Labounty v. Crystal Rock Spring Water Co., No. 610- 12-02 Wrcv (Teachout, J., Apr. 29, 2004)

[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 WINDSOR COUNTY, SS.

MATTHEW LABOUNTY ) ) Windsor Superior Court v. ) Docket No. 610-12-02 Wrcv ) CRYSTAL ROCK SPRING ) WATER COMPANY )

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, filed Janu ary 2, 2004

Memorandum of Decision

Matthew LaBounty seeks compensation from his forme r employer, Crystal Rock Spring Water Company (Crystal Rock). In an eight-count co mplaint, LaBounty alleges that Crystal Rock breached a contract for employment and other o bligations to him, and that it wrongfully subjected him to extreme emotional distress. Cryst al Rock has filed a motion for summary judgment on all counts, and Mr. LaBounty opposes th e motion. Plaintiff is represented by Norman Watts, Esq. Defendant is represented by Tim othy E. Copeland, Jr.

Facts

The following undisputed facts are derived from th e parties’ statements of undisputed facts under V.R.C.P. 56(c)(2), to the extent they a re supported by underlying evidence in the

record.

Crystal Rock is a Connecticut corporation with a p rincipal place of business in Watertown, Connecticut. It is registered to do bus iness in Vermont. Crystal Rock employed Matthew LaBounty from January of 2001 to September 7, 2002. Prior to that, from January of 2000 to January of 2001, he was employed by Vermont Pure Springs, Inc. (Vermont Pure Springs). Prior to that, he was employed by New Je rsey Machine, Inc. (New Jersey Machine), where he worked for 22 years.2

In 1999, LaBounty was experiencing problems at New Jersey Machine, and he was thinking about leaving. In the spring of 1999 he a pplied for a job as a machinist at Dartmouth College, but that job went to another applicant who had a degree. At that point LaBounty was still a team leader at New Jersey Machine, and he w as not prepared to leave “for just any job.” New Jersey Machine had laid off much of its work f orce and had only a “skeleton crew.” To LaBounty, it looked as though there would be fur ther layoffs. He thought he would be one of the last employees to be laid off, but as the compa ny’s business condition worsened, he became concerned that the shop would close completely and that he would lose his job without any warning.

The situation at New Jersey Machine was tense. So me of LaBounty’s co-workers were leaving, and he did not like the prospect of “bring ing in guys who didn’t know anything.” He did not like having to move around in the shop and do other people’s jobs, but the situation was not serious enough for him to resign.

LaBounty had trouble getting along with one co-wor ker because he thought the coworker could get away with standing around for an h our talking about motorcycles whereas others could not. He felt his supervisor was “on h is case” because he was on everybody’s case. LaBounty could have complained to the supervisor’s manager, but he did not do so because he did not want to make waves. He thought a complaint might be used as an excuse to lay him off. His wife told him that, if his job at New Jersey Ma chine was really bothering him, he should find another job.

Shortly before he resigned from New Jersey Machine , LaBounty was issued a written warning; he was demoted and given a pay cut. His w ife suggested that maybe he should find something else.

In the fall of 1999, LaBounty told his neighbor, J effrey Gates, that he was not happy at New Jersey Machine. Gates invited LaBounty to work for Vermont Pure Springs, where Gates worked. LaBounty felt that Gates wanted him to wor k for Vermont Pure Springs, and that maybe Gates was looking out for his interests.

LaBounty told Gates that he was not happy with the situation at New Jersey Machine, but that it was “a pretty good job” and that he wasn’t willing to take “just any job.” LaBounty didn’t want to be a route driver. He didn’t mind driving some, but he didn’t want to drive a truck all the time. LaBounty and Gates discussed a job that included cleaning and repairing coffee machines at Vermont Pure Springs’ facility in White River Junction, Vermont, fixing coffee makers and coolers “in the field,” and “van work” – driving a smaller delivery van and delivering water to locations that had run out of w ater or that had been missed by route drivers or were too remote to service with a big truck.

