Hammond v. Berlin City’s Vermont Remarketed Autos, Inc., No. S1316-02 CnC
(Norton, J., Mar. 10, 2005)


[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]

STATE OF VERMONT                                                       SUPERIOR COURT
Chittenden County, ss.:                                            Docket No. S1316-02 CnC


LOUISE HAMMOND

v.

BERLIN CITY’S VERMONT
REMARKETED AUTOS, INC., d/b/a
BERLIN CITY CENTER and d/b/a BERLIN
CITY’S KIA OF BURLINGTON



                                            ENTRY
       This is a case about employment discrimination. The plaintiff, Louise Hammond,
claims that the defendent, Berlin City’s Vermont Remarketed Autos, Inc., violated the
Vermont Fair Employment Practices Act, 21 V.S.A. § 495, through discriminatory
wages, sexual harassment, and retaliation. Hammond also claims Berlin City violated the
federal Equal Pay Act, 29 U.S.C. § 206(d) (2000), through discriminatory wages.1 Berlin
City moves for summary judgment on all claims.
        Summary judgment is appropriate where there are no genuine issues of fact and a
party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3). The court views the
facts in a light most favorable to the non-moving party, granting the party “the benefit of
all reasonable doubts and inferences [and regarding] all properly supported allegations
presented by the opposing party as true.” Hodgdon v. Mt. Mansfield Co., 160 Vt. 150,
159 (1992). Accordingly, the court makes the following findings for the purposes of
summary judgment.
        Hammond worked as a Guest Services Manager at Berlin City, a car dealership,
from June 1997 through September 20, 2002. This position was the lowest paid of a
number of managerial positions at Berlin City. Hammond’s position called for managing
a staff of six guest services employees, which included hiring, training, supervising, and
scheduling. The Guest Services Department typically handled the dealership’s initial
contact with incoming customers, including greeting the customers, giving a facility tour,
and introducing Berlin City’s automobile warranty plan. She would occasionally
intervene in incidents with dissatisfied customers. Her position therefore required
customer relations and communications skills. Hammond also performed scheduling
duties for 22 Berlin City drivers who transported vehicles among various dealership
locations and served as an event planner, making arrangements for special events.
        Hammond’s position bore some similarities with the sales manager and general
sales manager positions. Sales managers oversaw a few sales guides, whom they assisted
in interacting with customers and making sales deals. The sales manager therefore needed
customer relations, communications, and managerial skills. The general sales manager
oversaw the sales managers, and also required similar skills.
       Hammond’s position also bore some similarities with the finance managers, who
were responsible for meeting with customers after the sales team made a sale that was
subject to financing. Finance managers would determine the financing for which a
customer would qualify. Thus, finance managers needed customer relations and
communications skills. Finance managers did not oversee a staff, though.

                      1
                        Hammond’s complaint also included claims for a violation of the Federal
        Communications Privacy Act, 18 U.S.C. §§ 2510–2522 (2000), invasion of privacy, and
 negligent supervision. The court dismissed these three claims in an order dated March 18, 2003.
       Berlin City alleges that sales managers required sales experience and finance
managers required finance experience, but Hammond alleges that employees in both
positions could gain all knowledge necessary to perform their jobs through on-the-job
training. Managers were frequently transferred to and from sales manager positions and
finance manager positions with little difficulty. Hammond alleges that upper managers at
Berlin City told her she could easily become a finance manager with only brief training.
        Both finance managers and sales managers worked out of the same facility in
which Hammond worked, with similar work stations and the same general surroundings.
All of these positions required similar mental exertion, in terms of meeting deadlines and
organizing one’s time.
       The general sales and finance managers also reported to Berlin City’s general
manager (the sales managers reported to the general sales manager). They all also
attended management meetings together.
        Other positions included the general manager, who oversaw the overall operation
at the dealership; the office manager, who was required to have accounting experience,
managerial skills and experience, and leadership and computer skills; the parts manager,
who was required to have automotive parts/inventory experience, computer experience,
and managerial skills; the sales manager/buyer, who was required to have experience in
the automotive industry, sales experience, automotive appraisal experience, and
communication skills; and the service manager, who was required to have customer
relations skills, managerial skills, automotive service and repair experience, and
computer skills.
      Chief Operating Officer Steve Roach told Hammond once that her position was as
important as the general manager and service manager positions. Roach and other
managers told Hammond several times that her department was of comparable
importance to the sales or finance departments.
       In August 2000, Hammond met and began dating Ronald McFarland, who then
began working as a Service Manager at Berlin City. Hammond terminated their
relationship on March 8, 2001. McFarland sought to resume their former relationship for
a number of months thereafter. Hammond made it clear to him that she was not
interested.



