Vermont Supreme Court rejects teacher’s VFEPA discrimination claim
Jeff Nolan, Maggie Platzer, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Jeff Nolan
Sensational media reports on high-profile cases sometimes lead us to lament that “anyone can file a lawsuit” and employers will inevitably be faced with the uncertainty and expense of a jury trial. That mind-set can contribute to employers being too eager to settle even meritless employment discrimination cases, at least in some parts of the country. By contrast, it has been our experience that Vermont courts review employment-related lawsuits and other cases fairly with regard to all parties and don’t hesitate to dig in to make a determination about whether the pretrial fact-finding process really has yielded material factual disputes that require a jury trial.
A December 2016 decision from the Vermont Supreme Court is, quite literally, a case in point. While it isn’t binding precedent that must be followed by other Vermont courts because it was decided by three rather than five justices, it does provide an example of how solid documentation and apparently reasonable employment actions can prevail over discrimination claims.
According to the court’s decision, the case involved the termination of the employment of an employee who was born in the Ivory Coast and had become a U.S. citizen. He was employed by a high school in Vermont as a French teacher and a soccer coach for 25 years.
In the spring of 2014, the school received a letter from a parent asserting that “in addition to [engaging in] ongoing demeaning and abusive criticism [of a student] in front of her peers,” the teacher had told the student that “sometimes he wants to slap her.” The teacher disputed that his behavior was “demeaning and insulting” to students and disputed when the slap comment was made, but he didn’t deny making the comment, explaining that he said it in a “joking way.”
After an investigation, a school administrator gave the teacher two letters explaining that he was expected to address certain issues and that his failure to do so could result in discipline, including termination. Both letters also emphasized the school’s policy against abusive, hostile, or intimidating behavior and language.
Three weeks later, the school received a report that the teacher told a student, in class and in front of other students, that she should “go kill herself.” During the school’s investigation, the teacher admitted making the statement. In response, the school placed him on paid administrative leave, relieved him of his duties for the remainder of the school year, and informed him that his contract, a year-by-year agreement that expired in August 2014, wouldn’t be renewed. The teacher received the entire salary he was owed under the existing contract.
In the fall of 2014, the teacher filed a lawsuit against the school alleging discrimination based on his race and national origin, breach of an express or implied employment contract, and another claim that wasn’t pursued on appeal. The parties conducted discovery (i.e., they exchanged relevant documents and took depositions of witnesses). In October 2015, after a lengthy discovery period, the school filed what is known as a motion for summary judgment. In a motion for summary judgment, a party asserts that a trial isn’t necessary and the case should be resolved in its favor because, in light of facts that either are undisputed or couldn’t reasonably be disputed, the other party won’t be able to prevail at a trial on any of his claims.
The trial court granted summary judgment in favor of the school on all of the teacher’s claims. In response, the teacher claimed that the court’s adverse decision indicated that the judge was biased against him. He appealed the trial court’s ruling, and the Vermont Supreme Court affirmed the lower court’s decision to grant summary judgment in favor of the school and dismiss the case.
Discrimination claim. The teacher asserted several arguments in challenging the trial court’s decision to grant summary judgment in favor of the school on his discrimination claim. The court quickly rejected his argument that the trial court’s decision against him was itself the result of bias on the part of the judge, observing that adverse court decisions alone are insufficient to demonstrate bias.
In terms of substance, the teacher claimed that the school violated the Vermont Fair Employment Practices Act (VFEPA) by discriminating against him on the basis of his race or national origin. The court observed that to establish what is known as a prima facie (minimally sufficient) case of employment discrimination, an employee must show that (1) he is a member of a protected group, (2) he was qualified for his position, (3) he suffered an adverse employment action, and (4) the circumstances surrounding the adverse employment action permit an inference of discrimination.
The court went on to observe that once a prima facie case is established, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its adverse action against the employee. After the employer produces evidence of a legitimate nondiscriminatory reason for its action, the employee must prove that its justification is a pretext, or excuse, for discrimination. To show pretext, the employee must rebut the proffered reason with facts from which a fact finder could reasonably conclude that it is unworthy of credence. The court emphasized that pretext “may be demonstrated by evidence of unequal treatment of members of a protected class, past employer practice, or a pattern of discrimination by [the] employer.”