Gates talked about the possibility that LaBounty c ould set up a service department in White River Junction. They did not discuss how muc h service work there would be, but LaBounty assumed that there would be a lot. He tho ught that he was being hired as a service3

technician, and that he would set up a service depa rtment. He thought of this as a promise, but he does not remember Gates using the word “promise, ” and he is not sure what words Gates did use. There was no discussion of how long the job w ould be for, but LaBounty understood that his employment with Vermont Pure Springs would be “ permanent” as opposed to “temporary.”

There was no written job description for the posit ion LaBounty discussed with Gates. There was no specific discussion of what percentage of time would be spent doing “van work.” LaBounty did not ask for a written employment contr act. He understood that service technicians did not have written contracts covering the terms o f their employment.

LaBounty began working for Vermont Pure Springs on January 24, 2000. Soon thereafter, he received an employee handbook. Crys tal Rock has submitted portions of an employee handbook for Vermont Pure Springs dated 3/ 25/98. The second page of the handbook states the following:

As part of the Vermont Pure Springs Organization yo u are an employee at will (which means that you may be terminated from o r choose to terminate your employment at any time with or without cause).

The handbook also states that:

The programs outlined in this booklet should be reg arded as guidelines, which in a developing business may change from time to time. This handbook is not a contract. The company retains th e right to make decisions involving employment and to change these guidelines without notice. The company intends to conduct its work in a manner that is beneficial to the employees and Vermont Pure Spring s, Inc. Therefore, all employment with this company is considered “At Will ” employment.

LaBounty signed an acknowledgment that he received the employee handbook, on February 2, 2000. The acknowledgment states:

I have this day received a copy of the Vermont Pure Springs, Inc. employee handbook, and I understand that I am respo nsible for reading the personnel policies and practices described within i t.

I agree to abide by the policies and procedures con tained therein. I understand that the policies and benefits contained in this employee handbook may be changed, modified or deleted at any time. I understand that neither this manual nor any other communicatio ns by a management representative is intended to, in any way, create a contract of employment.

LaBounty does not remember anything in particular in the handbook other than a vacation provision. He was concerned because he un derstood he was getting more vacation than4

other employees, which might make them mad. He und erstood his vacation allowance was something other than what the handbook said. There was not a special employee manual written

for him.

While employed by Vermont Pure Springs, LaBounty w orked long hours. He performed “some service work” but not as much as he had hoped . If anything needed to be fixed, he was “more than likely” the person who fixed it. Howeve r, he spent most of his time as a route driver,

which was not the kind of work he wanted to do. He thought of water delivery as a degrading job. Typically, when he drove a route, he would wo rk nine or ten hours, and then return to the terminal to load the truck for the next day’s deliv eries.

Even though he was disappointed with the type of w ork he was doing, LaBounty continued to work at Vermont Pure Springs. He did not pursue other job opportunities. He did not look into returning to his job at New Jersey Ma chine because he “wasn’t interested” in going back to that particular company.

In January 2001, Crystal Rock assumed part of Verm ont Pure Springs’ operation. As a result, LaBounty became an employee of Crystal Rock . Crystal Rock and Vermont Pure Springs were and are separate corporations, both owned by V ermont Pure Holdings, Inc.

Sometime after Crystal Rock became his employer, L aBounty also received an employee manual. This book, entitled Employee Manual, Polic ies & Procedures, is undated, and it applies to employees of both Vermont Pure Springs and Cryst al Rock. One of the introductory pages of the manual (entitled “Scope”) states the following:

This manual is designed to serve as a guide to mana gers and as a training tool, as well as a reference for all employees of V ermont Pure Holdings,

Ltd. and its subsidiaries. It is not intended to c onstitute a contract either implied or in fact. Any provision may be modified at any time with or without notice. In areas of employment matters, th e Company functions under an “employment at will” philosophy and the Co mpany or an Employee are free to terminate employment at any ti me.

This manual contains general statements of Company policy and is not intended to include explicit details of each policy . Nor is it intended to express or imply contract or promise that the polic es discussed in it will be applied in all cases.

The Company may add, change, or delete policies sta ted in the manual

from time to time. The manual is intended to be ke pt up to date, but there may be times when policies or procedures may change before the manual

can be revised and re-issued.