                                            3
       Around July 2001, McFarland began to call Hammond both at work and at home,
with as many as 15 calls a day. McFarland would tell her that he missed her and he
wanted to be with her. He would also stop by her work station to talk to her about their
relationship. Being a service manager, McFarland had no legitimate business reason to be
near Hammond’s work area. The two still played tennis together occasionally and went
out to dinner once in August 2001, but Hammond made it clear to him that she did not
want to resume the relationship.
       When they went out to dinner in August, McFarland told Hammond that he had
been accessing her personal e-mail account and reading her messages while he was at
work. This upset Hammond, and she soon after met with Berlin City Sales Manager
Robert Swartout, a designated sexual harassment reporting representative under Berlin
City’s sexual harassment policy. Hammond informed him of her relationship with
McFarland and of her concerns with his recent behavior, including the e-mail
interceptions. She told Swartout, however, that she did not want management to take any
action but only wanted Berlin City to be aware of the situation in case it became a bigger
problem.
        Over the next month, McFarland continued to call Hammond at work, and
Hammond believed he had been taking roses and mementoes from her desk. Hammond
had received these items from a new boyfriend. She spoke with Swartout on two
occasions. She had tried to handle McFarland on her own but decided that she needed
management to intervene. Swartout spoke with McFarland, and McFarland’s behavior
got worse. After Swartout first addressed the issue with McFarland, he approached
Hammond and stated that he could not believe Hammond had spoken to Swartout about
his behavior. He also stated, “Don’t fuck with me or I’m going to make your life
miserable.” Hammond reported this to Swartout a couple days later. McFarland
continued to call Hammond at work, making kissing noises into the phone. Hammond
believes that Swartout spoke to McFarland a second time, and the situation improved
slightly.
       On September 17, 2001, however, Hammond found McFarland at a printer at
work waiting to print out an image of Hammond’s new boyfriend. Hammond had e-
mailed this image to her personal e-mail account and believed that McFarland had
intercepted the e-mail. Hammond reported this incident to Swartout and told him to take



                                            4
action. Hammond made it clear that she wanted Berlin City to intervene. Swartout issued
a stern warning to McFarland to stop his behavior.
       On September 19, Hammond found a Post-it note on her computer, stating:
“Happy Birthday Louise. I want to know what happened to those times when we went
swimming naked and made love on Carter’s boat?” The note referred to an incident
during Hammond’s relationship with McFarland. Hammond reported the note to
Swartout, who said he would speak to McFarland.
       On September 21, Hammond was on vacation in Florida and learned from her
roommate in Vermont that McFarland had called her home 18 times in one day (several
times from work), leaving her three voicemail messages. McFarland’s messages were
something to the effect of him missing her and wanting to be with her. Hammond
reported this behavior to Swartout from Florida and told him to tell McFarland to stop
bothering her.
        There were a number of incidents after September 21 when McFarland continued
to call Hammond at her work station. Hammond told Swartout on October 8 that
McFarland’s behavior had not stopped: he continued to call her and read her e-mails.
Around this time, Swartout contacted Roach and reported that Hammond wanted Berlin
City to investigate the situation. Roach conducted an investigation and issued a written
warning to McFarland, threatening termination if incidents continued. Most of the
warning addressed work performance issues, such as McFarland spending more time at
the service counter and less time at his computer. Hammond was dissatisfied with Berlin
City’s actions, noting that she did not understand why management had not taken action
earlier.
        Even after this warning, including on October 11, McFarland continued to call
Hammond’s work station, and she continued to report these calls to Swartout. McFarland
would also make howling noises in the showroom directed at Hammond and he asked her
to attend the company’s Christmas party with him. McFarland also stopped by
Hammond’s house, and she also reported this to Swartout. Things did gradually improve
by 2002, however.
       Hammond also alleged that throughout these incidents, Swartout would often
appear disinterested, rolling his eyes at her reports. Swartout also would not ask any
questions to elicit further information and, on a couple of occasions, would abruptly end


