gates v. mack molding

Vermont Superior Court
Fil d o 2
fiutlagé 64121,?

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
Rutland Unit Docket No. 23-CV—2626

DONALD L. GATES, JR.,
Plaintiffs

V.

MACK MOLDING COMPANY, INC.,
JEFFREY SOMPLE,
JESSICA FREDETTE,
NANCY CEFLO, and
BUD PAGLICCIA,
Defendants

DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS

Plaintiff Donald L. Gates, Jr. asserts several claims against his former employer,
Defendant Mack Molding Company, Inc. (“Mack Molding”), and against four current or former
employees or officers of Mack Molding: Defendants Jeffrey Somple, Jessica Fredette, Nancy
Ceflo, and Bud Pagliccia (collectively hereinafter “Defendants”). Defendants move to dismiss
Mr. Gates’ complaint under Rule 12(b)(6) of the Vermont Rules for Civil Procedure, asserting
that Mr. Gates has failed to state claims for which relief can be granted. Defendants assert the
affirmative defense of statute of limitationsl

Mr. Gates is represented by Siobhan M. McClosky, Esq. Defendants are represented by
Timothy E. Copeland, Jr., Esq., and F. David Harlow, Esq. For reasons that follow, the motion
is granted in part and denied in part.

Dismissal of a claim pursuant to Rule 12(b)(6) may occur only when “it is beyond a
doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Dernz'er
v. Mortgage Network, Ina, 2013 VT 96, 1] 23, 195 Vt. 113, 121(2013). The general pleading
standard on a motion to dismiss is “exceedingly low,” Bock v. Gold, 2008 VT 81, 11 4, 184 Vt.
575, 576, as “[t]he purpose of a motion to dismiss is to test the law of the claim, not the facts
which support it.” Powers v. Off. of Child Support, 173 Vt. 390, 395 (2002). “Motions to
dismiss for failure to state a claim are disfavored and are rarely granted.” Colby v. Umbrella,
Ina, 2008 VT 20, 1] 5, 184 Vt. 1, 6. “We assume that all factual allegations pleaded in the
complaint are true” and “accept as true all reasonable inferences that may be derived from
plaintiffs pleadings.” Dernier, 2013 VT 96, 1] 23.

1
Defendants also asserted a defense of res judicata which was denied during a hearing on November 28, 2023.
 Factual Allegations

The court assumes that the following facts in the Complaint are true for purposes of
analysis of the motion to dismiss. See Montague v. Hundred Acre Homestead, LLC, 2019 VT
16, ¶ 10, 209 Vt. 514.

Mack Molding is a domestic for-profit corporation, with its principal place of business in
Arlington, Vermont. (Compl. ¶ 9.) Mack Molding manufactures injection molded plastic parts
for sale, and sells manufacturing services as well. (Id. ¶ 10.) Mr. Gates was employed full-time
at Mack Molding’s manufacturing plant in Cavendish, Vermont, as a shift technician in finishing
from March, 1995, until May 11, 2019, at which time Mack Molding terminated his employment
involuntarily. (Id. ¶ 3.)

Mr. Gates’ wife, Angela M. Gates, was employed at the same plant as a molder, and then
as a finisher, from December, 1996, until May 20, 2016, when Mack Molding terminated her
employment involuntarily. (Id. ¶ 8.) In the weeks preceding her termination, Ms. Gates
unsuccessfully sought a light-duty work assignment as a reasonable accommodation for a
physical condition stemming from an earlier workplace-related injury. (Id. ¶ 26.) She also filed
a claim for workers’ compensation benefits, and when Mack Molding’s insurance carrier denied
that claim in late May of 2016, she appealed the denial to the Vermont Department of Labor.
(Id. ¶ 30.)

On two unspecified dates—several weeks apart from each other, but within the time
between late May of 2016 and late October of 2017—the manager of the maintenance
department at the Cavendish plant, Ed Garrow, and an employee supervised by Mr. Garrow,
Adam Holden, accused Mr. Gates of causing spills of a chemical on the plant floor. (Id. ¶¶ 32-
33.) Mr. Gates did not cause the spills, and yet Mr. Garrow and Mr. Holden convinced another
supervisor, Kevin Peets, to issue written disciplinary notices naming Mr. Gates as the responsible
party. (Id. ¶ 32-47.) Mr. Gates told Mr. Peets that Mr. Garrow and Mr. Holden were trying to
“set [Mr. Gates] up for the spill,” and that this was “interfering with his job.” (Id. ¶ 43.)

On October 30, 2017, Ms. Gates filed a civil suit against Mack Molding and others in
Vermont Superior Court, Bennington Civil Division. (Id. ¶ 78.) 2 The suit included, inter alia:
(1) two claims for disability discrimination under the Vermont Fair Employment Practices Act
(“FEPA”), 21 V.S.A. §§ 495-496a, for Mack Molding’s failure to reasonably accommodate her
on two occasions; and (2) a claim of retaliation under the Vermont Employer’s Liability and
Workers’ Compensation Act (“WCA”), 21 V.S.A. §§ 601-711, for terminating her shortly after

2
Ms. Gates also named as defendants three of the four individuals who are named as Defendants in Mr. Gates’
instant lawsuit: Jeffrey Somple, Mack Molding’s President; Ms. Ceflo, then the director of human resources at
Mack Molding; and Bud Pagliccia, the Manager of Mack Molding’s Cavendish plant. (Compl. ¶¶ 76, 11, 13-14.)
The fourth individual Defendant in this case is Jessica Fredette, who became the human resources director for Mack
Molding in April of 2018. (Id. ¶ 12.)

2
she filed a claim for workers’ compensation benefits. See Gates v. Mack Molding Co., Inc., 2022
VT 24, ¶¶ 11-12, 216 Vt. 379. 3

Right after Ms. Gates filed her civil suit, Mr. Gates was told by both Patty Plesko, a
human resources manager for Mack Molding, and Defendant Bud Pagliccia, the Cavendish Plant
Manager, that Mr. Gates “had to accept another position as a die setter,” and report to Edgar
Billings, rather than Mr. Rogstadt, who had been Mr. Gates’ supervisor previously. (Id. ¶ 82.)
When Mr. Gates responded that “he didn’t want the die setting job and wanted to keep his old
job[,] Patty told him he could apply for a new painter or finisher position[,] which involved
lesser pay and a loss of seniority.” (Id. ¶ 83.) Mr. Gates’ career until that point had consisted of
finishing-related work; he had not performed nor been trained in die setting. (Id. ¶¶ 3, 84, 92-93,
100.) He considered die setting a “bad job that is greasy and dangerous,” and he informed his
superiors that, given his lack of qualifications, die setting would be dangerous for him to
perform. Id. ¶¶ 84, 92.) Given those concerns, Defendants assigned an “experienced tech” to
work alongside Mr. Gates when engaged in die setting. (Id. ¶ 93.)

On November 16, 2017, Mr. Peets notified Mr. Billings, Mr. Rogstadt, and Ms. Plesko
via email that another employee, Mark Harwood, would be assigned to split or share the die
setting job position, together with Mr. Gates, and that each work day Mr. Rogstadt would choose
whether Mr. Gates or Mr. Harwood would handle die setting. (Id. ¶¶ 89-90.)

On November 20, 2017, Mr. Gates met with Defendant Ceflo, then the director of
human resources, and complained that the die setting assignment was retaliation for his wife’s
recent civil suit. (Id. ¶ 98.) Mr. Gates secretly recorded this meeting on a small audio recording
device. (Id. ¶ 101.) Ms. Ceflo responded that the new job assignment had “nothing to do with”
Mr. Gates’ wife and promised that Mr. Gates’ “job would not change.” (Id. ¶ 99.) Mack
Molding eventually made an outside hire to fill the die setting position, and Mr. Gates was
allowed to keep his old job. (Id. ¶¶ 103-04.) Yet, he had to continue performing die setting
work—sharing the position with another co-worker—on top of his other job duties, through his
date of termination. (Id.) In the meantime, the new outside hire received training for a period
lasting more than a year. (Id.)

During a meeting in early January, 2019, Mr. Gates learned from Mr. Pagliccia,
Defendant Jessica Fredette (then the director of human resources for Mack), and another
supervisor, Jon Scheiner, that Scheiner would soon become Mr. Gates’ new supervisor and that
Mr. Gates would be obligated to keep a daily log of his work activities. (Id. ¶ 152.) When Mr.
Gates protested these changes as retaliation for his wife’s ongoing lawsuit, and asserted that no
other employee in the plant was forced to keep a work log, Ms. Fredette threatened Mr. Gates
with insubordination. (Id. ¶ 153.)

On January 8, 2019, Mr. Gates met with Ms. Fredette and Mr. Pagliccia, and again
complained that he was being subjected to retaliation because of his wife’s lawsuit. (Id. ¶ 154.)
Mr. Gates secretly recorded the audio of this meeting, even though Ms. Fredette asked him if he

3
Following discovery, the trial court granted the defendants’ motion for summary judgment on all of Ms. Gates’
claims. See id. ¶ 12. Ms. Gates appealed, and in a decision issued on May 13, 2022, the Supreme Court affirmed.
See id. ¶¶ 1, 12, 23, 37, 56.

3
was recording it and told him that he did not have permission to record the meeting. (Id. ¶ 157.)
Ms. Fredette and Mr. Pagliccia denied that anyone was retaliating against Mr. Gates and ordered
him to abide by their decisions, such as requiring Mr. Gates to furnish a work log to Mr.
Schreiner at the end of each day of work. (Id. ¶¶ 159-60.) Mr. Gates reminded Ms. Fredette of
statements made to him in November of 2017 by Ms. Ceflo—that Mr. Gates would be able to
keep his job and would continue to report to Mr. Rogstadt—but Ms. Fredette replied that he did
not have a contract with Mack Molding to that effect, and that his actions were “creating a
negative work environment.” (Id. ¶¶ 162-64.)

Later that same day, while standing outside of Ms. Fredette’s office, Mr. Gates overheard
and then began secretly recording Ms. Fredette while she was on a phone call. (Id. ¶¶ 166-171.)
Mr. Gates believes she was speaking with Mack Molding’s President, Jeff Somple, and she
stated the following: Mack Molding could terminate Mr. Gates if he responded negatively to
increased scrutiny; “one more incident with [Mr. Gates] and he’s done”; she intended to request
that Mr. Scheiner monitor Mr. Gates and report his findings to her; and that she had responded to
Mr. Gates’ claims of retaliation made earlier that day by telling him to “move on” and drop it.
(Id. ¶¶ 171-72.)