At page 3 (entitled “Failure to comply with any Ver mont Pure Holdings, Ltd. Policy or5

Procedure), the manual provides the following descr iption of progressive discipline policies:

Infractions and violations of any of the policies a nd procedures of the Company will result in disciplinary action being ta ken up to and including discharge. First Offense: Verbal Warning Second Offense: Written Warning Third Offense: Final Written Warning Fourth Offense: Discharge

The Company may skip or modify one or more steps as it deems appropriate. All warning notices will remain in th e Employee’s personnel file for 3 years from the time of issuance. A diff erent violation than the original will result in the next level of disciplin ary action being issued (the progression of disciplinary action is for all viola tions, not just the same type of violation).

At page 4 (entitled “Employment-At-Will”), the manu al states that:

Employees are employed at the will of the Company a nd subject to termination at any time, for any reason, with or wi thout cause or notice. At the same time, such employees may terminate thei r employment at any time and for any reason.

No Company representative is authorized to modify t his policy for any employee or enter into any agreement, oral or writt en, contrary to this policy. Supervisory and management personnel may n ot make any representations to applicants or employees concerni ng the terms or conditions of employment with the Company that are not consistent with Company policies. No statements made in pre-hire i nterviews or discussions, or in Company recruiting materials of any kind, are to alter the at-will nature of employment or imply that disc harge will be only for

cause.

This policy may not be modified by statements conta ined in the manual or any other employee handbook, employment application s, Company recruiting material, Company memoranda, or other ma terials provided to applicants and employees in connection with employm ent. None of these documents, whether individually or combined, are to create an expressed or implied contract of employment for a definite pe riod, nor as an expressed or implied contract concerning any terms or conditions of employment. Similarly, Company policies and practi ces with respect to any matter are not to be considered as creating any contractual obligations on the Company’s part. Statements of specific grou nds for termination set6 forth in this manual or in any other Company docume nts are examples only, not all-inclusive lists, and not intended to restrict the Company’s right to terminate-at-will.

Beginning at page 32, the employee manual contains a section entitled “Standards of Conduct,” starting with the following explanation:

Each employee has an obligation to observe and foll ow the Company’s policies and to maintain proper standards of conduc t at all times. If an individual’s behavior interferes with the orderly a nd efficient operation of a department, corrective disciplinary measures will be taken.

Disciplinary action may include a verbal warning, w ritten warning, a suspension without pay and/or discharge. The Compa ny will determine the appropriate disciplinary action imposed. The C ompany does not guarantee that one form of action will necessarily precede another.

On page 33, the manual follows with a list of nine examples of misconduct that “may result in discipline up to and including discharge.” The exa mples given are “not all inclusive.”

Mr. LaBounty does not remember a lot about getting the manual. He remembers skimming it shortly after receiving it but not read ing the whole thing. When he skimmed it he was not looking for anything in particular.

At his deposition, Mr. LaBounty testified as follo ws:

Q: Are you contending that you had a contract wit h this company by virtue of a

manual?

A: I never really looked at it as a contract.

During his employment with Crystal Rock, LaBounty’ s supervisors were Jeff Gates, Joel Whitney and Suzanne Auger. LaBounty was not doing as much service work as he wanted. However, he did not inquire about openings at other Crystal Rock facilities, nor did he inquire about any other jobs in the White River Junction, V ermont, and Lebanon, New Hampshire area. He continued to work for Crystal Rock. He did not experience any layoff or reduction in hours. His pay was never reduced, and he received two rais es.

At his deposition, LaBounty testified as follows:

Q: I need to be very specific here. Did anybody tell you that you’re

going to get a certain raise that you didn’t end up getting?

Q: No.7

Q: You started at 12 and you did get raises event ually to $14, correct?

Q: Yes.

Q: Are you contending there were other raises tha t you were promised

that you did not receive?

Q: No.

