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19-1207-cv

Smith v. Shaw’s Supermarkets, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A 

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

20th day of April, two thousand twenty.

Present:

DEBRA ANN LIVINGSTON,

RAYMOND J. LOHIER, JR.,

WILLIAM J. NARDINI,

Circuit Judges.

_____________________________________

CHERYL A. SMITH,

Plaintiff-Appellant,

v. 19-1207-cv

SHAW’S SUPERMARKETS, INC.,

Defendant-Appellee.

_____________________________________

For Plaintiff-Appellant: JAMES G. LEVINS, Tepper Dardeck & Levins, LLP, 

Rutland, VT.

For Defendant-Appellee: MARTHA VAN OOT, Jackson Lewis P.C., Portsmouth, 

NH.
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Appeal from a judgment of the United States District Court for the District of Vermont

(Reiss, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Cheryl A. Smith (“Smith”) sued her former employer, Shaw’s 

Supermarkets, Inc. (“Defendant”), alleging breach of an implied contract of employment in 

violation of Vermont law. She now appeals from an opinion, order, and judgment of the U.S. 

District Court for the District of Vermont (Reiss, J.), entered on April 1, 2019, granting summary 

judgment in favor of Defendant. We review grants of summary judgment de novo, “construing the 

facts in the light most favorable to the non-moving party and drawing all reasonable inferences in 

that party’s favor.” Burns v. Martuscello, 890 F.3d 77, 83 (2d Cir. 2018) (internal quotation marks 

and citation omitted). We assume the parties’ familiarity with the underlying facts, the procedural 

history of the case, and the issues on appeal. 

* * *

The parties agree that Smith’s employment was terminated following her involvement in a 

dispute with Leslie Jay Bowen (“Bowen”), a customer and former employee of Defendant, during 

which Smith touched Bowen without his consent. On appeal, Smith argues that her termination 

was improper because it violated the progressive discipline procedure contained in Defendant’s 

Team Member Handbook (the “Handbook”), which Smith contends established an implied contract 

to fire employees only for cause. Under the progressive discipline procedure, Smith argues that 

she should have been given a three-day suspension and a final letter of warning, rather than being 

terminated. 
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We disagree. The district court correctly determined that Defendant’s Handbook, together 

with its actual practices, failed to create an implied contract to fire its employees only for cause. 

Under Vermont law, the at-will employment relationship may be altered by “personnel policies or 

practices of the employer,” including those “set out in an employee handbook.” Benoir v. Ethan 

Allen, Inc., 514 A.2d 716, 718 (Vt. 1986) (internal quotation marks and citation omitted). The 

Supreme Court of Vermont has found such implied contracts exist where the employer’s policies 

“are definitive in form, communicated to employees, and evince an employer’s intent to bind itself,” 

Havill v. Woodstock Soapstone Co., 783 A.2d 423, 428 (Vt. 2001) (citing Ross v. Times Mirror, Inc., 

665 A.2d 580, 584 (Vt. 1995)), such as where a handbook set out an “elaborate system governing 

employee discipline and discharge” that was “mandatory in tone,” Dillon v. Champion Jogbra, Inc., 

819 A.2d 703, 705, 708 (Vt. 2002). 

Here, by contrast, the Handbook was permeated with conditional and cautionary language

that communicated the absence of an intent to be bound to the use of progressive disciplinary 

measures. The Handbook states that Defendant “generally follows a progressive corrective action 

process that may include” steps such as verbal warnings and suspensions, but notes that 

“[n]otwithstanding this general practice, there may be some performance issues and policy 

violations that are so severe that immediate corrective action including termination may be 

necessary at [Defendant’s] sole discretion.” A. 36 (emphasis added). The subsequent sentences 

reiterate that “[i]n [Defendant’s] sole discretion, it may skip some or all of the steps in the 

progressive corrective action process,” and that Defendant “reserves the right to determine the 

appropriateness and level of counseling[] or corrective action in each situation, including whether 

immediate termination of employment is warranted.” Id. (emphasis added). The Handbook 

separately sets forth a non-exclusive list of reasons for immediate termination that begins by 
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reiterating the default at-will status of all employees. Id. at 36–37. Thus, the Handbook’s

language considered as a whole unambiguously communicates that Defendant reserves the right to 

use progressive discipline at its discretion, rather than binding itself to do so in every case or 

“promis[ing] . . . specific treatment in specific situations.” Ross, 665 A.2d at 584. Furthermore, 

the Handbook’s multiple broad disclaimers unequivocally stating that the at-will relationship 

remains intact, while not dispositive, see Dillon, 819 A.2d at 708, further reinforce the absence of 

any objective indicia of an intent to be bound, see A. 16 (“This Handbook is not a contract of 

employment or a guarantee of continued employment . . . [and] [o]nly the Chief Executive Officer 

of the Company has the authority to make an employment agreement for anything other than 

employment at-will and then only in writing and signed by or duly authorized by the Chief 

Executive Officer.”); id. at 36 (“These corrective action procedures do not alter the at-will 

employment relationship.”); id. at 37 (“This Team Member Handbook is not intended to create a 

contract, nor is it to be construed to constitute a contract of employment. Both [Defendant] and 

[employee] retain the right to terminate our employment relationship at any time, and for any 

reason, except as otherwise provided by an enforceable written agreement signed by [Defendant’s]

CEO or designee.”). Given the Handbook’s unambiguous language, the district court did not err in 

determining, as a matter of Vermont law, that the Handbook did not create an implied contract 

between Smith and Defendant that Defendant would fire Smith only for cause.

Moreover, none of the deposition testimony cited by Smith supports the inference that 

Defendant’s practices created an implied contract. While Smith’s supervisor testified that she was 

familiar with the Handbook’s outline for progressive discipline, she also affirmed that she took

“guidance from Human Resources . . . [i]n “all cases.” Id. at 239. This open-ended testimony 

does not support the inference that Defendant bound itself to a uniform, consistent enforcement of 
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the Handbook’s progressive discipline policy. Likewise, the testimony of another employee that 

she was familiar with the progressive discipline policy and believed that employees “get quite a few 

written warnings before termination,” id. at 267, and the testimony of the Regional Human 

Resources Manager that the progressive discipline procedure constituted “normal practices” but that 

the steps taken for corrective action “would depend on the situation,” id. at 226, do not support such 

an inference. Given the absence of evidence of an implied contract to fire employees only for 

cause, the district court properly awarded summary judgment in favor of Defendant.

Finally, even if Defendant had been bound by the policies set out in its Handbook, the 

record is devoid of evidence that these policies were breached in this case. The Handbook makes 

clear that violations of the Threats and Violence Free Workplace policy, which covers conduct that 

“threatens another person’s safety . . . or causes them to perceive their safety . . . is threatened,” id.

at 35, as well as violations of the Courtesy, Dignity and Respect Policy, “including quarreling or 

fighting with . . . other Team Members[] [or] customers,” could justify immediate termination, id. at

36–37. Given Smith’s undisputed involvement in a confrontation at the workplace during which 

she physically touched Bowen without consent, Defendant’s discretionary decision, following an 

investigation, to terminate Smith’s employment without proceeding through the steps of the 

progressive discipline procedure was entirely consistent with its policies. Accordingly, even 

assuming the Handbook created an implied contract, Smith’s breach of contract claim cannot 

withstand summary judgment.

We have considered Smith’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk