Todd v. Geno ( 2013 )

Todd v. Geno et. al., No. 75-1-13 Rdcv (Toor, J., Sept. 27, 2013).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
VERMONT SUPERIOR COURT
RUTLAND UNIT
CIVIL DIVISION
│
ANDREW N. TODD │
Plaintiff │
│
v. │ Docket No. 75-1-13 Rncv
│
KEVIN E. GENO, et al., │
Defendants │
│
RULING ON PENDING MOTIONS.
Plaintiff Todd sues his former employer, the City of Rutland, and various other City
employees in connection with his past employment as a Rutland police officer. His initial
complaint alleges constructive termination, illegal retaliation for making complaints against his
superiors, denials of equal protection and due process, conspiracy, violation of the Vermont Fair
Employment Practices Act, and intentional infliction of emotional distress. In response to
motions to dismiss, Todd has moved to amend the complaint to delete certain claims and add
others. The proposed amended complaint asserts only three causes of action: “Violation of
Vermont’s Hate-Motivated Crime Statute,” violation of the Vermont Fair Employment Practices
Act, and “Conspiracy/Concerted Action.” It also proposes to add two new defendants.
The undersigned was recently appointed to handle the case after all the judges sitting in
Rutland County recused themselves, presumably due to their experience dealing with some or all
of the parties on a regular basis in the court system. Defendants Tremblay and the City have filed
motions to dismiss, and defendants the City, Geno, Tucker, Jensen and Baker have filed
oppositions to the amendment of the complaint. The court will address each motion in turn.
I. Motion to Amend the Complaint
Because this case is at an early stage of the proceedings, and because no objections to the
motion to amend were filed within the time allowed by the rules, the court will grant the motion
to amend the complaint. However, the court will address below the substantive issues raised in
the objections to amendment, and treat them as requests for dismissal of the amended claims.1
II. The City’s Motion to Dismiss Based Upon 24 V.S.A. §§ 901(a) and 901a
The first motion filed by the City actually seeks dismissal of the claims not against the
City but against Geno, Tucker, Baker and Jensen on the ground that those claims must proceed
only against the City. Specifically, the City argues that because the claims against these
defendants all relate to actions within the scope of their employment, the City is the only proper
defendant. 24 V.S.A. §§ 901(a) and 901a.
Todd responds by pointing to the statutory exception for acts that are willful, intentional,
or outside the scope of employment, and argues that until those issues are resolved the claims
against the individual defendants are proper. 24 V.S.A. § 901a(e). A straightforward reading of
the statute supports Todd’s argument. The City cites legislative history for the proposition that
once the municipality provides a defense for the individuals, they must be removed from the
case. However, the statute does not support that reading for cases such as this, in which it is
alleged that the individuals acted outside the scope of their employment. In that situation, the
statute refers to a court dismissing such parties after making a determination that the actions
1
Todd has attached numerous documents to his reply memorandum in support of the motion to amend (Although he
calls the memo something else, it is in fact a reply. See V.R.C. P. 78(b)(1)(setting forth order of filings as motions,
responses, and replies)). He also adds facts in his memorandum that are not in the complaint. The court will not
consider any of these new alleged facts or documents, as none are contained in the proposed Amended Complaint.
2
were not “willful, intentional, or outside the scope of the employee’s authority.” Id. §
901a(d)(2). The amended complaint survives the motion.2
The City also urges that the VFEPA claim must be dismissed against the individuals
because they are not the “employer.” However logical that may seem on its face, our Supreme
Court has held that individual employees are subject to liability under the statute. Payne v. U.S.
Airways, Inc., 2009 VT 90, ¶ 21, 186 Vt. 458 (“[[T]he VFEPA allows for suits against
employees as individuals.”).
III. The Motion to Dismiss the City and to Strike
The City raises a number of issues in its motion to be dismissed from the case. Each will
be discussed in turn.
