legion, Barre Post No. 10 club hoping to have her
sing, but their evening ended on a sour note when on-hand staff asked them to
leave.  Davis is a member of the Barre Post No. 10 Auxiliary Unit, a group
affiliated with Post 10, but she is not a member of Post 10.  Post 10
Auxiliary is a subsidiary group of the national Auxiliary organization created for
female relatives of veterans.  See infra, ¶ 10.  Post 10’s
regularly scheduled karaoke nights, like the one in question, are open to the
public.  A Post 10 club rule explicitly prohibits minors at the club after
7:00 p.m., except by special permission of the governing body of Post 10, the
Post 10 House Committee.  Davis claims the Committee had previously
granted her special permission to bring her granddaughter to karaoke night and
stay until 7:30 p.m.  At 7:00 p.m. on the night in question, however, on-hand
staff monitoring the karaoke event sought to enforce the no-minors rule by
asking Davis and her granddaughter to leave.  Davis protested and followed
a House Committee member into the parking lot.  A disagreement
ensued.  Eventually, Davis and her granddaughter left the premises, but
were not refunded their six-dollar combined entry fee.  Over the next two
days, feeling wronged by that night’s events, Davis posted messages on the
Legion Post Barre Facebook page criticizing the organization, certain members,
and club staff.  
¶ 3.            
The House Committee then voted at a special meeting to limit Davis’s
privileges at the Post 10 club: For a period of four months, she was banned
from the club and club activities, except that she could attend Auxiliary
meetings there.  The Committee sent a “letter of reprimand” to Davis,
which stated this restriction and explained that their decision was based on
her refusing to cooperate with Post staff at the karaoke event, “verbally
attacking” Post officers, and making inaccurate Facebook comments.  The
Committee copied the Post 10 club manager and the president of the Post 10
Auxiliary on this letter.  
¶ 4.            
Davis appealed this reprimand to defendants The American Legion,
Department of Vermont (Legion Department) and The American Legion Auxiliary,
Department of Vermont (Auxiliary Department).  The Legion Department
responded that Davis was a member of the Barre Post No. 10 Auxiliary Unit, not
the Legion Department, and that it had “no obligations or supervisory rights”
over Post matters.  The Auxiliary Department also declined to hear her
appeal.  Davis then filed the lawsuit that is the subject of this
appeal.  
¶ 5.            
Davis’s complaint seeks a preliminary injunction as well as compensatory
and punitive damages based on five claims: (1) violation of the Vermont Public
Accommodations Act on the basis of sex; (2) breach of an implied contract based
on the failure of Post 10 or the Legion Department to follow its own rules; (3)
violation of a public policy favoring the right of free speech; (4) intentional
infliction of emotional distress; and (5) libel.  The trial court denied
Davis’s request for a preliminary injunction ordering defendants to reinstate
her full privileges at the Post 10 club, and that denial is not before us on
appeal.  Our review is limited to Davis’s claims for monetary damages.
¶ 6.            
The defendants in this matter are the Legion Department, Post 10, and
eight individual members of the Post 10 House Committee.  Davis did not
sue her Auxiliary Unit or the Auxiliary Department.  Post 10 and its named
House Committee members jointly filed a motion to dismiss, while the Legion
Department filed a separate motion to dismiss.  We consider each in turn.
¶ 7.            
A basic explanation of the relationships among the various American
Legion groups and subgroups is necessary to understand the foundation of
Davis’s claims and facilitate discussion of the relevant law.  The
following outline is based on unambiguous provisions of the charters and
governing rules of Legion-affiliated groups incorporated by reference into
Davis’s complaint.  
¶ 8.            
The American Legion is a federally chartered corporation, 36 U.S.C.
§ 21701(a), whose membership is limited to those who served in the Armed
Forces.  The organization maintains one Department in each state and
within each Department are several Posts.  Barre Post No. 10 is one such
Post.  Each Post is responsible for disciplining its own members.  
¶ 9.            
The Sons of The American Legion is a civilian organization. 
Membership is limited to male descendants, adopted sons, and stepsons of either
members of The American Legion or veterans who would qualify for
membership.  Local units of the Sons of The American Legion are called
Squadrons.  Like Posts, Squadrons are responsible for disciplining their
own members.  
¶ 10.        
The American Legion Auxiliary also is a civilian organization.  Its
membership is limited to mothers, wives, daughters, sisters, granddaughters,
great-granddaughters, and grandmothers of either members of The American Legion
or veterans who would qualify for membership.  The Auxiliary has a
Department in each state, which is further organized into local Units. 
