2012 VT 43



Hall v. State (2010-457)
 
2012 VT 43
 
[Filed 22-Jun-2012]
 
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.
 

2012 VT 43

 

No. 2010-457

 

Frank Hall


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Washington
  Unit,


 


Civil Division


 


 


State of Vermont


October Term, 2011


 


 


 


 


Helen
  M. Toor, J.


 

Edwin L. Hobson, Burlington, and John Archer Hobson,
Portland, Maine, for Plaintiff-Appellee/
  Cross-Appellant.
 
William H. Sorrell, Attorney General, and Keith Aten,
Assistant Attorney General, Montpelier,
  for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund and Burgess,
JJ., and Kupersmith, Supr. J.,
           
         Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.   Plaintiff Frank Hall, a longtime
employee of the State of Vermont Agency of Transportation (AOT), sued his employer
in the fall of 2007, alleging discrimination on the basis of, among other
things, a physical disability and retaliation for his having filed a workers’
compensation claim.  The jury found no disability discrimination, but
awarded Hall damages based upon its finding that the State had retaliated
against him as alleged.  On appeal, the State argues that: (1) Hall’s
retaliation claim was precluded by a September 2003 Stipulation and Agreement
signed by Hall and AOT releasing the State from liability for any and all
claims associated in any way with Hall’s reclassification and transfer stemming
from hostile work environment allegations against him; (2) Hall’s retaliation
claim was not supported by any causal connection linking his employment
reclassification and transfer with his having filed a workers’ compensation
claim; (3) evidence of a video surveillance of Hall connected with a second
workers’ compensation claim was insufficient as a matter of law to support his
retaliation claim and the resulting damages award; and (4) even if the record
supports Hall’s retaliation claim, the State’s liability is limited to
$250,000, as set forth in Vermont’s Tort Claims Act during the relevant time
period.[1] 
Hall cross-appeals, challenging the trial court’s denial of his request for
post-judgment interest and attorney’s fees.  We vacate the judgment
against the State and remand the matter for the trial court to rule on the
potentially determinative issue of the scope of the September 2003 release.
¶ 2.            
Hall has been employed by AOT since 1970.  In 1990, he became
supervisor of the Williamstown garage.  In April 2002, Hall suffered an
injury to his right knee and filed a claim for workers’ compensation.  The
State accepted the claim, and he underwent physical therapy and arthroscopic
surgery, but the knee continued to deteriorate.  A little over a year
later, in June 2003, Hall was placed on paid administrative leave pending an
investigation into claims brought by a female employee supervised by Hall
alleging that Hall had created a hostile work environment.  An
investigation ensued.
¶ 3.            
As a result of the investigation, in September 2003 AOT and Hall, with
the assistance of counsel, negotiated a resolution of the allegations against
him and signed a Stipulation and Agreement.  That Agreement set forth
preliminary information stating that there had been an investigation into
allegations of Hall creating a hostile work environment and that the parties
wished to settle and compromise all claims and thereby avoid the risks of
litigation.  The Agreement also stated that it did not contain admissions
of wrongdoing or contractual violations by either party and that it was
supported by consideration in the form of promises and obligations as set forth
in the document.
¶ 4.            
Pursuant to the Agreement, AOT reclassified Hall’s job from
Transportation Area Maintenance Supervisor to Transportation Maintenance Worker
IV (and Hall was later transferred from the Williamstown garage to the North
Montpelier garage).  The parties agreed that the reclassification would be
considered an administrative action and not a disciplinary action and that
Hall’s salary would not be reduced.  Further, AOT agreed to take no further
action against Hall as a result of the hostile work environment
investigation.  Hall certified that he had consulted with legal counsel
prior to signing the Agreement and that the Agreement was voluntary.
¶ 5.            
The critical release provision contained in the Agreement states as
follows: “Frank E. Hall hereby waives any grievance, complaint, lawsuit, or
other claim of legal wrongdoing or liability whatsoever against the State of
Vermont, . . . associated in any way with his employment by
the State of Vermont, the negotiation of this Agreement, and his
reclassification as called for in this Agreement.”  Hall’s attorney,
former counsel for the Vermont State Employees Association, spent forty-five
minutes alone with Hall going over the Agreement before signing it along with
Hall.  Based on his review of the Agreement, the attorney insisted on
adding to the end of the above-quoted sentence the following language:
“specifically pertaining to the aforesaid ‘hostile work environment’ as stated,
supra.”  At trial, the attorney testified that he added the language
because he wanted to make sure that the release would be limited to matters
surrounding the hostile work environment allegations and would not preclude
unrelated future claims.
¶ 6.            
In December 2003, Hall filed a second workers’ compensation claim based
on further deterioration of his knee.  The State accepted the claim and,
in February 2004, his orthopedic surgeon replaced his right knee with an
artificial knee.  In May 2004, while Hall was recuperating on leave, his
supervisor asked the workers’ compensation division to conduct an investigation
into Hall’s claimed disabled condition.  As a result of this request, the
division did a video surveillance of Hall’s activities in public on a single
day.
¶ 7.            
Eventually, AOT determined that Hall could no longer perform the duties
of Transportation Maintenance Worker IV and suggested retraining.  Hall
disputed this determination and petitioned AOT’s Reasonable Accommodations
Committee (RAC).  RAC ruled that Hall could not perform all of the
essential functions of the job, even with accommodations.  Hall was
reassigned as a finance technician, a job that does not ordinarily involve
overtime pay and therefore resulted in a reduction in income.     