A. Conclusory Allegations
The City first raises a general argument seeking to strike or dismiss what it describes as
conclusory allegations in the complaint. However, the amended complaint provides greater
specificity to the claims that remain. Many remain extremely conclusory, it is true. However,
despite dissents urging stricter standards – see, Bock v. Gold, 2008 VT 81, ¶ 15, 184 Vt. 575
(Skoglund, J. dissenting)(“In reviewing the sufficiency of a complaint, this Court . . . need
not accept conclusory allegations or legal conclusions masquerading as factual conclusions.”)
and Colby v. Umbrella, Inc., 2008 VT 20, ¶ 20, 184 Vt.1 (Burgess, J., dissenting)(urging that
plaintiffs be required to plead more than “labels and conclusions, and a formulaic recitation of
the elements of a cause of action”)(citation omitted) – Vermont has a “low threshold for
withstanding a 12(b)(6) motion to dismiss.” Colby, 2008 VT 20, ¶ 8. Thus, our Supreme Court
has so far not adhered to the stricter pleading standards applicable in some other jurisdictions
2
If, on summary judgment, it is shown that the acts were within the scope of employment and not “willful” or
“intentional” under the statute, the individual defendants could then properly be removed as parties.
3
(such as in the federal cases cited by the City). Here, a “complaint need not give a specific and
detailed statement of the facts constituting the cause of action.” Murray v. City of Burlington,
2012 VT 11,¶ 13, 191 Vt. 597 (citation omitted).
The Vermont Supreme Court cases cited by the City do not say otherwise. One relates to
what must be proffered in response to a summary judgment motion, not a motion to dismiss.
White v. Quechee Lakes Landowners’ Ass’n, Inc., 170 Vt. 25, 28 (1999). Nor does the case the
City cites for the proposition that allegations of conspiracy require a heightened pleading
standard say that. Instead, it says that “[n]o court will accept conclusory allegations of a
conspiracy, without more, as sufficient to establish personal jurisdiction” over an out-of-state
defendant. Schwartz v. Frankenhoff, 169 Vt. 287, 295 (1999).3 Thus, with the exception of
matters discussed below, the court finds the amended complaint to be sufficient.
B. Count I: Hate-Motivated Crime
The City argues that the “hate crime” cause of action fails against it. Although conceding
that the criminal statute expressly creates a private right of action, 13 V.S.A. § 1457, the City
argues that a specific intent crime such as this cannot be imputed to a municipality. This is
clearly a specific intent crime, requiring that a defendant’s conduct be “maliciously motivated
by” a discriminatory purpose. Id. § 1455.
Employee actions can, under certain circumstances, be imputed to their corporate
employers. See, e.g., Application of Criminal Law to Corporations, 10 Fletcher Cyc. Corp. §
4942 (West, Westlaw through Sept. 2013); Genty v. Resolution Trust Corp., 937 F.2d 899, 909
(3rd Cir. 1991)(“Courts long have held ordinary corporations civilly and criminally liable for the
3
The court trusts this was a regrettable mistake by counsel in reading the case, rather than an intentional
misrepresentation. This court expects more careful reading of cases from counsel in the future. See V.R.C.P. 11(b).
4
malicious torts or crimes of their high officers, particularly when the corporation benefits from
the officers’ offensive conduct.”). However, municipal corporations are a special animal.
The bulk of authority holds that a municipality cannot be held liable for specific intent
crimes. See, e.g., Lancaster Community Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397,
404 (9th Cir. 1991)(“government entities are incapable of forming a malicious intent.”); Mathis v.
Ohio Dept. of Job and Family Services, No. 2:11–cv–395, 2011 WL 5075824,*2 (S.D. Ohio,
Oct. 25, 2011)(“a county cannot form the specific intent necessary to establish a RICO claim”);
Interstate Flagging, Inc. v. Town of Darien, 283 F. Supp. 2d 641, 645-46 (D. Conn.
2003)(malicious intent of police officers cannot be imputed to town)(citing cases); Massey v.
