Guyon v. Intake Advantage, Inc., No. 327-7-13 Wmcv (Wesley, J., July 22, 2015)

[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 

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Guyon vs. Intake Advantage, Inc.

ENTRY REGARDING MOTION

Count 1, Breach of Contract/Unlawful Emp. Termina (327-7-13 Wmcv)

Title: Motion for Summary Judgment (Motion 19)

Filer: Intake Advantage, Inc.

Attorney: Stephen D. Ellis

Filed Date: December 2, 2014

Response filed on 01/07/2015 by Attorney Stephen D. Ellis for Defendant Intake Advantage, Inc.

Response filed on 05/28/2015 by Attorney Stefan Ricci for Plaintiff Anne L. Guyon

Response filed on 06/12/2015 by Attorney Stephen D. Ellis for Defendant Intake Advantage, Inc.

The motion is GRANTED.

INTRODUCTION

Plaintiff Anne Guyon has filed claims for breach of contract and unlawful discrimination 

against her former employer, Defendant Big Voodoo Interactive (named here as Defendant 

Intake Advantage, Inc.). Plaintiff claims she was unlawfully discriminated against as a result of 

filing a workers’ compensation claim and that Defendant failed to provide Plaintiff with all 

compensation she was due according to her employment agreement. Now before the Court is 

Defendant’s motion for summary judgment, as well as its motion for spoliation sanctions, and 

its motion for judgment as a matter of law on its counterclaim for wrongful conversion. 

UNDISPUTED FACTS

Plaintiff was hired as a staff writer by Defendant Big Voodoo Interactive (“BVI”) in 

January of 2012. See Email, 1/14/2013, Def’s Ex. B, 1. Plaintiff and Defendant initially agreed 

that Plaintiff would work 32 hours per week; she later moved to full time. See Emails, 7/6/2013, 

Def’s Ex. B, 5–6. Plaintiff was permitted to work predominantly from her home in Saxtons 

River, Vermont. She would only travel to BVI’s office in Northampton, Massachusetts for 

occasional meetings. On January 23, 2012, Plaintiff signed an Employee Handbook 

Acknowledgement, confirming that Plaintiff had received and understood the Employee Policy 

Manual and that she understood she was an employee at-will. See Acknowledgement, Def’s Ex. 

C; see also Guyon Deposition, Def’s Ex. D, 84. There was no formal employment contract. See 

Def’s Ex. C. 

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Windham Unit Docket No. 327-7-13 Wmcv
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Around December of 2012, Defendant sought to reduce the time needed to complete 

projects for its customers. See Danko Aff., Def. Ex. F. With the input of Jim Danko, the head 

writer at BVI, Defendant issued the Writing Department Process Memorandum on February 6, 

2013. See id. The memorandum provided guidelines for content and structure and established 

that the expected output of BVI writers was to be close to 1,000 words or three pages per hour, 

for a total of about 8,000 words per day. See Memorandum, Def’s Ex. G; see also Guyon 

Deposition, Def’s Ex. D, 71. Actual output could vary and there was flexibility for writers 

depending on their task. See id. Plaintiff claims the 8,000 word-per-day requirement 

represented a significant increase over the expectations when she was hired. Def’s Ex. D, 48. 

Prior to the release of the memorandum, however, BVI personnel observed that Plaintiff was 

routinely taking longer to complete assignments than the other full time writers. See Def. Ex. F. 

Following the release of the memorandum, Plaintiff teleconferenced with the two other 

full time writers at BVI to discuss the new guidelines and output expectations. During this 

conversation, Plaintiff expressed her dissatisfaction with the production pace writers were 

expected to attain. See Def’s Ex. D, 23–24.