                                            5
the conversation. Berlin City’s sexual harassment policy provides that upon a report to a
sexual harassment representative, “[t]he matter will be thoroughly investigated, and
appropriate, disciplinary action will be taken.”
       In mid-November, Roach became aware of certain managers, including
Hammond, taking half-day vacations. Roach imposed stricter scheduling and vacation
requirements on all Berlin City managers. He spoke to Hammond specifically about her
vacation practices. Hammond had frequently worked four-day weeks, which Roach no
longer wished to permit. At this time, he also denied Hammond’s six-week unpaid leave,
which was to begin in January. Hammond had requested this leave in July 2001 and the
office manager had orally granted her permission to take it. Hammond, a single mother,
needed the leave to care for her son, because her son’s child care provider was
unavailable. Hammond had to make last-minute arrangements for child care.
      In mid-2002, the general manager for the dealership wrote up an employee
warning for Hammond while she was on vacation. Hammond complained about this
warning, and the general manager acknowledged that he had issued it erroneously. He
withdrew the warning immediately.
       Before she left Berlin City, Hammond also received increased scrutiny from
Roach, including scrutiny over her scheduling, her lack of lunch breaks, and her use of a
particular parking spot. Hammond left Berlin City on September 20, 2002, and filed this
complaint shortly thereafter.
      The court first addresses the Equal Pay Act claims. The federal Equal Pay Act
provides that
             [n]o employer . . . shall discriminate . . . between employees on the basis of
             sex by paying wages to employees . . . at a rate less than the rate at which
             he pays wages to employees of the opposite sex in such establishment for
             equal work on jobs the performance of which requires equal skill, effort,
             and responsibility, and which are performed under similar working
             conditions, except where such payment is made pursuant to (i) a seniority
             system; (ii) a merit system; (iii) a system which measures earnings by
             quantity or quality of production; or (iv) a differential based on any other
             factor other than sex.
29 U.S.C. § 206(d)(1). To establish a claim under the Act, a plaintiff must show that her
job is “substantially equal” higher-paid jobs held by members of the opposite sex. Tomka


                                            6
v. Seilor Corp., 66 F.3d 1295, 1310 (2d Cir. 1995). “[J]obs which are ‘merely
comparable’ are insufficient to satisfy a plaintiff’s prima facie burden.” Id. (quoting
Lambert v. Genesee Hosp., 10 F.3d 46, 56 (2d Cir. 1993)). The jobs must have equal
“skill, effort, and responsibility,” as well as “similar working conditions.” The court is
guided by standards promulgated in Equal Employment Opportunity Commission
regulations, 29 C.F.R. §§ 1620.13–1620.18 (2004), in defining and applying these terms.
See Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 449 (D.C. Cir. 1976) (holding that
administrative interpretations of Equal Pay Act are entitled to “great deference” in
applying Act). The court’s “inquiry focuses on the primary duties of each job. Equal jobs
must have a common core of tasks.” Ballard v. Univ. of Vt., 166 Vt. 612, 614 (1997)
(mem.) (citations omitted).
       Once a plaintiff meets the initial burden of demonstrating that workers of the
opposite sex had positions that were substantially equal and received higher
compensation, the burden shifts to the defendant to demonstrate that any of the four
exceptions apply. Tomka, 66 F.3d at 1310. “An employer who attempts to justify a pay
differential based on a ‘factor other than sex’ must also prove that the gender-neutral
factor was adopted for a legitimate business reason.” Id.
       Berlin City argues that Hammond has failed to demonstrate that the skill, effort,
responsibility, and working conditions involved with her guest services position were
equal to any of the other positions that she alleges had higher pay scales. Hammond
argues that at least three positions—the general sales manager, the sales manager, and
finance manager—required substantially equal skill, effort, and responsibility, and the
work took place in similar working conditions.
       The court agrees that Hammond has met her burden to defeat summary judgment
with respect to the Equal Pay Act claims related to the general sales manager, sales
manager, and finance manager positions. First, the court notes that “[a]pplication of the
equal pay standard is not dependent on job classification or titles but depends rather on
actual job requirements and performance.” 29 C.F.R. § 1620.13(e). Moreover,
              [w]hat constitutes equal skill, equal effort, or equal responsibility cannot be
              precisely defined. In interpreting these key terms of the statute, the broad
              remedial purpose of the law must be taken into consideration. . . . It should
              be kept in mind that “equal” does not mean “identical.” Insubstantial or
              minor differences in the degree or amount of skill, or effort, or