City of Oklahoma City, 643 F. Supp. 81, 85 (W.D. Okl. 1996)(finding that city could not be
liable for RICO violations by Police Chief and Assistant Police Chief because “the City itself is
incapable of forming the mens rea or criminal intent necessary to perform an act of
racketeering”); Pine Ridge Recycling, Inc. v. Butts County, Ga., 855 F. Supp. 1264, 1273
(M.D. Ga. 1994)(“Most courts which have considered the question have held that a municipal
corporation can not form the requisite criminal intent” required under RICO); In re CitiSource,
Inc. Securities Litigation, 694 F. Supp. 1069, 1079 (S.D.N.Y. 1988)(“criminal intent of its agents
will not be imputed to a municipal corporation, as it would be to an ordinary corporation.”); State
v. Metropolitan Park Dist.,171 P. 254 (Wash. 1918) (“a municipal corporation . . . is incapable
of committing any offense of a purely criminal nature which has in it the element of evil intent,
malice, or willful violation of the law’s command.”).
A well known treatise on the topic of municipal corporations agrees: “[T]he criminal
intent of an agent of a municipal corporation can never be imputed to the municipal corporation
itself . . . Nor can they be indicted for offenses which derive their criminality from evil
intention.” McQuillin, The Law of Municipal Corporations, 17 McQuillin Mun. Corp.§ 49.91
5
(3d Ed.)(West, Westlaw through 2013); but see Stuart P. Green, Criminal Prosecution of Local
Governments, 72 N.C. L. Rev. 1197(1994)(discussing historical prohibition but arguing it is no
longer logical).
Vermont law does not seem to directly address the question. The case cited by the City
relates not to the question of mens rea, but to whether a municipality can be criminally charged
for failing to comply with an express municipal duty. State v. Town of Burlington, 36 Vt. 521,
523-24 (1864).4 Nor has Todd cited any Vermont case supporting his position. The court
concludes that even if it is proved that any individual defendant’s conduct in this case was race-
motivated, such intent cannot be imputed to the City.
The City also argues that there is no actual crime alleged in the amended complaint. The
“hate crime” statute is not a freestanding one. It merely makes it a separate crime, and creates a
civil cause of action, when another crime is committed with a specific type of intent. Thus, an
underlying crime must also be pled.
What Todd alleges is that various defendants violated 13 V.S.A. §§ 1021, 1023, 1061,
1063, 3006, 3007, and 3015, 21 V.S.A. § 495 and 26 V.S.A. § 3151. Am. Comp. ¶¶ 53-64. Two
of these provisions, 13 V.S.A. §§ 1021 and 1061, are merely definitional sections and state no
crime. The Title 21 provision is part of the Vermont Fair Employment Practices Act but is not a
criminal statute. See, 21 V.S.A. § 495b (State may seek civil penalty or injunctive relief). The
Title 26 provision is merely a definitional provision and states no crime.
4
The description of the charge is a wonderful reminder of the more flowery language of the past: “The indictment
alleges that the defendant unlawfully and knowingly did keep and permit to be and remain in, upon and near to a
certain street in said town of Burlington aforesaid, commonly called King street, a certain amount of putrid, filthy,
noxious and stagnant water, by and from which divers hurtful, pernicious and unwholesome smells on the day and
during the time aforesaid did and doth rise, and the air then was, and yet is thereby greatly corrupted and infected to
the great damage and common nuisance not only of all the citizens of said town of Burlington aforesaid, there
resident and dwelling, but also of all the citizens of said county of Chittenden aforesaid, passing and re-passing,
&c.” Id. at 522.
.
6
There remain several allegations of criminal acts. Section 1023 is the crime of simple
assault; 1063 is aggravated stalking; 3006 is neglect of duty by town officers; 3007 is neglect of
duty by members of boards and commissions, and 3015 is obstruction of justice.