On May 3, 2019, during the course of Ms. Fredette’s deposition in Ms. Gates’ civil suit,
Ms. Gates’s counsel (who was also Mr. Gates’ counsel) introduced into the record certain audio
recordings that Mr. Gates had made secretly of recent workplace conversations, including the
conversation from January 8, 2019 with Ms. Fredette and Mr. Pagliccia. (Id. ¶ 189.) After some
questioning of Ms. Fredette about the recordings, defendants’ counsel halted the deposition, and
thereafter formally moved to terminate it. (Id. ¶ 193.) 4 On May 5 and 6, 2019, Mr. Gates’
counsel disclosed additional, secret workplace recordings that Mr. Gates had made in recent
months. (Id. ¶¶ 194-96.)

On May 6, 2019, Ms. Fredette and Mr. Pagliccia appeared angry, demanded to meet with
Mr. Gates, and then proceeded to lead him through the plant, to a private meeting room. (Id.
¶ 197-99.) Mr. Gates felt that he was intentionally “paraded . . . like a criminal through the
plant,” since they could have reached the same meeting room through a back stairway, out of
view of the plant workers. (Id. ¶ 199.) During the meeting Ms. Fredette told Mr. Gates that he
had to answer questions about his prior secret audio recordings and divulge the substance of his
prior communications with his attorney regarding those recordings. (Id. ¶ 206.) Mr. Gates
requested to speak with his attorney, but Ms. Fredette and Mr. Pagliccia replied that if he
answered their questions, he would be able to keep his job. (Id. ¶¶ 207, 209.) Based on such
statements, Mr. Gates felt forced to give some answers, and believed that he would be able to
keep his job if he answered. (Id. ¶¶ 208-09.) Mr. Gates then answered some questions, but when
he stopped answering further, Ms. Fredette read him a written statement—which she indicated
was prepared by Mack Molding’s outside legal counsel, Timothy Copeland—indicating that Mr.
Gates’ employment status would depend on his answering their questions. (Id. ¶ 210.)
(Apparently, Mr. Gates then stayed silent and gave no further answers after the Copeland

4
The Bennington Civil Division granted termination of the Fredette deposition after finding that the secret audio
recordings should have been disclosed in discovery much earlier by the Gates’ counsel.

4
statement was read aloud.) Ms. Fredette then informed Mr. Gates that his employment was
suspended without pay until further notice, pending an investigation. (Id. ¶ 211.)

During this meeting, which lasted approximately 30 minutes, Mr. Gates felt that he could
not leave the room, given that: Ms. Fredette and Mr. Pagliccia were his superiors; they took a
demanding tone and stance; they refused Mr. Gates’s request to speak with his attorney; and they
were in a closed room, surrounding Mr. Gates, with Ms. Fredette seated closest to the door. (Id.
¶¶ 212-13.)

On May 11, 2019, Mr. Gates received a letter, signed by Ms. Fredette, indicating that his
employment with Mack Molding was terminated. (Id. ¶ 223.) The letter did not state the cause
of termination and did not offer a chance to appeal the termination. (Id. ¶ 224.)

On June 18, 2020, Mack Molding’s counsel sent the Gates’ counsel an email indicating
that unless Ms. Gates withdrew her pending suit and Mr. Gates agreed not to sue Mack Molding,
the company would file a civil action against Mr. Gates under a federal wiretap statute and seek
over $50,000 in attorneys’ fees as sanctions for the withholding of workplace audio recordings.
(Id. ¶ 253.) Mr. Gates alleges that these threats were designed to scare and intimidate him, and
that he suffered severe emotional distress and anxiety as a result. (Id. ¶¶ 255-57.) The court in
Ms. Gates’ case awarded defendants $1,640.00 in sanctions. (Id. ¶ 253 n. 4).

On May 6, 2022 (exactly three years from the date of his suspension), Mr. Gates filed an
action in federal court against Mack Molding, Mr. Somple, and Ms. Fredette. See Gates v. Mack
Molding Co., Inc., No. 5:22-cv-100, 2023 WL 4181945, “Order on Motion to Dismiss,” (D. Vt.
Mar. 27, 2023). The action included a claim for retaliation under the federal Family and Medical
Leave Act (“FMLA”), as well as retaliation claims under Vermont’s Parental and Family Leave
Act, FEPA, and the WCA, together with common law claims for invasion of privacy, intentional
infliction of emotional distress, breach of an implied contract and the covenant of good faith and
fair dealing, and promissory estoppel. See id. at *3. The defendants moved to dismiss for failure
to state a claim, which the court granted with respect to the federal FMLA claim over which it
had jurisdiction, while declining to exercise continuing supplemental jurisdiction over the
remaining state-law claims. See id. at *9. The court held that making secret recordings of
workplace conversations and defying discovery obligations to timely produce such recordings
were not protected activities within the meaning of the FMLA provision.

On June 19, 2023, Mr. Gates filed his Complaint in this case. The Complaint included
the following eight claims, each pled against all Defendants:
(1) first and third party retaliation in violation of FEPA (Count One);
(2) first and third party retaliation in violation of the WCA (Count Two);
(3) invasion of privacy (Count Three);
(4) intentional infliction of emotional distress (Count Four);
(5) breach of an implied employment contract (Count Five);
(6) promissory estoppel (Count Six);
(7) negligent hiring, supervision and retention (Count Seven); and
(8) aiding and abetting (Count Eight).
In a filing dated December 5, 2023, Mr. Gates withdrew Counts Five and Seven.

5
 Analysis

The initial issue is whether, for each claim in the six remaining counts of his Complaint,
Mr. Gates has pled a viable legal cause of action. As to claims determined to be viable, the issue
is then whether Defendants have shown that the claim is precluded by the relevant statute of
limitations.

Counts One and Two: Retaliation In Violation of FEPA and the WCA

Both Counts One and Two assert first and third party retaliation claims pursuant to FEPA
and the WCA, in which Mr. Gates makes claims for retaliation predicated on his own protected
oppositional activities, as well as claims predicated on protected oppositional activities
performed by his wife.

Legal Standards For Retaliation Claims Under FEPA and the WCA

FEPA: Fair Employment Practices Act

The provision within FEPA prohibiting retaliation provides, in pertinent part:

An employer . . . shall not discharge or in any other manner discriminate against
any employee because the employee . . .
(A) has opposed any act or practice that is prohibited under this chapter[.]

21 V.S.A. § 495(a)(8)(A). 5

A prima facie case under this provision requires allegations of fact related to the
following four elements: (1) the employee engaged in a protected activity by opposing an
employment act or practice that is prohibited under FEPA; (2) his employer was aware of the
protected activity; (3) he suffered an adverse employment action, and (4) there was a causal
connection between the protected activity and the adverse employment action. See Hammond v.
Univ. of Vt. Med. Ctr., 2023 VT 31, ¶ 38, 304 A.3d 421; Robertson v. Mylan Labs., Inc., 2004
VT 15, ¶ 42, 176 Vt. 356; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1974) (outlining prima facie elements for a discrimination claim under Title VII of the Civil
Rights Act of 1964).

5
Prohibited acts or practices are set forth in 21 V.S.A. § 495(a) and focus on prohibiting harassment and
discrimination on specified grounds, one of which is disability. Subdivisions (B) through (E) of 21 V.S.A.
§ 495(a)(8) list several other types of protected activities or circumstances (other than opposing a prohibited act or
practice) for which the employer is barred from discharging or in any other manner discriminating against the
employee. Mr. Gates does not assert that his own actions, or those of his wife, constitute those other types of
protected activities described in subdivisions (B) through (E) of § 495(a)(8).

6
WCA: Workers’ Compensation Act

The WCA provides, in a pertinent section, that “[t]he provisions against retaliation in
subdivision 495(a)(8) of this title and the penalty and enforcement provisions of section 495b of
this title shall apply to this subchapter.” 21 V.S.A. § 710(f). Thus, a prima facie case under the
WCA provision requires the same elements as under the FEPA, except that a plaintiff asserting a
WCA claim based on opposing a protected activity must show that he or she opposed an
employment act or practice that is unlawful under the WCA (chapter 9 of title 21 of the Vermont
Statutes, 21 V.S.A. §§ 601-711). 6

First and Third Party Claims

Mr. Gates alleges several “first party” retaliation claims, alleging that his employer
retaliated against him directly and personally because he himself engaged in protected activities.
He also asserts so-called “third-party” retaliation claims, i.e., that his employer retaliated against
him because his wife, also an employee of Mack Molding, engaged in protected activities. He
relies on Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), a decision
recognizing third party retaliation claims under Title VII, to argue that FEPA and the WCA
authorize him to assert such claims. Defendants dispute that theory, arguing that the Vermont
Supreme Court has never recognized third party retaliation claims under FEPA or the WCA.

Sufficiency of Pleading of Retaliation Claims Under FEPA and the WCA

In analyzing discrimination and retaliation claims based on circumstantial evidence under
FEPA and the WCA at the summary judgment stage and at trial, the Vermont Supreme Court
follows the burden-shifting analytical framework recognized in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1974). See Hammond, 2023 VT 31, ¶ 25; Gauthier v. Keurig Green Mtn.,
Inc., 2015 VT 108, ¶ 15, 200 Vt. 125. That framework requires the plaintiff to initially prove, by
a preponderance of the evidence, the four essential elements described above. The burden-
shifting framework of McDonnell Douglas then comes into play. It “is an evidentiary standard,
not a pleading requirement,” and thus is applied only on summary judgment or at trial.
Swierkiewicz v. Sorema, 534 U.S. 506, 510 (2002). In order to survive a motion to dismiss, only
notice pleading on the four essential elements is required. Id. at 511.