                                             7
              responsibility required for the performance of jobs will not render the equal
              pay standard inapplicable.
Id. § 1620.14(a).
        Turning to the skills required for these positions, all jobs overlap in that they
generally require customer relations and communications skills. Hammond’s job entails
the primary interaction with customers, where she and her staff greet them and give them
a tour of the facility, answering any initial questions they might have. Sales managers
then handle customers as they consider a purchase and ultimately close a deal. And
finance managers handle loan options for customers who need to finance a purchase after
deciding on a particular vehicle. Although these positions may require different types of
skills in customer relations, Hammond has provided enough information for a rational
trier of fact to determine that the “amount or degree” of skill is the same. See id. §
1620.15(a). Berlin City characterizes Hammond’s Guest Services position and the
finance and sales positions as apples and oranges, but it provides no specific facts to
suggest that the customer relations skills needed in Hammond’s job were different in
degree or amount from those skills need to complete a sale or secure a loan.
       The positions also overlapped somewhat in the supervisory skills needed.
Although finance managers did not oversee a staff, the sales managers oversaw sales
guides and the general sales manager oversaw the sales managers. Guest Services and
Sales positions both dealt with hiring and training staff members.
        Skill also includes experience “measured in terms of the performance
requirements of the job.” Id. Berlin City alleges that sales managers required sales
experience and finance managers required finance experience, but it does not explain
how this experience is necessary for the jobs themselves. Hammond stated that her
managers at Berlin City had told her she could easily become a finance manager, even
though she did not have finance experience. If “experience” is merely brief, on-the-job
training about how financing works, for example, it represents an insignificant difference
in the skills required in both positions. The common core of skills relevant to all of these
positions according to Hammond’s allegations is customer relations and communications.
       Turning to effort, Hammond has provided enough facts to demonstrate that her job
required substantially equal “mental exertion” as the sales and finance jobs. See id. §
1620.16(a). Although the stresses of handling initial customer relations may differ from


                                             8
those related to closing a sale or securing adequate financing, Berlin City has not
demonstrated that they differ in “amount or degree.” Id. “[J]obs may require equal effort
in their performance even though the effort may be exerted in different ways on the two
jobs.” Id.
        With regard to responsibility, Hammond has also provided enough facts to
demonstrate that the responsibilities were substantially equal. “Responsibility is
concerned with the degree of accountability required in the performance of the job, with
emphasis on the importance of the job obligation.” Id. § 1620.17(a). As explained above,
both guest services and sales positions involved supervising a staff, so both positions
required accountability for the performance, discipline, and management of their staff
members. The general sales manager may have had a greater supervisory role than the
guest services manager, given that his staff included other managers, but the difference in
degree of supervisory responsibility is ultimately a question of fact. See, e.g., Tomka, 66
F.3d at 1311 (holding that where supervisory skills overlap to some degree, “it is for the
trier of fact to decide if this is a significant enough difference in responsibility”). All
positions required reports to the general manager and attendance at management
meetings with the general manager and the chief operating officer.
        Finally, all of these positions occurred in similar working conditions. The
working conditions standard is primarily concerned with actual surroundings and
hazards, rather than departmental differences. See 29 C.F.R. § 1620.18(a). All of these
positions maintained similar office space at the Berlin City dealership.
      Considering all of the above factors, the court holds that Hammond has met her
burden to defeat summary judgment by showing that her previous job as guest services
manager was substantially equal to the general sales manager, sales manager, and finance
manager positions.
       Berlin City argues that summary judgment in its favor is still appropriate because
the wage differential between Hammond’s position and the others was justified by a
factor “other than sex.” 29 U.S.C. § 206(d)(1)(iv). Berlin City, however, offers a mere
statement by its chief operating officer that the salaries for each management position
were “commensurate with the qualifications for the position, the responsibilities entailed
in each position, as well as the importance of the job function in the dealership.” This
statement is not enough to prove that the nongender factors the officer may have