On March 14, 2013, Plaintiff wrote to Mr. Danko explaining that the fastest pace she 

could achieve was 2.5 pages per hour and working at this pace had caused her to experience 

significant pain in her wrists and severe tension headaches. See Danko Email, 2/13/2013, Def’s 

Ex. B, 14. Two days later, on March 15, 2013, Plaintiff wrote to Paige Gore, Defendant’s Human 

Resources Manager, explaining that the increased production requirements had caused Plaintiff 

to experience significant pain and stiffness in her wrists and she would often get tension 

headaches as well. See Gore Email, 3/15/2013, Def’s Ex. B, 12–13. Plaintiff explained that it was 

not the length of time she spent writing that caused her pain, but rather the “accelerated 

pace.” Id. Responding via email, Ms. Gore disagreed that there was any “accelerated” 

production pace, clarifying that the expected output was merely based on industry standards 

and production goals. Gore Email, 3/18/2013, Def’s Ex. B, 16. Ms. Gore also reminded Plaintiff 

that the goal was somewhat flexible. Id. Turning to Plaintiff’s reported injury, Ms. Gore 

informed Plaintiff that Defendant’s worker compensation carrier would be notified of Plaintiff’s 

issues. Id. 

Soon thereafter, Defendant provided Plaintiff with an insurance claim number for 

Plaintiff to use at any appointments related to her injuries. See Def’s Ex. B, 38. Plaintiff visited 

her primary care physician on March 26, 2013, and the following day forwarded to Defendant a 

Work Capabilities Form signed by her doctor. The form indicated that Plaintiff should stay at a 

2,000 words-a-day limit until her symptoms resolved. See Work Capabilities Form, 3/26/13, 

Def’s Ex. J. Ms. Gore responded the same day expressing her understanding that Plaintiff could 

only work one to two hours a day based on BVI’s expected output, and informed Plaintiff that 

she would be placed on a schedule of 9-11am, Monday-Friday, effective immediately. Def’s Ex. 

B, 43. Ms. Gore further explained that Plaintiff would have to put in a claim for lost work time 

to Defendant’s workers’ compensation insurance carrier. Id. 

On March 28, 2013, Plaintiff faxed Defendant a second Work Capabilities Form, dated 

March 27, 2013, where Plaintiff’s doctor expressed a more specific fine hand manipulation 

limitation: “typing—needs to stay at 2,000 word limit per regular 8 hour day, M-F only.” Work 
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Capabilities Form, 3/27/13, Def’s Ex. M. The fax was forwarded to Defendant’s insurance 

carrier. Def’s Ex. B, 45–46. 

Through email and phone conversations, Plaintiff expressed that she was unwilling to 

accept reduced hours, but rather was asking for a full time employment at the reduced 

production rate prescribed by her doctor. See Def’s Ex. D, 69–72. In further correspondence 

with Plaintiff, Ms. Gore explained that Defendant did not have a light duty position equivalent 

to what Plaintiff was requesting available, and Defendant was under no obligation to create 

such a position. Def. Ex. B, 47. Ms. Gore further explained, because Plaintiff could not meet 

BVI’s expected output requirements Plaintiff should stop working immediately, and if Plaintiff 

could not return to full duty within one week she should return all company property including 

the iMac computer she was provided by Defendant. Id. Ms. Gore also informed Plaintiff that her 

health insurance would terminate as of April 5, 2013 if she did not return to work by that date. 

See Def. Ex. B, 48. 

In a letter on April 5, 2013, Plaintiff informed Defendant of her diagnosis of tendonitis in 

her wrist, her current course of treatment, and her expected 6–8 week recovery. Def. Ex. B, 51. 

Plaintiff also recounted her understanding of Defendant’s previous communications that 

Defendant would not accommodate her injury and, as Plaintiff could not return to full capacity 

work on that day, April 5, 2013, she had been effectively terminated. Id. Plaintiff requested 

Defendant inform her in writing that she he had been terminated and provide a severance 

package, including the equivalent of 12 weeks’ salary, continued insurance coverage through 

July 15, 2013, and the iMac computer. Id.

On April 8, 2013, Defendant’s counsel at the time, Mr. Morelli, responded to Plaintiff’s 

April 5 letter and explained that she had not been terminated but that her pending workers’ 

compensation claim and all wages and medical bills would be processed by Defendant’s 

insurance carrier. See Morelli Letter, 4/8/13, Def. Ex. P. Additionally, Mr. Morelli requested that 

Plaintiff return all of Defendant’s property. Id. 