Accordingly, to sufficiently plead a first party FEPA or WCA retaliation claim, Mr. Gates
must allege that Defendants took an adverse employment action against him because he opposed
any act or practice by Defendants that is unlawful under FEPA or the WCA. See Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (stating identical pleading
standard for Title VII retaliation claims, with the exception that under the federal rules, the
allegations must be “plausible”); see also Vt. Hard Cider Co., LLC v. Ciolek, No. 2:11—CV—
00150, 2012 WL 761304, *3 (D. Vt. Mar. 7, 2012) (under Title VII “one element of a prima
facie case that is always necessary to a finding of liability is participation in a protected activity,”
which therefore must be pleaded, regardless of Swierkiewicz). Similarly, Mr. Gates’ third-party
6
Unlawful discriminatory practices are set forth in 21 V.S.A. § 710.

7
claims under FEPA and the WCA must allege that he suffered adverse employment actions
because his wife opposed, as unlawful under FEPA or the WCA, an act or practice of Mack
Molding or its agents.

To the extent a plaintiff asserts “conclusory allegations or legal conclusions
masquerading as factual conclusions,” the court is not required to accept them as true. Rodrigue
v. Illuzzi, 2022 VT 9, ¶ 33, 216 Vt. 308 (quotation omitted). Thus, for example, rather than
merely alleging phrases like “protected oppositional activity” or “materially adverse action,” Mr.
Gates must allege facts that are sufficient to give fair notice as to what allegedly constituted the
claimed oppositional activity or adverse action. See Reporter’s Notes, V.R.C.P. 8 (plaintiff must
give a factual statement “clear enough to give the defendant fair notice of what the plaintiff’s
claim is and the grounds on which it rests”) (emphasis added); Vitale v. Bellows Falls Union
High Sch., 2023 VT 15, ¶ 28, 293 A.3d 309. When those alleged factual grounds, together with
all reasonable supporting inferences, fail to show that the plaintiff is entitled to relief, the
plaintiff has failed to “allege a legally cognizable claim,” and “dismissal is appropriate.”
Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, ¶ 11, 209 Vt. 514.

Therefore, to sufficiently plead a “protected oppositional activity,” Mr. Gates must allege
facts showing that he or his wife took action to protest, or to complain, argue, contend, or make
statements against activities or practices of Defendants that are unlawful under the FEPA or the
WCA. See Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 555 U.S. 271, 276 (2009)
(describing protected oppositional activities for purposes of Title VII); Gates, 2023 WL
4181945, at *6 (describing protected oppositional activities for purposes of the FMLA, citing
Crawford and dictionary definition of “oppose”); Beckmann v. Edson Hill Manor, Inc., 171 Vt.
607, 608 (2000) (mem.) (reporting alleged sexual harassment to supervisor was protected activity
for purposes of FEPA retaliation claim).

To sufficiently plead that he suffered a “materially adverse employment action,” Mr.
Gates must allege that Defendants took an action that harmed his interests in such a manner that
it “could well dissuade a reasonable worker” in his position from “making or supporting a charge
of discrimination.” Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57
(2006). An employer’s failure to take action to try to address or correct complained-of unlawful
acts or practices does not itself constitute an actionable adverse employment action. See
Hongmian Gong v. City Univ. of N.Y., No. 18 Civ. 3027 (LGS), 2019 WL 952340, *8 (S.D.N.Y.
Feb. 27, 2019) (“[T]he failure to correct the complained-of discrimination is not a retaliatory
action under Title VII.” (citing Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 721
(2d Cir. 2010) and Kelly v. N.Y. State Ofc. of Mental Health, 200 F. Supp. 3d 378, 404-05
(E.D.N.Y. 2016)). For purposes of his third party claims, Mr. Gates must allege that he suffered
an action that adversely affected his interests in such a way that it could well have dissuaded a
reasonable person in his wife’s position from engaging in a protected activity in the first place.
See Lesiv, 39 F.4th at 903, 916-18 (7th Cir. 2022).

As for causation, allegations of “temporal proximity, often no more than a few months,
between the protected activity and the adverse action may suffice” for purposes of surviving a
motion to dismiss. Castro v. Yale Univ., 518 F. Supp. 3d 593, 611 (D. Conn. 2021) (citing Vega,
801 F.3d at 90); see Robertson, 2004 VT 15, ¶ 47 (gap of nearly seven months insufficient to

8
satisfy causation element of prima facie case under FEPA); Gates, 2023 WL 418945, *7 (noting
that while there is no “bright line” rule, “‘most courts in the Second Circuit have held that a lapse
of time beyond two or three months will break the causal inference’” (quoting De Figuerora v.
New York, 403 F. Supp. 3d 133, 157 (E.D.N.Y. 2019)); Raymond v. City of New York, 317 F.
Supp. 3d 746, 774 (S.D.N.Y. 2018) (same). Assertions of protected oppositional activities taken
after a putative adverse action are legally insufficient to prove causation for purposes of a FEPA
or WCA retaliation claim. See Hammond, 2023 VT 31, ¶ 39 (“The verbal warning [issued to
plaintiff] . . . cannot be viewed as retaliatory, since it occurred before plaintiff engaged in any
protected activity.”).

A plaintiff may also sufficiently plead causation by alleging direct evidence of improper
motive. Statements or other conduct by decisionmakers, or by others with “enormous influence
in the decision-making process” that directly reveal those actors’ retaliatory motives or intent
when taking adverse actions may suffice. Gates, 2023 WL 418945, *7 (omitting internal
quotation marks); see Porter v. Dartmouth-Hitchcock Med. Ctr., 92 F.4th 129, 149 (2d Cir.
2024) (observing that while “many discrimination claims depend on proof by circumstantial
evidence,” “statements or actions by the employer’s decisionmakers . . . that may be viewed as
directly reflecting the alleged discriminatory attitude constitute the proverbial smoking gun”
(omitting internal quotation marks and added emphasis)).

Special Legal Issues related to Third Party Claims

Mr. Gates’ assertions of third party claims present two legal issues not previously decided
by the Vermont Supreme Court. The first is whether the identical anti-retaliation provisions of
FEPA and the WCA, cited above, make it unlawful for an employer to take a materially adverse
employment action against an employee because the spouse of such employee, rather than the
employee himself or herself, initially opposed an act or practice by the same employer. The
second is whether a separate WCA provision, 21 V.S.A. § 710(b), which makes it unlawful to
retaliate against an employee for having sought workers’ compensation benefits, also makes it
unlawful to retaliate against that employee’s spouse. These two issues are addressed here prior to
analysis of the sufficiency of the claims asserted by Mr. Gates.

1. Retaliation Claims Based on Oppositional Activities by One’s Spouse

Thompson v. North American Stainless, L.P., 562 U.S. 170 (2011), provides persuasive
guidance with regard to the proper construction of the FEPA and WCA identical anti-retaliation
provisions on this issue. In Thompson, the plaintiff and his fiancé shared the same employer, and
plaintiff was fired three weeks after the employer learned that plaintiff’s fiancé had filed a formal
sex discrimination charge against the employer. Relying heavily on statutory analysis from a
prior Title VII decision, Burlington Northern and Santa Fe Railway Company v. White, 548 U.S.
53 (2006), the Thompson Court had “little difficulty” in concluding that plaintiff’s firing
constituted unlawful retaliation under Title VII. Thompson, 562 U.S. at 173-74. 7 In Burlington

7
The Vermont Supreme Court has regularly recognized that FEPA “‘is patterned on Title VII of the Civil Rights
Act of 1964, and the standards and burdens of proof under FEPA are identical to those under Title VII.’”
Hammond, 2023 VT 31, ¶ 24 (quoting Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 161 (1992)); see Gallipo v.

9
Northern, the Court addressed whether an actionable adverse employment action, for purposes of
a Title VII retaliation claim, included acts by an employer other than those that adversely
affected the terms and conditions of one’s own employment. As summarized later in Thompson,
the Burlington Northern Court wrote:

held that Title VII’s antiretaliation provision must be construed to cover a broad
range of employer conduct. We reached that conclusion by contrasting the text of
Title VII’s antiretaliation provision with its substantive antidiscrimination
provision. Title VII prohibits discrimination on the basis of race, color, religion,
sex, and national origin “‘with respect to . . . compensation, terms, conditions, or
privileges of employment,’” and discriminatory practices that would “‘deprive
any individual of employment opportunities or otherwise adversely affect his
status as an employee.’” Burlington Northern, 548 U.S. at 62 (quoting 42 U.S.C.
§ 2000e-2(a)). In contrast, Title VII’s antiretaliation provision prohibits an
employer from “‘discriminat[ing] against any of his employees’” for engaging in
protected conduct, without specifying the employer acts that are prohibited. Id.
(quoting (42 U.S.C. § 2000e-3(a)). Based on this textual distinction and [the
Burlington Northern Court’s] understanding of the antiretaliation provision’s
purpose, [the Court] held that “the antiretaliation provision, unlike the substantive
provision, is not limited to discriminatory actions that affect the terms and
conditions of employment.” Id. at 64. Rather, Title VII’s antiretaliation provision
prohibits any employer action that might “well have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Id. at 68.

Thompson, 562 U.S. at 173-74. Based on this analysis, the Thompson Court found it a short step
to conclude that materially adverse actions against an employee’s spouse or close family
member, taken by an employer in retaliation for the employee’s protected activities, was an
unlawful action as well:

[W]e adopted a broad standard [for adverse employment actions] in Burlington
because Title VII’s antiretaliation provision is worded broadly. We think there is
no textual basis for making an exception to it for third-party reprisals, and a
preference for clear rules cannot justify departing from statutory text.

Id. at 175.

Also at issue in Thompson was whether the plaintiff, though unquestionably harmed by
his firing, had a right to sue his former employer under Title VII. Id. The Court found that such
right existed under Title VII’s private enforcement provision, 42 U.S.C. § 2000e-5(f)(1), which
provides that “a civil action may be brought . . . by the person claiming to be aggrieved.” See
562 U.S. at 175-78. Such language, the Court reasoned, “enable[ed] suit by any plaintiff with an
interest arguably sought to be protected by the state, while excluding plaintiffs . . . whose

City of Rutland, 2005 VT 83, ¶ 15, 178 Vt. 244 (same). Thus, the construction of FEPA by Vermont courts “is often
guided by the federal courts’ interpretations of Title VII.” Payne v. U.S. Airways, Inc., 2009 VT 90, ¶ 10, 186 Vt.
458 (citing Lavalley v. E.B. & A.C. Whiting Co., 166 Vt. 205, 209 (1997)).

