Parker v. Town of Brattleboro, No. 516-10-07 Wmcv ( Wesley, J., Mar. 9, 2010)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] S TATE OF V ERMONT W INDHAM C OUNTY , SS

│ TERRANCE PARKER │ Plaintiff │ │ S UPERIOR C OURT

v. │ Docket No. 516-10-07 Wmcv │ TOWN OF BRATTLEBORO │ Defendant │ │

OPINION & ORDER RE MOTION FOR SUMMARY JUDGMENT

Plaintiff Terrance M. Parker has sued Defendant Tow n of Brattleboro (“the Town”) for claims arising from Plaintiff’s employment with the Brattl eboro Police Department and his subsequent termination. Plaintiff brings claims of (1) retali atory termination in violation of public policy; (2 ) disability discrimination and hostile work environm ent harassment; (3) wrongful discharge (breach of contract); (4) breach of covenant of good faith and fair dealing; and (5) intentional/reckless inflict ion of emotional distress. The Town moved for summary jud gment (10/30/08) on all of Plaintiff’s claims

based on the Town’s affirmative defenses of claim a nd issue preclusion. By previous entries, the Court granted Defendant’s motion to amend its answer to raise the defenses on which it now seeks summary judgment, (2 /5/2008); denied Plaintiff’s motion to strike the amended answer as filed out-of-time (1/5/2009); and initially denied the motion for summary judgment,

based on the need for further clarification of the summary judgment record as regards the collective bargaining agreement (7/28/2009). Defendant supple mented the record with the pertinent provisions of the collective bargaining agreement (8/14/2009), an d sought to renew its motion for summary judgment. Plaintiff has also supplemented its opposition to s ummary judgment (8/20/09). For the reasons explained below, the Town’s Motion for Summary Judgment is GRANTED as to Count 1 for retaliatory discharge, Count 3 for b reach of contract and Count 4 for breach of the covenant of good faith and fair dealing, and DENIED as to Count 2 for employment discrimination based on disability. As discussed below, the Court reserves ruling on Count 5 for intentional inflict ion of emotional distress, pending further development of the summary judgment record.2

Factual Background - Plaintiff was a patrolman with the Brattleboro Poli ce Department. As a patrolman, Plaintiff’s employment with the Town was governed by a Collective Bargaining Agreement (“CBA”). On February 8, 2007, the Assistant Town M anager, Barbara Sondag, provided Plaintiff with a letter informing him of the Town’s decision to term inate his employment. In relevant part, the letter

stated: The reason for the dismissal being continued defici encies in your reporting, failure to accurately record time worked on a timesheet, and twice leavin g a firearm in an unsecured area . . . . As per Ar ticle 7 of the Union agreement a copy of the grievance ar ticle [Article 8] is attached to this letter.

Without specifying any context, the letter also rej ects Plaintiff’s allegation that “the Chief and Cap tain Rowell have a target on your back.” Article 8 of the CBA outlines a procedure for filin g “grievances” with the Police Department. Under Articles 7 and 8 of the CBA, Plaintiff was pe rmitted to grieve his dismissal in one of two ways: to proceed pursuant to the progressive grievance proce ss described in Article 8, or to elect a hearing as provided by 24 V.S.A. § 1932. The grievance proced ure specified in Article 8 of the CBA concludes with binding arbitration. 1 However, Plaintiff elected to proceed with the st atutory public hearing before the Selectboard (“Board”), in lieu of binding arbit ration. 2 On June 4, 2007, the Board conducted a

1 “Should the answer at Step III prove not to be sat isfactory, the Association may submit the grievance to Arbitration for final disposition and notify the Town Manager i n writing, sighting (sic) the specific cause violat ed. The filing of the grievance would be made within thirty days from receipt of the Town Manager’s answers. The Associ ation would submit the grievance to the Federal Mediation and Conciliation Services, Arbitration Division. Upon receipt of the panel of names, the Association would strike three names and the Town would strike three names and the remaining name would be the arbitrator.”

2 In pertinent part, 24 V.S.A. § 1932, pertaining t o suspension and discharge of police officers for n eglecting their duties, provides:

(a) Whenever it appears to the appointing authority by its own knowledge or when informed by a written petition signed by one or more responsible persons that any regular officer has become negligent or de relict in his official duty, or is guilty of conduct unbec oming an officer, the appointing authority shall se t a date for a hearing before the legislative body upon the complaint, and shall give at least seven and not mo re than 15 days written notice to the accused officer stati ng particularly the complainant, the charges agains t the officer and the time and place of hearing. The legi slative body may suspend such officer from duty pen ding a hearing. (b) The officer is entitled to be represented by co unsel, to answer the complaint and to be heard on t he charges. He may waive in writing his right to a hea ring.

