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 un official. It has been reformatted from the original. The accuracy of the text and the accompan ying 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. Th e plaintiff, Louise Hammond, claims that the defendent, Berlin City’s Vermont Re marketed 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), t hrough 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 p arty, granting the party “the benefit ofall 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,

1 Hammond’s complaint also included claims for a vio lation of the Federal Communications Privacy Act, 18 U.S.C. §§ 2510–2522 (2000), invasion of privacy, and negligent supervision. The court dismissed these th ree claims in an order dated March 18, 2003. 159 (1992). Accordingly, the court makes the follow ing findings for the purposes of summary judgment.

Hammond worked as a Guest Services Manager at Berl in City, a car dealership, from June 1997 through September 20, 2002. This pos ition was the lowest paid of a number of managerial positions at Berlin City. Hamm ond’s position called for managing a staff of six guest services employees, which incl uded 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 p lan. She would occasionally
intervene in incidents with dissatisfied customers. Her position therefore required
customer relations and communications skills. Hammo nd also performed scheduling duties for 22 Berlin City drivers who transported v ehicles among various dealership locations and served as an event planner, making ar rangements for special events.

Hammond’s position bore some similarities with the sales manager and general sales manager positions. Sales managers oversaw a f ew sales guides, whom they assisted in interacting with customers and making sales deal s. The sales manager therefore needed customer relations, communications, and managerial skills. The general sales manager oversaw the sales managers, and also required simil ar skills.

Hammond’s position also bore some similarities wit h the finance managers, who were responsible for meeting with customers after t he sales team made a sale that was subject to financing. Finance managers would determ ine the financing for which a customer would qualify. Thus, finance managers need ed customer relations and communications skills. Finance managers did not ove rsee a staff, though.3

Berlin City alleges that sales managers required s ales experience and finance managers required finance experience, but Hammond a lleges that employees in both positions could gain all knowledge necessary to per form their jobs through on-the-job training. Managers were frequently transferred to a nd from sales manager positions and finance manager positions with little difficulty. H ammond alleges that upper managers at Berlin City told her she could easily become a fina nce manager with only brief training.

Both finance managers and sales managers worked ou t of the same facility in which Hammond worked, with similar work stations an d the same general surroundings. All of these positions required similar mental exer tion, in terms of meeting deadlines and organizing one’s time.

The general sales and finance managers also report ed 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 requ ired to have accounting experience, managerial skills and experience, and leadership an d 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, automoti ve appraisal experience, and communication skills; and the service manager, who was required to have customer relations skills, managerial skills, automotive ser vice and repair experience, and computer skills.

Chief Operating Officer Steve Roach told Hammond o nce that her position was as important as the general manager and service manage r positions. Roach and other managers told Hammond several times that her depart ment was of comparable importance to the sales or finance departments.

In August 2000, Hammond met and began dating Ronal d 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 clea r to him that she was not
interested.4

Around July 2001, McFarland began to call Hammond both at work and at home, with as many as 15 calls a day. McFarland would tel l her that he missed her and he wanted to be with her. He would also stop by her wo rk station to talk to her about their relationship. Being a service manager, McFarland ha d no legitimate business reason to be near Hammond’s work area. The two still played tenn is 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 read ing her messages while he was at work. This upset Hammond, and she soon after met wi th Berlin City Sales Manager Robert Swartout, a designated sexual harassment rep orting representative under Berlin City’s sexual harassment policy. Hammond informed h im of her relationship with
McFarland and of her concerns with his recent behav ior, 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 t he situation in case it became a bigger problem.

Over the next month, McFarland continued to call H ammond at work, and Hammond believed he had been taking roses and memen toes 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 McFarl and, and McFarland’s behavior got worse. After Swartout first addressed the issue with McFarland, he approached
Hammond and stated that he could not believe Hammon d had spoken to Swartout about his behavior. He also stated, “Don’t fuck with me o r I’m going to make your life miserable.” Hammond reported this to Swartout a cou ple days later. McFarland continued to call Hammond at work, making kissing n oises 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 McFa rland at a printer at work waiting to print out an image of Hammond’s new boyfriend. Hammond had emailed this image to her personal e-mail account an d believed that McFarland had intercepted the e-mail. Hammond reported this incid ent to Swartout and told him to take5

action. Hammond made it clear that she wanted Berli n City to intervene. Swartout issued a stern warning to McFarland to stop his behavior.