                                             9
considered were legitimate business factors, especially considering that Hammond has
otherwise met her burden to show that the positions were substantially equal. In order to
meet its burden on this affirmative defense, Berlin City must state the specific
qualifications, responsibilities, and important aspects of each job and state how these
factors correspond to the wage differentials. See, e.g., Belfi v. Prendergast, 191 F.3d 129,
138 (2d Cir. 1999). A trier of fact must ultimately determine whether Berlin City’s
alleged reasons for the wage differential were legitimate, unless there is no genuine issue
of fact as to Berlin City’s explanation. Because Berlin City has yet to offer a complete
explanation, though, the court cannot apply the affirmative defense. Hence, Berlin City’s
summary judgment motion is denied with respect to Hammond’s Equal Pay Act claims
regarding the general sales manager, sales manager, and finance manager positions.
       With regard to other positions at Berlin City, Hammond claims that further
discovery might uncover additional similarities. Much of the discovery is incomplete in
this case because of discovery disputes. She therefore seeks a Rule 56(f) continuance.
Hammond should, however, be able to provide some information from personal
knowledge about these other positions to demonstrate that they are substantially equal to
the guest services position. Given that she has provided no such information, a Rule 56(f)
continuance is unwarranted. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1138
(2d Cir. 1994) (“A court can reject a request for discovery, even if properly and timely
made through a Rule 56(f) affidavit, if it deems the request to be based on speculation as
to what potentially could be discovered.”); Hudson River Sloop Clearwater, Inc. v. Dept.
of Navy, 891 F.2d 414, 422 (2d Cir. 1989) (holding that Rule 56(f) motion was properly
denied where plaintiffs had “reasonable access” to facts that were of “public nature”).
Summary judgment is therefore appropriate for Berlin City with respect to Equal Pay Act
claims regarding positions other than the general sales, sales, and finance managers.
        Turning next to the Fair Employment Practices Act claims, Berlin City first argues
that the alleged hostile work environment did not arise “because of . . . sex.” 21 V.S.A. §
495(a)(1). Berlin City argues that according to federal caselaw regarding the federal fair
employment practices statute, 42 U.S.C. § 2000e–2, where conduct related to a hostile
environment arises out of a failed relationship, the conduct is not based on sexual
discrimination but on the failed relationship. Applying this rule to this case, the alleged
hostile environment is not actionable because it arose out of Hammond’s failed
relationship with McFarland, not because of Hammond’s gender.


                                             10
        Federal courts have espoused a general rule that harassment based on a
relationship gone sour may not constitute harassment because of sex. See, e.g., Succar v.
Dade County Sch. Bd., 229 F.3d 1343, 1345 (11th Cir. 2000) (per curiam); Huebschen v.
Dep’t of Health & Soc. Servs., 716 F.2d 1167, 1172 (7th Cir. 1983). Courts have applied
this rule where the facts demonstrate that no reasonable trier of fact could determine that
the harassment which occurred was based on anything but a failed relationship. Compare
Perez v. MCI World Com Communications, 154 F. Supp. 2d 932, 941–42 (N.D. Tex.
2001) (holding that former lover’s scorn was not gender-based but based purely on
animosity following failed relationship) with Green v. Adm’rs of Tulane Educ. Fund, 284
F.3d 642, 656–57 (5th Cir. 2002) (declining to apply Succar where evidence supported
finding that harassment was based on plaintiff’s refusal to continue having sexual
relationship). Indeed, the Eleventh Circuit declined to extend its Succar holding to a case
where a male supervisor engaged in a pattern of harassment and ultimately fired a female
employee who terminated a relationship with him. See Lipphardt v. Durango Steakhouse
of Brandon, Inc., 267 F.3d 1183, 1185 (11th Cir. 2001). The court in Lipphardt held that
a prior relationship is merely a factor to consider and noted that, unlike in Succar, the
supervisor’s harassment in Lipphardt was sexual in nature. Id. at 1188–89. Thus, the
court held that “there is a point where inappropriate behavior crosses the line into
[sexual] harassment.” Id. at 1188. As the Maine District Court recently held in analyzing
this rule the choice of “weapon” by an harassing party can determine the side of the line
onto which a case falls. Oakstone v. Postmaster Gen., 332 F. Supp. 2d 261, 271 (D. Me.
2004).
        Here, there exists a triable issue of fact as to whether the alleged hostile
environment was more than the vengeful outbursts of a lover scorned. McFarland chose
as his “weapon” constant phone calls and visits at Hammond’s work station, asking
Hammond to continue their relationship months after Hammond had broken it off.
McFarland also continually accessed Hammond’s e-mail account, reading her personal
messages, and took roses and other mementoes from Hammond’s desk. More than five
months after Hammond had broken off her relationship with him, McFarland was still
calling her on the phone at work making “kissing noises,” left a Post-it note with a lewd
message on her computer screen, and was making howling noises directed toward
Hammond. This type of behavior might be considered a non-gender-based lovers’ spat if
it occurred shortly after the end of a relationship, but five months of continuous