Simple assault involves purposely, knowingly, or recklessly causing bodily injury to
another person, negligently causing bodily injury with a deadly weapon, or attempting to place
someone in fear of “imminent serious bodily injury.” 13 V.S.A. § 1023. Bodily injury essentially
means any pain. Id. § 1021(1). Serious bodily injury includes a substantial risk of death. Id. §
1021(2)(A). The amended complaint alleges (as to the present defendants) only that someone,
unidentified, “assaulted” Todd. Am. Comp. ¶¶ 68, 84. It does not say who, or how, or any other
details. Absent such specific allegations, the pleading fails to state a claim for assault.
Aggravated stalking requires violation of a court order, a prior conviction for stalking or
for a violent crime against the same person, a victim under sixteen years old, or possession of a
deadly weapon during the stalking. 13 V.S.A. § 1063(a). It also requires (1) two or more
incidents of following, lying in wait, or threatening the person, (2) no legitimate purpose, and (3)
acts that would make a reasonable person fear death, sexual assault, unlawful restraint, or bodily
injury. 13 V.S.A. § 1061. The only allegation of stalking relates to Geno. The amended
complaint alleges that Geno “stalked” Todd, and that he was armed at the time, but does not set
forth facts to establish that whatever the conduct was met the narrow definition of stalking. Am.
Comp. ¶¶ 29, 30, 55. Given the very specific requirements of the statute, the court finds that this
is insufficient to plead stalking.
The provisions of 13 V.S.A. § 3006 impose criminal penalties upon government officers
if they are convicted of “willfully neglect[ing] to perform the duties imposed upon [them] by
law, either express or implied[.]” Section 3007 similarly imposes criminal penalties for
government board or commission members convicted of willful neglect of “a duty, express or
7
implied[.]” The City argues that the amended complaint fails to allege violations of a “duty
imposed by law” within the meaning of these statutes, citing various cases for the proposition
that such a duty must be one created by statute.
Without deciding that question, the court nonetheless concludes that the pleading fails.
The amended complaint conclusorily alleges that various defendants failed to take actions they
should have taken, or “failed to fulfill ministerial duties,” – e.g., Am. Comp. ¶ ¶ 56-58, 60, 63,
74-75, 77, 83, 90 – but it does not cite any statutory sources for such duties other than the
Vermont Fair Employment Practices Act. Specifically, the complaint alleges that Defendants had
a duty under 21 V.S.A. § 495 to “forbid or prevent the negligent, tortious, criminal and attempted
criminal conduct upon the plaintiff” and failed to do so. Am. Comp. ¶¶ 68 and 93. However, the
court finds no language in Section 495 creating an express duty to investigate or enforce.
The only other source for a mandatory duty cited in the complaint is the “rules and
regulations of the Rutland City Police Department.” Am. Comp. ¶¶ 63, 77. However, even
assuming for the moment that such rules and regulations are a sufficient source for the duty to
which 13 V.S.A. §§ 3006 and 3007 apply – a proposition for which Todd has offered no
authority – no rule or regulation is cited in the amended complaint and thus these allegations fail
to state a claim.
Section 3015 is the obstruction of justice statute. Todd alleges that Geno, Tucker, Baker
Jensen and Tremblay all violated this statute by committing unspecified other crimes and by
“corruptly failing to take appropriate action for the criminal conduct of” each other. Am. Comp.
¶¶ 54-60, 64, 84, 92. However, Todd does not specify what acts were taken by each person
“corruptly by threat or force” as required by the statute. 13 V.S.A. § 3015. In addition, the court
concludes that the statute applies only to matters relating to cases or investigations conducted by
agencies or courts of the State, not municipal matters. It refers expressly to courts or agencies “of
8
the state of Vermont.” Id. “Agency” is expressly defined by reference to 3 V.S.A. § 801(b),
which refers to “a state board, commission, department, agency, or other entity of state
government…”(emphasis added). Although the latter portion of Section 3015 -- all of which is
contained in one very long sentence -- refers generally to impeding the “due administration of
justice” without again mentioning the State, the court sees no basis for reading into that portion
of the sentence a broader meaning than in the beginning of the sentence.
For all of the above reasons, the motion to dismiss Count I against the City, alleging a
hate-motivated crime, is granted.