On September 19, Hammond found a Post-it note on h er computer, stating: “Happy Birthday Louise. I want to know what happene d 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. Hammo nd reported the note to Swartout, who said he would speak to McFarland.

On September 21, Hammond was on vacation in Florid a and learned from her
roommate in Vermont that McFarland had called her h ome 18 times in one day (several times from work), leaving her three voicemail messa ges. McFarland’s messages were something to the effect of him missing her and want ing 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 2 1 when McFarland continued
to call Hammond at her work station. Hammond told S wartout 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 repo rted that Hammond wanted Berlin City to investigate the situation. Roach conducted an investigation and issued a written warning to McFarland, threatening termination if in cidents 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 dire cted at Hammond and he asked her to attend the company’s Christmas party with him. M cFarland also stopped by Hammond’s house, and she also reported this to Swar tout. Things did gradually improve by 2002, however.

Hammond also alleged that throughout these inciden ts, Swartout would often appear disinterested, rolling his eyes at her repor ts. Swartout also would not ask any questions to elicit further information and, on a c ouple of occasions, would abruptly end6

the conversation. Berlin City’s sexual harassment p olicy provides that upon a report to a sexual harassment representative, “[t]he matter wil l be thoroughly investigated, and appropriate, disciplinary action will be taken.”

In mid-November, Roach became aware of certain man agers, including Hammond, taking half-day vacations. Roach imposed s tricter scheduling and vacation requirements on all Berlin City managers. He spoke to Hammond specifically about her vacation practices. Hammond had frequently worked f our-day weeks, which Roach no longer wished to permit. At this time, he also deni ed Hammond’s six-week unpaid leave, which was to begin in January. Hammond had requeste d 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 s on’s child care provider was unavailable. Hammond had to make last-minute arrang ements for child care.

In mid-2002, the general manager for the dealershi p wrote up an employee warning for Hammond while she was on vacation. Hamm ond 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 o n 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 . . . betwee n employees on the basis of

sex by paying wages to employees . . . at a rate le ss than the rate at which he pays wages to employees of the opposite sex in s uch establishment for equal work on jobs the performance of which require s equal skill, effort, and responsibility, and which are performed under s imilar working conditions, except where such payment is made pursu ant to (i) a seniority system; (ii) a merit system; (iii) a system which m easures earnings by quantity or quality of production; or (iv) a differ ential based on any other factor other than sex.
29 U.S.C. § 206(d)(1). To establish a claim under t he Act, a plaintiff must show that her job is “substantially equal” higher-paid jobs held by members of the opposite sex. Tomka7

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 hav e equal “skill, effort, and responsibility,” as well as “si milar working conditions.” The court is guided by standards promulgated in Equal Employment Opportunity Commission regulations, 29 C.F.R. §§ 1620.13–1620.18 (2004), i n 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 demon strating 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 jus tify a pay
differential based on a ‘factor other than sex’ mus t also prove that the gender-neutral factor was adopted for a legitimate business reason .” Id

. Berlin City argues that Hammond has failed to demo nstrate that the skill, effort, responsibility, and working conditions involved wit h her guest services position were equal to any of the other positions that she allege s had higher pay scales. Hammond argues that at least three positions—the general sa les 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 t o 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 classifi cation 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 eq ual responsibility cannot be precisely defined. In interpreting these key terms of the statute, the broad remedial purpose of the law must be taken into cons ideration. . . . It should be kept in mind that “equal” does not mean “identic al.” Insubstantial or minor differences in the degree or amount of skill, or effort, or8 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 communicat ions skills. Hammond’s job entails the primary interaction with customers, where she a nd her staff greet them and give them a tour of the facility, answering any initial quest ions they might have. Sales managers then handle customers as they consider a purchase a nd 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 p ositions 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 degr ee” of skill is the same. See id . § 1620.15(a). Berlin City characterizes Hammond’s Gue st 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 i n 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 supe rvisory skills needed. Although finance managers did not oversee a staff, the sales managers oversaw sales guides and the general sales manager oversaw the sa les 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 ex perience, but it does not explain how this experience is necessary for the jobs thems elves. Hammond stated that her managers at Berlin City had told her she could easi ly become a finance manager, even though she did not have finance experience. If “exp erience” 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 commo n core of skills relevant to all of these positions according to Hammond’s allegations is cus tomer relations and communications.

