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Ellis Wins Defense Verdict in Federal Court

May 17, 2017, United States District Court, Burlington:  EBB Burlington office Director, Steve Ellis secured a jury verdict in favor of EBB’s client, a private year-round resort in southern Vermont, following a three-day jury trial, in a case involving unsettled legal issues relating to the “public policy” wrongful discharge theory under Vermont law.   The plaintiff, a former “at-will” employee of the resort, claimed that she had been fired in retaliation for reports she had allegedly made to supervisors relating to the care being provided to the resort’s horses and a supervisor’s alleged comments regarding employees on leave for military service.  She also made a claim for promissory estoppel based on alleged assurances that she would be provided with a management position and a claim for alleged unpaid overtime.   The client’s position was that the plaintiff had been fired for insubordination and had received all compensation owed to her, and that her reports to management were statements of opinion or private disagreements regarding management decisions which were not a matter of public policy.  All claims were dismissed on summary judgment, except the claim for wrongful discharge in violation of public policy.  The court ruled that the plaintiff’s alleged reports regarding the welfare of the horses could potentially implicate Vermont’s “public policy” against cruelty to animals, and that the factual disputes regarding plaintiff’s reports and their possible role in the termination decision could not be resolved without a trial.  Steve called no defense witnesses and relied on his cross-examination of plaintiff’s witnesses and evidence of plaintiff’s emails and text messages and the resort’s payroll and accounts payable records, all of which demonstrated that the employer had granted every request ever made by the plaintiff relating to the horses, except the creation of a full-time horse care position and the assignment of that position to her, and that no adverse employment action was ever taken against her until she was ultimately fired in direct response to an email she sent to the resort’s CEO in which made a serious accusation against her supervisor which she admitted was not true.  Based on this and other inconsistencies in plaintiff’s testimony, Steve questioned the credibility of her testimony regarding other concerns relating to the horses she claimed to have reported.  The court instructed the jury that plaintiff had the burden of proving that the employer was aware that plaintiff’s reports concerned actions or practices which she had an objective, good faith basis to believe would violate the state’s policy against animal cruelty, and that she was fired because of those reports.  After deliberating for just over an hour, the jury returned a verdict that the employer did not wrongfully discharge the plaintiff in violation of public policy.

Oliver Abbott