On August 13, 2002, LaBounty was assigned to make deliveries in St. Johnsbury, Vermont, and in Littleton, New Hampshire, and he wa s also asked to make three extra deliveries at the end of the day, in Vershire, Vermont, in Nor wich, Vermont, and in Lebanon, New Hampshire. However, by the time he was returning f rom St. Johnsbury, he had already worked over nine hours, and he knew he would have to load the truck for the next day, so he decided not

to make the extra deliveries. He did not want to t ake the extra time, because he was already working a very long day. He did not tell his super visor (Auger) about it at the end of that day, because she was on the phone.

The next day, August 14, LaBounty received a writt en warning for failing to make the three deliveries the previous day. After he did hi s route that day, he approached Mr. Whitney to ask him about why he had written the warning, and t hey discussed the matter for two or three minutes. Whitney was upset because customers had n ot received water they were expecting, and because LaBounty had not told anyone about it the p revious day.

Later, LaBounty discussed the warning with Jeff Ga tes. Gates told LaBounty that Whitney had said he must have been “screwing up” be cause he should have been able to complete all his deliveries without any problem. L aBounty thought the criticism was unfair because the St. Johnsbury route was longer than usu al with the extra stops in Littleton, New Hampshire. After completing the route, LaBounty ha d already worked a long day. He could have made the extra three stops, but that would hav e required him to work a very long day.

After receiving the written warning on August 14, 2002, LaBounty went home and never returned to work at Crystal Rock. He felt “devasta ted” at receiving the written warning. He felt that he could not go back to work, because he “just couldn’t take it any more.” He was an “emotional wreck.” The next morning, August 15, he called in and said he would not be at work, but he did not explain why. He called in again on August 16 and said he was going to take a sick day. On Monday, August 19, he still did not report for work as scheduled; he recalls calling in and informing someone that he was taking “another p ersonal day or sick day.”

On Tuesday, August 20, LaBounty met with Jeff Gate s at a diner and delivered a note stating, “I want to apply for a disability medical leave. I feel I have suffered unfair work practices and reverse discrimination which has led to medical problems.” LaBounty asked Gates about getting some type of an insurance form, Worke rs’ Compensation or whatever disability8

insurance, and Gates said he would get him somethin g. Gates told LaBounty that he could use his vacation time. At that time LaBounty had more than two weeks of vacation time, and some additional personal days and sick time. LaBounty d id not say anything about how long he would be absent from work. LaBounty was not sure if he h ad any intention of ever returning to work at Crystal Rock even if he were medically able to do s o. He did not want to go back.

On August 30, 2002, LaBounty received a letter fro m Crystal Rock dated August 27, 2002, enclosing a form entitled “Employer’s First R eport of Injury or Occupational Disease.” A cover letter requested LaBounty to “please fill thi s out as thoroughly as possible and send back to me.” A few days before then, Gates had hand-delive red a copy of the same form to LaBounty at

his home.

No one at Crystal Rock gave LaBounty any specific time limit for filling out the form. The employment manual does not specify a time for r eturning a disability form. LaBounty

estimated that he would have a few weeks to fill it out.

During the next few weeks, between the date when L aBounty first received a copy of the form (August 27, 2002), and September 19, 2002, Gat es stopped at LaBounty’s house three times and discussed his filling out the form and re turning it.

LaBounty never returned the form to Crystal Rock. He was confused about how to fill it out. He was not thinking about returning to work a t Crystal Rock. He did not think he could go back to work, because of his emotional condition.

On September 15, 2002, Jeffrey Gates wrote a lette r of recommendation on behalf of Mr. LaBounty. The text of the letter is as follows:

To Whom It May Concern:

I am writing this letter in reference to Matthew La bounty. For the past two years Matthew has been employed at Vermont Pure Spring Water in White River Junction, Vermont. He has been an exce llent employee and

has had excellent attendance. Matthew has tremendo us mechanical abilities with a strong attention to detail. Matth ew works well with other employees and is a strong team player. I would rec ommend him completely to any employer. Please feel free to co ntact me with any questions.

On September 19, 2002, LaBounty received a letter from the insurance company that had provided him with insurance through his work, advis ing him that because his employment had been terminated on September 7, he no longer had in surance, but that he was eligible to purchase continued health insurance coverage through COBRA.