Each Unit is “attached” to an American Legion Post.  The Barre Post No. 10
Auxiliary Unit, of which Davis is a member, is affiliated with Barre Post No.
10.[1] 
Auxiliary Units are responsible for disciplining their members, who may appeal such
action to the corresponding Auxiliary Department.  
¶ 11.        
American Legion Departments and American Legion Auxiliary Departments
have no authority to regulate each other.  Nor may American Legion Posts
and American Legion Auxiliary Units regulate each other.  
¶ 12.        
Motions to dismiss are generally disfavored.  “We review a motion
to dismiss using the same standard as the trial court.”  Dernier v.
Mortg. Network, Inc., 2013 VT 96, ¶ 23, 195 Vt. 113, 87 A.3d
465.  In doing so, we “tak[e] all of the nonmoving party’s factual
allegations as true,” and consider
whether “it appears beyond doubt that there exist no facts or circumstances
that would entitle the plaintiff to relief.  We treat all reasonable
inferences from the complaint as true, and we assume that the movant’s
contravening assertions are false.”  Alger v. Dep’t of Labor &
Indus., 2006 VT 115, ¶ 12, 181 Vt. 309, 917 A.2d 508 (citations and
quotations omitted).  
¶ 13.        
Where pleadings rely upon outside documents, those documents “merge[]
into the pleadings and the court may properly consider [them] under a Rule
12(b)(6) motion to dismiss.”  Kaplan v. Morgan Stanley & Co.,
2009 VT 78, ¶ 10 n.4, 186 Vt. 605, 987 A.2d 258 (mem.) (quotation omitted)
(trial court properly relied on entire town plan where plaintiff specifically
referred to plan in complaint, even though plaintiff did not attach full text
of plan to complaint).  The trial court may consider such documents
without converting the motion into one for summary judgment.  Id. 
This Court is not obliged to accept allegations of the complaint which purport
to tell us how to construe these additional documents, but at the
motion-to-dismiss stage we construe ambiguities within them in favor of the
plaintiff.  See Subaru Distribs. Corp. v. Subaru of Am., Inc., 425
F.3d 119, 122 (2d Cir. 2005).  “[W]hen a written instrument contradicts
allegations in the complaint to which it is attached, the exhibit trumps the
allegations.”  N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend,
163 F.3d 449, 454 (7th Cir. 1998).
¶ 14.        
Davis’s first claim is that Post 10 and its House Committee violated the
Public Accommodations Act, 9 V.S.A. § 4502(a), by denying her procedural
rights that are available to male members of the Sons of The American
Legion.  We do not reach the question of whether the Public Accommodations
Act applies to the facts of this case because the documents that govern each of
the Legion-affiliated organizations, incorporated by reference into Davis’s complaint,
disprove Davis’s prima facie claim under the Act.  Section 4502(a)
prohibits owners or operators of places of public accommodation from
discriminating on the basis of, inter alia, sex.  She does not assert that
membership requirements of any Legion-affiliated organization discriminate on
the basis of sex, or that anything she experienced at the karaoke event was due
to her sex.  Rather, Davis claims that the House Committee would have
afforded her the procedural protections provided under the bylaws of Post
10—which are described by reference to The American Legion’s Officer’s
Guide—had she been a male member of the Sons of The American Legion instead of
a female member of the Auxiliary.  
¶ 15.        
The Officer’s Guide, however, applies only to expulsions and suspensions
of membership.[2] 
Davis is not a member of Post 10; she has merely been granted privileges to
enjoy its facilities through the generally amicable relationship between the
American Legion and the American Legion Auxiliary.  The House Committee
temporarily suspended those privileges in the same way clubs or restaurants
exclude unruly guests.  The fact that Post 10 and Post 10 Auxiliary are
related organizations does not transform Post 10’s actions against Davis into
status-altering discipline.  The House Committee did nothing to alter
Davis’s membership status in the Post 10 Auxiliary, nor could it have.  
¶ 16.        
Sons of the American Legion Squadrons are positioned identically as
Auxiliary Units with respect to affiliated Posts.  Just as the House
Committee here had no authority to suspend Davis’s Auxiliary membership—and no
reason, therefore, to afford her the process due for that action—it would have
had no authority to suspend the Squadron membership of a similarly situated
male.  Davis’s assertion that the House Committee would have afforded a
Sons Squadron member the due process that she claims she was denied as a member
of the Auxiliary has no basis in the charter or governing rules of any
of these three organizations.  