Applying that legal framework to the case at hand, the court focused on whether the teacher had produced material evidence sufficient to demonstrate pretext. For purposes of summary judgment, the school agreed that the teacher could support a prima facie case, but it argued that his undisputed actions—i.e., telling a student that “sometimes he wanted to slap her” and telling another student to “go kill herself” a few weeks after being warned of the consequences of such behavior—were legitimate nondiscriminatory reasons for not renewing his contract.
The teacher didn’t claim that the school’s reasons weren’t legitimate justifications for not renewing his contract. Instead, he argued that the school merely relied on those reasons as a pretext to hide its discriminatory motivations. In support of that argument, he asserted that there was evidence of past discrimination against him (i.e., he claimed the school had discriminated against him in the past by firing him as the girls’ soccer coach but rehired him after a public outcry) as well as evidence of disparate treatment (i.e., white teachers who had committed similar offenses weren’t disciplined in the same way he was). The trial court rejected both of his arguments, and the Vermont Supreme Court agreed.
First, the supreme court explained that the undisputed evidence showed that the teacher’s firing as soccer coach was based on parents’ answers in a survey about his coaching style and performance, and there was no evidence that the adverse action was otherwise motivated by his race or national origin. Second, the court rejected the teacher’s arguments that white teachers who engaged in misconduct were treated more leniently than he was because he failed to sufficiently articulate those arguments to the trial court. The court explained that arguments and facts not brought up before the trial court cannot be raised for the first time on appeal.
Contract claim. The teacher also argued that the trial court was wrong to dismiss his claim for breach of contract. He didn’t assert that the school was obligated to renew his contract but instead claimed that he was “wrongfully dismissed.” The court rejected that somewhat novel claim, noting that his “contract’s terms were limited to one year and contained no right to renewal.”
The court also emphasized that the teacher received the full payment he was owed under the contract, so he couldn’t establish one of the elements of a breach of contract claim—that there was evidence of money damages attributable to the alleged breach. St. Ambroise Azagoh- Kouadio v. Roman Catholic Diocese of Burlington, 2016 WL 7364740 (Vt. Dec. 1, 2016).
First and foremost, the court’s decision demonstrates the importance of creating and maintaining good documentation of your adverse employment decisions, even in cases in which employment is “at will.” Although you may technically refuse to state your reasons for deciding to terminate the at-will-employment relationship, it’s usually best to create and maintain documentation of all termination decisions and share your reasons for ending the relationship with the employee, at least in summary form. Comprehensive documentation will help you establish a legitimate nondiscriminatory reason for your actions if the employee later files a discrimination claim.
Remember, any employee, whether he has an atwill or “for-cause” relationship, can assert a statutory discrimination claim. Undoubtedly, the school was relieved that it could point to evidence of its nondiscriminatory reasons for the adverse actions against the teacher: its documented investigations into his allegedly inappropriate comments and, apparently, parent survey results criticizing his performance as soccer coach.
Second, the court’s decision illustrates that it’s sometimes money well spent to pay out the remainder of a contract to an employee accused of misconduct (while prohibiting him from performing any work that could jeopardize your organization during the remainder of his contract) rather than attempting to terminate his contract midterm. Such decisions will, of course, involve a case-by-case weighing of the terms of a particular contract (e.g., whether there are stated standards for early termination and how stringent those standards are), the amount of compensation at issue, and the seriousness of the misconduct.
To be clear, there’s some precedent from the Vermont Supreme Court that even term contracts without stated termination provisions can be terminated for just cause. But when you’re deciding whether to take such a tack, it is prudent to at least consider the court’s conclusion in this case that the teacher did not have a claim for wrongful dismissal or breach of contract because his contract expired of its own terms and he received all payments he was owed under the contract.
Third, it’s nice to see that both the trial court and the Vermont Supreme Court were willing, again, to dig into the evidence gathered during the discovery process and determine that there simply wasn’t sufficient proof to establish a material dispute of fact that would justify sending the case to trial. It seems that courts in some jurisdictions aren’t as willing to make that effort, so this case is a helpful reminder that good documentation and demonstrably rational decision making can carry the day, even without a full jury trial.
Jeff Nolan can be reached at email@example.com or 802-864-5751.