LaBounty then called Gates and asked why he had be en fired. Gates responded that he9

could not answer the question, because he had not f ired LaBounty. On a later date, LaBounty again asked Gates why he had been fired, and Gates said that he guessed it was because LaBounty had not returned the form.

LaBounty admits there was a point when he decided not to bother with the form. He never asked for additional time to submit the form, nor did he ever seek to be rehired. He was not interested in being re-hired. LaBounty consulted with a mental health therapist who advised him that he would not be able to go back to work, because he was a “nervous wreck.” He did not consult with a medical doctor, a psychiatrist or a psychologist about his condition.

LaBounty does not contend that anyone at Crystal R ock was intentionally attempting to cause him emotional injury. However, he does blame Joel Whitney for upsetting him, by telling him one thing and telling Jeffrey Gates something e lse.

LaBounty agrees that it is part of a supervisor’s job to criticize and correct when the supervisor believes someone is not performing his o r her job correctly. He does not know if Crystal Rock should have known that the written war ning would devastate him.

Conclusions of Law

Plaintiff Matthew LaBounty pursues an eight-count complaint against Crystal Rock. Initially the complaint also named Vermont Pure Spr ings, Inc., and Vermont Pure Holdings, Inc.,

but those additional defendants have been dismissed from the case based on a stipulation. Crystal Rock has filed a motion for summary judgmen t, generally asserting that LaBounty has

failed to submit prima facie evidence of his claims. LaBounty has argued that he does have evidence to support his claims, but the evidence in the record does not support his arguments.

Count 1. Breach of Express Employment Contract

In Count 1, LaBounty asserts that he had an expres s agreement with Jeffrey Gates that he would become a service technician, and that he woul d establish a service department for Vermont Pure Springs. He maintains that this agree ment was breached when he was later assigned to work as a delivery truck driver which h ad no career or future advantages, and that as a result he suffered monetary and career losses.

The problem with LaBounty’s claim is that there is no evidence of an express agreement with either Vermont Pure Springs or Crystal Rock. It is undisputed that LaBounty and Gates discussed the possibility that LaBounty would set u p a service department in White River Junction. LaBounty thought that he was being hired as a service technician, but he does not remember Gates making any specific promise to that effect. LaBounty is not sure what words Gates did use. There was no written job descriptio n, and there was no specific discussion of what percentage of time would be spent doing “van w ork.” In short, LaBounty has not presented10

evidence to demonstrate that the work assignments b reached any definite agreement. See Madden v. Omega Optical, Inc. , 165 Vt. 306, 311-12 (1996) (vague allegations of representations were insufficient to show enforceab le contract term).

Count 2. Promissory Estoppel

In Count 2, LaBounty pursues an alternate theory t hat Crystal Rock breached enforceable promises to him concerning his work assignments. A claim of promissory estoppel requires a demonstration that the employer’s actions were “in breach of a specific promise made by the employer that the employer should have reasonably e xpected to induce detrimental reliance on the part of the employee, and that the employee did in fact detrimentally rely on the promise.” Dillon v. Champion Jogbra, Inc. , 13 Vt.L.W. 357, 359 (2002) (citation omitted).

LaBounty’s claim of promissory estoppel suffers fr om the same problems as his claim based on express contract. He has failed to presen t evidence of a specific promise that the employer has breached. The evidence shows at best that Jeff Gates gave him a general description of what the job was likely to be as of January 2000. This is not a sufficient factual basis for a claim of promissory estoppel.

Count 3. Breach of Implied Employment Contract

In Count 3, LaBounty claims that Crystal Rock brea ched an implied term of continued employment when it “fired” him on September 7, 2002 . He maintains that the company’s action violated provisions for “progressive discipline” fo und in the employee manual, and that nothing he did provided sufficient cause for termination un der the section entitled “standards of

conduct.”

