Wood v. City of Barre, No. 369-6-14 Wncv (Tomasi, J., Feb. 9, 2016).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 369-6-14 Wncv

Russell Wood,

Plaintiff

v.

City of Barre,

Defendant

Opinion and Order

the City’s Motion for Summary Judgment

Plaintiff Russell Wood was a firefighter employed by the City of Barre. He 

was terminated in July 2012, a few months after experiencing debilitating 

symptoms of post-traumatic stress disorder (PTSD) that prevented him from 

working. He asserts that his firing and a prior refusal to promote him violated 

Vermont’s Fair Employment Practices Act (FEPA), 21 V.S.A. § 495(a)(8), because 

those acts amounted to unlawful retaliation against him for supporting a female 

firefighter’s claim of sexual discrimination. He also contends that the City violated 

FEPA by terminating his employment rather than providing a reasonable 

accommodation for his PTSD.1 21 V.S.A. § 495(a)(1). Lastly, he argues that the 

City’s conduct amounts to intentional infliction of emotional distress (IIED). The 

City seeks summary judgment on all three claims.

1. Summary Judgment Standard

Summary judgment is appropriate if the “movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

 

1 Mr. Wood voluntarily withdrew a third wrongful termination claim based on an 

alleged violation of public policy.
2

matter of law.” Vt. R. Civ. P. 56(a). “In determining whether a genuine issue of fact 

exists, the nonmoving party receives the benefit of all reasonable doubts and 

inferences.” Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996).

“Where . . . the moving party does not bear the burden of persuasion at trial, it may 

satisfy its burden of production by indicating an absence of evidence in the record to 

support the nonmoving party’s case. The nonmoving party then has the burden of 

persuading the court there is a triable issue.” Mello v. Cohen, 168 Vt. 639, 639–40 

(1998).

2. Factual Background

The summary judgment record is voluminous, and the Court will not delve 

into the nuances here.2 For purposes of this decision, the following overview, 

drawing inferences in Mr. Wood’s favor, provides the relevant material facts. Mr. 

Wood became employed by the City as a firefighter in 2003. At that time, he 

already had extensive firefighting experience, and he may have been suffering the 

early effects of what, many years later, would be diagnosed as PTSD. Within his 

first few years with the City, the Barre City fire department, including Mr. Wood, 

experienced an unusual number of emotionally traumatic situations (such as 

drownings and deaths of multiple children in fires). Mr. Wood also volunteered to 

provide assistance in the aftermath of Hurricane Katrina (2005), which further 

exposed him to emotionally traumatic situations. 

 

2 While the basic narrative of the progression of Mr. Wood’s PTSD and eventual 

termination of employment appears to be largely undisputed, the more detailed 

facts and inferences drawn therefrom that form the bases of his legal claims are 

substantially disputed.
3

In 2010, Mr. Wood was diagnosed with PTSD. He purportedly told Assistant 

Chief Aldsworth and Chief Bombardier of the diagnosis (though Mr. Wood cannot 

confirm that he actually used the expression PTSD) and that he was in counseling. 

He did not ask for any accommodation for the PTSD and continued to perform his 

job adequately.

In retrospect, he believes that he had PTSD when he first became employed 

with the City, and “triggers” such as the above events and others contributed to the 

worsening of his condition. He also takes the position that the City did not do 

enough to “reach out” proactively and provide assistance to him and others in the 

department with PTSD or similar conditions. 

There is no evidence, however, that Mr. Wood ever asked the department for 

any type of accommodation. Indeed, the only evidence in the record shows that, 

whatever his personal challenges with PTSD were, they did not cause him to be 

ineffective at work prior to April 2012. Mr. Wood maintained his employment and a 

regular work schedule up until 2012. In 2008 or 2009, Chief Bombardier promoted 

him to Lieutenant. In 2011, Mr. Wood was confident enough in his performance to 

apply for a position as Captain.

