STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION Windsor Unit Docket No. 22-CV-493 GARY ALIBOZEK, Plaintiff

V. NORMAN WATTS and WATTS LAW FIRM, P.C., Defendants

DECISIONS ON PENDING MOTIONS

Plaintifl' Gary Alibozek was represented by Defendant Norman Watts in an age discrimination case against his employer, General Electric Company.‘ Mr. Alibozek applied for an open position and younger employee who had worked at GE for less time was selected for

the job. In that Underlying Case, summary judgment was granted to General Electric Company. Mr. Alibozek now brings

this suit against Mr. Watts and Watts Law Firm, P.C., alleging several

causes of action based on Mr. Watts’s representation of him in the Underlying Case against General Electric.

The Amended Complaint sets forth four causes of action: Negligence/Legal Malpractice; Breach of Contract; Consumer Fraud; and Negligent Misrepresentation.

There are several pending motions in the case, including Motion for Summary

Judgment on all counts filed by Defendant Watts. The motions are addressed in the order in which they were filed, except

that the Motion for Summary Judgment

is addressed last.

Motion #7: Plaintiff’s Motion to Compel GE to respond to subpoena

Plaintifl' sought discovery material from GE by informally sending subpoenato GE

representative who had previously provided discovery in the Underlying Case from GE’s files without formal service. GE declined to provide the requested documents due to lack of proper service of the subpoena

and also claimed that the request was unduly burdensome. Plaintiff’s

counsel seeks to compel production of the documents without service of the subpoena, claiming

that formal service would add time and expense. GE is not party to this lawsuit, and any prior agreement

in the Underlying Case regarding modes of making and responding to discovery

requests does not apply.

Alibozek v. General Electric Company, 270-5-17 Rdcv, hereinafter described as the Underlying Case. Hereinafter the term Watts will refer to both Mr. Norman Watts and Watts Law Firm, P.C.
Plaintiff’s counsel also sought personnel records of employees without requesting the addresses of those employees

to give them notice as required by l6 V.S.A. §l69la(c), and sought numerous records going back several years

in time, which GE claimed would be unduly burdensome. Plaintiff has shortened the retroactive date to 10 years based on the understanding

that GE keeps

records for 10 years.

The court denies the motion for several reasons. Plaintiff’s counsel failed to properly

serve the subpoena and seek the addresses of employees

in timely manner within the pretrial scheduling order. Moreover, the court concludes that large volume of material was requested

that constituted much more burdensome requestthan the single personnel file thatGE had previously agreed to provide without service of subpoena.

Perhaps most important

is that there is no showing that the significant volume of material

sought, some of which is very dated, even if it had been timely requested, would be within the

scope of discoverable material pursuant

to V.R.C.P. 26 (b), which allows discovery “relevant to

any party’s claim or defense and proportional t0 the needs of the case, considering the

importance of the issues at stake. .- .and whether the burden or expense of the proposed discovery outweighs

its likely benefit.” Mr. Alibozek was denied promotion to the position for which he applied in December of 2014. Plaintiff has not explained how documents from 10 years prior

to

that date, relating to other employees, would be relevant to the critical issue of whether the

reason given for the decision not to promote Mr. Alibozek was pretext.

For these reasons, the motion is denied, and thereis no reason to delay ruling on Defendant’s motion for summary judgment.

Motion #9: GE’s Motion for Protective Order

This request was essentially motion to quash made by GE in its Opposition to the Motion to Compel GE to comply with the subpoena described above. For the reasons stated

above, the Plaintiff’s motion has been denied. GE’s motion is therefore moot.

Motion #10: Plaintiff’s Motion to Compel the Attorney General’s Office to Allow Forensic Audit Mr. Alibozek and his wife contend that they listened to audio recordings provided by the Attorney General’s Office in the Underlying Case, that she took noteson what was said, and that

_a portion of what they listened to contained heated argument

that is no longer on the audio file. Plaintiff’s

counsel seeks to have forensic expert examine the original file at the Attorney General’s Office. The attorney for the State contends that they had their own forensic audit done which showed no missing portion of the interview.

The starting point 0f the analysisis that the written notes kept by Mr. Alibozek’s wife as

she listened to the interview,

in particularthe format she used of identifying what was said by what speakers as identified by initials, suggest

the possibility that there may be missing section
of the interview. Thus, if there were showing that the alleged missing portion actually

contained material pertinent

to Plaintiff’s claim of pretext, the court would consider granting the

request for Plaintiff to engage an independent forensic audit. The court assumes the accuracy of

the Alibozeks’ contention of the content of the missing material. However, there has been no

reasonable showing that the alleged missing portion of the interview contained content relevant under the standard of V.R.C.P. 26 (b)

to Plaintiff’s claim in this malpractice case. Thus, the delay, use of parties’ time, and expense of the requested forensic audit is not justified. The motion is denied.