::: (d) If the legislative body . . . finds after consi dering all the evidence offered in such hearing, th at the officer is guilty of the charges as offered, the le gislative body shall have the power by majority vot e to remove said officer or to suspend him without pay f or a period of time not to exceed 60 days. (e) Any officer found not guilty of the charges off ered against him by either the district court or th e legislative body shall have restored to him pay los t through suspension.3

hearing at which Plaintiff testified and was repres ented by counsel. At the hearing, the parties stip ulated that the issue to be determined by the Board was as follows: Whether just cause existed to terminate the employm ent of Terry Parker under Article 7 of the Collective Bargaining Agreement?

Following the hearing, the Board issued a written d ecision dated August 15, 2007, titled “FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER,” ( “Board’s Findings and Order”), which made the following findings: that Plaintiff c ontinually failed to adequately complete paperwork; that Plaintiff experienced problems reporting time on his timecards; that Plaintiff’s job performance was inferior to other officers; that Plaintiff has been previously warned and reprimanded regarding his problems with completing written reports and making an accurate report of his time; that Plaintiff’s post traumatic stress disorder (“PTSD”) was not “a mitig ating factor in [Plaintiff’s] poor and failing performance in his written duties”; and that Plaint iff did not inform the Town of his PTSD. The Board did not rely on the charge that Plaintiff had left a firearm in an unsecured area, finding that the fa cts were insufficient to support this basis for termina tion, particularly as regards prior notice or warni ng. Nevertheless, since it found substantial evidence t o support the remaining charges, the Board conclude d that “just cause” existed for Plaintiff’s terminati on. 3

Procedural Background - On October 11, 2007, Plaintiff brought this five-co unt complaint against the Town, setting forth the following claim s: (1) retaliatory termination in violation of publ ic policy (arguing that Plaintiff was wrongfully fired as a result of a controversial and widely-publiciz ed prior shooting incident, with death resulting, at w hich time Plaintiff was fulfilling his duty to ensu re public safety, “an activity protected by public pol icy”); (2) disability discrimination and hostile wo rk environment harassment (arguing that Plaintiff was diagnosed with post-traumatic stress disorder and depression as a result of the shooting incident; th at Plaintiff is therefore now a handicapped individ ual; that the police department failed to make adequate accommodations for Plaintiff; that police departmen t officials criticized Plaintiff for failing to compl ete paperwork, which was a result of his disability ; and that Defendant “joined in the harassment when it up held Plaintiff’s termination”); (3) wrongful discharge in breach of an employment agreement (arg uing that Plaintiff’s collective bargaining contrac t required “just cause” for termination, which did no t exist despite the Board’s ruling); (4) breach of covenant of good faith and fair dealing (arguing th at the covenant protects parties “against conduct

3 It is unclear from the summary judgment record whe ther a record was made of the proceedings before th e Board. Assuming a record was kept, neither party has submi tted a transcript.4

characterized by ‘bad faith’”; that “Defendant’s us e of insufficient documentation was a deliberate ef fort to remove Plaintiff from the police force”; “that D efendant deliberately subverted the contract’s ‘jus t cause’ provision”; and that “[i]n essence, Defendan t railroaded Plaintiff out of the police force desp ite the ‘just cause’ requirement and the covenant’s ‘go od faith’ rule”); and (5) intentional/reckless infl iction of emotional distress (arguing that police departme nt officials harassed Plaintiff about his failure t o complete paperwork; that officials attempted “to co njure up evidence of misfeasance and/or incompetence against Plaintiff”; that the police de partment “failed to fully support Plaintiff in the aftermath of the shooting incident”; that the chief of police suspended Plaintiff on two occasions for insufficient paperwork while not suspending other o fficers for similar conduct; and that the police department brought other exaggerated or false claim s against Plaintiff).