In 2010, a female firefighter in the department raised allegations of sexual 

harassment, the details of which are not in the record. It became widely known 

that Mr. Wood supported the female firefighter and this caused tension between 

him and Chief Bombardier. There is no indication in the record of any such tension 

beforehand or that Chief Bombardier had ever found Mr. Wood’s performance 

unsatisfactory in any regard.
4

In 2011, Mr. Wood, among others, applied for a promotion to Captain. At 

least part of the evaluation process took place before an independent committee, 

which scored each candidate on an oral examination. Mr. Wood’s score in the oral 

examination was not the highest among the candidates. The record is unclear as to 

how the oral examination fit together with other components of the evaluation 

process and how Mr. Wood performed on the other components. In the end, Chief 

Bombardier recommended a different candidate for the position, and City Manager 

Mackenzie accepted that recommendation. Prior to that decision, Chief Bombardier 

had said on more than one occasion words to the effect that there was no way that 

Mr. Wood would get the job. Although the context of any such statements is unclear 

(assuming they were made at all), one may infer that palpable tension had persisted 

between Mr. Wood and Chief Bombardier.

In April 2012, Mr. Wood overheard a radio communication by the Roxbury 

Fire Department involving a fatality. This triggered a debilitating “panic attack.” 

Mr. Wood immediately recognized that he was unfit for work and that attempting to 

perform his job would place himself and others at risk of harm. He reported that to 

the City the day after the panic attack and began a period of leave. Confusion 

ensued as to what Mr. Wood needed to do to apply for and receive various benefits 

while on leave. The application processes generated a written opinion by Mr. 

Wood’s health care providers to the effect that he could not work, as a firefighter or 

in any other capacity, due to his condition.

In July 2012, as his sick leave was running out, Mr. Wood and others on his 

behalf met with City Manager Mackenzie and Chief Bombardier. At this point, 

according to Mr. Wood, he knew he was about to be terminated and reluctantly 
5

agreed to that over resignation, believing it would posture him more favorably for 

governmental benefits. According to Mr. Mackenzie, termination at that point was 

the only reasonable option because it had become clear that Mr. Wood was not going 

to be able to return to employment. At this meeting, Mr. Wood attempted to give 

Mr. Mackenzie a letter addressing his circumstances and mentioning, to some 

extent, his disability and disability-related rights. His PTSD rendered him unable 

to verbalize all of his thoughts and concerns at the meeting. Mr. Mackenzie took 

the letter, but inexplicably did not read it.

For purposes of summary judgment, it is reasonable to infer that, from the 

time of his panic attack in April 2012, Mr. Wood had become completely disabled 

and unable to work but did not want his circumstances to result in the termination 

of his employment. Throughout this time, he was attempting, largely without 

success, to cobble together benefits that he could receive while remaining employed. 

Though he may not have expressly asked for an accommodation, his need for one—if 

any reasonable one were available at all—was obvious. Despite the obviousness of 

the circumstances, there is virtually no evidence that the City explored, on its own 

or with Mr. Wood, whether any reasonable accommodation might be available. 

Mr. Wood has been unemployed ever since, although in February 2015 he 

started volunteering with a different fire department by providing certain safety 

trainings.

3. Standards and Burdens on Alleged FEPA Violations

The Vermont Supreme Court has been clear that the standards and burdens 

under FEPA are the same as those under Title VII of the federal Civil Rights Act of 

1964. Lavalley v. E.B. and A.C. Whiting Co., 166 Vt. 205, 211 (1997). The Price 
6

Waterhouse v. Hopkins, 490 U.S. 228, 241–44 (1989), framework applies in cases 

where a discriminatory motive clearly was at work; the three-step burden shifting 

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), 

applies where there is circumstantial evidence of discrimination only, Robertson v. 

Mylan Laboratories, Inc., 2004 VT 15, ¶ 18, 176 Vt. 356, 364. 

