CourtListener 10672586•Hrc v. Dhr
Testo completo
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
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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
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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).
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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
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24-CV-02255 Vermont Human Rights Commission v. Vermont Department of Human Resources
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