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Defendant's Attorney: Kevin L. Kite, Mara D. Afzali, Michael D. Billok

Description: Burlington, Vermont employment law lawyer represented Plaintiff, who sued Defendant claiming wrongful "retaliation in violation of the Vermont Occupational Safety and Health Act ('VOSHA'), 21 V.S.A. §§ 201-32, and retaliation in violation of the Vermont Earned Sick Time Act ('VESTA'), 21 V.S.A. §§ 481-87,..." Cole v. Foxmar, Inc. (D. Vt. 2022).

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Defendant is a company that partners with the U.S. Department of Labor, Office of Job Corps, and local Workforce Investment Boards for the management and operation of Job Corps Centers and customized workforce development programs that serve both youth and adults. On June 1, 2018, Defendant assumed management of the Northland Job Corps Center ("NJCC") located at 100A MacDonough Drive, Vergennes, Vermont. Prior to Defendant's management of NJCC, it was managed by Chugach Education Services, Inc. ("Chugach").

         Plaintiff was hired as a Residential Counselor ("RC") in 2018 under Chugach's management and was rehired in that position when Defendant assumed management of NJCC. As an RC, Plaintiffs duties included interacting with students and overseeing dormitory maintenance.

         Defendant's employee handbook (the "Handbook") identifies job abandonment as a "[dischargeable [o]ffense" and contains an Attendance and Punctuality policy which notes that "[a]bsence from work for three (3) consecutive days without notifying your manager or the Human Resources Department will be considered a voluntary resignation and job abandonment." (Doc. 58-13 at 28, 40.) Although the Handbook includes an "accountability schedule" that distinguishes between minor, major, and dischargeable offenses, it also states that "[a]t management's discretion, any violation of policies or any conduct considered inappropriate or unsatisfactory may subject the offender to accountability action, up to and including losing your job." Id. at 38, 40 (italics omitted).

         The Handbook further states:

Employees who do not have an individualized written employment contract or a collective bargaining agreement are employed at the will of the company. This means that you are free to quit at any time, for any reason, just as we are free to release you from employment at any time, for any reason with or without notice or cause. Id. at 20. Plaintiff did not have an express individualized employment contract and was not covered by a collaborative bargaining agreement.

         In dismissing Plaintiffs claims for breach of contract and breach of implied covenant of good faith and fair dealing claim based on an alleged contract, the court held that he was an at-will employee as a matter of law and that the Handbook did not guarantee progressive discipline. Cole v. Foxmar, Inc., 387 F.Supp.3d 370, 386 (D. Vt. 2019).

         On July 23, 2018, Plaintiffs supervisor, Angela Mobley, assigned him to Dorm 24, which was not his typical dormitory assignment. The students in Dorm 24 informed Plaintiff and Ms. Mobley that the dormitory was out of sanitizer and had been for an unknown period of time. When asked to clean the dormitory, some of the students told Plaintiff that they could not perform this task because they were sick. Plaintiff testified that cleaning supplies were often missing and RCs were forced to purchase them with their own money.

         At trial, there was evidence that Defendant required employees to bring safety complaints only to their direct supervisor, which Howard Harmon, Defendant's Executive Vice President and Chief Operating Officer, testified was motivated in part by a desire to limit complaints to the United States Department of Labor (the "DOL"). Correspondingly, employees were discouraged from making complaints to the DOL, including with regard to an incident of a student with a weapon, substandard food quality, and mold in the dorms. There was also evidence that NJCC experienced problems in each of these sectors, and Mr. Harmon himself acknowledged that at the time Defendant took over NJCC, it was a "mess." (Tr. 645.)