10
interests are unrelated to the statutory prohibitions in Title VII.” Id. at 178 (omitting internal
citations, alterations, and quotation marks). The plaintiff in Thompson fit that bill, because he
“was an employee,” “the purpose of Title VII is to protect employees from their employers’
unlawful actions,” and “[h]urting him was the unlawful act by which the employer punished
[plaintiff’s fiancé].” Id.

Accordingly, under Thompson, a plaintiff may bring a Title VII retaliation claim where
an employer’s adverse action is taken against him because the plaintiff’s spouse or other close
family member has engaged in a protected activity, and the plaintiff’s interests are harmed in
such a way or degree that it might well have dissuaded a “reasonable worker” in the position of
plaintiff’s spouse or other close family member from engaging in that activity in the first place.
See id. at 174 (“We think it obvious that a reasonable worker might be dissuaded from engaging
in protected activity if she knew that her fiancé would be fired.”); id. at 175 (“We expect that
firing a close family member will almost always meet the Burlington standard, and inflicting a
milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant
to generalize.”); see also Lesiv v. Ill. Cent. R.R. Co., 39 F.4th 903, 916-18 (7th Cir. 2022)
(applying the Thompson standard).

This case is brought under FEPA rather than Title VII but FEPA’s anti-retaliation
provision, while not identical to Title VII’s anti-retaliation provision, contains broad language
that supports making it unlawful for an employer to take materially adverse retaliatory actions
against a spouse or other close family member of an employee who engaged in a protected
activity. FEPA’s anti-retaliation provision provides that an employer “shall not discharge or in
any other manner discriminate against any employee because the employee . . . has opposed any
act or practice that is prohibited under this chapter[.]” 21 V.S.A. § 495(a)(8)(A) (emphasis
added). Such terms prohibit retaliatory actions at least as broadly as does Title VII’s
antiretaliation provision. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment
practice for an employer to discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by this subchapter.” (emphasis
added)).

Moreover, the Vermont Supreme Court resolves reasonable doubts under FEPA liberally,
in a manner consistent with the statute’s “remedial purpose.” Payne, 2009 VT 90, ¶ 21; see also
3 S. Singer, Sutherland Statutory Construction § 60:1 (8th ed., Nov. 2023 update) (“Courts
liberally, or broadly, construe remedial statutes in order to help remedy the defects in the law that
prompted their enactment.”); cf. Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 409 (4th
Cir. 2015) (“Title VII should be liberally construed in light of its remedial purpose.”). Similarly,
the Court “commonly applie[s]” a “liberal constru[ction]” of workers’ compensation statutes “in
favor of employees.” Smith v. Desautels, 2008 VT 17, ¶ 17, 183 Vt. 255 (citing Butler v. Huttig
Bldg. Prods., 2003 VT 48, ¶ 12, 175 Vt. 323 and 3B N. Singer, Statutes and Statutory
Construction § 75:3, at 32 (6th ed. 2003 rev.)).

Although Defendants cite numerous federal cases regarding Title VII in support of
various other arguments and points of law regarding the meaning and application of FEPA and

11
the WCA, 8 Defendants cite no federal decisions to dispute Mr. Gates’ third-party theory, and
merely note that the Vermont Supreme Court has never recognized such a theory. 9

FEPA’s private enforcement provision, similar to Title VII’s private enforcement
provision, permits “[a]ny person aggrieved by a violation of the provisions of this subchapter” to
bring a private action for relief. 21 V.S.A. § 495b(b). Consistent with the reasoning in
Thompson, see 562 U.S. at 175-78, such language permits an employee like Mr. Gates, who
allegedly suffered injuries because of the actions taken by his employer that were intended as
retribution against his spouse for engaging in a protected activity, to bring a third-party
retaliation claim under FEPA.

Thus, Mr. Gates may assert third party retaliation claims under the anti-retaliation
provisions of FEPA and the WCA.

2. Claim for Third-Party Retaliation Under the WCA Based on a Spouse’s Claim for
Workers’ Compensation Benefits

Mr. Gates asserts a third party claim for retaliation that is predicated on his wife’s effort
to obtain workers’ compensation benefits. Subsection (b) of 21 V.S.A § 710 reads as follows:

No person shall discharge or discriminate against an employee from employment
because such employee asserted or attempted to assert a claim for benefits under
this chapter or under the law of any state or under the United States.

21 V.S.A § 710(b) (emphasis added). The terms “from employment,” modify and limit the
scope of the preceding terms, “discharge or discriminate against an employee.” The modifying
terms indicate that the interests protected by the provision are those arising from the terms,
conditions or privileges of employment. The provision thus does not indicate that “discriminate
against” carries a broad meaning that would cover adverse actions that do not affect terms or
conditions of employment of the employee who sought benefits under the WCA.

8
Along with citing many other Title VII cases, Defendants favorably cite Burlington Northern itself (albeit, to
emphasize just how harmful or injurious an act of discriminatory retaliation must be in order to be actionable). See
Defs.’ Mot. to Dismiss (filed Aug. 28, 2023), at 28-29 (arguing that “empty verbal threats” of adverse actions and
“‘personality conflicts at work that generate antipathy and snubbing by supervisors and co-workers are not
actionable’” employer actions for purposes of a FEPA or WCA retaliation claims (quoting Burlington Northern, 548
U.S. at 68)).

9
Defendants raise a challenge to the third-party retaliation theory based on the outcome of his wife’s suit: that
because Ms. Gates’ discrimination and retaliation claims were fully and finally adjudicated in Defendants’ favor, Mr.
Gates lacks a basis to assert any third party claim. However, the applicable statutes prohibit acts of discrimination
against an employee that are taken because the employee has made a complaint or allegation that the employer has
engaged in unlawful acts or practices. An employer is not free to retaliate against the complaining employee except
in instances where the employee’s complaints are found to have merit, or where the complaints ultimately result in
some ameliorative or redressive impacts. Cf. also 21 V.S.A. § 495(a)(8)(E) (prohibiting any manner of
discrimination against any employee “because the employee is believed by the employer to have” opposed any act or
practice that is prohibited under FEPA)(emphasis added).

12
 This reading finds support in legislative history. Section 710(b) has remained materially
the same since it was enacted in 1985. Thus, when the Legislature added 21 V.S.A § 710(f) to
the WCA in 2013, with its much broader definition of discrimination (“discharge or in any other
manner discriminate against any employee”) (emphasis added), the Legislature did not similarly
expand the scope of “discriminate against” as found in 21 V.S.A § 710(b). See 2013, Act. No.
31, § 9 (adding 21 V.S.A § 710(f), and amending 21 V.S.A § 710(b) only by inserting “or
attempt to assert” preceding “a claim for benefits”). The Legislature’s failure to broaden the
scope of “discriminate against” in 21 V.S.A § 710(b), even while adding 21 V.S.A § 710(f),
suggests that § 710 is intentionally more narrow.

Furthermore, a third party retaliation claim predicated on a spouse asserting a claim for
legal benefits is not suggested by Thompson, which concerned an adverse action taken because
the plaintiff’s fiancé made a charge of sex discrimination, not because she sought legal benefits.
Thus, there is no basis to construe the statute for the benefit of Mr. Gates based on his wife’s
assertion of a workers’ compensation claim. Therefore, Mr. Gates does not have a legal basis to
pursue such a claim.

Application of Pleading Standards to Plaintiff’s Claims of First and Third Party Retaliation

Mr. Gates alleges actionable retaliation based on a number of different incidents. After
Defendants’ Motion to Dismiss had been briefed by both sides, the court held a hearing and
requested that Mr. Gates provide a supplemental outline of the elements and facts related to each
of the numerous claims to aid in the evaluation of the sufficiency of pleading for each claim.
The following analysis relies heavily on Mr. Gates’ supplemental “Outline of his Claims” while
taking into account Defendant’s response as well as the parties’ briefs on the Motion to Dismiss.
First party claims are addressed first, followed by third party claims.

First Party Retaliation Claims Predicated on Mr. Gates’ Own Alleged Protected Activities
1. Claim Based on Mr. Gates’ Complaint of False Accusations of Causing Chemical Spills
Mr. Gates alleges that on two occasions between late May of 2016 and late October of
2017, two employees falsely accused him of causing a chemical spill in the workplace, and that
despite his denials, Supervisor Kevin Peets issued disciplinary notices against him. His first
party retaliation claim is predicated on verbal complaints that he made about this to Supervisor
Peets, initially before the first disciplinary write-up, and again later. Mr. Gates alleges that he
suffered adverse employment action in that his complaints were ignored and the write-ups
became part of his record and could lead to firing if repeated. He also complained that they
interfered with his ability to help other workers. 10

Complaining to a supervisor about being falsely accused of a workplace infraction is not
a “protected oppositional activity.” It does not oppose an act or practice prohibited under FEPA
or the WCA, and does not fall within any of the other activities or categories identified in 21

10
The allegations in the Complaint and in Plaintiff’s subsequent “Outline of Claims” differ slightly. The court
relies on the allegations in the Complaint.