The Town now asserts that each of Plaintiff’s claim s is barred by claim and issue preclusion, since Plaintiff failed to properly appeal from the Board’s ruling within the time specified by V.R.C.P .75 (c); 30 days from the issuance of the Board’s findi ngs on August 15, 2007. With regard to claim preclusion, the Town argues in its Motion for Summa ry Judgment (1) that Plaintiff’s “retaliatory termination in violation of public policy” claim is barred because “[t]he Sondag Letter, which endorse d

the then-Chief of Police’s recommendation for termi nation (and which in essence prompted the Hearing), specifically referenced Plaintiff’s view that he felt he was being ‘targeted’”; (2) Plaintif f’s “disability discrimination and hostile work environ ment harassment” claim is barred because it “is premised on [Plaintiff’s] post traumatic stress dis order (“PTSD”). . . . [and] [t]hat diagnosis was expressly dealt with in the Hearing”; (3) that Plai ntiff’s “wrongful discharge (breach of contract)” c laim is barred because Plaintiff “really just claims the re was no ‘just cause’ for his termination[,] . . . [that] Plaintiff knew ‘just cause’ was the focus of the He aring[,] . . . [and that] the Town knew the ‘just c ause’ standard, applied it, and found it was met”; (4) th at Plaintiff’s “breach of covenant of good faith an d fair dealing” claim is barred because “[t]o the extent t hat the Town’s proper and cautious approach to Plaintiff’s termination . . . were not indisputably ‘good faith’ and ‘fair,’ Plaintiff had ample oppor tunity at the Hearing to challenge the approach”; and (5) that Plaintiff’s “intentional/reckless infliction o f emotional distress” claim is barred because “[a]ll of the incidents, actions, inactions that Plaintiff premises the claim on (i.e.; the two suspensions, p oor documentation, misrepresenting time) were (or should have been) litigated at the Hearing.” With regard to issue preclusion, the Town argues in its Motion for Summary Judgment as

follows:5 Plaintiff was a party to the Hearing. As shown abo ve with regard to claim preclusion, the same issues raised in the Complaint and Jury Demand were raised at Hearing. The issues were resolved by the Town’s Fi ndings and Order, which without timely appeal, serves as a final judgment on the me rits. There was a full and fair opportunity for Plaintiff to litigate all of the is sues at the Hearing, and he did so, represented by counsel and testifying on his own be half. Application of issue preclusion here will be nothing but fair. Not applying claim and/or issue preclusion here will subject the parties and the Court to re-litigation, discour age reliance on the processes called for by the CBA and 24 V.S.A. 1932, raise the specter of vexatious litigation and allow for the very real possibility of inconsistent adjudication.

Discussion To seek the advantages of the protective provisions of an employment agreement, a plaintiff must process his claim according to the procedure o utlined by the contract’s terms. Morton v. Essex

Town Sch. Dist. , 140 Vt. 345, 348 (1981). “[M]ost grievance and a rbitration agreements are entered into for the precise purpose of providing an alternative to judicial remedies.” Id. at 348-49. Here, the crux of Plaintiff’s breach of contract an d breach of good faith and fair dealing claims is

that the CBA was violated when Plaintiff was termin ated without “just cause.” Pursuant to the CBA, th e avenues available to challenge that violation inclu ded: (1) the grievance process outlined in Article 8 of the CBA, or (2) a hearing before the Board pursuant to 24 V.S.A. § 1932. Plaintiff elected a hearing, at which the Board issued findings that “just cause” e xisted for his termination. Section 1932 contains no provision for an appeal, and thus the Board’s decis ion was only reviewable pursuant to a Rule 75 petition for review of governmental action. V.R.C. P. 75(a) (providing for review of [a]ny [municipal] action . . . that is not reviewable or appealable u nder Rule 74 . . .). In Hunt v. Village of Bristol , 159 Vt. 439, 439 (1992), the Vermont Supreme Court acknowle dged that under V.R.C.P. 75, judicial review in

the nature of certiorori is available from determinations under 24 V.S.A. § 1932. However, on remand from the original dismissal for failure to state a claim, the Court noted, “[s]ince certiorari review is ordinarily restricted to the record, the case may b e decided expeditiously on submission of memoranda

of law.” Id . at 442.6

In this case, Plaintiff’s complaint makes no refere nce to Rule 75. 4 Rather, it is styled as framing causes of action arising from the same nexus of fac ts which were the subject of the administrative proceedings, as though Plaintiff were entitled to de novo review with respect to each of his grievances with the Town. In particular, alleging pretext and unfair consideration by the Board, Plaintiff purpo rts to state jury claims as to the very question which was before the Board during the evidentiary proceedings pursuant to the CBA – whether there was just cause for the Town’s termination of Plaintiff’s employment as a police officer. This i s plainly not the law. See Hunt , 159 Vt. at 439-40; see