C. Count II: The VFEPA Claim
The City argues that the constructive discharge claim cannot succeed because Todd has
not shown he left as a result of a hostile work environment rather than for a “career move,” and
because no discriminatory acts were directed at him. The amended complaint alleges that
language and actions were directed at Todd because of his race. This includes allegations that
defendants ridiculed him; that a case was fabricated against him with the aim of firing him; that
he was threatened and assaulted, and so on. Am. Comp. ¶ 68. He further alleges that the
intolerable working conditions forced him to resign. Id., ¶ 69. Moreover, although the City
argues that Todd alleges no adverse employment action, and that dissatisfaction with an internal
investigation is not such an adverse action, the creation of a hostile work environment so bad that
it forces an employee to resign, if proved, would establish discrimination. See, e.g., Pennsylvania
State Police v. Suders, 542 U.S. 129, 147 (2004) (“[W]orking conditions so intolerable that a
reasonable person would have felt compelled to resign” would establish a “hostile-environment
constructive discharge claim.”). The pleadings are sufficient to survive the motion to dismiss.
9
D. Count III: The Conspiracy Claim
The City argues that there is no independent cause of action in Vermont for civil
conspiracy, citing a number of out-of-state cases and two Vermont cases from the 1880s. Todd
responds that such a tort has been recognized since 1840, citing Sheple & Warner v. Page, 12
Vt. 519 (1840).
In Sheple, the Court declared that “where two or more combine together for the same
illegal purposes, each is to be considered as the agent of the others, and the act of one, in
pursuance of the object, is, in legal contemplation the act of all”— as long as damages are
proved. 12 Vt. at 533. In Boutwell v. Marr, 71 Vt. 1 (1899), the Court distinguished criminal and
civil conspiracy claims, noting that “the grounds of recovery in a civil suit are not identical with
the elements of the crime.” Id. at 6. The Court explained that “a civil action cannot be sustained
unless something causing damage to the plaintiff has been done in furtherance of the agreement;
and it is claimed to be also requisite that the thing done be something unlawful in itself.” Id. This
seems to acknowledge the existence of such a civil cause of action, at least back in 1899.
In Davis v. Vile, No. 2002-465, 2003 WL 25746021, *3 (Vt., March Term 2003)(mem.),
a three-justice panel noted that “[a]ssuming that there continues to be an independent cause of
action for the tort of civil conspiracy,” it had not been adequately pled in that case. The panel
cited cases from other jurisdictions that it saw as raising a question about such claims, but did not
go so far as to say they do not exist in Vermont. Instead, the panel went on to analyze the
elements of the claim. See also, Saunders v. Morton, No. 5:09-CV-125, 2011 WL 1135132, *9-
10 (D. Vt. Feb. 17, 2011)(noting that although Davis raises “some doubt” about whether the tort
still exists in Vermont, there is also authority to suggest that it does), report and recommendation
adopted, 2011 WL 1114416 (D. Vt. Mar 24, 2011); Akerley v. North Country Stone, Inc., 620
F. Supp. 2d 591, 600 (D. Vt. 2009)(citing Boutwell for definition of civil conspiracy).
10
According to one commentator, “[c]ivil conspiracy is a claim recognized under the
common law of most states.” James L. Buchwalter, Cause of Action for Civil Conspiracy, 54
Causes of Action 2d, § 2 (2012). “When two or more persons agree to perform a wrongful act
and carry out the plan, the law imposes civil liability on all of the persons for the resulting
damages regardless of whether they actually committed the wrongful act themselves. The effect
of this conspiratorial conduct is thus to implicate all who agree to the plan to commit the wrong,
as well as those who actually carry it out.” Id. It was recognized in Warner and in Boutwell, and
has not been expressly rejected by the Vermont Supreme Court since. The amended complaint
sets forth the requisite allegations of concerted action to use illegal means to discriminate against
Todd, and damage to him as a result. Thus, Tremblay’s motion to dismiss the conspiracy claim
for failure to state a claim is denied.