Motion #12: Plaintiff’s Motion for Final Protective Order

Plaintiff previously filed Motion for Protective Order, Motion #5 (corrected as Motion #6),

in response to subpoena Defendant served on special disciplinary

counsel for production of communications from Plaintiff’s counsel related to an independent professional responsibility disciplinary proceeding. Plaintiff’s counsel claimed that her communications to special disciplinary counsel were protected attorney work product. In ruling issued October 17, 2023,

the court denied the motion without prejudice to refile, specifically providing that “if the motion

'is refiled, specific attention is requested as to the provision of an adequate basis for

gdetermination ofthe applicability of the privilege.” Motion #12 is Plaintiff’s refiling of the request. In the motion, Plaintiff claims that the

information in the communication was “matter of common interest” between herself and

special disciplinary counsel and thus could be shared with an attorney with'a common interest

:while retaining its character as Plaintiff’s attorney work product.

The court concludes that the purposes, standards, and procedures of tort case and professional responsibility disciplinary proceeding

are distinct, and attorneys working on the two different cases do not have the type of “common interest” that allows sharing of information while retaining the benefits of the attorney work product privilege. Thus the motion is denied.

Motion #14: Plaintiff’s Motion to Approve Third Amended ADR Schedule

Critical discovery deadlines had already passed before this motion was filed. See Order

fofApril 18, 2023. Nojustification has been shown for retroactively extending discovery

ideadlines, nor has any valid reason been shown that further discovery is needed before

consideration of Defendant’s Motion for Summary Judgment. The motion is denied.
Motion #15: Plaintiff’s Motion for Sur—reply (to Defendants’ Reply in Support of Summary

Judgment Motion)

The court concludes that the content of Defendant’s Reply did not raise new issues or

arguments not previously

identified by Defendant, and that Plaintiff was therefore not deprived of chance to address pertinent arguments. Thus, the motion is denied.

.Motion #8: Defendant’s Motion for Summary Judgment Breach 0fContract Claim. In legal malpractice case based on attorney representation

in litigation,

in order to prove negligence and damages, the plaintiff

is obliged to prove that if the

attorney had not been negligent

in conducting the Underlying Case, the plaintifi would have prevailed. Thus such plaintiff has to prove “case within case.” In the summary judgment

ruling in the Underlying Case, the court dismissed Count for breach of implied contract because

as matter of law, no implied contract was created that was breached by GE, and dismissed Count II for breach of implied covenant of good faith and fair dealing because no conduct was

alleged separate

from breach of contract. The Judgment was not appealed. Plaintiff concedes that

the same result would be required in this case on those issues. Thus, summary judgment

is

,granted to Defendants on the Breach of Contract claim in this case.

Consumer Protection Claim. Defendants argue that Plaintiff does not have consumer

fraud claim under the Vermont Consumer Protection Act because any representations made by

.Attomey Watts were not made to the consumer public at

large in the consumer marketplace, but

iwere part of private representation agreements between Mr. Alibozek and Mr. Watts, citing Foti

iFuels, Inc. v. Kurrle Corp, 2013 VT 111. Plaintiff,

in his responsive memorandum of law, claims

'that more discovery is needed. However, there is no showing of what more discovery is needed.

.The court concludes that the analysis

relied on by Defendant based on Foti Fuels is on point and persuasive. Thus, summaryjudgment

is granted to Defendants on the Consumer Fraud claim.

Negligent Misrepresentation Claim. Defendants argue that Plaintiff’s allegations as to

this claim are the same as those for the consumer fraud claim, and that they do not satisfy the

required elements of negligent misrepresentation claim as set forth in Howard v. Usiak, 172 Vt. 227, 230-231 (2001) because Plaintiff has not identified factual, actionable misrepresentations. Plaintiff responded simply, “Attorney Watts had duty

to inform Plaintiff of his conflict of

interest, as per

the Rules of Professional conduct.” This is insufficient to show specific

facts in

support of the elements of negligent misrepresentation claim as set forth in Howard v. Usiak: One who,

in the course of his business, profession or employment, or in any other

transaction in which he has pecuniary interest, supplies

false information for the

guidance of others in their business transactions,

is subjectto liability for pecuniary loss caused to them by theirjustifiable reliance upon the information, if he fails to exercise reasonable care or competence

in obtaining or communicating

the information.