¶ 17.        
Davis’s argument that the House Committee failed to follow its rules by
not affording her the procedural protections in the Officer’s Guide fails
because the provisions of the Officer’s Guide did not form an implied contract
between Davis and Post 10, as Davis alleges.  We have previously found
implied contracts in the employment context, where, for example, an employer
binds itself to the terms of a personnel manual by distributing the manual to
its employees.  See, e.g., Havill v. Woodstock Soapstone Co., 2004
VT 73, ¶¶ 3, 12, 177 Vt. 297, 865 A.2d 335.  Davis cites to one Rhode
Island case that applies this concept to a private organization.  King
v. Grand Chapter of R.I. Order of the E. Star, 919 A.2d 991 (R.I.
2007).  The King court opined that “constitutions, bylaws, and
rules of private organizations create a legally enforceable
agreement . . . between the organization and the member
because of corresponding mutual obligations.”  Id. at 998. 
One of the fundamental assumptions underlying King, though, is the fact
of membership.  See id. at 993 (describing question before court as
regarding relationship between private organization and one of its “lifelong
members”).  There are no “mutual obligations” absent membership in a
private club because its bylaws do not bind non-members and the organization
has no power to enforce them against non-members.[3]  This same presumption of a direct,
mutual relationship underlies decisions where this Court has found an implied
contract.  See, e.g., Havill, 2004 VT 73, ¶ 12 (finding implied
contract between employer and employee).  Davis here lacks that sort of
relationship with Post 10.  She is not a member of Post 10, but of its
affiliated Auxiliary organization, and the Officer’s Guide, which she alleges
forms the basis of the implied contract, applies only to members of the
Post.  Moreover, Post 10’s bylaws dictate that the Officer’s Guide governs
procedure for suspending the membership of an individual, and the
section of the Officer’s Guide that addresses discipline refers exclusively to
suspension or expulsion of Post members.  Here, Davis’s membership in the
Auxiliary remained unaffected.  Indeed, the Post 10 House Committee could
not have suspended her Auxiliary membership even if it had wanted to.  
¶ 18.        
Davis next claims the Post 10 House Committee violated the “public
policy favoring free speech” when it retaliated against her for posting her
account of the karaoke-night squabble on the Legion Post Barre Facebook
page.  While courts occasionally intervene in the matters of a private
club to undo expulsions or suspensions of membership when that organization
acts pursuant to its own rule that contravenes public policy, e.g., Gallaher
v. Am. Legion, 277 N.Y.S. 81 (Sup. Ct. 1934), aff’d, 271 N.Y.S. 1012
(App. Div. 1934), such cases are inapposite here.  Davis was a guest, not
a member, of the group that banned her from its facilities, and her status
within the group of which she was a member remained unaffected.  Moreover,
her account of the karaoke night’s events and the decision of the House
Committee to restrict her privileges at the Post club are not matters of public
policy.  
¶ 19.        
Davis also argues that in denying her procedural rights, curtailing her
free speech, and showing her granddaughter that “might does make right,”
defendant organizations intentionally inflicted emotional distress upon her.
 A prima facie claim for intentional infliction of emotional distress
(IIED) must demonstrate “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).  No conduct alleged in
Davis’s complaint approaches outrageous conduct.  Nor does she allege she
suffered extreme emotional distress.  
¶ 20.        
Plaintiffs alleging IIED carry a heavy burden.  Id.  An
IIED claimant will not succeed unless she can show that the defendant’s actions
were “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.”  Cate v. City of
Burlington, 2013 VT 64, ¶ 28, 194 Vt. 265, 79 A.3d 854 (quotation
omitted).  That outrageous conduct must cause the plaintiff to suffer
“distress so severe that no reasonable person could be expected to endure
it.”  Baldwin v. Upper Valley Svcs., Inc., 162 Vt. 51, 57, 644 A.2d
316, 319 (1994).
¶ 21.        
Aside from Davis’s conclusory statement that “[t]he actions of
Defendants resulted in the intentional infliction of emotional distress on
[her],” the only reference in Davis’s complaint to anything resembling
emotional distress is in Paragraph 20, where she characterizes being told to
leave the club as an “embarrassing experience.”  Objectively,
embarrassment from being asked to leave a club is neither severe nor
unendurable.  
