Vermont Civil Jury Instruction Committee
Plain English Jury Instructions
Section 1. Employment Law Jury Instructions
Table of Contents
The starting point in an employment case is employment at-will. This means that either the worker or the company can end the working relationship at any time for any reason or no reason at all [as long as it is not an unlawful reason]. The fact that a person is a “permanent” employee does not itself change an employee’s status from at-will to something more. The issue in this case is [describe reason alleged why employment at will does not apply].
The presumption of at-will employment is well-established in Vermont. See, e.g., Trombley v. Southwestern Vermont Medical Ctr., 169 Vt. 386, 392 (1999); Taylor v. Nat’l Life Ins. Co., 161 Vt. 457 (1993); Sherman v. Rutland Hosp. Inc., 146 Vt. 204, 207 (1985). Compare Dillon v. Champion Jogbra, Inc., 175 Vt. 1, 819 A.2d 703 (2002) (presumption that employment for an indefinite term is an “at-will” agreement is simply a general rule of contract construction); see also LoPresti v. Rutland Regional Health Services, Inc., 177 Vt. 316 (2004) (“an employee may be discharged at any time with or without cause, ‘unless there is a clear and compelling public policy against the reason advanced for the discharge’”) (quoting Payne v. Rozendaal, 147 Vt. 488, 493 (1986)).
[Name of plaintiff] claims that [name of defendant] discriminated against [her/him] because of [her/his] [e.g., race, sex, age] when it [describe adverse employment action taken, e.g., discharge, demotion, reduction in hours]. [Name of defendant] denies this claim. [Name of defendant] does not have to persuade you that it did not discriminate against [name of plaintiff]. Rather, it is [name of plaintiff’s] job to persuade you that [she/he] was treated differently because of [her/his] [identify protected status].
An employer may not treat an employee who is [insert plaintiff’s description of [his/her] protected status, e.g., “a woman”] differently in matters such as hiring, promotions, or discharges because of the employee’s [identify relevant protected status, e.g., “sex”]. Remember, the law does not require an employer to give better treatment to [describe relevant protected status, e.g. “female”] employees but only to treat employees who are [describe relevant protected status, e.g., “women”] no better and no worse than employees who are [describe those outside the protected status, e.g., “men”].
Specifically, [name of plaintiff] alleges that she was treated differently because of [her/his] [identify protected status] when [she/he] [describe adverse employment action taken] because [describe plaintiff’s specific evidence, e.g., how comparators were treated, remarks from immediate supervisors]. [Name of defendant] claims that it [describe the adverse job action taken against plaintiff] because [she/he] [insert legitimate, non-discriminatory reason articulated by the defendant]. In the end, [name of plaintiff] must persuade you that [her/his] [identify protected status] made a difference in the employer’s decision to [describe the adverse job action taken against name of plaintiff].
Vermont’s Fair Employment Practices Act, 21 V.S.A. § 495 et seq., prohibits discrimination “against any individual because of his race, color, religion, ancestry, national origin, sex, sexual orientation, gender identity, place of birth, or age, or against a qualified disabled individual.” 21 V.S.A. § 495(a)(1) (2007). Vermont’s Fair Employment Practices Act is patterned on Title VII of the Civil Rights Act of 1964 and, thus, the standards and burdens of proof under state law are identical to those existing under federal law. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150 (1992). The plaintiff must show “that the discrimination was a ‘motivating factor’ for the alleged unlawful action.” Gallipo v. City of Rutland, 173 Vt. 223 (2001) (Gallipo V).
In most cases, the court already should have determined that the only remaining factual dispute is whether the plaintiff has shown that the legitimate, non-discriminatory reason articulated by the defendant is a pretext for discrimination and that a real reason the adverse action was taken was because of the plaintiff’s protected status. See Sharkey v. Lasmo, 214 F.3d 371, 374 (2d Cir. 2000) (“It is the judge, not the jury, who must decide whether plaintiff has satisfied the requirements of McDonnell Douglas’s minimal version of a prima facie case, . . . as well as whether the defendant has subsequently satisfied the burden of proffering a nondiscriminatory reason for its conduct.”). Accord Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994) (observing that burden-shifting language tends to confuse juries, is generally not necessary, and was imported wisely from the days that employment discrimination claims were bench trials); Graff v. Eaton, 157 Vt. 321, 324 n.3 (1991).