Id. at 230-231.
While Plaintiff has identified failure to disclose conflict of interest as misrepresentation, specifically lacking is any evidence that the identified misrepresentation was the cause of pecuniary

loss to Plaintiff. Without such evidence,

summaryjudgment must be granted to Defendants on the Negligent Misrepresentation

claim.

Age Discrimination Claim. The age discrimination claim is the heart of this case, and is

the “case within case” that Plaintiff would have to prove in order to prevail

in this lawsuit. In

the summary judgment ruling in the Underlying Case, the court concluded that Plaintiff had met

thevburden of establishing prima facie case of age discrimination based on the evidence that the

age difference between Mr. Alibozek and the person selected for the position was enough to meet

the burden because there was nine year difference in age and the person selected was the

youngest candidate of the four interviewed. The burden then shifted to GE to show legitimate nondiscriminatory

reason for its decision to hire the younger candidate. The court concluded that GE had met its burden to produce legitimate nondiscriminatory reason, which was that the

younger candidate’s job and interview performance were superior

to Mr. Alibozek’s.

The burden then shifted to Plaintiff to show that GE’s reasons were pretext

for age discrimination. The court in the Underlying Case concluded that the allegations of pretext were

allegations only, and that Mr. Alibozek “failed to produce any

credible evidence tending to show

that GE’s reason for not hiring him was pretextual.” Thus,

in this case of legal malpractice

against Defendant Watts, Plaintiff would need to prove (a) that there was sufficient evidence to

show pretext, (b) that Mr. Watts failed to provide it to the court, and (c)

that if he had, Plaintiff would

have prevailed in the Underlying Case.

Defendant Watts alleges

in the Motion for Summary Judgment

in this case that Plaintifi

“has no relevant evidence beyond those submitted to the court in the Underlying Case to support his allegation of pretext.” Defendant’s Statement of Undisputed Facts, 11 23. Plaintiff denied this

paragraph and submitted “Supplemental Statement of Disputed Facts (Disputed by Watts and/or GE)” consisting of 20 paragraphs with references to 18 supporting exhibits.

The court has examined Plaintiff’s proposed disputed facts and all supporting exhibits t0 determine whether there is admissible evidence from whichjurors could infer discrimination on

the basis of age, keeping

in mind that such evidence is likely to be circumstantial. The issue is Whether there is circumstantial (or direct) evidence from which jurors could conclude that the actual basis for GE’s hiring decision was age discrimination, and that its stated reason was only pretext.

There is evidence that Mr. Alibozek was described by one member of the interview panel as “not leader and scattered.” (Exhibit 10 to Plaintiff’s Statement of Disputed Facts, Deposition of Mr. Alibozek, page 105.) Such characteristics could be descriptive of many people regardless of age. Mr. Alibozek testified that he “heard one of the people on the tape say that you got

to run

all day long and Jim [chosen candidate]

is the man and that something to the effect that couldn’t do that. .” (Exhibit

to Plaintiff’s Statement of Disputed Facts, Deposition of Mr.

‘5
Alibozek, page 90.) It appears

that this would be ofi'ered to prove that the interview panel passed Mr. Alibozek over in favor of younger man because Mr. Alibozek would not be able to “run all day long,” suggesting age discrimination. However, as offered it is inadmissible hearsay and thus cannot be relied on as admissible evidence creating dispute of fact on the issue of pretext. Mr. Alibozek claims that there was no one from HR in the interview, which was departure from

usual practice, and that corporate counsel sat in, thereby intimidating people. Even ifthese were departures

from usual practice and true, they do not constitute sufficient basis to infer that age discrimination was the reason for the employment decision.

These items of evidence are the most pertinentto the issue of pretext. Looked at in the

light most favorable to Mr. Alibozek, they do not constitute sufficient circumstantial basis upon

:which

the jury could conclude that the reason that the younger man, another GE employee who

had training suitable to the job, was hired over Mr. Alibozek based on age discrimination.

After careful review of the Plaintiff’s proposed facts, the court is unable to conclude that

there is sufiicient evidence from which jury could find that GE’s stated reason for its selection was pretext, and that the real reason was age discrimination. Therefore, Plaintiff does not have

sufficient evidence to prove his claim, and the Defendant’s summary judgment motion must be

granted.

Summary and Orders

The following motions are denied: ## 7, 10, 12, 14, and 15. Motion is moot.

Defendant’s Motion for Summary Judgment (#8)

is granted, and the court has

issued

Judgment

this day.

Electronically signed February 16, 2024 pursuant

to V.R.E.F.

(d).

Mary Miles Teachout

Superior Judge (Ret.), Specially Assigned

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Vermont Superior Court Filed o2/2o/_24 Windsor Unit