13
V.S.A. §§ 495(a)(8)(B)-(F). Thus, the Motion to Dismiss is granted as to a claim of first party
retaliation related to Mr. Gates' complaints of false accusations and unfounded written discipline
related to two chemical spills.
2. Claim of Retaliation Based on Mr. Gates’ November 2017 Complaint That His Job
Reassignment Was Retaliatory
Mr. Gates alleges that he was retaliated against in November of 2017 because he
complained to his supervisors that he had suffered retaliatory acts motivated by his wife’s civil
lawsuit. (See below for analysis of the claim of third party retaliation based on his wife’s
lawsuit.) Specifically, he alleges that after he was reassigned to the die-setting job (which he
claims as the basis for third party retaliation as set forth below), he made a complaint to
Defendant Ceflo that the reassignment to the die-setting job was unlawful retaliation. He alleges
that following such complaint, he suffered adverse actions, manifested by his employer ignoring
his complaint and not entirely relieving him of the obligation to perform at least a share of the
die setting job duties.
The alleged facts show that soon after his complaint, he was permitted to retain his old
job in the finishing department, and he did not lose pay or seniority. Mr. Gates has not alleged
that he suffered material adverse action as a result of this complaint because his “situation in the
wake of [his] having made the complaint is the same as it would have been had [he] not brought
the complaint or had the complaint been investigated but denied for good reason or for none at
all.” Fincher v. Depository Trust & Clearing Corp., 604 F. 3d 712, 721 (2d Cir. 2010); see
Hongmian, 2019 WL 952340, *8 (“[T]he failure to correct the complained-of discrimination is
not a retaliatory action under Title VII.”).
Therefore, the Motion to Dismiss is granted as to the claim of first party retaliation that is
predicated on Mr. Gates’ November 2017 complaint of unlawful retaliation.
3. Claim of Retaliation Based on Complaint Mr. Gates made in January 2019 of Unlawful
Retaliation in the Form of Being under Close Scrutiny
During a meeting on January 8, 2019 with Defendants Jessica Fredette and Bud
Pagliccia, Mr. Gates complained that their decision made a few days prior to more closely
monitor and scrutinize his work under the eye of a new supervisor (Mr. Scheiner), was unlawful
retaliation for his wife’s civil suit. Mr. Gates argues that, because of his complaints at that
meeting, he was immediately subjected to adverse actions that included denials of retaliatory
motives, threats of insubordination if he did not go along with their earlier decision, and a
statement that he was “creating a negative work environment.”
Mr. Gates has not sufficiently alleged material adverse employment action harmful to his
employment interests. The issue is not whether he was put off, told he was wrong, or told that his
complaints were counterproductive or negative. Statements to an employee that his complaints
are creating a negative work environment may be unpleasant but do not constitute harm to
employment interests. Mr. Gates has not alleged that after having made this complaint, his
situation was made still worse than it was at the time he voiced the complaint. He has not alleged
an adverse change in his position stemming from his complaint. As such, his complaint cannot

14
have caused or resulted in any material adverse impact on him. There is no allegation that the
threat of insubordination was followed by any further action. The threat was not an action with
an alleged adverse impact.

Thus, the Motion to Dismiss is granted as to the claim of first-party retaliation that is
predicated on Mr. Gates’ complaint, lodged in January of 2019, that increased scrutiny and
monitoring of his work was unlawful retaliation.
4. Claim of Retaliatory Suspension and Discharge in May of 2019 for Having Made Secret
Audio Recordings of Workplace Conversations

Mr. Gates alleges that on May 6 and 11, 2019 he was suspended and then terminated in
retaliation for having made over a dozen secret audio recordings of workplace conversations in
the months prior. 11 As ruled by the court in Gates’ federal lawsuit, making secret recordings of
workplace conversations with one’s supervisors or co-workers does not constitute protected
oppositional activity. See Gates, 2023 WL 4181945, at *6. Indeed, the pertinent language of the
federal FMLA anti-retaliation provision (29 U.S.C. § 2615(a)(2)) closely tracks that of FEPA
and the WCA.

Thus, the Motion to Dismiss is granted as to the claim of first party retaliation based on
the making of secret audio recordings in the workplace.

Third Party Claims of Adverse Employment Action Based on Mr. Gates’ Wife’s Actions
1. Retaliation Claim Predicated on Mr. Gates’ Wife’s Request in May 2016 For Reasonable
Workplace Accommodation and/or Her Application For Workers’ Compensation Benefits
In May of 2016, Ms. Gates sought a reasonable workplace accommodation for a claimed
disability or workplace injury, and then filed a claim for workers’ compensation benefits.
Neither of those actions constitute opposition to an act or practice prohibited by either FEPA or
the WCA. In addition, for reasons noted above, while it is unlawful under the WCA for an
employer to take adverse action against an employee for having sought benefits under the WCA,
the statute does not extend to supporting a cause of action for the spouse of the employee.

Thus, the Motion to Dismiss is granted as to the claim of third party retaliation that is
based on Mr. Gates’ wife’s request for reasonable accommodation, and/or her pursuit of workers’
compensation benefits.
2. Retaliation Claim Based on Mr. Gates’ Reassignment to the Die Setting Job after his Wife filed
her Civil Suit in October of 2017
Mr. Gates alleges that almost immediately after his wife’s civil suit was filed in late
October of 2017, he suffered an adverse action by his re-assignment to a new and dangerous
position in another department as a die setter for which he had no experience, with no other
option except to seek another position with less pay and seniority. In her suit, his wife claimed

11
He alleges adverse actions for other reasons in May of 2019 which are addressed elsewhere in this decision.

15
discrimination based on refusal to acknowledge and accommodate a disability on her part, and
she also claimed that she suffered retaliation for having sought worker’s compensation benefits.
Thus the allegations constituted opposition to actions she alleged were protected activities under
the statutes.

Mr. Gates alleges that the die setting assignment had adverse impacts on him and could
well have convinced a reasonable person in his wife’s position not to file her legal claims if she
had known that would occur. He alleges that for a person without prior experience or training,
die setting was dangerous work, or certainly more dangerous for him than was his long-held
position in the finishing department. The legitimacy of the allegation that the die setting job was
dangerous is supported by his allegation that his supervisors, upon hearing Mr. Gates’ safety
concerns, assigned an experienced tech to work alongside Mr. Gates when die setting. He also
alleges that other employees, including the head of human resources, acknowledged that Mr.
Gates’ lacked prior qualifications for die setting work. He further alleges that a new outside hire,
similarly lacking in experience or training in die setting work, was afforded significant training
opportunities before he was tasked to handle die setting duties, suggesting that Mr. Gates was
treated differently than those with a comparable or similar lack of experience and training.
Moreover, the die setting job increased the overall workload and/or demands on Mr. Gates’ time.

Although by mid-November of 2017 Defendants announced their decision to assign
another worker to share or split the die setting duties with Mr. Gates, he alleges that he was never
fully relieved of the die setting job assignment. Given that he also maintained his prior job
position in the finishing department, even the “split” or shared die setting job assignment
arguably constituted an increase in Mr. Gates’ workload. The change was not accompanied by
any increase in pay or any other benefits.

Defendants argue that material adversity and causation have not been sufficiently alleged
since Mr. Gates admits that, within roughly two weeks after he was tasked with die setting, his
supervisors announced that he would share the assignment with a co-worker, and that Mr.
Rogstadt, a supervisor who was undisputedly not motivated by retaliatory animus, would be in
charge of deciding each day which of the two workers would perform the assignment. These
facts are insufficient to counteract a reasonable inference of retaliation, which the alleged facts
support and is all that is needed to survive a motion to dismiss. The timing of these events
permits the reasonable inference that the decision adversely affecting Mr. Gates was made
because of his wife’s lawsuit, and that the decision to involve Mr. Rogstadt was merely post-hoc
effort to mitigate the impacts and/or mitigate appearances. Mr. Gates also alleges that the sharing
of the die setting assignment did not take the job duties completely away from him and that he
was required to continue to perform that shared assignment throughout the remainder of his
employment.

Defendants argue that any inference of causation that is shown by the temporal proximity
is fully rebutted or ameliorated by Defendants’ actions taken roughly two weeks later after the
initial decision to assign Mr. Gates to the die-setting job. That argument essentially asks the
court to become a fact-finder on the central issues of unlawful motive and causation. It is not the
court’s role when evaluating sufficiency of allegations in response to a motion to dismiss to

16
evaluate the weight of the evidence or make a finding as to Defendants’ motives. Mr. Gates has
made factual allegations sufficient to withstand dismissal for failure to state a claim.

Defendants’ Motion to Dismiss is denied as to the claim of third party retaliation that is
based on the decision to assign Mr. Gates the die setting job shortly after his wife filed her civil
action.

Summary of Counts One and Two: Mr. Gates has pled a single viable claim for
retaliation based on his having been reassigned to the die setting job in November of 2017
immediately after his wife filed her civil suit against Mack Molding claiming disability
discrimination.

The Statute of Limitations Defense

Defendants assert the affirmative defense of statute of limitations pursuant to V.R.C.P.
8(c). At the pleading stage Defendants may meet their burden only by reliance on factual
allegations that appear on the face of the Complaint or facts of which the court takes judicial
notice. See Gates, 2023 WL 4181945, *4; DaimlerChrysler Servs. of N. Am., LLC v. Ouimette,
2003 VT 47, ¶ 5, 175 Vt. 316.

The claim for retaliation accrued in November of 2017. Mr. Gates filed this case on June
19, 2023. The parties dispute which statute of limitations governs a FEPA retaliation claim. Mr.
Gates argues for application of 12 V.S.A. § 525, which became effective on May 31, 2022, and
provides for a six-year limitation period. See 2021, Act. No. 147 (Adj. Sess.), § 39 (“An action
under . . . 21 V.S.A. § 495b (employment discrimination) shall be commenced within six years
after the cause of action accrues and not after.”). Defendants point out that Mr. Gates’ FEPA
claim accrued before May 31, 2022, noting that it was filed initially in federal court on May 6,
2022, and argue that the applicable statute of limitations for a claim is the one in effect at the
time of the claim’s accrual, not the one in effect later. See Stewart v. Darrow, 141 Vt. 248, 253
(1982) (only the statute of limitations that was in effect at the time that the claim accrued
controls). The only exception would be where the legislation enacting the limitations period for
a particular claim expressly indicates that the enactment applies retroactively, to claims that had
accrued prior to the enactment’s effective date. See A.B. v. S.U., 2023 VT 32, ¶ 21, 298 A.3d
573 (“Laws are generally prospective and legislative acts must unequivocally express an intent to
have retroactive application.” (omitting internal quotation marks; citing, inter alia, 1 V.S.A.
§ 214)). The 2022 enactment here contains no such express retroactivity provision, so it does not
control.

Thus, FEPA claims that accrued prior to the effective date of the 2022 enactment are
governed by either 12 V.S.A. § 512(4) or 12 V.S.A. § 511. See Egri v. U.S. Airways, 174 Vt.
443, 445 (2002) (mem.) (addressing statutes of limitations regarding FEPA claims). Section
512(4) provides that civil actions for “injuries to the person” must be commenced within three
years of the date of accrual, while § 511, the “‘catchall statute,’” bars other civil actions
generally, unless they are filed within six years from their accrual date. Bull v. Pinkham Eng’g
Assocs., 170 Vt. 450, 455 (2000) (quoting Fitzgerald v. Congleton, 155 Vt. 283, 287 (1990)).
Mr. Gates alleges that he suffered both personal injuries and economic injuries as a result of

17
Defendants’ violations of FEPA’s antiretaliation provision. See Compl. ¶¶ 280, 305.
Accordingly, his claim is covered by both § 512(4) and § 511: “[W]here a complaint clearly
alleges injury covered by § 512 and injury covered by § 511, the two different limitation periods
apply, even though there is only one wrongful act.” Egri, 174 Vt. at 445; see also id. at 444 (“‘it
is the nature of the harm done, rather than the plaintiff’s characterization of the cause of action,
that determines which statute of limitation governs.’” (quoting Bull, 170 Vt. at 455)).