It is anticipated that counsel will tailor additional instructions about what Plaintiff must show to the specific evidence that Plaintiff puts forward as proof of discrimination. Indeed, it may be prudent for counsel to include in the instruction the ways that Plaintiff can prove her claim. See, e.g., Cabrera, 24 F.3d at 382 (suggesting that a claimant can prove her claim by showing that the prima facie case has been satisfied and that proving that defendant’s reason is unworthy of belief); see also Ferraro v. Kellwood Co., 440 F.3d 96, 100 (2d. Cir. 2006) (plaintiff may prevail by offering evidence of falsity of employer’s stated reason for action, from which one may infer discrimination).
If the elements of the prima facie case are disputed, please refer to the alternative instructions on the essential elements.
For additional explanation of burden of proof principles, see, e.g., State v. Whitingham School Board, 138 Vt. 15 (1979). For a further discussion about proving pretext, see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993), and Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 135 (2000).
In deciding whether [name of defendant] took this action because of [name of plaintiff’s race, age, sex, etc.], you should first consider whether [name of plaintiff] has shown that:
[Select elements of prima facie case that are disputed or that have not been decided as a matter of law and then tailor description to facts of case]
1. [Name of plaintiff] is [describe plaintiff’s protected class, e.g. race, sex].
2. [Name of plaintiff] was qualified for the job or performing the job satisfactorily;
3. [Name of plaintiff] was [describe adverse employment action, e.g., discharged, demoted, etc.]; and that
4. [Describe adverse employment action at issue] occurred under circumstances which suggest that the action was taken because of [name of plaintiff’s race, sex, age, etc.].
[Name of defendant] claims that it [describe adverse employment action at issue, e.g., discharged, demoted, etc.] [name of plaintiff] because [she/he] [insert legitimate, non-discriminatory reason articulated by the defendant, e.g., give some specific example of how plaintiff didn’t do [her/his] job or was otherwise unfit for continued employment]. In the end, [name of plaintiff] must persuade you that [her/his] [identify protected status] made a difference in the employer’s decision to [identify adverse job action taken against name of plaintiff].
As part of the prima facie case, the plaintiff must show that he or she suffered an adverse employment action. An adverse employment action is an act that “’results in an adverse effect on the ‘terms, conditions, or benefits’ of employment.’” Gallipo v. City of Rutland, 2005 Vt. 83, 882 A.2d 1177 (July 29, 2005) (citing Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001)) (Gallipo VI). The Second Circuit has defined it as a “’materially adverse change’ in the terms and conditions of employment, . . . ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’” Fairbrother v. Morrison, 412 F.2d. 39, 56 (2d Cir. 2005) (quotations omitted). Whether the action complained of constitutes an adverse employment action should often be decided by the court as a matter of law, if disputed by the parties. For this reason, we have decided not to discuss the term “adverse employment action” in these instructions. Counsel may wish to define the term in appropriate cases.
Even when following the McDonnell Douglas analysis, we have eliminated references to phrases such as “prima facie case,” “articulating a legitimate, non-discriminatory reason,” “pretext,” and other terms of art common to the analysis, because most courts, including the Second Circuit and the Vermont Supreme Court, have found such phrases decidedly unhelpful to jurors. See Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir. 1994) (“[b]asically, none of these phrases needs to be included in a jury charge in a typical case involving a claim of adverse action based on improper motivation, regardless of the state of the evidence”); Graff v. Eaton, 157 Vt. 321, 324 n.3 (1991) (“The McDonnell Douglas formula was intended to aid the judge in organizing the evidence presented, not to be given as a prospective jury charge; accordingly, the jury need not ever hear phrases like “prima facie case” or “shifting burden of proof”).
If [name of plaintiff] has persuaded you that [his/her protected characteristic] probably played some role in [name of defendant’s] decision to [discharge, demote, etc.] [her/him], you must find for the plaintiff unless [name of defendant] persuades you that it probably would have made the same decision even without the discrimination.
The Vermont Supreme Court has adopted both the McDonnell Douglas and Price Waterhouse frameworks. Robertson v. Mylan Laboratories, Inc., 176 Vt. 356 (2004). In the Price Waterhouse framework, the plaintiff has initially established that the protected characteristic has played a motivating part in the employment decision, and the burden of persuasion then shifts to the defendant to prove “by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s [characteristic] into account.” Graff v. Eaton, 157 Vt. at 324. “Placing the burden of proof on the employer in such situations is appropriate because, once the plaintiff has shown that an illegal, discriminatory motive was a factor in the employer's decision, the reason for applying the McDonnell Douglas formula—to uncover the motives involved in the employment decision—no longer exists.” The plaintiff must initially determine whether the complaint is one of pretext or mixed motive. McIsaac v. University of Vermont, 177 Vt. 16 (2004); Graff 157 Vt. at 328.