¶ 8.            
In December 2008, Hall filed a consolidated amended complaint against
the State of Vermont.  He cited several bases for invalidating the release
provision in the September 2003 Agreement signed by the parties, including
mutual mistake, failure of consideration, and duress.  He claimed age and
disability discrimination based on AOT’s failure to provide reasonable
accommodations for his disability.  He also claimed that the State had
discriminated against him for his having opposed discriminatory policies
against female employees.  He further alleged that AOT had retaliated
against him because of his injury, his having filed for workers’ compensation
coverage, and his having opposed the State’s unlawful and discriminatory policies. 
Finally, he claimed that the State had violated Vermont’s Fair Employment
Practices Act and Open Meeting Law and had unconstitutionally restricted his
freedom of speech.
¶ 9.            
In its answer, the State denied each of the allegations and raised several
affirmative defenses, including sovereign immunity, failure to mitigate
damages, accord and satisfaction, payment and release, and waiver and
estoppel.  At trial, the court allowed the jury to consider only two of
Hall’s claims—the disability discrimination claim and the claim of retaliation
for having sought workers’ compensation coverage.  The jury rejected the
disability discrimination claim,[2]
but found liability and damages based on the retaliation claim.  The jury
awarded Hall front and back pay damages of $406,567, and emotional distress
damages of $87,000.  This appeal followed.
¶ 10.        
We first address the State’s claim that the judgment should be reversed
because the Agreement signed by Hall and his attorney resolved the hostile work
environment allegations made against him and released the State from any claims
of legal wrongdoing with respect to the reclassification[3] that resulted from those
allegations.  We conclude that the trial court’s failure to resolve the
critical question of whether Hall waived any claim of legal wrongdoing or
liability against the State by entering into the Agreement requires us to
vacate the jury verdict and remand the matter for resolution of this
issue.  The procedural history of the issue follows.
¶ 11.        
As noted, Hall cited rescission as a cause of action in his complaint,
alleging that he entered into the Agreement involuntarily as the result of
misleading statements made by the State representatives, and further that the
Agreement was invalid because of a failure of consideration, mutual mistake,
and duress.  In its answer, the State denied these claims and asserted
several affirmative defenses based on the Agreement, including accord and
satisfaction and payment and release.
¶ 12.        
Hall was the first witness at trial.  During direct examination,
his trial counsel questioned him about the Agreement and introduced it as an
exhibit.  The attorney who had represented Hall at the time he signed the
Agreement testified as to the circumstances surrounding the negotiation and
execution of the Agreement.   After Hall finished presenting his
direct evidence, the State moved for judgment as a matter of law, pursuant to
Vermont Rule of Civil Procedure 50, on both the discrimination and retaliation
claims.  In pertinent part, the State argued that Hall had waived his
discrimination and retaliation claims by signing the Agreement in which he
waived the right to bring “any grievance, complaint, lawsuit or other claim of
legal wrongdoing or liability whatsoever against the State of Vermont”
associated with “his reclassification as called for in this Agreement.”
¶ 13.        
The trial court granted the State’s motion for judgment as a matter of
law as to Hall’s age discrimination claim and his claim of retaliation for
engaging in activities protected by the Vermont Fair Employment Practices
Act.  But the court denied the motion as to Hall’s claims that the State
failed to accommodate his disability and retaliated against him for filing a
workers’ compensation claim.
¶ 14.        
The court announced that it was deferring a ruling on the State’s motion
for judgment as a matter of law on the question of whether Hall had waived any
claims against the State by signing the Agreement, stating that it needed time
to carefully review the motion.  The court invited the State to renew its
Rule 50 motion at the conclusion of the trial before the case went to the jury,
noting that it would “make a decision at that time.”  At the start of
trial the next day, the court reiterated this point, stating that the “issue is
more involved than I had time to resolve on short notice, so I am going to
defer that issue to consider later, and [at] this time let the question stay in