Generally, “an employment contract for an indefini te term is an ‘at-will’ agreement, terminable at any time, for any reason or for none at all.” Ross v. Times Mirror, Inc. , 164 Vt. 13, 18 (1995) (original quotation from Sherman v. Rutland Hospital, Inc. , 146 Vt. 204, 207 (1985)). However, “provisions of a personnel policy manual m ay unilaterally alter the at-will relationship.” Id . at 20 (citing Taylor v. National Life Ins. Co. , 161 Vt. 457, 464-465 (1993)). If an employee manual establishes a progressive discip line system, and states that it applies to all employees and will be carried out in a “fair and co nsistent manner,” those terms conflict with any presumptive ‘at-will’ relationship, and they ma y give rise to an implied contract. Dillon , 13

Vt.L.W. at 359.

However, LaBounty has not cited to any provision o f the Crystal Rock employee manual requiring the company to apply the progressive disc ipline steps in a fair and consistent manner. On the contrary, the section describing the system states clearly: “The Company may skip or modify one or more steps as it deems appropriate.” Similarly, the section on “standards of conduct” also seeks to preserve the company’s discr etion in matters of discipline. The paragraph preceding the list of examples of misconduct stress es the company’s discretion, as follows:11 Disciplinary action may include a verbal warning, w ritten warning, a suspension without pay and/or discharge. The Compa ny will determine the appropriate disciplinary action imposed. The C ompany does not guarantee that one form of action will necessarily precede another.

Thus, the provisions cited by LaBounty differ from those featured in Dillon . They do not stress fairness or consistency, and they do not con flict with the accompanying disclaimers stressing the ‘at-will’ nature of the employment. Under these circumstances, LaBounty’s employment with Crystal Rock was “at-will,” and the company reserved its right to terminate the relationship at any time.

Moreover, Crystal Rock asserts that LaBounty actua lly abandoned his employment. Under this theory, Crystal Rock had good cause to t erminate LaBounty’s employment on September 7, 2002, based on his absence coupled wit h a failure to clarify his intentions. On August 15, 16, and 19, he called in to say he would not be at work, and on August 20, he met with Gates and told him he wanted to apply for a di sability medical leave. By the end of August, Crystal Rock twice provided him with an application form to fill out. However, LaBounty never did return to work, nor did he submit the applicati on, nor did he ever express an intention or desire to return to work. Under the circumstances, Crystal Rock was justified in concluding that he had abandoned his employment. See Peeples v. Coastal Office Products, Inc. , 64 Fed.Appx. 860, 2003 WL 21019353 (4 th Cir. 2003) (absent any explanation for when employ ee would return to work, or other meaningful clarification, employer was justified in concluding that employee had abandoned the position); Forde v. IBM Corp. , 2003 WL 740220 (S.D.N.Y. 2003) (employer had ample basis to believe that employee had abandoned the job, and was acting well within its business prerogative to terminate the em ployment on that ground). Thus, if Crystal Rock needed good cause to terminate the employment, it had good cause based on abandonment.

Count 4. Breach of the Covenant of Good Faith and Fair Dealing (Express Employment Contract)

LaBounty alleges that Crystal Rock’s actions breac hed the covenant of good faith and fair dealing that exists in every contract. He has not explained how Count 4 differs from Count 1, although the complaint points out that the coven ant “protects the parties from ‘bad faith’ conduct that violates ‘community standards of decen cy, fairness or reasonableness.’”

An implied covenant of good faith and fair dealing exists in every contract, “to ensure that parties to a contract act with ‘faithfulness t o an agreed common purpose and consistency with the justified expectations of the other party. ’” Carmichael v. Adirondack Bottled Gas Corp. , 161 Vt. 200, 208 (1993) (quoting Restatement (Sec ond) of Contracts § 205 comment a (1981)). However, a claimed breach of the covenant of good faith and fair dealing cannot support a separate cause of action as the basis for a remedy for wrongful termination where the record fails to show the existence of any contract or other enforceable promise. Ross , 164 Vt. at

23.12

LaBounty claims that Crystal Rock failed to give h im the work assignments he had hoped for, based on his earlier discussions with Jeffrey Gates. However, he has not shown that either Vermont Pure Springs or Crystal Rock have violated any specific promises made to him. He has not cited to evidence in the record showing that Cr ystal Rock violated the “community standards of decency, fairness, or reasonableness” that the c ovenant of good faith and fair dealing seeks to

protect. Boulton v. CLD Consulting Engineers, Inc. , 2003 VT 72, ¶ 12, 14 Vt.L.W. 238, 240 (citing

Carmichael ). “[N]othing in the record suggests that [Crystal Rock’s] executives abused their authority or lacked a reasonable basis for their ac tions with respect to plaintiff.” Id . ¶ 13.