                                            11
harassment creates an issue of fact as to whether the harassment constituted a
discriminatory hostile environment, regardless of the prior relationship.
        Berlin City further argues that the type of behavior by McFarland was not
sufficiently severe to constitute a hostile environment. To satisfy her burden in
responding to a summary judgment motion, Hammond needs to establish a genuine issue
of fact as to whether she was subjected to “unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual nature,” thereby creating
an offensive working atmosphere. 21 V.S.A. § 495d(13); Allen v. Dept. of Employ. &
Training, 159 Vt. 286, 290 (1992) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57,
64–67 (1986)). Hammond has presented enough facts to create a genuine issue of
material fact that McFarland’s advances created an “offensive working atmosphere.” As
discussed above, the consistent advances, phone calls, visits, and e-mail interceptions
could lead a reasonable trier of fact to find a hostile environment.
        Berlin City next argues that even if McFarland’s conduct created a hostile
environment, Berlin City’s remedial action in response to Hammond’s complaints creates
a defense against Hammond’s claim. In a hostile environment sexual harassment claim, a
plaintiff must demonstrate “a specific basis . . . for imputing the conduct that created the
hostile environment to the employer.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d
Cir. 1997). “When harassment is perpetrated by the plaintiff’s coworkers, an employer
will be liable if the plaintiff demonstrates that ‘the employer either provided no
reasonable avenue for complaint or knew of the harassment but did nothing about it.’” Id.
(quoting Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994) (internal quotes
omitted)). Courts judge an employer’s reaction to sexual harassment complaints and
protection of a complaining employee under a “reasonable care” standard. See Whidbee
v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72–73 (2d Cir. 2000).
       Here, Hammond’s allegations call into question whether Berlin City’s response to
her complaints about McFarland’s behavior was reasonable and adequate. She notes that
Swartout was “hardly receptive” to her complaints and “frequently displayed a
disinterested attitude and would not ask questions to elicit further information.”
Hammond also stated that Berlin City took no action beyond verbal warnings during a
six-week period in which she made several complaints about McFarland to Swartout. It
was not until Hammond demanded that Swartout take action that he issued a stern
warning to McFarland. Even at that point, however, Swartout did not report the


                                            12
harassment to upper management, and the harassment continued with little investigation
or action. Later, when McFarland’s harassment continued with the lewd Post-it note on
Hammond’s computer, Swartout apparently did nothing beyond a verbal warning. When
McFarland called Hammond’s home 18 times in a single day, on some occasions from
his office, while Hammond was on vacation, Hammond reported the calls to Swartout
and he again apparently did nothing beyond a verbal warning. It was not until several
weeks later, after several more complaints, that Swartout reported the situation to Chief
Operating Officer Roach, who began an investigation.
       Berlin City disputes Hammond’s allegations, arguing that she did not request any
action beyond verbal warnings until after much of the harassment took place and that
Swartout took immediate action, reporting the situation to Roach. This dispute is
ultimately an issue for the factfinder. For the purposes of this motion, Hammond
establishes her burden of showing a genuine issue as to whether Berlin City’s response
lacked reasonable and appropriate care under the circumstances.
        Moving on to the retaliation claim, a prima facie case for retaliation requires (1)
that a plaintiff engaged in protected activity, (2) that an employer was aware of the
activity, (3) that the plaintiff suffered adverse employment action, and (4) that there was a
causal connection between the protected activity and adverse employment action.
Beckman v. Edson Hill Manor, Inc., 171 Vt. 607, 608 (2000) (mem.). The plaintiff’s
burden at this stage is “relatively light.” Id. Once a plaintiff establishes a prima facie
case, the burden of production shifts to the employer to “articulate some legitimate,
nondiscriminatory reason” for the adverse employment action. Id. (internal quotes
omitted). “If an employer meets this burden of production, the burden then shifts back to
the plaintiff to prove by a preponderance of evidence that the employer’s given reason is
a pretext and not the true reason for the employment decision.” Id.
       Berlin City first argues that its actions did not rise to the level of “adverse
employment action.” The Vermont Supreme Court has not articulated a precise standard
for determining what actions constitute “adverse employment actions,” but the Court has
held that they must be “sufficiently severe.” See, e.g., id. at 609. Ultimately, as was the
case in Beckman, the severity of the actions is a question of fact that is inappropriate for
summary judgment except in cases where the employer’s actions failed to reach a certain
threshold level of significance. See, e.g., Murray v. St. Michael’s College, 164 Vt. 205,
211 (1995) (holding that expression of anger and frustration over plaintiff’s filing of