the case.”
¶ 15.        
Upon the close of evidence, and before the court presented its
instructions to the jury, the State renewed its Rule 50 motion.  The State
reasserted its argument that Hall’s voluntary and knowing signing of the
Agreement upon the advice of counsel released the State from any liability
based on his claim that the State had retaliated against him for having filed a
workers’ compensation claim by demoting him following an investigation into
hostile work environment allegations against him.  In response, the court
stated only: “Same ruling as before.”  The case then went to the jury.
¶ 16.        
After the jury announced its verdict, the State moved to set aside the
verdict on the grounds that the Agreement precluded Hall’s retaliation claim
and that the evidence of retaliation for filing a workers’ compensation claim
was insufficient to go to the jury.  Acknowledging that it had deferred ruling
on the scope of the release, the court entered judgment based on the jury’s
verdict but allowed the parties more time to file supplemental memoranda on the
motion to set aside the verdict.  The State filed a renewed motion for
judgment as a matter of law, asserting, among other things, that the Agreement
barred Hall from arguing that the State had no legitimate, nondiscriminatory
reason for his reclassification because the circumstances demonstrated that
Hall had voluntarily and knowingly entered into the Agreement, which plainly
required him to waive any claims based on his reclassification as the result of
the hostile work environment investigation.  In response, Hall argued that
the Agreement was ambiguous and that the State had waived any reliance on the
release contained in the Agreement.  According to Hall, the State had
conceded the Agreement’s ambiguity by allowing parol evidence of the
handwritten addition to the release language to be admitted into evidence
without objection.
¶ 17.        
Ruling on the post-trial motion, the trial court noted that the only
potential adverse employment actions supported by any evidence offered on the
claim of retaliation were Hall’s demotion in 2003 (the reclassification and
transfer) and the 2004 video surveillance.  In response to the State’s
argument that the verdict could not stand because Hall had agreed to the
reclassification as part of a voluntary settlement, the court ruled that the
question of “waiver” was a fact issue for the jury to decide.  
According to the court, “[b]ecause the State never asked to present this
defense to the jury for resolution, the court would normally conclude that the
State has waived the claim.”  Citing Silva v. Stevens, 156
Vt. 94, 110, 589 A.2d 852, 861 (1991),[4]
the court opined that Vermont Rule of Civil Procedure 49 would allow it to make
a finding on an issue that was omitted in the special interrogatories to the
jury.  It therefore asked the parties to brief the issue of whether the Rule
49 provision was applicable here.
¶ 18.        
In its response, the State argued that the court could decide the issue
and should determine that the Agreement was a valid release waiving Hall’s
claim that his reclassification was retaliation for his having filed a workers’
compensation claim.  The State asserted that AOT had agreed not to take
any further disciplinary action against Hall in exchange for Hall waiving any
claim against AOT for legal wrongdoing or liability associated with Hall’s reclassification. 
According to the State, the Agreement offered Hall a reclassification without
loss of pay grade instead of a disciplinary proceeding as a way of resolving
the investigation into allegations that he had created a hostile work
environment.  In the State’s view, Hall’s contention that the hostile work
environment allegations were a pretext, not a legitimate nondiscriminatory
reason for his reclassification, was “exactly the sort of challenge . . . that
Hall released and waived in the Stipulation and Agreement.”  The State
pointed out that Hall was represented by legal counsel who reviewed the
Agreement with him and added clarifying language.
¶ 19.        
In a November 2010 decision, the trial court ruled that “because the
issue [regarding the alleged preclusive effect of the Agreement] did not go to
[Hall’s] claims but was instead an affirmative defense raised by the State, the
failure to seek an instruction on the issue is most equitably treated as a
waiver of the claim by the State.”  Curiously, the court relied upon two
cases, in one the dissenting opinion, stating only the general proposition that
a new issue cannot be injected into a case for the first time following
trial.  See World Wide Agency, Inc. v. C.I.R., 42 T.C.M. (CCH) 617
(1981); Grant v. Elder, 170 P. 198, 207 (Colo. 1917) (Teller, J.,
