Davis v. Vt State Colleges

7ermont Superior Court
Filed 01/21/26
Rutland nit

VERMONT SUPERIOR COURT CIVIL DIVISION
Rutland Unit Case No. 25-CV-02503
83 Center St
Rutland VT 05701
802-775-4394
www.vermontjudiciary.org

Tammy Howard Davis v. Vermont State Colleges, DBA Community College of Vermont

Decision and Ruling on Defendant's Partial Motion to Dismiss

In this civil action, Plaintiff Tammy M. Howard Davis sues her employer, Defendant

Vermont State Colleges (d/b/a Community College of Vermont) ("CCV") for harassment,

disability discrimination, retaliation, third-party retaliation, promissory estoppel, intentional
infliction of emotional distress ("ITED"), and negligent hiring, retention, and supervision of

employees. Defendant now moves to dismiss the claims for retaliation, promissory estoppel,
and ITED.

Procedural Standard

A motion to dismiss for failure to state a claim faces a high bar. The Vermont Supreme
Court has described the familiar standard for Rule 12(b)(6) motions to dismiss for failure to
state a claim as follows:

"A motion to dismiss ... is not favored and rarely granted." This is
especially true "when the asserted theory of liability is novel or
extreme," as such cases "should be explored in the light of facts as
developed by the evidence, and, generally, not dismissed before
trial because of the mere novelty of the allegations." In reviewing
a motion to dismiss, we consider whether, taking all of the
nonmoving party's factual allegations as true, "it appears beyond
doubt' that there exist no facts or circumstances that would entitle
the plaintiff to relief." We treat all reasonable inferences from the
complaint as true, and we assume that the movant's contravening
assertions are false.

Alger v. Dep't of Labor & Indus., 2006 VT 115, J 12, 181 Vt. 309, 316-17 (citations omitted); see also

5B A. Benjamin Spencer, et al., Fed. Prac. & Proc. Civ. § 1357 (4th ed.) ("Ultimately, the burden is

on the moving party to prove that no legally cognizable claim for relief exists.")

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Background

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.

Plaintiff is 58 years old, married, heterosexual, and Catholic, and resides in the Town of

Castleton, Vermont. She has been employed full-time at CCV for over 27 years. In her current

position, she is a Senior Academic Advisor. She alleges that she is qualified for her position and

has always performed it in an exemplary manner. In December 2023, Plaintiff was a contact

person for 311 and 311 A complaints.

1. Third-party retaliation claim:

Ayla Thompson is an administrative assistant and is Plaintiff’s close friend. Candice

Britt is CCV’s regional office manager. Thompson allegedly complained that Britt was

discriminating, harassing, and retaliating against her because Thompson had helped a disabled

student file a discrimination complaint against Britt and because Thompson had a disabling

condition. Plaintiff allegedly helped Thompson file her complaint. According to Plaintiff, CCV

knew that Plaintiff helped Thompson file the complaint and that she and Thompson were close

friends.

Plaintiff alleges that as a result, she suffered several adverse employment actions that

materially affected her job or would deter a reasonable person from complaining about

harassment, including being scolded at a meeting for directing Thompson’s complaint to the

wrong person, and falsely accusing her at the same meeting of having an inappropriate

relationship with Thompson. She alleges that Jenney Izzo, her immediate supervisor, tried to

take away her flexible work-at-home arrangements. According to Plaintiff, Britt starting

“stalking” Plaintiff’s students to see if Plaintiff “was doing anything wrong, something that was

not part of [Britt’s] job and wasn’t done to other teachers.” Complaint, ¶ 53(d). Around

September 2024, when Thompson returned from maternity leave, Britt allegedly warned

Plaintiff about having “closed door” conversations with Thompson. Id., ¶ 53(e).

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Plaintiff alleges that fewer than two months had elapsed between the time in which she

helped Thompson file her complaint in December 2023 and the beginning of the retaliation in

February 2024. She alleges that CCV did not have any legitimate, non-retaliatory reasons for

taking the actions against her.