                                             13
workers’ compensation claim, efforts to persuade plaintiff not to appeal denial of
benefits, reduction of plaintiff’s duties, shift changes to include night shift, and unfairly
low job evaluations were “plainly adverse” in summary judgment context).
        Although federal courts have varying standards and the Vermont Supreme Court
has not yet adopted one in particular, federal caselaw is still instructive in determining a
threshold level of significance necessary to establish adverse employment action. See,
e.g., Birch v. Cuyahoga County Probate Court, 392 F.3d 151, 169 (6th Cir. 2004)
(holding that termination which was immediately rescinded and increased scrutiny over
plaintiff’s work did not amount to adverse actions); Stover v. Martinez, 382 F.3d 1064,
1072–73 (10th Cir. 2004) (holding that lack of promotion where plaintiff did not apply
for promotion and lack of particular assignment did not amount to adverse action); Davis
v. Dallas Area Rapid Transp., 383 F.3d 309, 319–20 (5th Cir. 2004) (holding that denial
of promotion through rigged exam process meets prima facie case for adverse action).
        Although courts must ultimately proceed on a case-by-case basis, Stover, 382 F.3d
at 1071, a plaintiff must establish that the employer’s action had some effect on the
plaintiff’s “pay, benefits, seniority, or responsibility,” Horn v. Univ. of Minn., 362 F.3d
1042, 1046 (8th Cir. 2004).
              Not everything that makes an employee unhappy constitutes an actionable
              adverse employment action. A negative employment review, for example,
              is actionable only if the employer subsequently uses the evaluation as a
              basis to alter in a detrimental way the terms or conditions of the recipient's
              employment. Minor changes in duties or working conditions that do not
              result in materially significant disadvantage “do not meet the standard of an
              adverse employment action . . . .”
Henthorn v. Capitol Communications, Inc., 359 F.3d 1021, 1028 (8th Cir. 2004)
(alterations in original, citations omitted) (quoting Kerns v. Capital Graphics, Inc., 178
F.3d 1011, 1016–17 (8th Cir. 1999)).
       Here, Hammond provides sufficient facts to defeat summary judgment on the
adverse action element. Although it might not be unreasonable for an employer to deny
six weeks of leave, as occurred here, Berlin City’s denial of Hammond’s request after it
had already approved of the leave suggests that it was changing a benefit Hammond had
secured. Such a change in benefits creates a genuine issue of fact as to whether
Hammond suffered adverse action, especially considering that the denial forced


                                              14
Hammond, a single mother, to make last minute arrangements to secure child care. Berlin
City’s reprimand of Hammond, however, does not amount to adverse action, because it
was immediately withdrawn and had no apparent effect on Hammond’s employment
status. Summary judgment is therefore appropriate on this particular claim of adverse
action.2
        Berlin City next argues that there was no causal connection between denying
Hammond’s six-week leave and the sexual harassment complaints. The court reiterates
that a plaintiff has a light burden in establishing a prima facie case in a retaliation claim.
Beckman, 171 Vt. at 608. With regard to causation, a plaintiff need not provide direct
evidence, but “may establish a link indirectly by showing that the timing of [the protected
activity] and the retaliatory action was suspect.” Gallipo v. City of Rutland, 163 Vt. 83,
93 (1994); see also Robertson v. Mylan Laboratories, Inc., 2004 VT 15, ¶ 30 (holding
that to show causation, “[p]laintiff must come forward with evidence to show that the
circumstances surrounding [the alleged discrimination] permit an inference of unlawful
discrimination”). In Gallipo, for example, the time between the plaintiff’s protected
activity and the alleged retaliation was seven months, but the Court held that the sudden
change in the plaintiff’s assignments and discipline after years of contrary action by his
employer provided a genuine issue of fact as to whether the employer’s adverse action
was causally linked to the plaintiff’s protected activity. 163 Vt. at 93.
        Here, Hammond has met her initial burden to show a causal link between the
denial of her unpaid leave and the protected activity. The denial occurred a mere two
months after the complaint that initiated an investigation into McFarland’s conduct. This
is sufficiently close in time to create a reasonable inference that the complaint caused the
denial of unpaid leave.
       Berlin City also argues that it denied Hammond’s leave for a legitimate and non-
discriminatory reason. Berlin City states that it implemented more stringent scheduling




       2
         Hammond also raises other minor actions by Berlin City, such as Hammond being
“taken to task” for her four day work weeks, her scheduling practices, her lack of lunch breaks,
and her parking spot. These actions, however, did not significantly disadvantage Hammond and
therefore do not rise to the level of adverse actions. Summary judgment is appropriate for these
claims, as well.