dissenting);.  The court then entered a revised judgment deleting the
award of costs and denying Hall’s motion for attorney’s fees.
¶ 20.        
Normally, on appeal from a post-trial motion for judgment as a matter of
law and for a new trial, this Court is required to view the evidence in the
light most favorable to the nonmoving party.  Brueckner v. Norwich
Univ., 169 Vt. 118, 122, 730 A.2d 1086, 1090 (1999).  In this case,
however, following the jury verdict the court ruled that the State had waived
its affirmative defense based on the Agreement.  On appeal, the State
contends that the trial court erred in so ruling and that the Agreement
precluded Hall’s retaliation claim.  Hall responds that there was
substantial evidence of retaliation after the date the release was signed and
that the State’s failure to object to “pre-September 20, 2003 evidence”
precludes any argument that the jury could not have considered that
evidence.  These responsive arguments do not directly address the State’s
primary argument on appeal.  The question is whether, by signing the
Agreement, Hall waived the retaliation claim that went to the jury.
¶ 21.        
When construing a written agreement—whether it be a deed, a lease, a
contract, or some other written document—“the master rule is that the intent of
the parties governs.”  Main Street Landing, LLC. v. Lake St. Ass’n,
Inc., 2006 VT 13, ¶ 7, 179 Vt. 583, 892 A.2d 931 (mem.) (quotation
omitted).  In discerning the intent of the parties, the court must
consider the written document as a whole.  Id.  “The court may
consider limited extrinsic evidence of circumstances surrounding the making of
the agreement in determining whether the writing is ambiguous, which is a
question of law” for the court in the first instance.  Id.
(quotations omitted).  Interpretation of the parties’ intent becomes a
question of fact for the factfinder only if the court has made the initial
determination that the written document is ambiguous.  Id.; see Inv.
Props., Inc. v Lyttle, 169 Vt. 487, 498, 739 A.2d 1222, 1229 (1999) (“While
the construction of a release or contract is normally a question of law, when
the language of the document is ambiguous and must be clarified by reference to
external evidence, construction becomes a question of fact.”).
¶ 22.        
Here, the September 2003 Agreement specifically states that Hall waived
any claim against the State “associated in any way with . . . his
reclassification as called for in this Agreement.”  The State maintains
that the removal of Hall’s supervisory authority was necessary to resolve
issues in the workplace that led to the hostile work environment allegations
and investigation.  Hall counters that the State’s reasons for
reclassifying and transferring him were pretextual.  He maintains that the
hostile work environment claims were bogus and that the real reason for the
reclassification was retaliation for his having filed a workers’ compensation
claim in April 2002.
¶ 23.        
But alleged disparate motivations do not an ambiguity make.  The
question is whether the language of the document was ambiguous as to Hall’s
waiver of his retaliation claim.  The trial court never ruled on the
State’s repeated motions seeking a ruling on the preclusive effect of the
Agreement on Hall’s claims.  Without a preliminary ruling from the court
finding the document ambiguous, the parties were led to believe that the court
was reserving to decide later the threshold legal question of whether the
Agreement barred Hall’s claims as a matter of law.  When the court
announced that the case was ready to go to the jury, the State reiterated its
argument concerning the preclusive effect of the Agreement.  The court
responded: “Same ruling as before.”  The problem is that the court had
made no previous ruling, other than putting off a ruling until later.
¶ 24.        
As a result, the case went to the jury without a ruling by the court on
the Agreement.  Neither attorney mentioned the Agreement during closing
argument.  Nor did the court’s instructions to the jury refer to the
Agreement or the State’s contention that, by signing the Agreement, Hall had
waived any claim based on his reclassification and transfer.  Nor was
there any instruction for the jury to determine if Hall voluntarily and
knowingly entered into the Agreement.  The record does not make it clear
what the attorneys were thinking at that point, but under the circumstances
they reasonably could have assumed that the court was still reserving its
judgment on the preclusive effect of the Agreement until after the jury
rendered its verdict—even though it would seem to make little sense for the
court to conduct the trial in that manner.
¶ 25.        