2. Promissory estoppel claim

In or around 1998, CCV’s president, Tim Donovan, interviewed Plaintiff for her first

position at CCV. Donovan allegedly promised Plaintiff that if she took the CCV position, which

paid less than her current position, she would receive free tuition for her family members, free

health care for life if she worked there for 15 years and was 55 or older, and a deposit of 12% of

her pay by CCV into her 401k. According to Plaintiff, Donovan intended for her to rely upon

those promises and benefited from her reliance on those promises. Plaintiff would not have

accepted the CCV position without these promises.

CCV recently allegedly told Plaintiff that she does not qualify for the health care benefit,

despite a committee having allegedly determined twice that she was “grandfathered” into this

benefit. CCV has also allegedly reduced the amount they fund her 401k.

3. IIED

Plaintiff allegedly suffered sadness, fear, embarrassment, humiliation, and anxiety

caused by the wrongful, extreme, outrageous, and intentional conduct of CCV’s managers and

employees, including harassment due to religion, disability, sex, age, and ancestry.

The alleged harassment is described in Count I of the Complaint. The coordinator of

student advising, Nathan Astin, and Britt allegedly “hounded” Plaintiff about whether she had

published a prayer in the Rutland Herald. Id., ¶ 15(a). Astin, upon learning that Thompson

was pregnant, allegedly told Plaintiff that Thompson should “just kill it.” Id., ¶ 15(b). When

Plaintiff’s father-in-law died, Astin and Britt allegedly “continually harassed” Plaintiff about

why no obituary was in the newspaper and asked her 8 to 10 times for the time and date of his

memorial service. Id., ¶ 15(c). On one occasion, Astin, with Britt present, “did an exaggerated

sign of the cross.” Id., ¶ 15(d).

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In relation to Thompson’s pregnancy, Astin allegedly said to Plaintiff that “that’s why

there is abortion,” “what about condoms,” and “people are stupid. Britt allegedly did not

acknowledge Thompson’s pregnancy until Thompson was about to go on maternity leave. Id.,

¶ 15(e).

Izzo and Mary Brodsky, CCV’s human resources director, allegedly “made” Plaintiff

apologize to Astin at a meeting that Plaintiff requested to complain about the religious

harassment. Id., ¶ 15(f). Izzo and Brodsky then allegedly excused Astin for saying “I love you

T-Bones” to Plaintiff “because he had known Plaintiff a long time. Id., ¶ 15(g). Izzo then

allegedly accused Plaintiff of having an inappropriate relationship with Thompson because

Thompson had left Plaintiff a note that said, “I love you.” Id.

Astin also allegedly would try at least once a day “to grab meat from the lunch plates”

of Plaintiff, Thompson, and other female co-workers while they ate. Id., ¶ 15(k). Astin allegedly

said 5 to 10 times that “Big Ang needed more air in her tires” whenever Plaintiff needed surgery

for disabling conditions. Id., ¶ 15(l). This was allegedly a reference to a reality TV star with a

large bosom. Id.

Plaintiff allegedly suffered disabling conditions after being injured while using a broken

ramp at CCV’s Rutland campus in August 2020. The injury allegedly affects her sitting,

walking, and standing. When Plaintiff requested a printer closer to her office after two years,

Britt allegedly slammed the printer cartridge for the printer in anger in front of Plaintiff. Izzo

said “oh god, look at that wreck” in front of Plaintiff when they saw a disabled person

struggling to walk down the street. Id., ¶ 15(o). When Plaintiff told Izzo that her father-in-law

was terminally ill, Izzo allegedly asked Plaintiff, “when is he going to go?” Id., ¶ 15(p). Britt

allegedly used “air quotes” when talking about Plaintiff’s disability, and she sought to limit

access of a disabled CCV student to Plaintiff’s department.