The specific date or time of the accrual of claims governed by § 512(4) or § 511is
determined by the “discovery rule.” Gettis v. Green Mtn. Econ. Dev. Corp., ¶ 22, 179 Vt. 117
(“In personal injury claims governed by 12 V.S.A. § 512(4), the cause of action accrues at the
time a plaintiff discovers or reasonably should have discovered the basic elements of a cause of
action, including the existence of any injury and its causes.”); Bull, 170 Vt. at 456 (“cause of
action governed by § 511 accrues when plaintiff discovers, or through reasonable diligence
should have discovered, injury” (citing Univ. of Vt. v. W.R. Grace & Co., 152 Vt. 287, 290-91
(1989)).

Mr. Gates seeks an exception to the discovery rule under the “continuous tort” or
“continuing violation” doctrine. See Pl.’s Opp’n to Defs.’ Mot. to Dismiss (filed Sept. 27, 2023),
at 19; Compl. ¶¶ 286, 297-30, 307, 315-18 (alleging “continuous retaliatory harassment and
retaliation” in violation of FEPA and the WCA). Under that doctrine, a plaintiff may “‘support
his or her cause of action with events that occurred outside’” (prior to) an applicable limitations
period, “‘by delaying the date of accrual of the tort claim until the date of the last injury or the
last date on which tortious acts cease.’” Nesti v. Vt. Agency of Transp., 2023 VT 1, ¶ 37, 296
A.3d 729 (quoting Gettis, 2005 VT 117, ¶ 23). Mr. Gates alleges that after his wife filed her
civil action in October, 2017, he endured continuous retaliation, by and through Defendants’
decision to assign him the die setting job, an assignment that continued throughout his entire
remaining tenure at Mack Molding.

However, these allegations are insufficient to trigger the continuing violation doctrine,
for the reason explained by the Vermont Supreme Court in Gettis:

The continuing tort doctrine requires that a tortious act—not simply the
continuing ill effects of prior tortious acts—fall within the limitation period. The
necessary tortious act cannot be the failure to right a wrong committed outside the
limitation period. If it were, the tort in many cases would never accrue because
the defendant could undo all or part of the harm.

Gettis, 2005 VT 117, ¶ 28 (citing, inter alia, Harris v. City of N.Y., 186 F.3d 243, 250 (2d Cir.
1999) (“a continuing violation cannot be established merely because the claimant continues to
feel the effects of a time-barred discriminatory act” and “[n]or can an otherwise barred claim be
rendered timely by the mere continuation of the claimant’s employment”)).

Moreover, in National Railroad Passenger Corp. v. Morgan, the U.S. Supreme Court
held that for purposes of Title VII, “discrete discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed charges.” 536 U.S. 101, 113 (2002).
And thus, “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that

18
act.” Id.; see also id. at 110-11 (holding that the statutory term “practice” refers to “a discrete act
or single ‘occurrence,’” and that a “discrete retaliatory or discriminatory act ‘occurred’ on the
day that it ‘happened’”). The Court also expressly listed “termination, failure to promote, denial
of transfer [and] refusal to hire” as examples of such discrete acts, each of which starts a new
clock and limitations period in which to file charges. Id. at 114 (“Each incident of discrimination
and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful
employment practice.’”)

The Morgan Court then went on to distinguish claims arising from an employer’s distinct
adverse acts from claims of a hostile work environment, observing that for the latter, the wrongs
are “continuing” in nature and typically based on repeated conduct, such that the “unlawful
employment practice” cannot be said to occur on any particular day. See id. at 115-17
(observing that unlike discrete discriminatory or retaliatory actions, incidents that give rise to a
hostile work environment claim “occur[] over a series of days or perhaps years and . . . a single
act of harassment may not be actionable on its own”). Thus, the application of statutes of
limitation to claims alleging a hostile work environment is analytically distinct: as long as a
single act “contributing to the [hostile work environment] claim occurs within the filing period,
the entire time period of the hostile environment may be considered by a court for purposes of
determining liability.” Id. at 117. Accordingly, after Morgan, “claims based on discrete acts are
timely only where such acts occurred within the limitations period, and . . . claims based on
hostile environment are only timely where at least one act [contributing to the hostile
environment] occurred within the limitations period.” Pegram v. Honeywell, Inc., 361 F.3d 272,
279-90 (5th Cir. 2004).

Morgan bolsters the conclusion that the continuing violation doctrine does not apply with
respect to Mr. Gates’ viable retaliation claim in this case. 12 This is not a hostile work
environment case, so the continuing violation doctrine does not affect the date of accrual of Mr.
Gates’ claim.

However, Mr. Gates also raises a separate legal issue: whether under 12 V.S.A. § 558, the
operative or effective date of filing should be the date on which he filed his FEPA and WCA
retaliation claims in federal court (May 6, 2022), rather than the date that such claims were filed
in this case (June 19, 2023). That provision allows a plaintiff to “commence a new action for the
same cause within one year after the determination of the original action, when the original
action has been commenced within the time limited by any statute of this State, and the action
has been determined for any of the following reasons: where the action is dismissed for lack of
jurisdiction of the subject matter[.]” 12 V.S.A. § 558(a)(2). On March 23, 2023, the federal
court declined to continue exercising supplemental jurisdiction over any of Mr. Gates’ state law
causes of action and dismissed them without prejudice. See Gates, 2023 WL 418945, *9. Thus,
while the dismissal was discretionary, it was in essence a dismissal for lack of subject matter
jurisdiction, thus triggering § 558(a)(2). Cf. Leno v. Meunier, 125 Vt. 30, 33 (1965) (noting that
12
Mr. Gates notes that in Lee v. University of Vermont, 173 Vt. 626, 626-27 (2002) (mem.), the Vermont Supreme
Court recognized that the continuing violation doctrine might apply so as to save FEPA discrimination claims that
otherwise would have been untimely under 12 V.S.A. § 511, though the Court never squarely decided that the
doctrine does apply to FEPA claims. Morgan was decided by the United States Supreme Court after Lee and may
influence the outcome in a future case on the issue in Vermont.

19
it is “settled law” that 12 V.S.A. § 558 is “remedial” and “should be construed liberally”). Since
the present action was commenced within one year after that dismissal, the statute applies, and
makes the date of the federal filing the operative filing date in this case. Indeed, Defendants do
not dispute the application of § 558(a)(2), and merely argue that even the federal filing date is
too late to save any of Mr. Gates statutory retaliation or common law claims.

In sum, the one viable retaliation claim arising from the die setting assignment accrued
no later than November of 2017, which leaves Mr. Gates with no timely-filed damages claim for
his alleged personal injuries. A claim for economic injuries related to that claim is permitted by
12 V.S.A. § 558 and is not dismissed on statute of limitation grounds.

Count Three: Invasion of Privacy

Mr. Gates alleges that he suffered tortious invasion of privacy as a result of the meeting
on May 6, 2019, when Ms. Fredette and Mr. Pagliccia told him that he would be able to keep his
job, so long as he divulged the substance of his communications with his attorney regarding his
surreptitious audio recordings of workplace conversations. This meeting occurred immediately
after Defendants had learned the full extent of Mr. Gates’ recent recording activities, which
included over a dozen secret audio recordings of recent workplace conversations.

Mr. Gates requested that he be allowed to consult with his attorney and proposed that he
instead answer questions during a formal deposition. Mr. Gates alleges that Ms. Fredette and Mr.
Pagliccia ignored and/or denied Mr. Gates’ requests and insisted that if Mr. Gates was responsive
to each of their questions, including those seeking the substance of his communications with his
attorney, he would keep his job. Mr. Gates alleges that with his career at stake, he felt pressured
to divulge his private communications with his attorney, and did so during that meeting to some
extent and then stopped.

Mr. Gates is asserting an “intrusion upon seclusion” tort. The Restatement defines that
tort claim as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns, is subject to liability to the
other for invasion of his privacy, if the intrusion would be highly offensive to a
reasonable person.

Restatement (Second) of Torts § 652B (1977).

The official comments to the Restatement provide clarification. An intrusion upon
seclusion may be actionable if it takes the

form of investigation or examination into [a person’s] private concerns, as by
opening his private and personal mail, searching his safe or his wallet, examining
his private bank account, or compelling him by a forged court order to permit an
inspection of his personal documents. The intrusion itself makes the defendant

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 subject to liability, even though there is no publication or other use of any kind of
the photograph or information outlined.

Restatement (Second) of Torts § 652B, cmt. b. To clarify this point, the comments provide the
following illustration:

A is seeking evidence for use in a civil action he is bringing against B. He goes
to the bank in which B has his personal account, exhibits a forged court order, and
demands to be allowed to examine the bank’s records of the account. The bank
submits to the order and permits him to do so. A has invaded B’s privacy.
Id., cmt. b, illus. 4.

The Vermont Supreme Court has had several occasions to analyze whether various
factual scenarios are sufficient to meet the requirements of an intrusion upon seclusion claim.

In 1990, the Court ruled that an employer’s letter to an employee threatening termination
of employment unless she returned to work wearing dentures was insufficient to state a cause of
action. While “perhaps insensitive,” there was no “substantial intrusion.” Hodgdon v. Mt.
Mansfield Co., Inc., 160 Vt. 150, 162 (1992).

In 1994, the Court considered a claim in which a plaintiff claimed invasion of privacy
when an employer made multiple inquiries to the employee who was on sick leave regarding the
employee’s personal health, visited the home during which the employer asked personal medical
questions overheard by guests at a birthday party, and made repeated telephone calls to the
employee’s home. The court affirmed summary judgment to the defendant, ruling that while the
employer’s questions made in front of guests was “unusual and possibly rude,” the actions were
not substantial. It also concluded that they would not be “highly offensive to a reasonable
person.” Denton v. Chittenden Bank, 163 Vt. 62, 69 (1994).