Count 5. Breach of the Covenant of Good Faith and Fair Dealing (Implied Employment Contract)

LaBounty again alleges that Crystal Rock’s actions breached the covenant of good faith and fair dealing that exists in every contract, but he bases Count 5 on the implied contract alleged in Count 3. He has not explained how Count 5 diffe rs from Count 3. Once again, the claim

based on the covenant fails because the contract cl aim has failed. A covenant as to tenure in an

unmodified at-will contract would conflict with the employment-at-will doctrine and result in “unreasonable judicial interference into what is a private relationship.” Ross , 164 Vt. at 23.

LaBounty claims Crystal Rock violated an implied c ontract by terminating his employment without following progressive discipline steps outlined in the employee manual. However, nothing in the manual states that the prog ressive discipline steps are required, and in fact LaBounty has testified that he “never really l ooked at it as a contract.” Once again, “nothing in the record suggests that [Crystal Rock’s] execut ives abused their authority or lacked a reasonable basis for their actions with respect to plaintiff.” Boulton , 2003 VT 72, ¶ 13, 14

Vt.L.W. 238, 240.

Count 6. Illegal Retaliatory Discharge From Employ ment (Violation of Vermont’s Workers’ Compensation Statute)

In Count 6, LaBounty claims that Crystal Rock unla wfully discharged him because he

asserted a claim for benefits under the Workers’ Co mpensation statutes, under 21 V.S.A. § 710. He claims that his August 20, 2002 note, stating th at he wanted to apply for a disability medical leave, was the reason why Crystal Rock laid him off on September 7, 2002.

To succeed on [his] retaliation claims, plaintiff must show that (1) [he] was engaged in a protected activity, (2) the [emplo yer] knew of that activity, (3) plaintiff suffered adverse employment action, and ( 4) a causal connection exists between plaintiff’s protected activity and the adve rse employment action. Gallipo v. City of Rutland , 163 Vt. 83, 92 . . . (1994). Plaintiff may establ ish the required causation indirectly through the timing of [his] pr otected activity and the [employer’s] alleged retaliatory actions. Id. at 93 . . . . If plaintiff establishes a prima facie case of retaliation, [the employer] mus t proffer a legitimate,13

nondiscriminatory reason for [its] actions. Murray v. St. Michael’s College , 164 Vt. 205, 210 . . . (1995). Plaintiff then must pro ve by a preponderance of the evidence that the [employer’s] reasons for [its] ac tions are a pretext for

discrimination. Id.

Mellin v. Flood Brook Union School District , 173 Vt. 202, 211 (2001). Also see Beckmann v.

Edson Hill Manor , 171 Vt. 607 (2000).

LaBounty’s apparent theory is that Crystal Rock te rminated him because he was considering filing a workers’ compensation claim. Crystal Rock stresses that he never actually filed a claim. Nevertheless, he did tell Crystal R ock that he wanted to apply for a disability medical leave. He claims that the timing is suspic ious, because Crystal Rock laid him off less than three weeks later. However, Crystal Rock has set forth a legitimate reason for its action, and LaBounty has not submitted any evidence to show that Crystal Rock’s reason is a pretext for

discrimination.

LaBounty points out that the second time he asked Gates why he had been fired, Gates responded that he guessed it was because LaBounty h ad not returned the form. (LaBounty deposition at 302). However, Gates’ response is co nsistent with Crystal Rock’s explanation that

the termination was based on abandonment. This evi dence does not show that Crystal Rock terminated him because he was asserting his rights, nor does it show that Crystal Rock’s claim of abandonment is a mere pretext. The evidence does n ot support LaBounty’s claim that Crystal Rock discriminated against him because he was exerc ising his right to file a claim for workers’ compensation.