CCV allegedly assigned tasks to Plaintiff, such as being an usher at graduation, when

they knew the task involved walking and standing. Meanwhile, Britt “was allowed to drive

around on a golf cart.” Id., ¶ 15(s). CCV’s president, Joyce Judy, allegedly asked Plaintiff to

come up to the water tower at a CCV racetrack event, despite knowing that Plaintiff could not

do that due to her disabling conditions. In January 2025, one of Britt’s work study students

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allegedly pretended to be Plaintiff walking with a cane. Plaintiff discussed this with her new

supervisor, Kim Martin, who assured Plaintiff that Britt had reported the situation and dealt

with the student. Later that month, the same student allegedly re-labeled Plaintiff’s interoffice

mailbox with his own name and moved Plaintiff’s box to the very bottom. Her complaints

about the mailbox went unanswered.

Izzo allegedly stated that she was going to make team-building events such as

rollerblading and bowling mandatory, despite knowing that Plaintiff could not participate due

to her disabling conditions.

In or around December 2023, Izzo allegedly asked Plaintiff three times if she wanted to

change to part-time employment, despite Plaintiff telling her she did not want to do that. Izzo

allegedly did not ask younger employees the same question. When asked why she asked this

question, Izzo replied that Plaintiff was “at that time in your life that you would want to work

part-time and keep your benefits.” Id., ¶ 15(x).

According to Plaintiff, from around January 2024 to February 2024, Izzo “falsely wrote

up” six senior employees whom she supervised. Tiffany Walker, the Associate Dean of

Workforce Education, twice allegedly asked Tammy “when are you going to retire”? Id., ¶

15(z). That spring, Izzo allegedly “forced” Mary Castine, an administrative assistant at the

Brattleboro campus, to retire. Id., ¶ 15(aa).

Astin allegedly referred to Plaintiff as “Big Ang,” the nickname of a reality TV

personality who purportedly had a connection to the Italian mafia and a felony record. In the

last 5 to 7 years, Astin also allegedly called Plaintiff “T-Bones” in front of other employees, as

many as 42 times in one week, despite her telling him that she preferred her name, Tammy. T-

Bones is allegedly the name of a gang member, and according to Plaintiff, this nickname

insinuates that because she is of Italian descent, she is also in the mafia or is a criminal.

Discussion

Defendant moves to dismiss the claims for third-party retaliation, promissory estoppel,

and IIED.

1. Third-party retaliation under FEPA

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The provision within Vermont’s Fair Employment Practices Act (“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).

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; 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).

In analyzing retaliation claims based on circumstantial evidence under FEPA 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, v. Univ. of Vt. Med. Ctr., 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). To survive a motion to dismiss, only notice

pleading on the four essential elements is required. Id. at 511.

The United State Supreme Court has recognized third-party retaliation claims under

Title VII. See Thompson v. North American Stainless, LP, 562 U.S. 170 (2011). Third-party

retaliation claims under Vermont’s “FEPA,” however, have not been recognized by the

Vermont Supreme Court. A Vermont trial court has allowed a third-party retaliation claim

under FEPA to survive a motion to dismiss, based on the reasoning in Thompson. See Gates v.

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Mack Molding Co., Inc., No. 23-cv-02626 (Vt. Super. Ct. Mar. 25, 2024) (Teachout, J.). In Gates, the

plaintiff’s wife was involuntarily terminated after she sought an accommodation from the

defendant after she suffered a workplace injury. Id. at 2. She then filed a FEPA action against

defendant, alleging disability discrimination and retaliation. Id. Shortly after she filed her suit,

the defendant transferred the plaintiff to a different position, for which he believed he was

unqualified and which he considered to be a bad, dangerous job. Id. at 3. The defendant also

assigned the plaintiff to work under a new supervisor, who required that he keep a daily log of

his work activities. Id. The plaintiff then overheard the defendant’s human resources director

saying that the plaintiff would be terminated if he responded negatively to increased scrutiny.

Id. at 4.

The court noted in Gates that FEPA 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[.]” Gates, slip op. at 11 (quoting 21

V.S.A. § 495(a)(8)(A) (emphasis added). The court concluded that the plaintiff, “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,” could bring a third-party retaliation

claim under FEPA. Id. at 12.