Without question, a decision on the scope, validity, and effect of the
parties’ Agreement was critical to the State’s defense in this case.  The
Agreement was raised in the State’s answer to the complaint, was asserted in
its Rule 50 Motion submitted to the court at the close of Hall’s case, and was
renewed after the close of evidence.  While a party generally may waive
its right to a ruling by failing to proceed with the motion or by acting in a
manner inconsistent with the object of the motion, Jones v. Suhre, 345
A.2d 515, 518 (Me. 1975), in this case the court continued to inform the State
that the matter was still under advisement.  Therefore, a waiver could not
be implied based on the State’s failure to seek a jury instruction on the
defense, given that the State reasonably assumed the defense was still under
advisement by the court.  In short, under the circumstances, the State
cannot reasonably be said to have, at any time, voluntarily or knowingly waived
its defense that, by signing the Agreement, Hall released the State from any
legal challenge based on his reclassification and transfer.[5]  See Green v. United States,
355 U.S. 184, 191 (1957) (noting that “waiver” is vague term used in multiple
legal contexts but generally connotes voluntary relinquishment of known right).
¶ 26.        
We find no merit to Hall’s argument that the State waived any objection
to the court considering the ambiguity of the Agreement by allowing Hall to
present “parol evidence” concerning the Agreement.  Hall does not make it
clear what “parol evidence” he is referring to, but he appears to be referring
to evidence suggesting that the Agreement was unenforceable for a variety of
reasons, including the alleged time pressure placed upon him and his attorney
to decide whether to sign the Agreement.  In any event, Hall’s reliance
upon Gregoire v. Insurance Co. of North America, 128 Vt. 255, 260, 261
A.2d 25, 28 (1969), is misplaced.  In that case, the issue on appeal was
whether the parol evidence rule should have precluded evidence admitted at
trial of oral assurances made prior to or contemporaneous with the signing of a
written release.  Id. at 257, 261 A.2d at 26.  This Court
ruled that because the defendant had not objected at trial to admission of the
testimony concerning the oral assurances, he waived any appellate argument that
the parol evidence rule precluded admission of the testimony, which was
properly considered by the jury.  Id. at 260, 261 A.2d at 28. 
Here, in contrast, the State does not argue for the first time on appeal that
the parol evidence rule precluded the admission of trial testimony concerning
the Agreement.  Rather, the State argues that the Agreement Hall signed
precluded his claims in this case, and that it sought judgment at trial based
on this argument, but the trial court never ruled on its motion.  In
short, Gregoire does not support Hall’s argument that the State waived
any defense based on the Agreement by not objecting to evidence presented at
trial concerning the circumstances surrounding the signing of the Agreement.
¶ 27.        
Nor do we find any merit to Hall’s argument that, even if we ignore the
parol evidence he presented at trial challenging the enforceability of the
Agreement, the language that his attorney added to the Agreement’s release
provision and the attorney’s testimony as to the meaning of that additional
language unambiguously demonstrate that the Agreement did not preclude Hall’s
claims.  As noted, after reviewing the Agreement with Hall, Hall’s
attorney added the clause “specifically pertaining to the aforesaid ‘hostile
work environment’ as stated, supra” at the end of the release provision in
which Hall agreed to waive any claims against the State “associated in any way
with his employment by the State of Vermont, the negotiation of this Agreement,
and his reclassification as called for in this Agreement.”  At trial,
Hall’s attorney testified that the release provision appeared to require Hall
“to waive any grievance or lawsuit having to do with anything in the
future.  Any subject matter having to do with State government.” 
According to his testimony, Hall’s attorney insisted on including the
additional clause to limit the waiver to claims concerning the hostile work
environment complaint.
¶ 28.        
Neither the plain language of the added clause nor the attorney’s
testimony regarding his intent in adding that clause supports Hall’s contention
that the Agreement unambiguously allowed Hall’s claims.  Indeed, neither
is inconsistent with the State’s contention that the Agreement unambiguously
released the State from liability for any claims that Hall might have related
to his reclassification—which directly resulted from the hostile work