Count 7. Retaliatory Discharge From Employment (Pu blic Policy Violation)

In response to Crystal Rock’s motion, LaBounty sta tes that he does not intend to pursue this claim. Summary judgment will be granted on th is count.

Count 8. Intentional Infliction of Emotional Distr ess

Plaintiff’s Count 8 alleges intentional infliction of emotional distress. The amended complaint refers to the earlier allegations, assert s that the defendant’s actions and treatment of plaintiff were extreme and outrageous, and alleges that defendant intentionally or recklessly

inflicted severe emotional distress.

Plaintiff bears the burden of showing “outrageous conduct, done intentionally or with reckless disregard of the probability of causing em otional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct.” Baldwin

v. Upper Valley Services, Inc. , 162 Vt. 51, 55 (1994) (citations omitted). “The standard for establishing outrageous conduct is a high one: the conduct must be so outrageous in character and so extreme in degree as to go beyond all possib le bounds of decent and tolerable conduct in a civilized community.” Farnum v. Brattleboro Retreat, Inc. , 164 Vt. 488, 497 (1995) (citation14

omitted). “[M]ere termination of employment will n ot support a claim for intentional infliction of emotional distress. However, if the manner of t ermination evinces circumstances of oppressive conduct and abuse of a position of autho rity vis-à-vis plaintiff, it may provide grounds for the tort action.” Crump v. P & C Food Markets, Inc. , 154 Vt. 284, 296 (1990).

In this case, Mr. LaBounty’s claims of outrageous conduct consist primarily of Crystal Rock’s assigning him to work long hours delivering water on a truck route, criticizing him when he missed deliveries, and then terminating his empl oyment when he stayed home to recuperate from the emotional stress. LaBounty was taken off the Crystal Rock payroll, but, in contrast to Crump , he was neither accused of criminal misconduct nor subjected to lengthy interrogation. Plaintiff alleges a series of indignities, but he h as not set forth any one incident of behavior “that transcends the ignoble and vast realm of unpleasant and often stressful conduct in the workplace.” Denton v. Chittenden Bank , 163 Vt. 62, 67 (1994). Crystal Rock’s conduct in concluding that he had abandoned his at-will employ ment does not satisfy this standard given his own failure to either return the completed form or otherwise communicate with Crystal Rock concerning his status for a period in excess of two weeks. He has not shown “outrageous conduct” by the defendant that would satisfy the es sential elements of his claim under count 8 because a reasonable jury could not find that Cryst al Rock’s conduct went “beyond all possible

bounds of decent and tolerable conduct in a civiliz ed community.” Farnum at 497. Crystal Rock is entitled to summary judgment on count 8.

Punitive Damages

Mr. LaBounty’s Complaint also requests an award of punitive damages. However, punitive damages may be awarded only where the defe ndant’s liability for actual damages has

been established. Allard v. Ford Motor Credit Co. , 139 Vt. 162, 164 (1980). Based on the conclusion that LaBounty is not entitled to any awa rd for compensatory damages, Crystal Rock is entitled to summary judgment on his request for punitive damages.

ORDER

Defendant Crystal Rock’s Motion for Summary Judgme nt is granted on all counts.

Dated this ____ day of April, 2004.

____________________________ Hon. Mary Miles Teachout Superior Judge15 STATE OF VERMONT WINDSOR COUNTY, SS.

MATTHEW LABOUNTY ) ) Windsor Superior Court v. ) Docket No. 610-12-02 Wrcv ) CRYSTAL ROCK SPRING ) WATER COMPANY )

JUDGMENT

This action came on for consideration of the Motio n of Defendant for Summary Judgment, and the court, on April 28, 2004 having g ranted Defendant’s Motion for Summary Judgment,

It is ORDERED and ADJUDGED that judgment is entere d for the Defendant, and Plaintiff shall take nothing on the claim.

Date at this day of April, 2004.

____________________________ Hon. Mary Miles Teachout Superior Judge