         On the morning of Tuesday, July 24, 2018, Plaintiff met with Alicia Grangent, NJCC's Center Director responsible for overseeing the NJCC campus and the highest-ranking on-site member of Defendant's staff. Plaintiff expressed his concerns about the failure to properly supply a dormitory with cleaning supplies. He also complained that RCs were not allowed to leave work when they were sick, placing students and other employees at risk. At trial, he testified inconsistently regarding whether he discussed with Ms. Grangent the need for sick employees to find their own replacements. He stated that he overheard Ms. Mobley tell a sick RC that "[w]e will find somebody so that you can go home." (Tr. 152.) (internal quotation marks omitted). Plaintiff admitted that he had worked while he was sick in the past and did not believe it was a violation of the law.

         Ms. Grangent notified Ms. Mobley and Bernadette Brookes, the Human Resources Director for NJCC, about her meeting with Plaintiff and the substance of his concerns. Ms. Grangent also claimed to have alerted Defendant's corporate officers. When Plaintiff returned to NJCC for his afternoon shift, he saw RC Paige Howell and another RC, both of whom were sick and one of whom was lying on a couch in a fetal position. Plaintiff also felt sick and decided to leave work. On his way to Ms. Grangent's office, Plaintiff encountered Ms. Grangent on campus. They spoke briefly, and Plaintiff informed her that he was leaving. When Ms. Grangent asked him to wait to discuss the matter further, he stated he needed to leave. Plaintiff then stopped by Ms. Grangent's office and spoke to her assistant, Brian Lacharite, to let Mr. Lacharite know he was leaving and would not be returning to work that day. Mr. Lacharite testified that on more than one occasion, Ms. Mobley informed staff to find their own replacements if they called out sick.

         Plaintiff was not scheduled to work on Wednesday, July 25, 2018, or Thursday, July 26, 2018. On Wednesday, July 25, 2018, Plaintiff called Defendant's Human Resources Department, located at its corporate headquarters in Kentucky, and left a voicemail indicating that he was experiencing difficulties at NJCC and looking for assistance. He received no response to his voicemail. He also went to the NJCC campus to speak with Ms. Brookes. He was unable to speak to her but spoke to her assistant, Mari Trybendis, and explained he had safety concerns he wanted to share, including a lack of cleaning supplies and sick employees working.

         On Thursday, Plaintiff called Defendant's corporate headquarters a second time and left a voicemail stating he was having difficulties at NJCC and was looking for assistance and direction. On the morning of Friday, July 27, 2018, Plaintiff drafted a letter to Ms. Brookes and at approximately 9:34 a.m. emailed it to Ms. Trybendis and to Ms. Grangent. Plaintiffs letter stated:

I met with Northlands Center Director on Tuesday morning, 7/24/2018 to express my concerns of oversight on health and wellness related practices within the Department of Independent Living.

In particular, I cited a willingness on the part of the department lead to retain staff members for shift coverage after acknowledging that the staff member had symptoms of diarrhea, vomiting and dizziness.

I also spoke of reassignment the previous evening to a dorm that could be determined unsanitary. An address of the students by the Independent Living Coordinator during accountability resulted in the disclosure that there were no cleaning chemicals on site, to include sanitizer, and it was undetermined as to the length of time that had passed in the absence of proper sanitizing.

Not feeling well, I departed prior to my shift and again alerted the Center Director to my earlier concerns and to the presence of a staff member laying in the fetal position on a lounge couch at the time of their arrival for in briefing.

I believe these conditions present an unnecessary risk to my personal health and wellness and negatively impact the over all confidence in my role and presence within the Department of Independent Living.

I am asking for the consideration of a job reassignment out of the Department of Independent Living.

(Doc. 65-3 at 1.)

         On Thursday, July 26, 2018, Ms. Brookes spoke with Ms. Mobley and told her that Plaintiff had not contacted her regarding leaving his shift on Tuesday, July 24, 2018. Ms. Brookes asked Ms. Mobley when Plaintiff was scheduled to work that week, and Ms. Mobley responded that Plaintiff missed his scheduled shifts on Wednesday and Thursday, July 25-26, 2018, and that he abandoned his shift on Tuesday, July 24, 2018. Because of these absences, Ms. Mobley stated she believed Plaintiff should be terminated. Ms. Grangent refused to approve Plaintiffs termination and advised Ms. Brookes and Ms. Mobley that Plaintiff could not be terminated for job abandonment because he had not yet missed three days of work.