environment complaint.[6]
¶ 29.        
Thus, assuming that Hall voluntarily entered into the Agreement, nothing
in the language of the Agreement, as discussed above, provides the trial court
with a basis for finding that, as a matter of law, the Agreement unambiguously
permitted Hall’s claims in this case.  Rather, on remand, the trial court
must consider whether the Agreement unambiguously precluded all or part of
Hall’s remaining retaliation claim or whether the language of the Agreement is
ambiguous as to its preclusive effect on all or part of that claim in light of
the circumstances surrounding the making of the Agreement, thereby requiring
the court to instruct a new jury to that effect.  See Isbrandtsen v. N.
Branch Corp., 150 Vt. 575, 579, 556 A.2d 81, 84 (1988) (holding that trial
court may consider circumstances surrounding making of agreement in determining
whether agreement is ambiguous, and noting that ambiguity exists when language
of agreement in and of itself supports reasonable interpretation distinct from
reasonable interpretation reached when language is read in light of surrounding
circumstances); see also Tilley v. Green Mt. Power Corp., 156 Vt. 91,
93-94, 587 A.2d 412, 413-14 (1991) (emphasizing that Isbrandtsen did not
undercut parol evidence rule).
¶ 30.        
In sum, the State consistently and repeatedly argued that Hall waived
any claims against the State based on his reclassification.  That question
was for the court to evaluate in the first instance.  The failure of the
court to resolve the State’s Rule 50 motion is fatal to the validity of the
ensuing jury verdict because, for the most part, Hall’s retaliation claim was
grounded on actions taken by the State pursuant to the September 2003
Agreement, and apart from those actions, there is insufficient support for the
verdict.  Accordingly, we vacate the jury verdict and remand the matter
for the trial court to address the Agreement.
¶ 31.        
Hall’s evidence and argument at trial with respect to his retaliation
claim focused primarily on his demotion established by the Agreement and the
resulting change in job duties.  Indeed, Hall told the jury, in closing
argument, that the adverse employment action against him was the
demotion.  Hall also presented evidence, however, on the State’s alleged
continuing retaliatory conduct, most particularly the video surveillance of him
one day in May 2004.  Unlike the demotion, the video surveillance did not
stem directly from the September 2003 Agreement but rather from Hall’s second
worker’s compensation claim.  For that reason, notwithstanding our
determination that the trial court failed to address in the first instance the
preliminary and potentially determinative question of whether the Agreement
precluded Hall’s claims, we must address the State’s argument that the video
surveillance alone could not support the jury’s verdict.
¶ 32.        
In its ruling denying the State’s motion for relief from judgment, the
trial court found that the “[t]he only potentially adverse employment actions
supported by any evidence were Hall’s demotion in 2003 and video surveillance
done of him in 2004.”  Hall does not directly challenge this finding, and
the record supports it.  In the court’s view, however, “[t]he jury could
reasonably have concluded that the only reason AOT conducted surveillance of
Hall was in retaliation for his filing a worker’s compensation claim, since
that was obviously the reason the video was taken.”  Thus, according to
the court, the only question was whether “the video surveillance meets the
legal definition of an adverse employment action.”  Relying upon Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006), which
addressed the standard for determining what constitutes an adverse employment
action in the context of a retaliation claim under Title VII of the Civil
Rights Act of 1964, the trial court ruled that it was for the jury to determine
whether “video surveillance by one’s employer is the sort of action that could
dissuade an employee from filing a [workers’ compensation] claim.”
¶ 33.        
We agree with the State that the videotaping of Hall in connection with
his second workers’ compensation claim, cannot, in and of itself, support
Hall’s retaliation claim.  To make out a prima facie case of retaliation
for filing a worker’s compensation claim, a plaintiff must show, among other
things, that “he suffered adverse employment decisions, and . . . there was a
causal connection between the protected activity and the adverse employment
decision[s].”  Murray v. St. Michael’s Coll., 164 Vt. 205, 210, 667
A.2d 294, 299 (1995).  In Burlington Northern, the Supreme Court
held that a plaintiff bringing a retaliation claim under Title VII need show