In this case, there is no direct evidence of discrimination, so the McDonnell 

Douglas framework applies. Under that approach, the plaintiff has the “light” 

burden of showing a prima facie case. Doing so switches the burden of production 

onto the employer to come forward with evidence of a nondiscriminatory

justification for the action taken. If that is done, then the burden shifts back to the 

employee to prove that the proffered reason was merely a pretext and that 

discrimination was the real motivation for the employer’s action. Id. at ¶¶ 24–27, 

176 Vt. at 366–67. The ultimate burden of persuasion remains with the plaintiff at 

all times. Id. ¶ 18, 176 Vt. at 319.3 Id. ¶ 24, 176 Vt. at 366.

4. Retaliation

Mr. Wood claims that the City retaliated against him for supporting the 

female firefighter who was raising allegations of sexual harassment. FEPA bars 

sexual discrimination, 21 V.S.A. § 495(a)(1), and its anti-retaliation provision 

protects anyone who “has opposed any act or practice that is prohibited under this 

 

3 The Court notes that the McDonnell Douglas framework is intended to help the 

Court determine whether a claim should reach the jury but generally is not used to 

instruct the jury on the claims that reach it. Henry v. Wyeth Pharmaceuticals, Inc., 

616 F.3d 134, 154 (2d Cir. 2010); Lewis v. City of Chicago Police Dep’t, 590 F3d 427, 

439 (7th Cir. 2009); Armstrong v. Burdette Tomlin Memorial Hosp., 438 F.3d 240, 

249–50 (3d Cir. 2006).
7

chapter,” id. § 495(a)(8)(A). Here, Mr. Wood’s defense of the female firefighter 

would amount to a protected activity. 

To establish a retaliation claim, the Plaintiff must show that: 

(1) he was engaged in protected activity, (2) his employer was aware of 

that activity, (3) he suffered adverse employment decisions, and (4) 

there was a causal connection between the protected activity and the 

adverse employment action.

Gallipo v. City of Rutland, 163 Vt. 83, 92 (1994). 

At oral argument on this motion, the City contended that, even if Mr. Wood 

could meet the above showing in this case, as a prima facie matter, the record 

establishes that the adverse employment actions here were motivated only by 

nondiscriminatory factors and Mr. Wood cannot establish that those reasons were 

pretextual. As a result, the question for the Court on summary judgment focuses on 

the fourth Gallipo factor. 

In the City’s view, many other employees of the fire department also 

supported the female firefighter, without experiencing retaliation; Mr. Wood failed 

to win the promotion to Captain due to his poor results on the oral examination; 

Chief Bombardier had actually paid for Mr. Wood to take courses that would have 

allowed him to compete for the job; and the lack of promotion (and much more so his 

termination) occurred so long after the protected activity that no causal connection 

between those events and his protected activity can be reasonably inferred.

On this record, the Court concludes that there are disputes of material fact as 

to the reasons that motivated the City’s decisions and whether those choices may 

have been fueled by a retaliatory motive. There is substantial evidence that Mr. 

Wood’s support for the female firefighter caused palpable friction between Mr. Wood 
8

and Chief Bombardier. While the adverse employment actions occurred at a later 

point, the length of time between the events, alone, is not long enough to sever a 

potential causal link. See In re McCort, 162 Vt. 481, 494 (1994) (timing is but one 

among numerous potential indicia of causation). More importantly, there is no 

evidence that there ever had been any friction between the two before the protected 

activity, and the record supports the inference that the friction continued thereafter 

and could have led or contributed to the adverse employment actions. See Gallipo, 

163 Vt. at 93 (“But more significant [than timing], in our view, is the fact that 

plaintiff had had no ‘detail’ assignments in at least ten years, nor had he received 

any disciplinary memorandum in twenty-six years until after he had filed a 

complaint with the Attorney General.”). 

