Hrc v. Dhr

Termont Superior Court
Filed 09/02/25
Washington nit

VERMONT SUPERIOR COURT VE CIVIL DIVISION
Washington Unit Case No. 24-CV-02255
65 State Street
Montpelier VT 05602 EX BEGET A

802-828-2091
www.vermontjudiciary.org

Vermont Human Rights Commission v. Vermont Department of Human Resources

Supplemental Opinion and Order on Motion to Dismiss
In this action under the Vermont Fair Employment Practices Act, 21 V.S.A. § 495

et seq. FEPA"), Plaintiff Vermont Human Rights Commission ("HRC") alleges that

Defendant Vermont Department of Human Resources ("DHR") engaged in discriminatory

conduct toward Danielle Fuoco and the class of State employees similarly situated to Ms.

Fuoco over a number of years. On April 28, 2025, the Court denied DHR's motion to

dismiss as to standing and FEPA claims. In that order, the Court requested additional

briefing as to the feasibility of joinder of the VSEA, to assist it in reaching a decision on

DHR's motion to dismiss for failure to join a party. V.R.C.P. 12(b)(7).

In the April 28, 2025 order, the Court concluded that in the event of an injunction

against implementation of the paid leave policy, if the VSEA is not joined in this action,

the VSEA or its members would not be precluded from enforcing DHR's obligations under

the collective bargaining agreement (CBA), which would be inconsistent with DHR's

obligations pursuant to an injunction. Therefore, the Court concluded, the VSEA is a

necessary party as to the current CBA. The Court further concluded that the VSEA is

not a necessary party as to the damages claims not falling under the current CBA.

DHR contends that if HRC's theories are correct, both DHR and HRC have claims

against the VSEA. DHR asserts that its claims against the Union as a third-party
Order Page 1 of 4
24-CV-02255 Vermont Human Rights Commission v. Vermont Department of Human Resources
defendant would lie “under both 21 V.S.A. § 495b and the underlying collective

bargaining agreements.” Defendant’s Supplemental Submission at 3. It also argues that

“if the personal leave incentive was problematic, the Union would be jointly and severally

liable with Defendant to Ms. Fuoco for its adoption and application.” Id.

HRC attaches an amended complaint to its supplemental briefing. See Exh. A

(Amended Complaint) and Exh. B (redlined amended complaint). The Amended

Complaint deletes DHR’s requests for declaratory relief and injunctive relief. The

remaining requests for relief include damages (including restitution of wages or other

benefits) to Fuoco and similarly situated individuals, civil penalties under FEPA, and

costs and attorneys’ fees.

HRC then argues that in the absence of claims for injunctive and declaratory

relief, joinder of the VSEA is not necessary because the only remaining claims are for

money damages for the discriminatory impact of policies that stem from terms in the

CBA. The Court previously stated that it did “not perceive how allowing damages

against the State for past acts of discrimination under a prior agreement would have an

impact on the union at this juncture.” Vermont Human Rights Commission v. Vermont

Department of Human Resources, 24-CV-02255, slip op. at 12–13 (Vt. Super Ct. April 28,

2025) (emphasis added).

HRC notes that “[i]n any event, the current collective bargaining agreement,

attached to DHR’s motion to dismiss, will become the next past CBA on July 1, 2026,

and, therefore, an appropriate subject for recovery of damages and restitution in this

case.” Plaintiff’s Supplemental Memorandum on the Feasibility of Joining VSEA as a

Necessary Party in this Action at 3. Although HRC does not develop this argument more

Order Page 2 of 4
24-CV-02255 Vermont Human Rights Commission v. Vermont Department of Human Resources
deeply, the implication is that because the current agreement will become “the next past

CBA” next year, VSEA is not a necessary party with regard to claims for monetary

damages resulting from the current policy in question. The HRC also indicates what

appears to be its desire to move past the initial procedural hurdles and proceed with the

litigation.

Though not free from doubt, the Court construes the amended complaint with that

purpose in mind and to request monetary damages only for alleged discrimination that

occurred as the result of the paid leave policy that resulted from past CBAs, not from the

current CBA.1 As to those claims, as the Court previously decided, the VSEA is not a

necessary party. This narrow reading of the amended complaint will allow the case to

move forward toward a consideration of the merits of the claims rather than remaining

mired in untested and uncertain procedural standards.

Because the VSEA is not a necessary party with regard to any claims that remain

in the amended complaint, the remaining issue of dismissal under Vt. R. Civ. P. 12(b)(7)

is now moot.2

1 Given the submission of the amended complaint and the Court’s prior order, the legal

briefing as to whatever the remaining issues may be also somewhat inconsistent and
disjointed. If HRC wishes to request damages resulting from the current CBA, of course,
it may still seek to file an amended complaint making that claim expressly. In that
event, the particular and narrow legal question can be fully briefed and addressed by the
parties in the context and at the time raised.
2
In any event, the Court also determines that whatever might remain of the original
motion to dismiss is moot in light of the amended complaint. While the Court has
discretion to analyze an existing motion to dismiss in light of an amended complaint, the
Court does not exercise that discretion here. See Pettaway v. Nat’l Recovery Sols., LLC,
955 F.3d 299, 303 (2d Cir. 2020).
Order Page 3 of 4
24-CV-02255 Vermont Human Rights Commission v. Vermont Department of Human Resources
Conclusion

Given the above, DHR’s motion to dismiss under Vt. R. Civ. P. 12(b)(7) is moot.

The amended complaint shall be served, and Defendant shall respond per the Civil

Rules.

Electronically signed on Thursday, August 28, 2025, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

Order Page 4 of 4
24-CV-02255 Vermont Human Rights Commission v. Vermont Department of Human Resources