In considering [name of defendant’s] reason for [describe adverse employment action taken against plaintiff], remember that it is not your role to second-guess a business decision as long as it is not [discrimination, prohibited, unlawful, etc.]. The employer’s reasons do not have to be ones that you agree with or would act on. You should not substitute your standards or judgments on how to run a business or evaluate employees as long as the employer’s standards or judgments are not [discriminatory, prohibited, unlawful, etc.].
The business judgment rule is applicable in both wrongful termination and discrimination cases. Robertson v. Mylan Laboratories, Inc., 176 Vt. 356 (2004); see also Taylor v. Nat’l Life Ins. Co., 161 Vt. 457, 467 (1993) (to second guess changes made in the workforce would be “self-defeating as well as an inappropriate interference in managerial discretion”); Fisher v. Vassar College, 114 F.3d 1332, 1337 (2d Cir. 1997), cert. denied., 118 S. Ct. 851 (1998); Binder v. Long Island Lighting Co., 57 F.3d 193, 202 (2d Cir. 1995).
To succeed on [her/his] claim of harassment, [name of plaintiff] must prove all of the following:
1. Conduct related to [the plaintiff’s protected status] occurred that was severe or pervasive enough that a reasonable person in [name of plaintiff’s] position would have felt that it made the work environment hostile or abusive;
2. [Name of plaintiff] actually believed [her/his] workplace was hostile or abusive; and
Management level employees knew, or should have known, of the conduct and failed to take prompt and appropriate actions to correct it.
For a definition of sexual harassment under Vermont’s Fair Employment Practices Act, see 21 V.S.A. § 495d(13). For discussions of the burdens of proof in sexual harassment claims, see Fairbrother v. Morrison, 412 F.2d. 39 (2d Cir. 2005); Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004); see also Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). In a hostile work environment claim, “[t]he plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that he terms and conditions of her employment were thereby altered.” Alfano v. Costello, 294 F.2d 365, 373 (2d Cir. 2002). Proving the claim involves both objective and subjective elements – the work environment must be objectively hostile or abusive and the plaintiff must subjectively perceive it to be so.
In addition, the plaintiff must show a specific basis for imputing the offensive conduct to the employer. Fairbrother, 412 F.3d at 48-49. If the actors were non-supervisory co-workers, the employer can be vicariously liable if it knew or should have known about the conduct and failed to take remedial action. Id. at 49. If a supervisor with immediate or successively higher authority over the employee was the actor, and a tangible employment action against the employee resulted, the employer will be vicariously liable. Id. If no tangible employment action occurred, the employer may still be vicariously liable unless it proves it exercised reasonable care to prevent and correct harassment and the plaintiff unreasonably failed to take advantage of such opportunities. Id.
The Vermont Supreme Court has held that to demonstrate a hostile environment, the conduct need not be of an explicitly sexual nature so long as it is directed against women because of their sex. In re Grievance of Butler, 166 Vt. 423, 429 (1997) (remarks to female trooper about her sensitivity to discrimination, her sex life, her personal relationships, her physical “toughness” were based on sex because they were directed to her precisely because she was a woman in a male-dominated environment). The Second Circuit has also recognized that the same work environment may be hostile to women but not to men. Petrosino, 385 F.3d at 222.
The first element is an objective one. The misconduct must be objectively hostile or abusive. Petrosino, 385 F.3d at 221; Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003). Whether an environment is “hostile” or “abusive” depends upon the totality of the circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). This analysis requires consideration of a variety of factors, such as “the frequency of the discriminatory conduct; its severity, whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id.; accord Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767-68 (2d Cir. 1998). “Isolated remarks or occasional episodes of harassment will not merit relief. . . .the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive.” Tomka v. Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995). Simple teasing or offhand comments are not enough. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
This element must be viewed from the perspective of a “reasonable person in the plaintiff’s position, considering all the circumstances [including] the social context in which particular behavior occurs and is experienced by its target.” Oncale, 523 U.S. at 81. The decision whether or not conduct directed at all employees is objectively more demeaning to those of the protected class is for the jury. Petrosino, 385 F.3d at 222. The law does not, however, establish a general civility code for the workplace. Oncale, 523 U.S. at 81.
With respect to the second element, the Committee found instructive the EEOC’s 1994 Enforcement Guidance on Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). The Commission believes that “‘conduct must be unwelcome’ in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.” This requires an inquiry “whether the victim’s conduct is consistent with an assertion that the alleged harassing behavior was both uninvited and offensive to the charging party. The second prong of the unwelcomeness inquiry, whether the employee considers the conduct offensive, is, in effect, synonymous with ‘subjectively perceiving the environment to be abusive.’”