While the City has strong evidence that Chief Bombardier actually supported 

Mr. Wood and that he was not promoted simply as a legitimate exercise of hiring 

discretion, that evidence is muddled by the above facts and otherwise is disputed by 

evidence that Chief Bombardier did not always recommend for promotion those 

with the highest score on the oral evaluation. Similarly, the City’s failure to engage 

in meaningful discussions over accommodations for Mr. Wood’s disability after April 

2012 could permit the inference that it was looking for a reason to terminate him 

because of his prior support of the female firefighter. See Gauthier v. Keurig Green 

Mountain, Inc., 2015 VT 108, ¶ 22 (“Bluntly stated, to show pretext, a [retaliation] 

plaintiff must establish that the defendant’s proffered legitimate, nondiscriminatory 

reason is a lie.”); see also Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 

2528 (2013) (affirming that plaintiff has burden to prove that “the desire to retaliate 

was the but-for cause of the challenged employment action).
9

Mr. Wood’s retaliation claim has minimal, but sufficient support, to avoid 

summary judgment. 

5. Disability Discrimination

Mr. Wood claims that the City failed to accommodate his disability 

throughout the course of his employment leading up to April 2012 and in the period 

following his panic attack in April 2012, resulting in his termination. To prove his 

case, Mr. Wood must establish the following:

(1) plaintiff is a person with a disability under the meaning of [FEPA]; 

(2) an employer covered by the statute had notice of his disability; (3) 

with reasonable accommodation, plaintiff could perform the essential 

functions of the job at issue; and (4) the employer has refused to make 

such accommodations.

Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir. 2004). The 

duty to accommodate “is ordinarily activated by a . . . sufficiently direct and 

specific” request for an accommodation. Tobin v. Liberty Mut. Ins. Co., 553 F.3d 

121, 129 (1st Cir. 2009). The duty to accommodate also arises when the need for 

accommodation is apparent to the employer even if the employee has not requested 

it or has had trouble articulating the need for accommodation. Brady v. Wal-Mart 

Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008). Sometimes, the employee and the 

employer must engage in an “informal, interactive process,” 29 C.F.R. § 1630.2(o)(3), 

to determine an appropriate accommodation. The failure to engage in that process, 

however, does not establish liability. State v. G.S. Blodgett Co., 163 Vt. 175, 184 

(1995); see also McBride v. BIC Consumer Products Mfg. Co., 583 F.3d 92, 100 (2d 

Cir. 2009).

To be clear, the duty to provide a reasonable accommodation applies to the 

limitations caused by the disability, not the disability per se. See Gammage v. West 
10

Jasper Sch. Bd. of Educ., 179 F.3d 952, 955 (5th Cir. 1999) (“[T]he ADA does not 

require an employer to assume that an employee with a disability suffers from a 

limitation; as a result, it is incumbent upon the ADA plaintiff to assert not only a 

disability, but also any limitation resulting therefrom.”); accord Adams v. Rice, 531 

F.3d 936, 944 (D.C. Cir. 2008); Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 687 

(8th Cir. 2003) (“Put another way, there must be a causal connection between the 

major life activity that is limited and the accommodation sought.); Felix v. N.Y. City 

Transport Authority, 324 F.3d 102, 107 (2d Cir. 2003). 

The purpose of providing an accommodation is to enable “the employee to 

perform an essential function of the job.” 2 Americans with Disabilities: Practice & 

Compliance Manual § 7:131. The plaintiff has the burden of producing evidence 

showing that some reasonable accommodation was possible; the burden then 

switches to the defendant to prove that purported accommodation was not available 

because, inter alia, it would have impermissibly altered the plaintiff’s job or it 

would have been unduly burdensome for the employer. G.S. Blodgett Co., 163 Vt. at 

181–82.

a. The Period of Employment Prior to April 2012

Mr. Wood’s principal claim is that throughout his employment, from 

inception up to his panic attack in April 2012, the City was or should have been 

aware of his disability, yet it never offered him “support” or any accommodations. 