only that “a reasonable employee [in the employee’s situation] would have found
the challenged action materially adverse,” meaning that it well might have
dissuaded a reasonable employee from engaging in the protected activity. 
548 U.S. at 68.
¶ 34.        
Assuming, without deciding, that this is the standard to apply with
respect to retaliation claims brought under 21 V.S.A. § 710(b), we conclude
that the limited video surveillance in this case in connection with Hall’s
second workers’ compensation claim cannot, in an of itself, support Hall’s
retaliation claim.  The Court in Burlington Northern emphasized
that “it is important to separate significant from trivial harms” because
“[t]he antiretaliation provision protects an individual not from all
retaliation, but from retaliation that produces an injury or harm.”  548
U.S. at 67-68.  One could certainly argue that the surreptitious videotaping
of an employee, depending on its intrusiveness, could serve as supporting
evidence of a retaliation claim.  Thus, we do not necessarily disagree
with Hall’s contention that video surveillance can be submitted as evidence of
a larger pattern of retaliation.  But cf. Hoffman-Dombrowski v.
Arlington Int’l Racecourse, Inc., 254 F.3d 644, 654 (7th Cir. 2001)
(holding that change of schedule, video surveillance, and disciplinary warnings
were not material adverse actions sufficient to sustain retaliation claim); Pierce
v. Tex. Dep’t of Crim. Justice, Inst. Div., 37 F.3d 1146, 1150 (5th Cir.
1994) (holding that threatening employee to mind her own business,
investigating her, videotaping her without her permission, and forcing her to
take polygraph could not be considered adverse employment actions because they
had no effect on conditions of employment).
¶ 35.        
But in this case, if the release provision in the parties’ Agreement
were found to preclude all claims associated with Hall’s demotion, the limited
video surveillance done in connection with Hall’s second workers’ compensation
claim cannot, as a matter of law, support the retaliation claim.  Cf. Gallipo
v. City of Rutland, 2005 VT 83, ¶ 39, 178 Vt. 244, 882 A.2d 1177 (holding
that videotaping incident, among others, was insufficient to establish prima
facie case that he suffered adverse employment action due to retaliation for
his protected activity, in violation of Vermont Fair Employment Practices
Act).  The videotaping was done one day in public in response to a tip
concerning Hall’s activities.  Hall claims that the tip came from his
former supervisor, who was determined to terminate him.  But we fail to
see how video surveillance in response to a tip, regardless of its source, ostensibly
to assure the legitimacy of a workers’ compensation claim, would cause a
reasonable person to forego the claim, unless the claim was fraudulent. 
In this context, video surveillance can be expected in response to a claim, and
indeed the State has the right and responsibility to use such techniques to
prevent fraudulent claims.  If any video surveillance in connection with a
workers’ compensation claim could form the sole basis for a retaliation claim,
it could well have the effect of pressuring the State into abandoning or
unnecessarily restricting one of its legitimate tools for rooting out fraud in
the filing of workers’ compensation claims.
¶ 36.        
Given our determination that the trial court failed to address in the
first instance the preliminary and potentially determinative question of
whether the Agreement precluded all or part of Hall’s retaliation claim, and
that the video surveillance alone cannot support the jury’s verdict, we must
vacate the verdict and remand the matter for further proceedings.  At this
juncture, we decline to address the State’s argument that Hall’s award, even if
it is upheld, must be capped at the then-relevant statutory limit set forth in
12 V.S.A. § 5601(b).  The trial court avoided this issue by ruling that
the issue was not jurisdictional in nature and that the State failed to timely
raise it.  In the event there is another trial and Hall obtains a judgment
in excess of the relevant statutory limit, the issue may be considered
anew.  We will not provide an advisory opinion on the assumption that
those events will occur.  For the same reason, we decline to address
Hall’s cross-appeal issues in which he challenges the trial court’s refusal to
grant him post-judgment interest and attorney’s fees.
The judgment is vacated and
the matter is remanded to the civil division of the superior court for further
proceedings consistent with this opinion.   
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]
 Effective July 1, 2011, the relevant statute was amended to increase the
limit to $500,000.  See 12 V.S.A. 5601(b).
 