This jury instruction can be used when a plaintiff is alleging supervisory harassment by omitting the third element.
To succeed on [her/his] claim of harassment, [name of plaintiff] must prove all of the following:
1. Conduct related to [the plaintiff’s protected status] occurred that was severe or pervasive enough that a reasonable person in [name of plaintiff’s] position would have felt that it made the work environment hostile or abusive; and
2. [Name of plaintiff] actually believed [her/his] workplace was hostile or abusive.
[Name of plaintiff] experienced an adverse employment action.
The concept of an employer’s liability for supervisory harassment finds its roots in agency law. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 756 (1998); Mack v. Otis Elevator Co., 326 F.3d 116, 124 (2d Cir. 2003). “An employer is presumptively liable for a hostile work environment created by a supervisor.” Fairbrother v. Morrison, 412 F.3d 39, 53 (2d Cir. 2005).Whether or not a person is a supervisor is a question. The Second Circuit has adopted the EEOC’s guidelines about whether or not a person is a supervisor; these state that “[a]n individual qualifies as an employee’s ‘supervisor’ if: (a) the individual has authority to undertake or recommend tangible employment decisions affecting the employee; or (b) [t]he individual has authority to direct the employee's daily work activities.” EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Manual (BNA) 405:7654 (1999) (emphasis in original); Mack, 326 F.3d 127.
“Where the harassment is attributed to a supervisor with immediate or successively higher authority over the employee, a court looks first to whether the supervisor’s behavior ‘culminated in a tangible employment action’ against the employee.” Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir. 2004) (quoting Ellerth, 524 U.S. at 765). If the court finds a tangible employment action, the employer is not entitled to any affirmative defense and is automatically liable. Fairbrother, 412 F.3d at 53; Mack, 326 F.3d at 124. However, the action must be linked to the discriminatory harassment, or it is not actionable. Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006). Then, if the court finds no tangible employment action, the court should instruct the jury on the affirmative defense below.
“A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761. “It is the use of the economic power of the employer exercised by the employee to whom that power has been delegated that renders the employer liable.” Mack, 326 F.3d at 127; see also Ferraro, 440 F.3d at 101 (employer is strictly liable if official power granted by employer to supervisor was used to harass).
If you believe that [name of supervisor] unlawfully harassed [name of plaintiff], then [name of defendant] is legally responsible unless [name of defendant] shows:
No affirmative defense is available when a plaintiff has shown that a supervisor has engaged in harassing behavior with a tangible employment action resulting. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). This charge only applies if no tangible employment action was taken.
With respect to the first element, establishing a workplace policy that truly encourages the reporting of harassment complaints and that is communicated to employees generally will satisfy this element. See Caridad v. Metro-North Commuter Railroad, 191 F.3d 283 (2d Cir. 1999) (“Although not necessarily dispositive, the existence of an anti-harassment policy with complaint procedures is an important consideration in determining whether the employer has satisfied the first prong of the defense”). In Caridad, the Second Circuit found that the existence of an anti-harassment policy with a procedure for filing complaints, combined with evidence that the company endeavors to investigate and remedy reported problems, was sufficient to satisfy the first prong. See also Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir. 2003). The existence of an antiharassment policy alone is not always dispositive, however. Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006).
“The two elements of this affirmative defense encourage employees to report harassment and employers to institute and maintain ‘effective preventive and corrective measures.’” Ferraro, 440 F.3d at 101 (quotation omitted).
[Name of plaintiff] claims that [he/she] was not an employee at-will, but that [he/she] has certain rights, which arose from the employee handbook. To prove that [name of defendant’s] handbook formed a relationship with [name of plaintiff] of something more than at-will employment, [name of plaintiff] must show that:
[Select appropriate choices based on the facts of the case]:
· The handbook applies to [name of plaintiff] [i.e., the plaintiff may have to show that he/she is the type of employee to whom the handbook applies];
· A reasonable person would have concluded that the handbook was in effect at the time of [describe action complained of, e.g., the discharge];
· [Name of defendant] [gave the handbook to employees, posted the handbook, gave a training to employees about the handbook, or other ways the defendant communicated the handbook to employees];
· [Name of defendant] has engaged in conduct that shows that it intended to be bound by the [describe the procedures claimed by name of the plaintiff] in the employee handbook;
· [Name of plaintiff] was promised specific treatment in specific situations [this factor should apply in every case].