He asserts that the lack of support and accommodations caused his PTSD to 

worsen, eventually resulting in his inability to work. See Mr. Wood’s Opposition to 

Summary Judgment 19 (filed Sept. 8, 2015) (“It is with this factual predicate that 

all legal analysis of Plaintiff’s disability discrimination claim and possible 
11

reasonable accommodations must begin.”). Otherwise, he concedes that by the time 

of his termination in 2012, he was not able to work at all. See id. at 25 (“Plaintiff 

does not dispute that, on the date of July 20, 2012, he was likely incapable of 

performing the requirements of any employment.”).

There is no factual basis or legal support for a disability discrimination claim 

of this nature. The record is devoid of evidence that, prior to the 2012 panic attack, 

Mr. Wood’s condition caused him to need an accommodation to be able to perform 

any essential function of his job. There also is no evidence that he ever sought any 

accommodation, that he had any inability to communicate such a request, or that 

the need for an accommodation ever would have been obvious to his employer. In 

the absence of such evidence, Mr. Wood cannot establish a discrimination claim. 

Indeed, Mr. Wood performed his job, received a promotion, and attempted to become 

a captain all during this period. 

In effect, Mr. Wood is not claiming that he needed an accommodation as 

contemplated by FEPA, but that the City should have unilaterally intervened in the 

progression of his (for a certain period of time, undiagnosed) PTSD and, had it done 

so, the medical outcome would have been better for him. He cites no legal support 

for such an amorphous and wide-ranging claim under FEPA or the ADA, and the 

Court has found none. The assertion approximates more of a medical negligence 

case rather than an employment discrimination matter. But, FEPA protects 

against discrimination; it does not require employers to intervene, sua sponte, in 

employees’ personal health issues in the manner advanced by Mr. Wood. Mr. 

Wood’s only potential disability discrimination claim accrued when the limitation 
12

caused by his disability—the inability to work at all—became obvious, between his 

panic attack in April 2012 and his termination the ensuing July.

b. The Failure to Accommodate Following the Panic Attack

It is undisputed that on the day of his termination, Mr. Wood was unable to 

work at all, as a firefighter or otherwise. The evidence admits of the following 

inferences. Between Mr. Wood’s panic attack and his termination, Mr. Wood 

wanted to remain employed by the City, was unable to work due to his PTSD, and 

needed a reasonable accommodation if any was available. While he did not vocalize 

a request for an accommodation, the circumstances made the need for one obvious, 

at least arguably so. The City concluded that Mr. Wood’s disability rendered him 

unable to work indefinitely and did not explore the possibility of whether a 

reasonable accommodation may have been available. 

The City’s position is that, at the time of termination, no reasonable 

accommodation was available. In that regard, it relies heavily on a “Certification of 

Health Care Provider” report produced by Mr. Wood’s health care providers for 

purposes of the Family and Medical Leave Act. The report clearly states that Mr. 

Wood is considered to have “episodes of incapacity” of “serious” duration and 

frequency. “It is not advisable for this patient/employee to return to former 

profession as a firefighter. Nor is it advisable for him to work intermittently in 

another area of employment. Thus, ‘probable duration’ is unable to be determined.” 

Report of Linda Bisson, M.D., and Elizabeth Halloran, M.S., M.A., L.I.C.S.W. (dated 

July 5, 2012), Defendant’s Motion for Summary Judgment, exh. M (filed July 8, 

2015). Potent evidence such as this, considering the circumstances of the case, may 
13

well persuade the finder of fact. It is insufficient, however, in light of the evidence 

described below, to warrant summary judgment. 

Mr. Wood asserts that a reasonable accommodation was available: a period of 

unpaid leave during which he could focus intensely on his illness, unworried that 

his employment had been terminated, and then return to work, either as a 

firefighter, possibly with additional accommodations, or in another position with the 

City. Though stated in a somewhat conclusory manner, that is also the view of Mr. 

Wood’s expert. Affidavit of Adam M. Grundt, Ph.D., Plaintiff’s Opposition to 

Summary Judgment, exh. 17 (filed Sept. 8, 2015). The Court accepts for summary 

judgment purposes that the expert’s opinion is credible. Boulton v. CLD Consulting 

Engineers, Inc., 2003 VT 72, ¶ 27, 175 Vt. 413, 426.