In an email response that same day, Plaintiff requested clarification about the status of 

her employment; inquiring why it was necessary for her to return the computer if she had not 

been terminated and why her health benefits were being terminated. See Email, 4/8/2013, 

Def’s Ex. B, 53–54. Plaintiff further expressed her wish to be reinstated to her former full time 

position with the restrictions imposed by her physician. See id. Mr. Morelli’s reply dismissed 

Plaintiff’s inquiry with, “I could not have been any clearer in my previous letter,” and again 

requested return of the computer, asserting that she had been “unambiguously directed to 

return your employer’s property by Fed Ex.” See Morelli Letter, 4/10/2013, Def. Ex. Q. He did 

not provide any further clarification about Plaintiff’s employment status. 

Later in April, Plaintiff’s claims for unemployment compensation were initially denied by 

the Vermont Department of Labor based on a finding that Plaintiff had voluntarily quit 

Defendant’s employment. See Unemployment Compensation Determination, 6/16/2013, Def’s 

Ex. S. On appeal, the administrative law judge found Plaintiff was eligible to receive 

unemployment as her work place injury had prevented her from performing the essential 

functions of her job. Jennifer Davis, Administrative Decision, 6/28/2013, Def’s Ex. T. Through a 

settlement agreement approved by the Department of Labor and Industry, Plaintiff also 
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received $3,500 in workers’ compensation benefits plus $2,631.46 in covered medical 

expenses. See Settlement Agreement, 11/12/2013, Def’s Ex. L.

On or about April 7, 2013, Plaintiff restored the iMac computer to its factory settings. 

See Pl’s Opp. to Def’s Motion In Limine, 5/28/2015, 1. Plaintiff did not return the computer to 

Defendant until October of 2013. Id. at 2. 

On July 17, 2013, Plaintiff filed her complaint, which was later amended for a second 

time in October of 2014 to assert a total of five claims including: I) Breach of Contract; II) 

Wrongful Termination; III) Unlawful Discrimination; IV) Unlawful Discrimination Against a 

Disabled Individual; and V) Violation of the Vermont Family and Medical Leave Act.1 

On December 1, 2014, Defendant moved for summary judgment on all of Plaintiff’s 

claims. In Plaintiff’s opposition to summary judgment, she concedes that summary judgment 

should be granted as to claims II, IV, and V. Therefore, the Court considers claims II, IV, and V 

dismissed. 

In a separate small claims action, Defendant had sought damages for the wrongful 

conversion of Defendant’s property. On October 9, 2013, the matters were consolidated and 

the small claims complaint was added as a counterclaim in this action. On March 16, 2015, 

Defendant moved for judgment as a matter of law on its counterclaim. Defendant has also filed 

a motion in limine seeking sanctions for Plaintiff’s alleged spoliation of evidence.

Now before the Court is Defendant’s motion for summary judgment on Plaintiff’s 

remaining two claims for breach of contract and unlawful discrimination, Defendant’s motion in 

limine for spoliation sanctions, and Defendant’s motion for judgment as a matter of law on its 

counterclaim. The Court addresses each in turn.

DISCUSSION

A. Summary Judgment 

The Court will grant summary judgment “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

V.R.C.P. 56(a). The Court makes all reasonable inferences and resolves all doubts in favor of the 

non-moving party. Lamay v. State, 2012 VT 49, ¶ 6, 191 Vt. 635. Nevertheless, the non-moving 

party cannot rely solely on the pleadings to rebut credible evidence. Boulton v. CLD Consulting

Eng’rs, Inc., 2003 VT 72, ¶ 5, 175 Vt. 413. If the non-moving party fails to challenge the 

movant’s statement of material facts, the Court will take the movant’s facts as true. Webb v. 

Leclair, 2007 VT 65, ¶ 4, 182 Vt. 559. Mere assertions are inadequate to raise questions of fact; 

the non-moving party must provide “affidavits or other documentary evidence sufficient to call 

 

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Defendant contends that the complaint was never properly amended and Plaintiff’s late response of her 

opposition to summary judgment should preclude the Court from considering the Second Amended Complaint or 

Plaintiff’s opposition to summary judgment. Any delay in filing was minimal and the Court treats Plaintiff’s 

complaint as properly amended, therefore the Court will address the claims as Plaintiff has framed them in her 

latest complaint and opposition to summary judgment. 
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into question the existence of the factual basis for the claim.” Miller v. Merchants Bank, 138 Vt. 