also Morton , 140 Vt. at 348. As to issues falling within the scope of those pro perly subject to the parties’ collective bargaining agreement, Plaintiff may not relitigate them in this case. This conclusion follows from straightforward contract interpretation. Id. It is plain from the terms of the CBA that the pa rties elected a grievance procedure providing, through the choice of either option, for a process that contemplated finality without resort to further de novo judicial review. Had Plaintiff elected the adminis trative steps encompassed by Art. 8, the determination by an arbi trator would have been beyond any further review. See 21 V.S.A. § 1734 (a)(2) (authorizing binding ar bitration of grievances involving the interpretatio n or application of a written collective bargaining agre ement). Likewise, because Plaintiff chose to chall enge his termination pursuant to 24 V.S.A..§ 1932, and b ecause determinations by that administrative proces s are only reviewable under Rule 75, Plaintiff cannot now seek the advantages of the protective provisio ns of the CBA, while ignoring its dispute resolution t erms by filing an independent action for wrongful discharge and breach of good faith and fair dealing

. As Defendant insists, application of fundamental pr inciples of res judicata amply demonstrates that any issue properly within the scope of the CBA grievance procedures is now beyond further review by Plaintiff’s claims for breach of contract and br each of good faith. Whether viewed through the len s of claim preclusion, or issue preclusion, the resul t is inescapable. Claim preclusion “provides that a valid and final judgment in favor of one party bars another action by the other party on the same clai m.”

Delozier v. State , 160 Vt. 426, 429 (1993). It bars not only issues actually litigated but also those which should have been raised in previous litigation. Berlin Convalescent Ctr. v. Stoneman , 159 Vt. 53, 56

4 Indeed, as the Town maintains, if filed as a Rule 75 appeal, Plaintiff’s complaint would have been un timely. V.R.C.P. 75(c) provides that such appeals must be f iled with 30 days, unless otherwise provided by law . Since there is no statutory specification for appeals from dete rminations under 24 V.S.A.§ 1932, Rule 75 both limi ts the scope of such appeals to certiori review for abuse of discretion based on the admini strative record, and governs the time for filing. Absent good cause for an extension, wh ich Plaintiff neither sought nor suggests any groun ds to establish, any right to Rule 75 review had already lapsed befo re Plaintiff filed this complaint.7

(1992). While claim preclusion “does not apply to administrative proceedings as an inflexible rule of law,” In re Carrier , 155 Vt. 152, 157 (1990), the doctrine will contro l “when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the partie s have had an adequate opportunity to litigate.” Delozier , 160 Vt. at 429. The elements necessary for such proceedings to have preclusive effect include “adeq uate notice to interested parties, the right of par ties to present evidence and legal argument, final judgment , and procedural elements necessary to afford fair determination of the matter in light of the magnitu de and complexity of the matter.” Id. Issue preclusion is similar in effect to claim prec lusion, but narrower in scope. Sheehan v. Dep’t of Employment and Training , 169 Vt. 304, 308 (1999). Issue preclusion bars r e-litigation of factual or legal issues “actually litigated by the parties in a prior case, and applies when: (1) it is asserted against one who was a party in the prior action; (2) the sa me issue was raised in the prior action; (3) the is sue was resolved by a final judgment on the merits; (4) there was a full and fair opportunity to litigate the issue in the prior action; and (5) its application is fair.” In re Stormwater NPDES Petition , 2006 VT 91, ¶ 23, 180 Vt. 261. Issue preclusion may be applicable to administrativ e hearings when the above

standards are satisfied. Id. The party seeking preclusion “has the burden of i ntroducing a sufficient record of the prior proceeding to enable the trial court to pinpoint the exact issues previously litig ated.”