Courts have held that a reasonable accommodation can take the form of an 

unpaid leave of absence. See, e.g., Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 

1998) (“A leave of absence and leave extensions are reasonable accommodations in 

some circumstances.”). While the length of that leave must be reasonable, there is 

no “unvarying requirement for definiteness” as to the expected length. GarciaAyala v. Lederle Parenterals, Inc., 212 F.3d 638, 648 (1st Cir. 2000). “Each case 

must be scrutinized on its own facts.” Id. 

In this case, the operative collective bargaining agreement and City policies 

permitted City Manager Mackenzie to approve an initial six-month period of unpaid 

leave (and subsequent periods of leave). Mr. Mackenzie testified that granting such 

a leave, for at least six months, probably would not have harmed the City. But, he 

never considered it or discussed it with Mr. Wood—presumably because he believed 

that Mr. Wood was unlikely to ever be able to return to work as a firefighter. 
14

Whether a leave was a reasonable accommodation and whether it would have been 

effective are matters of dispute that can only be resolved by a finder of fact.

No doubt, FEPA does not require “clairvoyance” from the employer, Hedberg 

v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 934 (7th Cir. 1995), and it is not a 

“job insurance policy,” id. Here, however, the evidence allows the inference that 

Mr. Wood was so distraught that he was unable to express his wishes orally, that 

the City did not even read his letter, and that the City had potential 

accommodations that it could have offered to him but did not. Those facts provide a 

sufficient basis to deny summary judgment. See Bultemeyer v. Fort Wayne Cmty. 

Sch., 100 F.3d 1281, 1287 (7th Cir. 1996) (employer’s failure to explore and offer 

reasonable accommodation where need is apparent precludes entry of summary 

judgment).

Mr. Wood further asserts that, upon being able to return to work, the City 

could have further accommodated him by modifying his job responsibilities as a 

firefighter or by transferring him to a City job outside the fire department in which 

he would not be a “first responder.” Given that summary judgment as to the 2012 

termination has been denied, it is unnecessary to address these arguments in any 

detail. The Court simply notes that, on the present record, the availability and 

reasonableness of any such accommodations are wholly speculative. As for altering 

job responsibilities, there is no way to determine what alterations might have made 

any difference because there is no way to determine what his condition would have 

been if he had been able to return to work after a leave of absence. The event that 

precipitated his panic attack was merely hearing about a fatality on the radio, not 

actual involvement in firefighting activities. There is no way to evaluate the 
15

reasonableness of an accommodation without knowing the specific limitation it is 

supposed to address.

Similarly, there is no way to determine that a transfer to a different job in 

City government might have been reasonable or available.4 Though there is some 

evidence of various City jobs that may have been open in the period following April 

2012, there is no evidence as to which vacancies would have existed when Mr. Wood 

was ready to return to work, as to how the availability of any such vacancies might 

have affected his return date, as to whether he would have been qualified and 

capable for whichever jobs those may have been, and as to whether any collective 

bargaining agreements or other City policies would have permitted Mr. Wood to fill 

such vacancies.

6. Intentional Infliction of Emotional Distress

Mr. Wood claims that the City’s conduct in this case amounts to the tort of 

IIED. IIED is described in the Restatement (Second) of Torts as follows: “One who 

by extreme and outrageous conduct intentionally or recklessly causes severe 

emotional distress to another is subject to liability for such emotional distress.” 

 

4 It is not clear to the Court that, under FEPA, the transfer to a wholly different 

position with the employer is properly characterized as a reasonable accommodation 

for an employee who is unable, with accommodations, to perform the essential 

functions of the job he is in, especially where the employee never sought such a 

transfer. There is some federal authority that requires a transfer to an alternative, 

vacant position as an accommodation when the employee has sought the move and 

the employer’s policies permit it. See 42 U.S.C.A. § 12111(9) (expressly defining 

“reasonable accommodation” to include “reassignment to a vacant position”). 