In making this decision, you should consider the entire handbook [e.g., such as statements made by the company about the at-will relationship or progressive discipline procedures]. If [name of plaintiff] persuades you that these facts probably exist, then you must determine whether [name of defendant] breached its duty to [name of plaintiff]: Did [name of defendant] follow the procedures in the employee handbook when it [describe adverse action taken against name of plaintiff]?
“Personnel policies that commit an employer to a progressive discipline system present a triable issue of fact on whether an employer may terminate an employee only for just cause. Trombley v. Southwestern Vt. Med. Ctr., 169 Vt. 386, 392, 738 A.2d 103, 108 (1999]. Policies that are definitive in form, communicated to employees, and evince an employer's intent to bind itself will be enforced. Ross v. Times Mirror, Inc., 164 Vt. 13, 20, 665 A.2d 580, 584 (1995).” Havill v. Woodstock Soapstone Co., 172 Vt. 625 (2001).
While the Committee is of the view that interpretation of a contract is almost always a question of law, the Vermont Supreme Court has ruled that in the employment context, “whether employer intended to bind itself to the terms of the personnel policies generally and the just cause termination procedure specifically” such that those policies modified the at-will employment contract is an issue of fact. Id. It is unclear from the Court’s decision whether or not the Court would submit all issues concerning the interpretation of a handbook to a jury. For example, the Committee cannot envision a situation in which a jury would be given various rules of contract interpretation and be asked to apply them. The issues submitted to the jury should always be a question of fact or an application of the law to the facts, while the court supplies the appropriate legal rules of contract interpretation.
For a further discussion about how an employee handbook can alter the at-will relationship and which questions are reserved for the jury, as opposed to the court, see Ross v. Times Mirror, Inc., 164 Vt. 13 (1995); Farnum v. Brattleboro Retreat, Inc., 164 Vt. 488 (1995).
In this case, [name of plaintiff] alleges that procedures set forth in the employee handbook limited the company’s right to discharge him/her only for a good reason. You must first decide whether these procedures meant that the company needed “just cause” to discharge [name of plaintiff]. If the company must have just cause, then you must decide if just cause existed. In making this decision, you must remember that the company only needs to have a reasonable good faith belief that the employee engaged in conduct that the employee knew or reasonably should have known was prohibited. This means that the [name of defendant] must sincerely believe that the conduct probably occurred in light of all of the circumstances.
See generally Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74 (2002) (good cause must be determined using an objective good faith standard).
This instruction is not intended to be given in every breach of contract case. It has been included because in many of the decided cases, the procedure at issue is a progressive discipline policy, which the plaintiff has argued circumscribes the employer’s right to discharge only for just cause. However, there are other cases in which only a violation of a particular procedure is at issue and, so long as the employer did not breach the procedure, the employer can discharge the employee for any reason.
[Name of plaintiff] must use reasonable diligence to reduce [his/her] claim for damages by making a good effort to find suitable alternative employment. We call this the duty to mitigate damages. [Name of defendant] claims that [name of plaintiff] has not mitigated [his/her] damages. To prove this claim, [name of defendant] must show that:
1. Work suitable for [name of plaintiff] existed; and
2. [Name of plaintiff] did not make reasonable efforts to get that work.
If [name of defendant] shows that both of these facts probably existed, then you must reduce any award of damages to [name of plaintiff] by the amount [s/he] would have earned if [s/he] had used reasonable diligence to find another suitable job.
See, e.g., Schnabel v. Nordic Toyota, Inc., 168 Vt. 354, 361 (1998); In re Lilly, 173 Vt. 591, 592 (2002) (mem.)(quoting Dailey v. Societe Generale, 108 F.3d 451, 456 (2d Cir. 1997)). The Committee notes that in certain cases, another aspect of the charge may be relevant and should be used as warranted: “If the plaintiff has voluntarily accepted a position that is substantially below his/her earnings potential, then s/he has not properly mitigated his/her damages.” In cases where the plaintiff challenges whether the work proposed by the defendant is suitable, additional instruction concerning the definition of suitable work may be appropriate.
[Name of defendant] can avoid legal responsibility for breach of an employment contract if, after it made the decision complained of by [name of plaintiff], it learns that [name of plaintiff] engaged in some conduct that would have caused [name of defendant] to end the employment relationship [or not hire [name of plaintiff]] if it had learned about [name of plaintiff’s conduct before it made the decision.
See Sarvis v. Vermont State Colleges, 172 Vt. 76 (2001) (citing Massey v. Trump’s Castle Hotel & Casino, 828 F. Supp. 314 (D.N.J. 1993)). Many courts, including the one in Massey, have decided that the after-acquired evidence rule is applied differently in breach of contract cases than it is in employment discrimination cases.