To sufficiently plead a protected activity, Plaintiff must allege facts showing that

Thompson acted against practices of Defendant that are unlawful under FEPA. 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). Then she must show that she suffered a

“materially adverse employment action,” defined as an action that harmed her interests in such

a manner that it “could well dissuade a reasonable worker” in Thompson’s position from

“making or supporting a charge of discrimination.” Burlington Northern and Santa Fe Railway Co.

v. White, 548 U.S. 53, 57 (2006). There is no fixed class of relationships to which third-party

retaliation claims are limited. See Thompson, 562 U.S. 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.”)

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In Gates, the plaintiff alleged that after the wife engaged in protected activities, the

husband was moved into a position that was more dangerous and for which he was not well

qualified. Here, Plaintiff alleges that at a meeting she was “scolded” for filing the report to the

wrong person and “accused” of having an inappropriate relationship with Thompson. She

alleges that Izzo tried to take away her flexible work-from-home arrangement but does not

allege that the arrangements were altered. According to Plaintiff, Britt began to “stalk”

Plaintiff’s students. Finally, she alleges that over nine months after the protected activities, Britt

warned her not to have “closed door” conversations with Thompson.

Defendant argues that Plaintiff cannot establish that Thompson was a spouse or close

family member, but rather, is more akin to the “mere acquaintance” that the Thompson court

opined would “almost never” meet the Burlington standard. The Court rejects this argument

because, making inferences in Plaintiff’s favor, Thompson’s relationship with Plaintiff is more

than mere acquaintanceship.

Next, Defendant contends that Plaintiff has not alleged any adverse employment

actions. Her job did not change to less seniority or pay, or to a position that was more

dangerous or for which she was not qualified. The scolding for filing the complaint to the

wrong person, and the alleged defamatory statement that she was in an inappropriate

relationship with Thompson are not sufficient to dissuade a reasonable worker from reporting

the considerably graver concerns of discrimination against a disabled student or against

Thompson herself, based on her disability. The same can be said of Izzo trying to take away

Plaintiff’s flexible work-from-home arrangements, but not actually following through with that

consequence. The warning to avoid engaging in “closed door” conversations is extremely

attenuated in time from the alleged protected activity, and not sufficient to for a reasonable

worker to stifle a serious discrimination complaint. Finally, although Plaintiff alleges that Britt

“stalked” her students to find out if Plaintiff had done something wrong, the stalking itself

implies a misdeed, but one that largely does wrong by the students. Plaintiff does not have a

cause of action for alleged third-party retaliation when she is not the third-party subjected to the

adverse action. To the extent that the allegation implies that she was subjected to review, in the

particulars alleged, it does not seem like it would be sufficient to dissuade a reasonable worker

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in Thompson’s position to chill her complaints against the graver concerns of discrimination

against her disability.

2. Promissory estoppel

Defendant moves to dismiss the promissory estoppel claim because Plaintiff does not

allege that Defendant has failed to provide free tuition for family members, has not alleged that

Defendant has unequivocally failed to make good on its promise of free health care for life, and

has not pleaded that injustice can be avoided only by enforcement of the alleged promise

regarding retirement contributions.

To succeed in a claim of promissory estoppel, a “plaintiff must show that: (1) defendant

made a promise to plaintiff that defendant should have reasonably expected to induce action or

forbearance; (2) plaintiff relied on the promise to his detriment; and (3) injustice can be avoided

only by enforcement of the promise.” Pettersen v. Monaghan Safar Ducham PLLC, 2021 VT 16, ¶

11, 214 Vt. 269 (citing Foote v. Simmonds Precision Prods. Co., 158 Vt. 566, 573 (1992) (adopting

elements set out in Restatement (2d) of Contracts)).