The City next argues that a conspiracy claim cannot be asserted against members of a
single organization. Even its own cases note, however, that to the extent that the acts in question
“arise outside the scope of [the defendant’s’] employment . . . a conspiracy claim could arguably
lie.” Vinton v. Adam Aircraft Industries, Inc., 232 F.R.D. 650, 655 (D. Colo. 2005). The
amended complaint alleges that the Defendants’ actions were illegal, done for their own benefit,
and done “in bad faith and outside the scope of their agency.” Am. Comp. ¶¶ 80-89. Thus, the
court denies the motion to dismiss the conspiracy claims.
E. The Motion to Strike
The City also asks that certain “scandalous” material in the complaint be stricken. The
court agrees that there remain some statements in the amended complaint that have nothing to do
with the legal claims being made, and will order Plaintiff to file the amended complaint without
such language. Specifically, the phrase “sleeping on the job, lying on timesheets” in paragraph
54 is irrelevant and shall be stricken.
11
F. Request for More Definite Statement
The City also seeks a more definite statement. It is the court’s experience that such
documents are rarely helpful, and that interrogatories and depositions are a much more useful
way to clarify the details of a plaintiff’s allegations. Thus, the request is denied.
IV. Tremblay’s Motion to Dismiss
Tremblay argues that (1) the complaint fails to state a claim against him, and (2) he is
entitled to qualified immunity. The amended complaint drops some of the claims that Tremblay
correctly pointed out are not freestanding claims, and incorporates them into the claim under the
Vermont Fair Employment Parties Act (VFEPA). However, the motion also challenges the
“conspiracy” claim, which has been restated but remains. In that claim, Todd asserts that all of
the defendants conspired to engage in illegal conduct against him, including assault, stalking, and
discrimination based upon his race.5
A. The Conspiracy Claim
Like the City, Tremblay argues that there is no cause of action in Vermont for civil
conspiracy. The court has already ruled on this issue above.6 Thus, the motion to dismiss on this
basis is denied.
B. VFEPA Claim
Tremblay’s position with the City is not described in the Amended Complaint, but he is
alleged to have been “an agent of the Defendant City of Rutland.” Am. Comp. ¶ 8. Whether he
5
The “hate crime” claim asserted in Count I is not addressed by Tremblay’s motion. Nonetheless, the court’s ruling
above applies to all defendants and thus the claims against Tremblay in Count I will be dismissed.
6
However, the court feels compelled to note that Tremblay cites one case entirely inaccurately. In Stevens v. Poulin
Grain, Inc. (In re Stevens), No. 98–11181, 2000 WL 35723732 (D. Vt. Oct. 24, 2000), the court did not say there is
no cause of action recognized in Vermont for civil conspiracy. Instead, what the court said was as follows: “there is
no cause of action for civil conspiracy, or tortious interference with contract or advantageous business relations
alleged in the Amended Complaint.” Id., *5 (emphasis added). The court went on to explain that “[i]n order to hold
the various Defendants liable for a civil conspiracy, a plaintiff must plead and prove that a defendant and at least one
other person combined to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.”
The court’s comments in footnote 3 apply equally here.
12
was an employee or a contractor is not specified. Later in the complaint it is alleged that he was
in some way involved in an investigation into other allegations of racist behavior and engaged in
a cover-up of Todd’s claims. Id. ¶¶ 69-76. It then alleges that all of the defendants engaged in
discriminatory acts based upon Todd’s race, including ridiculing him, conducting a retaliatory
investigation, and creating a hostile work environment. Id. ¶ 68. However muddy the facts, the
allegation that Tremblay was an agent of the City and engaged in such actions is sufficient to
bring him within the scope of the Vermont Fair Employment Practices Act. While conclusory, it
is sufficient under current Vermont law for the reasons explained above. Thus, the motion to
dismiss on this basis is denied.