[2]
 In addition to determining that the State did not discriminate against
Hall by failing to provide reasonable accommodations, the jury also determined
that Hall would not have been able to perform the essential functions of his
job even with reasonable accommodations.
 


[3]
 The “reclassification” discussed in the Agreement was, in fact, a
demotion from a supervisory position to the position of Transportation
Maintenance Worker IV.


[4] 
V.R.C.P. 49(a), titled Special Verdicts, reads in part: “As to an issue omitted
without such demand [for submission to the jury by a party] the court may make
a finding; or, if it fails to do so, it shall be deemed to have made a finding
in accord with the judgment on the special verdict.”


[5]
 We note that Vermont does not have a deemed-denial rule or statute, as is
the case in some states.  Cf. McCoy v. Moore, 1 S.W.3d 11, 12 (Ark.
1999) (dismissing appeal as untimely filed based on rule providing that certain
post-judgment motions are deemed denied after given period of time); Paxton
Res., LLC v. Brannaman, 2004 WY 93, ¶ 18, 95 P.3d 796 (same).
 


[6]
 We also reject Hall’s suggestion that the State had to prove its hostile
work environment allegations for the trial court to rule that the Agreement
precluded his retaliation claim.  The State elicited testimony from the
woman whose complaint led to the allegations.  She testified that Hall had
ignored her complaints about rumors circulating in the workplace concerning her
personal life; that he had publicly embarrassed her in front of the entire
garage; that he had treated her and others harshly and was verbally obscene
when angry about what he perceived as a lack of support; and that he had
reduced her to tears on one occasion.  In any event, the State did not
need to prove these allegations for the court to determine whether Hall had
waived his retaliation claim by signing the Agreement.