In 2000, the Court ruled that where an employer “made inquiries of a personal nature and
would lean close to [an employee] at her work station,. . .there was no ‘substantial intrusion’
upon her private affairs which would be ‘highly offensive to a reasonable person.’” Vermont Ins.
Mgmt., Inc. v. Lumbermens’ Mut. Cas. Co., 171 Vt. 601, 604 (2000) (quoting Hodgdon).

In 2003, the Court affirmed recovery for invasion of privacy based on defendants’ actions
undertaken on plaintiff’s property in cutting down trees, filling in a streambed, and accosting
defendants and their guests such that plaintiff no longer went into her yard, as well as making
false complaints to police and health inspectors who visited the plaintiffs’ home two or three
times a week. The Court concluded that these facts showed that defendants “substantially
intruded on defendants’ solitude and seclusion.” Pion v. Bean, 2003 VT 79, ¶ 36, 176 Vt. 1.

In 2008, the Court upheld a $500,000 jury award for invasion of privacy where:

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 Defendant systematically terrorized plaintiffs' family by conduct that escalated
from placing garbage and then sharp objects on plaintiffs' driveway, to monitoring
plaintiffs' house by parking at early morning hours in their driveway, “keying”
their car while parked at their home, placing harassing phone calls to their house,
attempting identity theft, placing live bullets on plaintiffs' yard, poisoning the
family dog, and vandalizing bird feeders placed close to their house. Defendant
was undeterred by the presence of law enforcement; his behavior escalated even
after his arrest. As such, plaintiffs are living as if under siege. They have installed
a security system at their home and have armed themselves. They are constantly
vigilant when defendant fires weapons on his property. They struggle to comfort
their young daughter who has nightmares. We therefore uphold the jury's
$500,000 compensatory-damages award; plaintiffs' sense of peace and privacy in
their home has been destroyed by defendant.

Shahi v. Madden, 2008 VT 25, ¶ 24, 183 Vt. 320.

In 2015, the Court affirmed a grant of summary judgment denying recovery where the
defendant had hollered obscenities while approaching with a very large dog, made threats of
legal action, and forced plaintiff to incur legal costs. The Court concluded that the conduct was
not “sufficiently substantial to satisfy the elements of this tort.” Weinstein v. Leonard, 2015 VT
136, ¶ 28, 200 Vt. 615. The Court specifically cited Restatement (Second) of Torts § 652B, cmt.
d. That comment states that “there is no liability for knocking at the plaintiff’s door, or calling
him to the telephone on one occasion or even two or three, to demand payment of a debt. It is
only when the telephone calls are repeated with such persistence and frequency as to amount to a
course of hounding the plaintiff that it becomes a substantial burden to his existence, that his
privacy is invaded.” The Court also specifically reviewed the factual scenarios and rulings in all
of the cases cited above. See 2015 VT 136, ¶ 32.

These decisions, together with the Restatement examples, show that the element of
‘invasion’ is key. The cause of action requires that the defendant has taken some affirmative
action to invade a plaintiff’s personal space or body of private information. Posing questions
about private matters, which need not be answered, does not appear to be enough. Moreover, the
requirement that the invasion be “substantial” is a serious one. The required element of a
‘substantial intrusion’ provides a reasonable limitation against making actionable a wide variety
of circumstances in which persons ask others questions about private matters.

Mr. Gates alleges that he had a 30-minute meeting with two superiors who asked him to
reveal information about his communications with his attorney. He had the opportunity to
simply decline to answer, which is what he did after answering some questions. The allegations
do not show that the Mack superiors did more than ask questions even though they appeared
angry. While their actions may be sufficient for a different cause of action (see discussion below
on Count Four), the essential element of substantial intrusion into personal space or private
material has not been alleged.

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 The court cannot conclude that asking questions about a person’s private affairs, without
some act of substantial intrusion into those affairs or the respondent’s personal space or time, is
sufficient to allege invasion of privacy as that cause of action is defined in the Restatement and
interpreted by the Vermont Supreme Court.

Count Three is therefore dismissed.

Count Four: Intentional Infliction of Emotional Distress

Mr. Gates claims intentional infliction of emotional distress based on two incidents:

1. A June 18, 2020 letter from Mack’s attorneys threatening Mr. Gates with a civil action
under the federal wiretap statute and asserting a claim for $50,000 in attorneys’ fees if he
did not waive any claim of his own against Mack; and,
2. The May 6, 2019 event in which two Mack supervisors paraded Mr. Gates through the
plant, isolated him in a room for a meeting which he did not feel free to leave, denied his
request to speak with his attorney, and told him his job of 24 years depended on him
answering questions about his conversations with his attorney concerning his secret
recordings of Mack personnel.

The elements of the cause of action are most recently set forth by the Vermont Supreme
Court as follows:

The elements of an IIED claim are: “(1) conduct that is extreme and outrageous,
(2) conduct that is intentional or reckless, and (3) conduct that causes severe
emotional distress.” Thayer v. Herdt, 155 Vt. 448, 455, 586 A.2d 1122, 1126
(1990). “An IIED claim can be sustained only where the plaintiff demonstrates
‘outrageous conduct, done intentionally or with reckless disregard of the
probability of causing emotional distress, resulting in the suffering of extreme
emotional distress, actually or proximately caused by the outrageous conduct.’ ”
Colby v. Umbrella, Inc., 2008 VT 20, ¶ 10, 184 Vt. 1, 955 A.2d 1082 (quoting
Boulton v. CLD Consulting Eng'rs, Inc., 175 Vt. 413, 427, 834 A.2d 37, 49
(2003)).

Baptie v. Bruno, 2013 VT 117, ¶ 24, 195 Vt. 308.

Mr. Gates relies on a prior case, Crump v. P & C Food Markets, Inc., 154 Vt. 284
(1990), in which a jury awarded damages for IIED. Plaintiff had been employed for 18
years when he was summoned without notice to a meeting which lasted three hours
without a break for lunch and which he did not feel free to leave, during which he was
“repeatedly badgered” to amend and sign a statement. Immediately after the meeting he
was summarily dismissed. While the Court noted that “mere termination of employment
will not support a claim for intentional infliction of emotional distress,” Id. at 296, it

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denied defendant’s motion for judgment notwithstanding the verdict, concluding that
there was sufficient evidence to go to the jury.
As to the threatening letter of June 2020, Plaintiff alleges that Mack knew or had reason
to know that Mr. Gates had not violated the wiretap statute, but nonetheless threatened a civil suit
that caused Mr. Gates to worry about companion federal criminal prosecution and going to jail.
Plaintiff also alleges that Mack’s attorneys knew that the amount of $50,000 in attorneys’ fees
was grossly exaggerated and that the threat of such a claim against Mr. Gates, a factory worker,
caused him emotional distress related to whether he could continue to support his family. At the
time there was no litigation between Mack and Mr. Gates.
For purposes of notice pleading, Plaintiff has made sufficient allegations on each of the
required elements sufficient to withstand a motion to dismiss. Plaintiff alleges that the letter
contained serious threats allegedly known to be without factual bases, indicating that a jury could
find them outrageous; the letter was clearly written intentionally by attorneys on behalf of Mack;
and a jury could conclude that the fear of federal prison and being unable to support a family
could cause severe emotional distress.
As to the May 6, 2019 meeting, the details of Plaintiff’s allegations of an oppressive
meeting conducted by Mack personnel are somewhat similar to those in Crump, which the Court
found sufficient to support factfinding by the jury. The allegations are that Mr. Gates was
paraded through the factory floor in an embarrassing manner, isolated in a room and badgered by
two angry superiors without being free to leave, asked previously prepared questions about his
conversations with his attorney, denied the opportunity to speak with his attorney, told that his
job of over 24 years depended on his answering the questions, and then summarily suspended
when he stopped answering their questions. The conduct appears clearly intentional, and jurors
could conclude that it was “extreme and outrageous” and sufficient to cause severe emotional
distress.
Defendants argue that the claims are precluded by the statute of limitations as to claims
for emotional damages which are subject to the three-year statute of limitations. Plaintiff
included claims for intentional infliction of emotional distress in the suit filed in federal court.
Thus, under the analysis above, the effective filing date of that claim is May 6, 2022, which is
exactly three years from the events of May 6, 2019, on which Mr. Gates relies to assert this claim
for emotional distress. Accordingly, the claim is timely.
Thus, the Defendants’ Motion to Dismiss is denied as to the claims for intentional
infliction of emotional distress.

Count Six: Promissory Estoppel

In his Complaint, Mr. Gates claims promissory estoppel based on a promise made in the
May 6, 2019 meeting with managers “that he would keep his job if he answered their questions .
. .and that they would conduct an investigation.” (Complaint, ¶ 352.) He alleges that their

24
promises induced his reliance and he answered some of their questions but he was then
suspended and fired. He seeks relief for the loss of his job. 13

In a consistent series of cases over many years, the Vermont Supreme Court has adopted
the Restatement standard for a claim of promissory estoppel. “The doctrine of promissory
estoppel, as recognized in Vermont, is set forth in the Restatement (Second) of Contracts § 90(1)
(1981).” Foote v. Simmonds Precision Prod. Co., 158 Vt. 566, 573 (1992). The Restatement
defines promissory estoppel as “[a] promise which the promisor should reasonably expect to
induce action or forebearance on the part of the promisee or a third person and which does
induce such action or forebearance is binding if injustice can be avoided only by enforcement of
the promise.” Restatement (Second) of Contracts § 90(1). “A promise is a manifestation of
intention to act or refrain from acting in a specified way, so made as to justify a promise in
understanding that a commitment has been made.” Id. § 2(1).

Thus the four elements are: (1) a promise (2) that the promisor expects to induce action
(3) that is relied on by the promisee in taking action or forbearance, and (4) injustice can be
avoided only by enforcement.

In the context of employment, specificity is required. The promise must be “a ‘promise
of a specific and definite nature before holding an employer bound by it.’” Woolaver v. State,
2003 VT 71, ¶ 30, 175 Vt. 379 (quoting Dillon v. Champion Jogbra, Inc., 175 Vt. 1, 10 (2002)).
“The promise must be more than a mere expression of intention, hope, desire, or opinion, which
shows no real commitment.’” Pettersen v. Monaghan Safar Ducham PLLC, 2021 VT 16, ¶ 13,
214 Vt. 269 (quoting, without internal quotation marks, Nelson v. Town of St. Johnsbury
Selectboard, 2015 VT 6, ¶ 56, 198 Vt. 277).