235, 237 (1980). 

I. Breach of Contract

Plaintiff asserts that Defendant breached its contract with Plaintiff by failing to 

compensate her for the value of accrued vacation days after Defendant terminated her 

employment. Plaintiff does not, however, explain the source of this contractual duty, but rather 

argues that because the Employee Policy Manual is silent on compensation due terminated 

employees, a genuine issue of material fact exists whether it was Defendant’s policy to provide 

such compensation. Plaintiff requests that the Court stay the current motion for summary 

judgment to allow further discovery on the issue. 

Defendant first disputes that Plaintiff was ever terminated, arguing that Plaintiff 

resigned without giving ten days’ notice and thus no discretionary compensation for accrued 

vacation time would be considered. Resolving all doubts in favor of the non-moving party, for 

the purposes of Plaintiff’s breach of contract claim, the Court accepts that Plaintiff was 

terminated. Yet, Defendant further argues that terminated employees have no contractual right 

to compensation for accrued vacation time; the Employee Policy Manual is silent, Defendant 

denies any representation that could form the basis of a contract, and Plaintiff has established 

no evidence of any such contractual foundation. Therefore, even accepting that Plaintiff was 

terminated, Plaintiff’s claim fails. Defendant opposes Plaintiff’s request to extend discovery, 

arguing that Plaintiff has failed to show “for specified reasons” that she cannot present “facts 

essential to justify [her] opposition” to summary judgment, therefore no extension is 

warranted. See V.R.C.P. 56(d). For the following reasons, the Court concludes that Plaintiff has 

failed to demonstrate that material facts remain in dispute and therefore Defendant is entitled 

to judgment as a matter of law.

The Employee Policy Manual, under the heading “Resignation,” states: “In the event 

notice is given, employees are entitled to receive all earned, but unused vacation. If notice is 

not received, unused vacation will not be paid.” Employee Policy Manual, Def’s Ex. H, at 20. 

Notice is defined as ten “complete working days without any absences, including holidays.” Id. 

The Policy Manual is silent, however, about whether an employee is entitled to receive 

compensation for unused vacation in the event the employee is terminated. Id. 

Plaintiff does not claim that Defendant made some representation, other than the 

language of the Policy Manual, suggesting she would be entitled to such compensation. Nor 

does Plaintiff provide any legal authority establishing that an employee, in an employment at 

will context,2can reasonably expect to receive compensation for accrued vacation time if they 

are terminated. See Ross v. Times Mirror, 164 Vt. 13, 18 (1995). While the Employee Manual 

addresses the situation of voluntary resignation with advance notice, the Manual is completely 

silent about vacation days when the employee is terminated. Such silence cannot be deemed to 

afford Plaintiff an affirmative contract right. Id.

 

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It is undisputed that Plaintiff was an at-will employee.
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Plaintiff’s generalized assertion that additional discovery is necessary to determine whether it 

was Defendant’s policy to provide compensation to terminated employees is insufficient to 

preclude summary judgment. Plaintiff has had significant time to conduct discovery and her 

request to further extend what has already been a lengthy process “fail[s] to articulate precisely 

what material facts essential to [her] opposition remains undiscovered.” State v. Howe 

Cleaners, 2010 VT 70, ¶ 47, 183 Vt. 303. 

Even assuming that Plaintiff was terminated from her employment with BVI, Plaintiff fails to 

identify anything in the record to support the claim that she had a contractual right to receive 

compensation for accrued vacation days. Therefore, the Court concludes that as a matter of law 

Plaintiff has failed to establish that Defendant breached any contract, written or oral, by not 

compensating Plaintiff for unused vacation days.

II. Unlawful Discrimination

Plaintiff also asserts a claim of retaliatory discrimination under 21 V.S.A. § 495(a) and 21 

V.S.A. § 710(b), alleging that Defendant discriminated against her by terminating her 

employment in response to her workers’ compensation claim and by refusing to accommodate 

her injury. 