Turning to effort, Hammond has provided enough fac ts to demonstrate that her job required substantially equal “mental exertion” as t he sales and finance jobs. See id . § 1620.16(a). Although the stresses of handling initi al customer relations may differ from9

those related to closing a sale or securing adequat e 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 pr ovided enough facts to demonstrate that the responsibilities were substant ially equal. “Responsibility is concerned with the degree of accountability require d 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 su pervising a staff, so both positions required accountability for the performance, discip line, and management of their staff members. The general sales manager may have had a g reater supervisory role than the guest services manager, given that his staff includ ed 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 en ough difference in responsibility”). All positions required reports to the general manager a nd attendance at management meetings with the general manager and the chief ope rating officer.

Finally, all of these positions occurred in simi lar 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 Be rlin City dealership.

Considering all of the above factors, the court ho lds that Hammond has met her burden to defeat summary judgment by showing that h er previous job as guest services manager was substantially equal to the general sale s manager, sales manager, and finance manager positions.

Berlin City argues that summary judgment in its fa vor is still appropriate because the wage differential between Hammond’s position an d 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 s alaries 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 have10

considered were legitimate business factors, especi ally 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 asp ects 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 legi timate, unless there is no genuine issue of fact as to Berlin City’s explanation. Because Be rlin City has yet to offer a complete explanation, though, the court cannot apply the aff irmative defense. Hence, Berlin City’s summary judgment motion is denied with respect to H ammond’s Equal Pay Act claims regarding the general sales manager, sales manager, and finance manager positions.

With regard to other positions at Berlin City, Ham mond claims that further discovery might uncover additional similarities. Mu ch of the discovery is incomplete in this case because of discovery disputes. She theref ore seeks a Rule 56(f) continuance. Hammond should, however, be able to provide some in formation from personal knowledge about these other positions to demonstrat e that they are substantially equal to the guest services position. Given that she has pro vided 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 d iscovery, even if properly and timely made through a Rule 56(f) affidavit, if it deems th e 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 Ru le 56(f) motion was properly denied where plaintiffs had “reasonable access” to facts that were of “public nature”). Summary judgment is therefore appropriate for Berli n City with respect to Equal Pay Act claims regarding positions other than the general s ales, 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 a rise “because of . . . sex.” 21 V.S.A. § 495(a)(1). Berlin City argues that according to fed eral 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, th e conduct is not based on sexual discrimination but on the failed relationship. Appl ying this rule to this case, the alleged
hostile environment is not actionable because it ar ose out of Hammond’s failed relationship with McFarland, not because of Hammond ’s gender.11

Federal courts have espoused a general rule that h arassment based on a relationship gone sour may not constitute harassmen t 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 reaso nable 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 ge nder-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 appl y Succar where evidence supported finding that harassment was based on plaintiff’s re fusal to continue having sexual relationship). Indeed, the Eleventh Circuit decline d to extend its Succar holding to a case where a male supervisor engaged in a pattern of har assment and ultimately fired a female employee who terminated a relationship with him. Se e Lipphardt v. Durango Steakhouse of Brandon, Inc. , 267 F.3d 1183, 1185 (11th Cir. 2001). The court i n 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 inappropria te behavior crosses the line into [sexual] harassment.” Id . at 1188. As the Maine District Court recently hel d in analyzing this rule the choice of “weapon” by an harassing pa rty 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 w hether 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-mai l account, reading her personal messages, and took roses and other mementoes from H ammond’s desk. More than five
months after Hammond had broken off her relationshi p with him, McFarland was still calling her on the phone at work making “kissing no ises,” left a Post-it note with a lewd message on her computer screen, and was making howl ing 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 continuous12

harassment creates an issue of fact as to whether t he harassment constituted a discriminatory hostile environment, regardless of t he prior relationship.