State v. Pollander , 167 Vt. 301, 305 (1997) (internal quotations omit ted). Further, to establish that an issue was “finally resolved,” the party seeking pre clusion must show that the relevant issue was necessary to the earlier decision, not that the iss ue could have been the basis of the prior decision. Id. As elaborated above, the CBA was explicitly designe d to delineate and limit the procedures for adjudicating grievances, including whether just cau se existed as to employment termination. Either prong of the grievance procedures was designed to y ield a decision based on due process; the presentation of evidence, representation by counsel , and a decision based on findings of fact and conclusions of law. Plaintiff is in a poor positio n to challenge the adequacy of the CBA here, particularly since he foreswore the alternative ele ction of binding arbitration, in which each party h ad balanced control over the designation of a neutral factfinder. By the option he chose, however, Plain tiff not only was entitled to a full due process evident iary hearing before the Board, but he also preserve d the right to Rule 75 review, a further procedure pr ior to finality not available had he elected bindin g arbitration. That he abandoned his opportunity to seek a review of the record, as limited by Rule 75 and the CBA, represents a deliberate strategy. However , Plaintiff has failed to demonstrate that such rev iew is unfair, or plainly inadequate to the claims of a rbitrary treatment he seeks to raise de novo. Rather, the8

Court concludes that Plaintiff is bound by the cont ract remedies specified by the terms of the CBA, an d they provided him with a full and fair opportunity to challenge the Town’s justification for the termination of his employment. Just cause has been established as a matter of res judicata. While Counts 3 and 4 of the complaint, for breach o f contract and good faith, quite clearly must be dismissed, Defendant’s attack on the remainder o f the complaint is not so obviously destined to prevail. Counts 1, 2 and 5 – for retaliatory disch arge in violation of public policy, for discriminat ion and harassment based on disability, and for intentional infliction of emotional distress – require proof o f legal elements beyond the scope of the matter prese nted to the Board, which was limited to whether “just cause” existed for firing Plaintiff. Yet, De fendant insists that all of the evidence and factua l determinations necessary to the other three counts of Plaintiff’s complaint necessarily were addressed , or could have been addressed, in the hearing before th e Board. The Town further argues that the determination of “just cause,” now binding as a mat ter of res judicata, is completely inconsistent with Plaintiff’s claims for retaliatory firing, discrimi nation due to disability, or intentional infliction of emotional distress. Although the Court concurs tha t Plaintiff’s ability to establish the elements of Count 1 are precluded by the Board’s findings and conclus ions, Counts 2 and 5 present issues that were not within the scope of the Board’s proper determinatio n, and cannot be extinguished solely on account of its ruling. Vermont recognizes a cause of action for wrongful d ischarge from employment based on public policy, in which a remedy is implied to redress suc h a discharge, even if the employment relationship was terminable at will, because the basis for the f iring “is cruel or shocking to the average [person' s] conception of justice.” Payne v. Rozendaal , 147 Vt. 488, 492-93 (1986) (firing employee based solely on age violated public policy); but see Adams v. Green Mtn. R.R. , 177 Vt. 521 (2004) (reversing plaintiff’s verdict based on claim of retaliatory f iring in response to complaint that supervisor inappropriately touched her, because no reasonable jury could have concluded employer’s justification of insubordination after warning was pretextual); Madden v. Omega Optical, Inc ., 165 Vt. 306, 313-14 (1996) (public policy not implicated by firing an e mployee for refusing to sign a potentially unenforceable noncompetition agreement); Dulude v. Fletcher Allen Health Care, Inc ., 174 Vt. 74, 82 (2002) (public policy not implicated by firing an e mployee for administering medication in a manner that the employee thought was proper but that viola ted the employer's policy). In this case, Plaintiff has provided no authority f or the proposition that, even assuming the Town’s motive in firing him centered on the controv ersy after the shooting, such a claimed failure to9

support the goal of public safety could be grounds for relief based on “public policy.” See Madden , 165 Vt. at 313-14; Dulude , 174 Vt. at 82. More importantly, none of the Ver mont Supreme Court cases discussing a possible claim of wrongful discharge a gainst public policy arose in the context of a collective bargaining agreement. Rather, the doctr ine has evolved as an exception to an employer’s right at common law to terminate employment “at wil l.” See Jones v. Keogh , 137 Vt. 562 (1979). Here, on the other hand, Plaintiff’s right to retain empl oyment was protected by the CBA unless the Town demonstrated “just cause,” and was upheld in the ch osen grievance proceeding. The question of whether the Town’s actual reason fo r firing Plaintiff differed from the reason specified in the letter of termination, including w hether such real motivation undermined public polic y, is inextricably bound together with the determinati on of “just cause.” There is neither suggestion no r evidence that Plaintiff was precluded from raising before the Board issues involving the earlier shoot ing. Indeed, it is plain that the Board did consider asp ects of Plaintiff’s complaints regarding the shooti ng. While omitting any detailed discussion of its reaso ning, the Board squarely discounts the suggestion o f any causal link between Plaintiff’s claimed PTSD an d the poor performance which justified termination, stating Plaintiff’s supervisors “allowed Grievant e xtra latitude around the anniversary of the Woodwar d shooting.” Thus, Plaintiff either presented his cl aim for retaliatory firing, or had the opportunity to present it, when he grieved his termination under t he CBA. His case was unpersuasive, and he did not challenge the adequacy of the Board’s findings and conclusions under V.R.C..P. 75, the only avenue for review contractually available.