Under 21 VSA § 710(b) and 21 V.S.A. § 495(a)(8), an employer is prohibited from 

discriminating or otherwise retaliating against an employee for asserting a protected right, such 

as filing a workers’ compensation claim. To make out a retaliatory discrimination claim that will 

survive summary judgment, a plaintiff must present a prima facie case that (1) she was engaged 

in a protected activity, (2) the defendant was aware of that activity, (3) she suffered an adverse 

employment decision, and (4) there was a causal connection between the protected activity 

and the adverse employment decision. See Murray v. St. Michael’s College, 164 Vt. 205, 210 

(1995). If the plaintiff can make out a prima facie case, the defendant must offer some “some 

legitimate, nondiscriminatory reason for the challenged conduct.” Id. If the defendant 

articulates such a reason, the plaintiff must prove that the defendant’s offered reason was 

mere pretext. Id

There is no dispute here that Plaintiff engaged in a protected activity by filing a workers’ 

compensation claim, and that Defendant was aware of that claim. The dispute initially centers 

on whether there was an adverse employment decision. Defendant maintains summary 

judgment should be granted because there was no adverse employment decision since Plaintiff 

was not terminated, but voluntarily resigned. In opposition, Plaintiff claims that she was 

terminated either explicitly or constructively. 

“In determining whether a separation from employment is a discharge or a voluntary 

quit,” the Court is to look at “the intent of the parties at the time of the separation.” Kelley v. 

Department of Labor, 2014 VT 74, ¶ 10, 101 A.3d 895. Viewing the facts in the light most 

favorable to Plaintiff, the Court cannot conclude, based on the record before it, that Plaintiff 

intended to quit her employment on March 28, 2013, the last day she worked. Therefore, the 

Court accepts for the purposes of this claim that Plaintiff was terminated. 
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A finding that Plaintiff was terminated, however, does not end the inquiry. Rather, as 

the Court explained in Murray, once a prima face case is established Defendant may offer a 

non-discriminatory reason for the termination. See Murray, 164 Vt. at 210. Defendant has 

offered such a reason, claiming it was entitled to request that Plaintiff stop working because 

her injury prevented her from meeting the productivity expectations of a full time staff writer 

at BVI. See 21 V.S.A. § 710(b) (“Nothing in this section shall require a person to employ an 

applicant who does not meet the qualifications of the position sought.”). 

Plaintiff contends that even at the 2,000 word-per-day limitation prescribed by her 

doctor, she could have met production expectations of a full time staff writer, and thus it was 

improper for Defendant to terminate her employment and refuse to offer her an available 

alternative position. Such a claim, however, is unconvincing and fails to challenge the material 

facts presented. As Plaintiff concedes, she was having trouble meeting the expected output 

when working at full capacity, and once her wrists started to hurt, her productivity greatly 

decreased. See Pl’s Ex. B, 12, 14. Nevertheless, Plaintiff argues that the target production rate 

of 3 pages per hour at roughly 350-500 words per page was merely a goal, but depending on 

the project, actual production would often be lower. Extrapolating from that proposition, 

Plaintiff reasons that productivity expectations could be as low as 2,400 words per day on the 

more complex projects, which is not far off from her limitation while injured. Therefore, 

Plaintiff argues, Defendant could have continued to employ Plaintiff as a full time staff writer 

without creating a light duty position. 

The hypothetical scenario that on a given day, when conducting more complex research 

tasks, a full time writer at BVI might only produce 2,000 words does create a dispute of material 

fact of whether a position was readily available for Plaintiff with her limitation. See Thurber v. 

United Parcel Service, Inc., No. 2:05–cv–159, 2007 WL 3046261 at *5 (D. Vt. Oct. 16, 2007) 

(finding allegation that employer may have temporarily accommodated other employees failed 

to prove that employer failed to offer a suitable position to an injured worker). Defendant had 

set a standard that governed all full time writers, and while exceptions on a case by case basis 

could be made, Plaintiff’s limitation would have limited her to one quarter of the expected 

output for weeks. Without some more definitive evidence that a position was in fact available, 

Plaintiff’s claim fails to challenge the evidence supplied by Defendant demonstrating that 

Plaintiff’s limitation prevented her from performing the essential functions of her job. See

Miller v. Merchants Bank, 138 Vt. 235, 237 (1980). Indeed, Defendant offered Plaintiff a part 

time position, but Plaintiff rejected this offer requesting full time employment. 