The Vermont Supreme Court has concluded that various statements by an employer to an
employee have been found inadequate for vagueness, lack of specificity, or lack of definiteness:
an assurance that it would take four to six months for the employee to become comfortable
performing a job, see Dillon, 175 Vt. at 10, and an opinion that it was reasonable to think that the
plaintiff would have an opportunity to become a law firm partner and earn $100,000 annually in
five years insufficient)., see Pettersen, 2021 VT 16, ¶ 14. In Nelson, a statement from a town’s
attorney, not purporting to be a statement on behalf of the decision-making board, that
plaintiff/town employee could be terminated only for “gross abuse of municipal funds and
official discretion” was a mere expression of legal opinion, and not a promise to act in a certain
way. 2015 VT 6, ¶¶ 56-57. Similarly, in Woolaver, 2003 VT 71, ¶ 31, a promise of extended
leave during the plaintiff-employee’s pregnancy, and a right to reinstatement thereafter, was
insufficient to guarantee that plaintiff would not be terminated for performance problems that
arose after she returned to work upon completion of her leave.

13
In his subsequently filed Outline of Claims, Mr. Gates gives two other “examples:” Defendant Bud Pagliccia
promising that Mack employees could record without permission, and Defendant Nancy Ceflo promising that he
could keep his old job title and pay and not have to do the die setting job.

25
 Mr. Gates alleges that he relied on Defendants Fredette’s and Pagliccia’s promise that if
he divulged his privileged conversations with his attorney during the meeting held on May 6,
2019, he would not lose his job. The promise alleged is sufficiently clear to meet the specificity
requirement: ‘answer our questions here and now and you will not lose your job.’ Mr. Gates
asserts that he relied on the promise in providing answers and such reliance was detrimental
because, after answering questions, despite the promise, he still lost his job.

Defendants argue that Mr. Gates, knowing that he had secretly recorded work
conversations, could not reasonably have expected to keep his job, regardless of Defendants’
promises or inducements. They argue that reliance on a promise must be reasonable. Under the
Restatement, however, the issue is whether the promisor should have foreseen reliance that
would induce action or forbearance on the part of the promisee. Compare Foote, 158 Vt. at 573
(“The maker of such a statement in an employee handbook should expect action or forbearance
on the part of the promisee as a result of the statement.”), with Madden v. Omega Optical, Inc.,
165 Vt 306, 315 (1996) (“Unlike Foote, defendant here would not have reasonably expected that
plaintiffs would misinterpret the handbook and that the handbook would thereby induce action or
forbearance by plaintiffs.”)

The reasonableness of the promisee’s reliance comes into play only in relation to the
fourth element of whether enforcement is necessary to avoid injustice. See Restatement (Second)
of Contracts § 90(1), cmt. b (“The promisor is affected only by reliance which he does or should
foresee, and enforcement must be necessary to avoid injustice. Satisfaction of the latter
requirement may depend on the reasonableness of the promisee’s reliance . . . .”).

Mr. Gates alleges that he took the very action that Defendants’ requested of him when
they offered not to terminate him if he took such action: he divulged the substance of his
communications with his attorney in reliance on Defendants’ promise that his job would be not
be in jeopardy as a consequence. His allegations are sufficient with respect to the requirements of
a specific promise designed to induce action that did induce the exact action intended.

The final element of the promissory estoppel cause of action is whether injustice can be
avoided only by enforcement of the promise, and calls for consideration of the following factors:

(a) the availability and adequacy of other remedies, particularly cancellation and
restitution;
(b) the definite and substantial character of the action or forbearance in relation to
the remedy sought ;
(c) the extent to which the action or forbearance corroborates evidence of the
making and terms of the promise, or the making and terms are otherwise
established by clear and convincing evidence;
(d) the reasonableness of the action or forbearance; [and]
(e) the extent to which the action or forbearance was foreseeable by the promisor.

26
Restatement (Second) of Contracts § 139(2) (1981).

Defendants do not argue a failure of allegation on the fourth element. Rather, they argue
that due to prior misconduct on the part of Mr. Gates, it would be unjust to enforce Defendants’
promise not to terminate him. This involves weighing of evidence and is not an issue to be
decided on a motion to dismiss. If jurors find the other elements of the promissory estoppel claim
have been proved, it is up to the jurors to determine whether an injustice can be avoided only by
enforcement of the promise.

Thus, as to the promissory estoppel claim based on the May 6, 2019 meeting in which the
promise was made that he would not be terminated if he answered questions, Plaintiff’s
allegations are sufficient and the Motion to Dismiss that claim is denied.

In order to avoid any controversy about scope of the claim(s) of promissory estoppel, the
court will also rule on the two “examples” identified in Plaintiff’s Outline of Claims although
such claims are not clearly identified in ¶¶ 349-358 if the Complaint.

Mr. Gates alleges that he relied on Defendant Pagliccia’s supposed promise that Mack
Molding employees could secretly record workplace conversations without the consent of other
parties. Mr. Gates does not specify how he may have been harmed by reliance on this supposed
promise, though presumably he believes that he was terminated for having made over a dozen
secret workplace recordings during 2019. However, the allegations in the Complaint are that Mr.
Pagliccia explained to a group of supervisors at the plant that secret workplace recordings
without consent of the other parties was not unlawful. There is no allegation that Mr. Pagliccia
granted broad permission to all Mack Molding employees that they had free license to make
secret workplace recordings at the Cavendish plant, nor did he promise that employees would be
free from discipline if they engaged in such conduct. At most, Mr. Pagliccia expressed a legal
opinion, which is not a commitment to take or not take a specific action in the future. Cf.
Nelson, 2015 VT 6, ¶¶ 56-57. Thus, this claim fails for lack of a promise.

Mr. Gates also alleges that he relied on Defendant Nancy Ceflo’s promise in November
2017 that he would not lose his job or pay as a result of his new assignment to perform die
setting work, and that he was harmed in January 2019 when Defendant Fredette told him that
Ms. Ceflo’s promises were without effect. Mr. Gates does not allege any specific action or
forbearance he took in reliance on Ms. Ceflo’s statement that caused him to suffer injustice. The
Complaint shows that Mr. Gates kept his job and his rate of pay after the Ceflo meeting, and
even after learning from Jessica Fredette that the Ceflo promise was not enforceable. To the
extent that Mr. Gates might be arguing that Ceflo’s promise protected him from suspension and
termination in 2019, Mr. Gates reads too much into the supposed promise. Much like the plaintiff
in Woolaver, a promise of a right to keep a job is not an indefinite or absolute guarantee of
employment regardless of subsequent performance issues or employee misconduct.

27
 In sum, the Motion to Dismiss is denied with respect to the promissory estoppel claim
based on the events of the May 6, 2019 meeting. 14 Plaintiff’s cause of action for promissory
estoppel based on the alleged promise that employees could record workplace conversations, and
the cause of action based on a November 2017 representation that he could keep his old job, are
dismissed.

Count Eight: Aiding and abetting

In the Complaint, Plaintiff makes general allegations that the individual Defendants
committed “the aforementioned tortious and wrongful acts as part of a common design with each
other,” gave substantial assistance to the others, and breached a duty to Plaintiff. (Compl.,
¶ 365.)

In Plaintiff’s Outline of Claims, Plaintiff alleges that Jeffrey Somple endorsed Jessica
Fredette’s retaliation of Plaintiff, that Jessica Fredette and Nancy Ceflo had various powers, and
that Bud Pagliccia took Plaintiff out of his old job and reassigned him to die setting.

An “aiding and abetting” cause of action is also called “concerted action liability.” The
Vermont Supreme Court has specifically stated that it has:
adopted the definition of concerted action liability as stated in the Restatement
(Second) of Torts § 876 (1979). See Montgomery v. Devoid, 2006 VT 127, ¶ 33,
181 Vt. 154, 915 A.2d 270. This section provides that a person is subject to
liability for harm to a third person from the tortious conduct of another if the
person:
(a) does a tortious act in concert with the other or pursuant to a common design
with [the other person], or
(b) knows that the other's conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct [himself or
herself], or
(c) gives substantial assistance to the other in accomplishing a tortious result and
[the person's] own conduct, separately considered, constitutes a breach of duty to
the third person.
Restatement (Second) of Torts § 876.

Concord Gen. Mut. Ins. Co. v. Gritman, 2016 VT 45, ¶ 16, 202 Vt. 155.

Defendants seek dismissal, arguing that Plaintiff has not provided a factual basis relating
each individual’s action to a specific tortious act. Three torts have survived the Defendants’
Motion to Dismiss: (1) third party retaliation for reassignment to the die setting job; (2)
intentional infliction of emotional distress, and (3) promissory estoppel. Plaintiff has not set
forth factual allegations as to the specific manner in which he alleges aiding and abetting by

14
For reasons stated above, Defendants’ statute of limitations defense to the claim of promissory estoppel is without
merit.

28
individual Defendants with regard to these claims. Rather, the allegations use the generic
language from the definition of the cause of action.

It appears that the actions of the individuals in the viable causes of action were
undertaken in their capacity as agents of Defendant Mack Molding. Plaintiff has not alleged
individual motivation or action of aiding and abetting on the part of the individuals separate from
their actions undertaken on behalf of Mack Molding. Therefore, any claims against the
individual Defendants for aiding and abetting are dismissed.

Summary and Order

For the reasons set forth above, the following claims are not dismissed:

1. Claim for retaliation by reassigning Mr. Gates to the die setting job after his wife filed
a lawsuit against Mack Molding for discrimination;
2. Claim of intentional infliction of emotional distress based on conduct at the May 6,
2019 meeting; and
3. Claim of promissory estoppel based on the May 6, 2019 promise that he would not
lose his job if he answered questions.

All other claims and all claims against individual Defendants are dismissed with
prejudice.

Defendants’ counsel shall file an Answer to the above described claims within 14 days as
provided in V.R.C.P. 12(a)(3)(A).

Within 21 days after the filing of the Answer, the attorneys shall submit either an agreed
upon pretrial scheduling order, or their respective requests for such an order.

Electronically signed March 25, 2024 pursuant to V.R.E.F. 9 (d).

Mary Miles Teachout
Superior Judge (Ret.), Specially Assigned

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