After Adams, it is extremely doubtful that Plaintiff could have sustained his burden of proof for wrongful discharge against public policy, even if h is challenge had arisen from a termination at will.

Adams , 177 Vt. at 525 (“neither the trial court nor the jury i s entitled to usurp the role of the employer by determining the weight to be given to the variou s incidents that preceded plaintiff's termination”)

. Yet, regardless of the potential strength of any po ssible evidence for retaliatory or pretextual firin g, Plaintiff is barred from relitigating it by the ter ms of the collective bargaining agreement, and the principles of res judicata and issue preclusion. Plaintiff’s claim for “disability discrimination an d hostile work environment harassment” is subject to a different rubric. The complaint asser ts that Plaintiff was diagnosed with post-traumatic stress disorder and depression as a result of the s hooting; that Plaintiff is therefore now a handicap ped individual pursuant to the Vermont Fair Employment Practices Act; that the police department failed to make adequate accommodations for Plaintiff; that po lice department officials criticized Plaintiff for10

failing to complete paperwork, which was a result o f his disability; and that Defendant “joined in the harassment when it upheld Plaintiff’s termination.” The Town argues that Plaintiff’s discrimination claim is premised on Plaintiff’s PTSD, and that “th at diagnosis was expressly dealt with in the hearin g.” The Board found that Plaintiff did not notify the T own of Plaintiff’s PTSD, and that Plaintiff’s PTSD did not contribute to Plaintiff’s unacceptable pape rwork. As noted above, Plaintiff frames his disability dis crimination claim as coming under the Vermont Fair Employment Practices Act. The United States S upreme Court has refused to give preclusive effect to an arbitrator’s previous decision in a subsequen t lawsuit asserting statutory rights. Alexander v.

Gardner-Denver Co. , 415 U.S. 36, 59-60 (1974) (finding that a plainti ff may pursue a statutory cause of action for employment discrimination in spite of pr evious adverse decision in an arbitration proceedin g brought pursuant to a collective bargaining agreeme nt). The Alexander Court distinguished the rights concerning the interpretation of a collective barga ining agreement and the statutory right to be free from discrimination, as follows: In submitting his grievance to arbitration, an empl oyee seeks to vindicate his contractual right under a collective bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory righ ts afforded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights t o be enforced in their respectively appropriate forums.

Id. at 49-50; see also Blanchette v. Sch. Comm. of Westwood , 692 N.E.2d 21, 25 (Mass. 1998) (submitting state statutory retaliation claim to ar bitration under a collective bargaining agreement d id not give preclusive effect to the arbitrator’s deci sion in a subsequent court action). As there is no meaningful distinction between an ag reement to arbitrate a CBA dispute, and an agreement to submit a CBA dispute to a municipal bo ard, preclusion does not appear appropriate on Plaintiff’s discrimination claim. Thus, despite th e Board’s consideration of Plaintiff’s PTSD claim related to the shooting, and despite its factual fi ndings disclaiming any nexus between Plaintiff’s asserted handicaps and the lack of adequate perform ance, the separate statutory origin of Plaintiff’s claim for discrimination guarantees him the right t o present it for determination by a jury. Indeed, it is likely that, under Alexander , even had the parties attempted to encompass such discrimination disputes as explicitly within the scope of matters subject t o grievance under a collective bargaining agreement

, such terms would be found unenforceable if challeng ed. Relying on the reasoning of Alexander and Blanchette, therefore, Defendant’s motion to dismiss Count 2 m ust be denied.11

Analytically, Plaintiff’s claim for “intentional/re ckless infliction of emotional distress” falls on a spectrum between the principles just discussed as d eterminative of the claim for retaliatory discharge