Plaintiff repeatedly asserts that Defendant’s production requirements represented a 

significant increase or “accelerated pace” over what she was initially hired to perform. 

Regardless of the veracity of her claim, an employer is not precluded from raising work 

standards during an at-will employee’s tenure where there is no contract provision prohibiting 

such action. See Ross v. Times Mirror, Inc., 164 Vt. 13, 19–20 (1995). Ultimately, because 

Plaintiff has failed to rebut Defendant’s non-discriminatory reason for Plaintiff’s termination —

Plaintiff’s inability to carry out the duties of her position due to a workplace injury — there was 

no violation of 21 V.S.A. 710(b) or 21 V.S.A. § 495(a)(8). See Wentworth v. Fletcher Allen Health 

Care, 171 Vt. 614 (holding that 21 V.S.A. § 710(b) does not preclude an employer from 

terminating an employee “who is unable to who is unable to carry out the duties of her position 

due to an occupational injury.”).
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For the foregoing reasons, the Court concludes that Plaintiff’s unsupported allegations 

fail to raise a dispute of material facts, and therefore, Defendant’s motion for summary 

judgment is GRANTED. 

B. Spoliation Sanctions

The Court denies Defendant’s motion for spoliation sanctions. Plaintiff was not in 

violation of any Court order by restoring the computer to its factory settings. See V.R.C.P. 37. 

Moreover, there is no support for Defendant’s assertions that Plaintiff could have reasonably 

anticipated litigation on April 7, 2013, that Plaintiff had a culpable state of mind on that date, or 

that the computer files would have been relevant to the current litigation. 

On the date Plaintiff restored the computer to its factory settings, April 7, 2013, she had 

only been directed by Defendant to return the computer once a valid prepaid label arrived. The 

Court cannot conclude that based on that communication alone, a duty to preserve evidence 

had arisen. Therefore, Defendant’s motion is DENIED. 

C. Wrongful Conversion

Defendant has counterclaimed against Plaintiff seeking damages of $1,644.72 for the 

unlawful conversion of the iMac computer that Plaintiff retained until October of 2013. 

Defendant has now moved for judgment as a matter of law on its unlawful conversion claim. 

A party may move at any time for judgment as a matter of law and “such a motion shall 

specify the judgment sought and the law and the facts on which the moving party is entitled to 

judgment.” See V.R.C.P. 50(a)(2). Judgment as a matter of law will only be granted when there 

is no legally sufficient basis for a reasonable jury to find for the non-moving party. See Perry v. 

Green Mountain Mall, 2004 VT 69, ¶ 7, 177 Vt. 109. Based on the law and facts submitted by 

Defendant in connection with its motion for judgment as a matter of law on the counterclaim, 

and granting the non-moving party every favorable inference, the Court cannot conclude that 

there is no legally sufficient basis for a reasonable jury to find for Plaintiff. Therefore, 

Defendant’s motion for judgment as a matter of law on its counterclaim for wrongful 

conversion of property is DENIED. Because the counterclaim remains the only pending claim 

following the entry of summary judgment against Plaintiff on the complaint, it will be 

transferred back to small claims court for trial.

WHEREFORE, it is hereby ORDERED: Defendant’s motion for summary judgment is 

GRANTED, and Defendant shall submit a proposed form of judgment. Defendant’s motion for 

spoliation sanctions is DENIED. Defendant’s motion for judgment on the pleadings on its 

counterclaim is DENIED, and the claim is transferred to Small Claims Court for trial. 
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Electronically signed on July 22, 2015 at 10:11 AM pursuant to V.R.E.F. 7(d).

______________________________________

John P. Wesley

Superior Court Judge

Notifications:

Neutral Mediator/Arbitrator/Evaluator Thomas P. Aicher

Stephen D. Ellis (ERN 3106), Attorney for Defendant Intake Advantage, Inc.

Stefan Ricci (ERN 3746), Attorney for Plaintiff Anne L. Guyon

wesley