Berlin City further argues that the type of behavi or by McFarland was not sufficiently severe to constitute a hostile environ ment. To satisfy her burden in responding to a summary judgment motion, Hammond ne eds to establish a genuine issue of fact as to whether she was subjected to “unwelco me 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(1 3); Allen v. Dept. of Employ. & Training , 159 Vt. 286, 290 (1992) (citing Meritor Savings B ank v. Vinson , 477 U.S. 57, 64–67 (1986)). Hammond has presented enough facts t o create a genuine issue of
material fact that McFarland’s advances created an “offensive working atmosphere.” As discussed above, the consistent advances, phone cal ls, visits, and e-mail interceptions
could lead a reasonable trier of fact to find a hos tile environment.

Berlin City next argues that even if McFarland’s c onduct created a hostile environment, Berlin City’s remedial action in respo nse to Hammond’s complaints creates a defense against Hammond’s claim. In a hostile env ironment sexual harassment claim, a plaintiff must demonstrate “a specific basis . . . for imputing the conduct that created the hostile environment to the employer.” Perry v. Etha n 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 hara ssment 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 s exual harassment complaints and protection of a complaining employee under a “reaso nable 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 whe ther Berlin City’s response to her complaints about McFarland’s behavior was reaso nable and adequate. She notes that Swartout was “hardly receptive” to her complaints a nd “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 complaint s about McFarland to Swartout. It
was not until Hammond demanded that Swartout take a ction that he issued a stern warning to McFarland. Even at that point, however, Swartout did not report the13

harassment to upper management, and the harassment continued with little investigation or action. Later, when McFarland’s harassment conti nued 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 singl e 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 Sw artout reported the situation to Chief Operating Officer Roach, who began an investigation

. Berlin City disputes Hammond’s allegations, arguin g that she did not request any action beyond verbal warnings until after much of t he harassment took place and that Swartout took immediate action, reporting the situa tion to Roach. This dispute is ultimately an issue for the factfinder. For the pur poses of this motion, Hammond establishes her burden of showing a genuine issue a s to whether Berlin City’s response lacked reasonable and appropriate care under the ci rcumstances.
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 e mployment action, and (4) that there was a causal connection between the protected activity an d 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 employ er to “articulate some legitimate, nondiscriminatory reason” for the adverse employmen t action. Id . (internal quotes omitted). “If an employer meets this burden of prod uction, the burden then shifts back to the plaintiff to prove by a preponderance of eviden ce that the employer’s given reason is a pretext and not the true reason for the employmen t decision.” Id

. Berlin City first argues that its actions did not rise to the level of “adverse employment action.” The Vermont Supreme Court has n ot articulated a precise standard for determining what actions constitute “adverse em ployment 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 fr ustration over plaintiff’s filing of14

workers’ compensation claim, efforts to persuade pl aintiff not to appeal denial of benefits, reduction of plaintiff’s duties, shift ch anges to include night shift, and unfairly low job evaluations were “plainly adverse” in summa ry judgment context).

Although federal courts have varying standards and the Vermont Supreme Court has not yet adopted one in particular, federal case law is still instructive in determining a threshold level of significance necessary to establ ish 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 res cinded 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 prom otion 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 tha t denial of promotion through rigged exam process meets prim a 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 employ er’s action had some effect on the plaintiff’s “pay, benefits, seniority, or responsib ility,” Horn v. Univ. of Minn. , 362 F.3d 1042, 1046 (8th Cir. 2004).

Not everything that makes an employee unhappy const itutes an actionable adverse employment action. A negative employment re view, for example, is actionable only if the employer subsequently use s the evaluation as a basis to alter in a detrimental way the terms or co nditions of the recipient's employment. Minor changes in duties or working cond itions that do not result in materially significant disadvantage “do n ot 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) (quoti ng 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 un reasonable 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 genuin e issue of fact as to whether Hammond suffered adverse action, especially conside ring that the denial forced15

Hammond, a single mother, to make last minute arran gements to secure child care. Berlin City’s reprimand of Hammond, however, does not amou nt to adverse action, because it was immediately withdrawn and had no apparent effec t on Hammond’s employment status. Summary judgment is therefore appropriate o n this particular claim of adverse
action. 2