         On Friday, July 27, 2018, at approximately 10:07 a.m., Ms. Brookes emailed Mr. Harmon; Ms. Mobley; Ms. Grangent; and Scott Dunham, Defendant's Vice President, Center Operations & Support, recommending Plaintiff be disciplined and reassigned. She included a description of Plaintiff s conduct over the course of the preceding week from Ms. Mobley in her email. Ms. Brookes referred to the fact that when Chugach operated the NJCC campus, Plaintiff had been reprimanded for leaving a shift early and for using inappropriate language with students. Ms. Brookes wrote that Plaintiffs "prior behavior under Chugach counts for [N]CC] as it relates to interfacing with the students as they are still here. The recommended write up has been discarded due to the contract change but the behavior is still a running commentary for [N]CC]." Cole v. Foxmar, Inc., 2021 WL 5178822, at *4 (D. Vt. Mar. 8, 2021). Ms. Grangent replied suggesting discipline but not reassignment and stated that Plaintiff s job abandonment under Chugach "doesn't count." Id.

         At 11:21 a.m., Mr. Harmon responded recommending Plaintiffs termination but deferring to Ms. Brookes and Ms. Grangent for the final decision. Ms. Brookes responded at 12:12 p.m. that it had been decided that Plaintiff should be terminated for both job abandonment and failing to report to work for three days.

         In the afternoon of July 27, 2018, Ms. Brookes met with Plaintiff to inform him of his termination. During that meeting, Plaintiff asked Ms. Brookes if she had read his letter, and she responded that she was unaware of his letter. Defendant thereafter issued Plaintiff a termination notice dated July 27, 2018, which stated that Plaintiff was terminated because he did not report for his scheduled shifts on Monday, July 23; Tuesday, July 24; and Wednesday July 25, 2018. The termination notice was signed by Mr. Harmon, Ms. Mobley, and Ms. Brookes.

         On August 20, 2018, Plaintiff contacted Mr. Harmon to notify him that there were errors in his termination letter regarding his schedule. Mr. Harmon told Plaintiff that he was an at-will employee and was terminated during his probationary period and that, for this reason, Defendant was not required to provide him with any reason for his termination.

         Ms. Grangent and Ms. Trybendis both testified that NJCC employees who missed work for one day without notice were not terminated. In addition, Ms. Trybendis testified that in at least two other cases, NJCC employees who had missed more than three consecutive days without notice were not terminated.

         Plaintiff filed a complaint in Vermont Superior Court in November 2018, and Defendant removed the case to this court on December 10, 2018. Plaintiff alleged that the claimed reason for his termination was false and pretextual and that he was actually terminated because he complained to his supervisors regarding health and safety violations he witnessed. On May 16, 2019, upon Defendant's motion, the court dismissed Plaintiffs claims for wrongful termination in violation of public policy, breach of contract, and breach of implied covenant of good faith and fair dealing. On March 8, 2021, the court granted in part and denied in part Defendant's motion for summary judgment, dismissing Plaintiffs promissory estoppel claim but allowing his claims for retaliation under VOSHA and VESTA to proceed.

         From July 26, 2021 to July 30, 2021, the court held a jury trial, at which Plaintiff, Mr. Lacharite, Ms. Grangent, Ms. Brookes, and Mr. Harmon testified. Ms. Howell and Ms. Trybendis were unavailable to testify, and portions of their deposition testimony were read into the record. Economist Richard Heaps, who testified for Plaintiff, and economist Charles Amodio, who testified for Defendant, opined as expert witnesses on the issues of front pay and back pay. After the close of evidence, Defendant moved for judgment as a matter of law, which the court denied. The jury returned a verdict for Plaintiff on both counts.

Outcome: Plaintiff's verdict for $55,000.00.

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