The parties agree that Plaintiff has not included an allegation that Defendant has failed

to provide free tuition for family members. Regarding the promise of the health care benefit, at

best, Plaintiff has alleged that she has been told that she does not qualify for the benefit, but she

does not plead that Defendant has revoked the benefit, which would seem to apply only after

she is no longer employed at CCV. Because Plaintiff has not alleged that Defendant broke it

promise, the allegations do not make a prima facie showing that Plaintiff relied on the promise

to her detriment, and the promise still stands. See Dewdney v. Duncan, 2025 VT 26, ¶ 27 (“[T]he

central promise still stands because defendant has not positively and unequivocally revoked his

promise, nor has he removed plaintiffs from his will. Accordingly, plaintiffs cannot show

detrimental reliance . . .”). The Court therefore grants Defendant’s motion to dismiss the

promissory estoppel claim about the alleged promises of free tuition and health care. This

ruling does not preclude Plaintiff from bring those claims if Defendant fails to perform on those

promises in the future.

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As to the allegation that Plaintiff detrimentally relied on Defendant’s promise that it

would contribute 12% of her pay to her 401k, but has since reduced that contribution, the

complaint is sufficient to survive this motion to dismiss. Defendant argues that Plaintiff does

not allege that injustice can be avoided only by enforcement of the promise. Making all

reasonable inferences in favor of Plaintiff, the Court cannot rule out that Plaintiff could succeed

in proving the third element. Defendant argues in a footnote that its contributions to retirement

accounts were reduced for all eligible employees by July 1, 2017, and therefore the claim is

barred by the statute of limitations. Even if that is true, the argument necessitates the

introduction of facts outside of the complaint and is therefore beyond the scope of the Court’s

consideration of this motion to dismiss. Therefore, the Court declines to dismiss the promissory

estoppel claim about the retirement contribution.

3. IIED

Defendant contends that Plaintiff does not allege sufficiently outrageous conduct or

sufficiently severe emotional distress, to sustain her IIED claim.

“Plaintiff's burden of proof on a claim of intentional infliction of emotional distress is a

heavy one.” Gallipo v. City of Rutland, 163 Vt. 83, 94 (1994). “To sustain a claim for IIED plaintiff

must show defendants engaged in ‘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.’” Fromson v.

State, 2004 VT 29, ¶ 14, 176 Vt. 395 (quoting Sheltra v. Smith, 136 Vt. 472, 476 (1978)). “The

conduct must be so outrageous in character and so extreme in degree as to go beyond all

possible bounds of decent and tolerable conduct in a civilized community and be regarded as

atrocious and utterly intolerable.” Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 83 (2002)

(citation omitted).

The Court considers all the conduct that Plaintiff alleges in her complaint, which

includes a host of insults, unfairness, inappropriate and mocking remarks, distasteful

nicknames, and insensitivity that she has endured during her employment at CCV. This

conduct, if the allegations are true, may indeed form the basis of her FEPA claims.

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Nevertheless, it is not sufficient to meet the outrageous conduct element to support an IIED

claim. “Absent at least one incident of behavior that transcends the ignoble and vast realm of

unpleasant and often stressful conduct in the workplace, incidents that are in themselves

insignificant should not be consolidated to arrive at the conclusion that the overall conduct was

outrageous.” Denton v. Chittenden Bank, 163 Vt. 62, 67 (1994).1 The Court accordingly grants

Defendant’s motion to dismiss the IIED claim.

Order

For the reasons discussed above, Defendant’s Partial Motion to Dismiss is granted with regard

to the claims for third-party retaliation and intentional infliction of emotional distress. It is

denied regarding the promissory estoppel claim based on reduction of retirement account

contribution and granted with regard to the remaining bases for the promissory estoppel claim.

Electronically Signed on: Tuesday, January 20, 2026 pursuant to V.R.E.F. 9(d).

___________________________
Susan A. McManus
Superior Court Judge

1 “It has not been enough that the defendant has acted with an intent which is tortious or even criminal,

or that he has intended to inflict emotional distress, or even that his conduct has been characterized by
‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an
average member of the community would arouse his resentment against the actor, and lead him to
exclaim, ‘Outrageous!’” Restatement (2d) of Torts § 46 cmt. d.

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