FEPA’s definition of “reasonable accommodation” includes no such demand, 21 

V.S.A. § 495d(12), and the Vermont Supreme Court has cited School Bd. of Nassau 

County v. Arline, 480 U.S. 273, 289 n.19 (1987), for the proposition that an 

“employer [is] not required to find another job for [an] employee who is not qualified 

for job she was doing.” G.S. Blodgett Co., 163 Vt. at 183. 
16

Restatement (Second) of Torts § 46(1); see Sheltra v. Smith, 136 Vt. 472, 475–76 

(1978) (adopting Section 46 in Vermont).5 The standard is high. “The conduct must 

be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible 

bounds of decency, and . . . be regarded as atrocious, and utterly intolerable in a 

civilized community.’” Denton v. Chittenden Bank, 163 Vt. 62, 66 (1994) (quoting 

Restatement § 46 cmt. d). “The court makes the initial determination of whether a 

jury could reasonably find that the alleged conduct satisfies all the elements of an 

IIED claim.” Fromson v. State, 2004 VT 29, ¶ 14, 176 Vt. 395, 399. A plaintiff 

cannot rely upon his perceptions of the defendant’s motives to establish the tort—

the test is objective. Id. ¶¶ 17, 15; Baldwin v. Upper Valley Servs, Inc., 162 Vt. 51, 

57 (1994).

Mr. Wood asserts that the City was aware of his deteriorating condition for 

many years, easily could have stepped in to help him, but, instead, idly watched as 

his PTSD symptoms became so bad that he could not work at all. The City then 

 

5 In numerous cases, courts condense the element of extreme and outrageous 

conduct to simply outrageous conduct. The third Restatement clarifies that these 

are separate issues. 

The adjectives “extreme” and “outrageous” are used together in a 

fashion that might suggest that each merely emphasizes the other, 

rather than serving a distinct role. However, some conduct that may 

be outrageous—for example, marital infidelity—is sufficiently common 

that it could not be characterized as extreme (although today it may 

also not be outrageous). Similarly, some extreme conduct—climbing 

Mt. Everest, for example—is not outrageous. Thus, this double 

limitation, “extreme and outrageous,” requires both that the character 

of the conduct be outrageous and that the conduct be sufficiently 

unusual to be extreme.

Restatement (Third) of Torts: Phys. & Emot. Harm § 45 cmt. d.
17

brusquely fired him in derogation of his rights and without being willing to even 

consider supporting him or offering him an accommodation. 

While the Court acknowledges that an actor’s awareness of another’s 

emotional sensitivity can be important in deciding whether certain conduct rises to 

the level of IIED, Restatement (Second) of Torts § 46 cmt. f, cited in Denton, 163 Vt. 

at 68, the conduct in this record does not come close to supporting an IIED claim. 

At most, the evidence could support findings that Chief Bombardier’s annoyance at 

Mr. Wood’s support for the female firefighter played some role in his decision 

making regarding the promotion to Captain and disinclined the City from 

proactively engaging him in an interactive process once he became unable to work. 

That is all. There is no evidence whatsoever that any agent of the City ever did 

anything regarding Mr. Wood that, objectively speaking, anyone knew or should 

have known would cause him extreme emotional distress. The apparent emotional 

distress he may have experienced arose out of his PTSD and exposure to “triggers.” 

Those triggers were the same events that his colleagues also were exposed to in the 

ordinary course of their profession. Plaintiff has simply failed to identify any 

extreme or outrageous conduct on the part of the City. There is no basis for an IIED 

claim in this case.6

 

6 Because the Court so rules, there is no need to address the City’s municipal 

immunity argument.
18

Conclusion

For the foregoing reasons, the City’s Motion for Summary Judgment is 

granted, in part, and denied, in part.

Electronically signed on February 09, 2016 at 10:03 AM pursuant to V.R.E.F. 

7(d).

________________________

Timothy B. Tomasi

Superior Court Judge