¶ 22.        
Davis’s libel claim fails because the accusations in the House
Committee’s letter, even taken as false, are not sufficiently serious to
constitute defamatory statements, and Davis, regardless, has not alleged any
injury resulting from these statements.  A prima facie claim for libel
requires: (1) a false and defamatory printed[4] statement concerning another; (2) some
negligence, or greater fault, in publishing the statement; (3) publication to at least one
third person; (4) lack of privilege in the publication; and (5) some actual
harm so as to warrant compensatory damages.  Lent v. Huntoon, 143
Vt. 539, 546-47, 470 A.2d 1162, 1168 (1983).  A defamatory statement is
one that tends to “blacken the reputation of the plaintiff and expose her to
public hatred, contempt or ridicule.”  Kinsley v. Herald & Globe
Ass’n, 113 Vt. 272, 276, 34 A.2d 99, 101 (1943).  “[L]iability for
defamation must logically be based on some showing of harm to the
plaintiff.”  Lent, 143 Vt. at 549, 470 A.2d at 1170.  Such
harm includes “impairment of reputation and standing in
the community, personal humiliation, and mental anguish and suffering.”  Id.
at 549, 470 A.2d at 1169-70 (quoting Gertz v. Robert Welch, Inc., 418
U.S. 323, 350 (1947)). 
¶ 23.        
Contrary to Davis’s contention on appeal, the trial court correctly
separated the language of the House Committee’s letter of reprimand from the disciplinary
actions it effected.  While allegedly libelous statements should be read
in context, a grievance about the disciplinary effect of those words does not
sound in defamation because a disciplinary action by its nature cannot be a
false and defamatory statement.  We therefore examine only that language
of the House Committee’s letter which is not purely an explanation of the terms
of her punishment.
¶ 24.        
The non-disciplinary language, contained entirely in the first
paragraph, states that Davis failed to leave with a minor after the 7:00 p.m.
deadline, did not follow the directions of staff, verbally attacked Post
officers, and made inaccurate comments on the Barre Post Facebook page. 
Davis conceded in her Facebook posts submitted as exhibits that she did not
leave the Post club immediately when staff asked her to.  Davis’s
attorney, in a letter attached as Exhibit 8 appealing the House Committee’s
decision, acknowledged Davis’s verbal attacks, but defended them as protected
free speech.  Indeed, Davis herself noted in one of her Facebook posts
that she apologized to “the main individual involved” for her “lack of control”
at the karaoke event.  But even assuming Davis did none of these things,
the Committee’s statements taken as accusations are not severe enough to
blacken Davis’s reputation or “expose her to public hatred, contempt or
ridicule.”  Kinsley, 113 Vt. at 276, 34 A.2d at 101.  Davis
therefore has not made out a prima facie claim of libel.
¶ 25.        
To the extent that any claims against the Legion Department overlap with
those against other defendants, they are dismissed for the same reasons. 
To the extent that Davis claims that the Legion Department should have
entertained her appeal or exercised supervisory authority over Post 10 in its
dealings with Davis, she fails to allege any basis for a duty or obligation to
do so.
¶ 26.        
For the foregoing reasons, all of Davis’s claims were properly
dismissed.  She is therefore not entitled to compensatory or punitive
damages.
Affirmed.



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 







[1] 
Davis alleges in her complaint that the local American Legion Auxiliary Unit is
a subsidiary organization within Post 10, but the Auxiliary National Bylaws,
under which local Units are established, explain that Units are “attached” to
Posts.  We therefore use the term “affiliated” broadly.  We need not
and do not decide which of these characterizations is correct.


[2] 
Post 10 has adopted the Officer’s Guide, but it appears that the American
Legion Auxiliary has not, so even if Davis’s Auxiliary Unit had suspended her membership,
presumably she would not have been entitled to the procedures it recommends. 


[3] 
Of course, a private club is free to invite non-members into its facilities,
and then later exclude those non-members from its facilities for whatever
reason, subject to any statutory constraints that may apply.  This is
exactly what Post 10 did to Davis in this case.  It would be absurd to say
that private clubs have an implied contractual relationship with anyone who
walks through their doors.


[4] 
We acknowledge a split of authority as to whether defamation via television or
radio should be categorized as libel or slander, 50 Am. Jur. 2d Libel and
Slander § 10, but we express no opinion regarding this distinction because
it is not applicable here.  