, and the claim for discrimination based on disabilit y. By this final claim, Plaintiff asserts that pol ice department officials harassed Plaintiff about his f ailure to complete paperwork; that officials attemp ted “to conjure up evidence of misfeasance and/or incom petence against Plaintiff”; that the police department “failed to fully support Plaintiff in th e aftermath of the shooting incident”; that the chi ef of police suspended Plaintiff on two occasions for ins ufficient paperwork while not suspending other officers for similar conduct; and that the police d epartment brought other exaggerated or false charge s against Plaintiff. Again, Defendant insists that t his count merely reframes the same dispute regardin g “just cause” for termination which was conclusively determined by the Board. Concluding that it is a close issue on the law, the Court is not persuaded that, based on its res judicata argument, the Town is

entitled to dismissal of the count for intentional infliction of emotional distress.

To sustain a claim for intentional infliction of em otional distress, a plaintiff must show that defendants engaged in “outrageous conduct, done int entionally or with reckless disregard of the probability of causing emotional distress, resultin g in the suffering of extreme emotional distress, actually or proximately caused by the outrageous co nduct.” Sheltra v. Smith , 136 Vt. 472, 476 (1978). Considering these elements, Defendant’s insistence is understandable that a fair reading of the Board’ s findings can’t be squared with Plaintiff’s burden t o show “outrageous conduct”; put differently, had t he Board discerned such an unwarranted pattern of hara ssment by Plaintiff’s superiors, it could not have upheld his firing as justifiable. Yet, while certa inly Plaintiff pegged one thrust of his denial of “ just cause” on the claim that he was being harassed as a result of his role in the shooting, the elements o f the tort are not in such inextricable alignment with th e “just cause” grievance that the Court can conside r them concluded as a matter of law by the CBA proced ures. See Johnson v. Beatrice Foods Co ., 921 F.2d 1015, 1021 (10th Cir. 1990) (refusing to hold that IIED claim preempted by procedures under Federal Labor Relations Act); see also Connelly v. Yale Univ ., No. CV044001928S, 2008 WL 4633888, at *3 (Conn. Super. Ct. Sept. 24, 2008) (collecting cases). Nevertheless, the temptation to rely on claim precl usion to dismiss the emotional distress claim gains impetus from the Vermont Supreme Court’s rece nt ruling in Fromson v. State, 176 Vt. 395 (2004), upholding summary judgment for the employer in a ca se in which the allegations of employment-related harassment were quite similar to those advanced her e. In Fromson , an employee of the corrections department brought a tort action against the State for intentional infliction of emotional distress,12

claiming that the sanctions for poor performance im posed against him were all part of a pattern of unf air harassment designed to make him resign. Sustaining the trial court’s dismissal on summary judgment, the Supreme Court ruled: Because laws proscribing conduct must be specific e nough to give fair notice of what conduct will give rise to liability, we decline, on these facts, to extend liability to a series of indignities. Absent at least one incident of beh avior that transcends the ignoble and vast realm of unpleasant and often stressful conduc t in the workplace, incidents that are in themselves insignificant should not be consolida ted to arrive at the conclusion that the overall conduct was outrageous.

Id. at 399-400. On the current record, the Court is hard put to dis tinguish the circumstances and holding in

Fromson in assessing the adequacy of Plaintiff’s evidence h ere. Yet, the Court must acknowledge that Defendant relies for its summary judgment argument only on the proposition that the IIED claim is barred by res judicata ; rather than the argument that there are no facts to support the IIED claim even if it was not precluded by the CBA proceedings. Never theless, in consideration of the preceding discussion, and because it believes that the matter is potentially ripe for summary judgment on alternative grounds, the Court reserves ruling on t he motion for summary judgment as to Count 5 pending further development of the summary judgment record, as provided in the order below.

WHEREFORE it is hereby ORDERED: Defendant’s motion for summary judgment as to Count s 1, 3 and 4 of Plaintiff’s complaint is GRANTED, and those counts are DISMISSED WITH PREJUDICE. The motion to

dismiss Count 2 is DENIED. A ruling on the motion for summary judgment as to C ount 5 is

DEFERRED , pending further development of the summary judgme nt record as follows: Defendant may supplement the summary judgment record and pleading s consistently with this opinion until March 26, 2010. Plaintiff may supplement the summary judgmen t record and pleadings consistently with this opinion until April 5, 2010.

Dated at Newfane this day of March, 2 010.

_____________________________ John P. Wesley Superior Court Judge