                                               15
and vacation requirements on all of its managers. Therefore, Berlin City argues,
Hammond cannot demonstrate that Berlin City’s reason is pretext for retaliation.
       To show that an alleged legitimate reason for an employer’s adverse action is
pretext, a plaintiff can rely on her prima facie case “combined with sufficient evidence of
pretext.” Robertson, 2004 VT 15, ¶ 32 (citing Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 148 (2000)). On a summary judgment motion, courts must consider “a
number of factors, including ‘the strength of the plaintiff’s prima facie case, the probative
value of the proof that the employer’s explanation is false, and any other evidence that
supports the employer’s case and that properly may be considered’ on a summary
judgment motion.” Id., ¶ 33 (quoting Reeves, 530 U.S. at 148–49).
       Here, the court notes that more stringent policies which theoretically apply to all
managers may still, in practice, be designed to have a disparate impact on a single
manager. There is a reasonable inference that this was the case here, where Hammond’s
leave time was abruptly withdrawn about a month before it was to begin. If no other
managers had requested such leave time, then Berlin City’s universal policy changes
appeared to affect Hammond alone. Moreover, Hammond alleged that Berlin City’s
policies appeared to have a particularly harsh application for her alone, as other
employees at Berlin City noticed. Hammond has therefore presented enough facts to
demonstrate a genuine issue as to whether Berlin City’s alleged legitimate reason for its
action was pretext.
        With regard to Hammond’s final claim of wage discrimination under the Fair
Employment Practices Act, 21 V.S.A. § 495(a)(8), Berlin City argues that Hammond has
failed to demonstrate the necessary discriminatory intent on Berlin City’s part. Hammond
argues that the surrounding circumstances of the different wages all support a finding of
intent.
        Fair Employment Practices Act claims require a plaintiff to show intentional
discrimination, meaning that “the discrimination was a ‘motivating factor’ for the alleged
unlawful action.” Gallipo v. City of Rutland, 173 Vt. 223, 237 (2001) (quoting Knapp v.
State, 168 Vt. 590, 591 (1998)). Courts follow a “shifting burden” approach similar to
that described above with respect to retaliation claims. In other words, following a prima
facie showing that the plaintiff received lower wages than similarly situated males and
there was an inference of discrimination, the employer must provide a legitimate reason



                                             16
for the wage differences. The plaintiff then must provide sufficient evidence that the
employer’s reason is pretext and that the wage difference was the result of “intentional
discrimination.” Robertson, 2004 VT 15, ¶¶ 25–27, 41 n.8; Luciano v. Olsten Corp., 110
F.3d 210, 215 (2d Cir. 1997).
              When plaintiff proves that the explanations offered by her employer for
              wage disparity are false, such does not automatically mean that plaintiff has
              carried her burden of persuasion on the factor of intent. Something is still
              needed when the employer's reasons for its actions are shown to be
              pretextual, that is to say, it must also be shown that not only was the reason
              offered false, but that the real reason was discrimination.
Belfi v. Prendergast, 191 F.3d 129, 140 (2d Cir. 1999). But “[t]he factfinder's disbelief of
the reasons put forward by the defendant . . . may, together with the elements of the
prima facie case, suffice to show intentional discrimination. Thus, rejection of the
defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of
intentional discrimination . . . .” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993).
        Here, Hammond has provided adequate evidence to create an issue as to whether
Berlin City’s reasons for its different wages were pretext and this evidence, along with
her prima facie case, creates a rational inference of discriminatory intent. Hammond
states that when Berlin City’s upper management canceled her scheduled unpaid leave,
Roach informed her that her position was as important as the general manager and service
manager positions, so he could not permit her the leave time. This, along with other
statements regarding the equal importance of guest services with other departments at
Berlin City, provide an inference for a trier of fact to determine that Berlin City’s reasons
for different wages were pretext for discrimination. Therefore, summary judgment is
denied with respect to Hammond’s Fair Employment Practices Act claim for unlawful
wage discrimination.
       Finally, the court notes that prior to this summary judgment ruling, the court had
denied Hammond’s motion to compel, holding that the court would defer ruling on the
discovery issues until after its disposition of the summary judgment motion. In light of
the instant entry, the parties shall attempt to resolve any remaining discovery disputes
through a Rule 26(h) conference and, if they cannot resolve their disputes, file
appropriate motions to the court.


                                             17
                                     ORDER
        For the foregoing reasons, Berlin City’s summary judgment motion is GRANTED
in part and DENIED in part, consistent with this entry.


      Dated at Burlington, Vermont, March 10, 2005.



                                                      __________/s/______________
                                                      Richard Walsh Norton  Judge




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