Berlin City next argues that there was no causal c onnection 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 plain tiff need not provide direct evidence, but “may establish a link indirectly by s howing 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 forw ard with evidence to show that the circumstances surrounding [the alleged discriminati on] permit an inference of unlawful discrimination”). In Gallipo , for example, the time between the plaintiff’s pro tected activity and the alleged retaliation was seven mont hs, but the Court held that the sudden change in the plaintiff’s assignments and disciplin e after years of contrary action by his employer provided a genuine issue of fact as to whe ther the employer’s adverse action was causally linked to the plaintiff’s protected ac tivity. 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 activi ty. The denial occurred a mere two months after the complaint that initiated an invest igation into McFarland’s conduct. This is sufficiently close in time to create a reasonabl e inference that the complaint caused the denial of unpaid leave.

Berlin City also argues that it denied Hammond’s l eave for a legitimate and nondiscriminatory reason. Berlin City states that it i mplemented 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 sc heduling practices, her lack of lunch breaks, and her parking spot. These actions, however, did n ot significantly disadvantage Hammond and therefore do not rise to the level of adverse actio ns. Summary judgment is appropriate for these claims, as well.16

and vacation requirements on all of its managers. T herefore, Berlin City argues, Hammond cannot demonstrate that Berlin City’s reaso n is pretext for retaliation.

To show that an alleged legitimate reason for an e mployer’s adverse action is pretext, a plaintiff can rely on her prima facie ca se “combined with sufficient evidence of pretext.” Robertson , 2004 VT 15, ¶ 32 (citing Reeves v. Sanderson Plum bing Prods., Inc.

, 530 U.S. 133, 148 (2000)). On a summary judgment mo tion, courts must consider “a number of factors, including ‘the strength of the p laintiff’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 hav e 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 bef ore 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 appl ication for her alone, as other employees at Berlin City noticed. Hammond has there fore presented enough facts to demonstrate a genuine issue as to whether Berlin Ci ty’s alleged legitimate reason for its action was pretext.

With regard to Hammond’s final claim of wage discr imination under the Fair Employment Practices Act, 21 V.S.A. § 495(a)(8), Be rlin 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 di fferent wages all support a finding of
intent.

Fair Employment Practices Act claims require a pla intiff to show intentional discrimination, meaning that “the discrimination wa s 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 “shifti ng burden” approach similar to that described above with respect to retaliation cl aims. In other words, following a prima facie showing that the plaintiff received lower wag es than similarly situated males and there was an inference of discrimination, the emplo yer must provide a legitimate reason17

for the wage differences. The plaintiff then must p rovide sufficient evidence that the employer’s reason is pretext and that the wage diff erence was the result of “intentional
discrimination.” Robertson , 2004 VT 15, ¶¶ 25–27, 41 n.8; Luciano v. Olsten C orp. , 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 automatical ly mean that plaintiff has carried her burden of persuasion on the factor of i ntent. 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 t hat not only was the reason offered false, but that the real reason was discrim ination.
Belfi v. Prendergast , 191 F.3d 129, 140 (2d Cir. 1999). But “[t]he fact finder's disbelief of the reasons put forward by the defendant . . . may, together with the elements of the prima facie case, suffice to show intentional discr imination. 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 Hono r Ctr. v. Hicks , 509 U.S. 502, 511 (1993).

Here, Hammond has provided adequate evidence to cr eate 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 can celed her scheduled unpaid leave, Roach informed her that her position was as importa nt as the general manager and service manager positions, so he could not permit her the l eave 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 fa ct 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 Pr actices Act claim for unlawful wage discrimination.

Finally, the court notes that prior to this summar y 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 res olve any remaining discovery disputes through a Rule 26(h) conference and, if they cannot resolve their disputes, file appropriate motions to the court.18 ORDER
For the foregoing reasons, Berlin City’s summary j udgment motion is GRANTED in part and DENIED in part, consistent with this en try.

Dated at Burlington, Vermont, March 10, 2005.

__________/s/______________ Richard Walsh Norton Judge