C. Qualified Immunity
For public policy reasons, government officials are at times protected from suit by
doctrines of immunity: either “absolute immunity” or “qualified immunity.” Tremblay argues
that he is entitled to qualified immunity. That applies when a public official is acting within the
scope of his or her employment and authority, acting in good faith,7 and performing discretionary
acts. Sprague v. Nally, 2005 VT 85, ¶ 4, 178 Vt. 222. The idea is to “prevent exposing state
employees to the distraction and expense of defending themselves in the courtroom” if they are
acting within the range of what a reasonable employee could do. Id., quoting Cook v. Nelson,
167 Vt. 505, 509 (1998).
Although the complaint does not allege that Tremblay is a government employee, it does
allege that he acted as an “agent” of the City. This appears sufficient to trigger the doctrine.
7
“Good faith” is used in what can be a confusing manner under this doctrine: it refers not to the official’s
intent or state of mind, but to what a hypothetical “reasonable person” in the situation could believe to be lawful. For
this reason, allegations of intent, malice and the like are not generally relevant. See, e.g., Cook v. Nelson, 167 Vt.
505, 510 (1998) (“defendant in this case is entitled to immunity if he acted in objective good faith despite the jury’s
finding that he acted with malice to plaintiff”); Rich v. Montpelier Supervisory District, 167 Vt. 415, 423-24 (1998)
(“the defense is available even if the plaintiff shows that the official acted with the malicious intention to cause a
deprivation of constitutional rights or other injury.”)(internal quotation omitted).
13
LaShay v. Dept. of Social and Rehab. Serv., 160 Vt. 60, 65 (1993)(“Qualified immunity . . .
protects lower level officials, employees and agents…”)(emphasis added).
“[I]f the official’s conduct does not violate clearly-established [law] of which a
reasonable person would have known, the official is protected by qualified immunity from tort
liability.” Id. “Thus, if the official reasonably believes that his or her actions were lawful, the
official receives immunity even if a court later determines that they were not.” Id. ¶ 5. “The
viability of this defense depends on the objective reasonableness of the official’s conduct in
relation to settled, clearly-established law.” Hoffer v. Ancel, 2004 VT 38, ¶ 12, 176 Vt. 630
(internal quotation omitted).
“‘Clearly established’ for purposes of qualified immunity means that ‘[t]he contours of
the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.’” Sprague, 2005 VT 85, ¶ 5 (citation omitted). “Of course, when we
consider state tort liability, the ‘clearly established law’ is not limited to federal constitutional
and statutory rights, but may include Vermont statutes, regulations and common law.” Sabia v.
Neville, 165 Vt. 515, 521 (1996) (citation omitted).
In response to the motion to dismiss, Todd alleges in the amended complaint that each
defendant’s conduct, including Tremblay’s, violated clearly established law. Am. Comp. ¶¶ 59
and 87. The complaint cites statutes which Todd alleges Tremblay violated, as well as saying
that he violated internal police department rules. As the court has addressed above, none of the
allegations establish a violation of any criminal law. The only remaining statutory violation
alleged in the amended complaint is a violation of the VFEPA – the creation of a hostile
environment. None of the memos expressly address the application of a qualified immunity
claim to such a statute. Assuming arguendo that immunity could apply to such a claim, or to the
claim that Tremblay violated police department rules, Todd has failed to provide any specific
14
facts or any case law to demonstrate that Tremblay did anything in violation of “clearly
established law.” See, e.g., Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (“We do not
require a case directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.”); Whitley v. Hanna, No. 12-10312, 2013 WL 4029134, *
18 (5th Cir. 2013) (Elrod, C.J., concurring) (there must be “controlling authority” or “a robust
consensus of persuasive authority” to show the unlawfulness was clearly established)(citation
omitted). Thus, the motion to dismiss all claims against Tremblay based upon qualified
immunity is granted.
V. Motions of Geno, Tucker, Jensen and Baker
Defendants Geno, Tucker, Jensen and Baker all filed memoranda opposing amendment
of the complaint on the ground that the new claims fail to state a claim and are precluded by
statute. Their arguments are all similar to those made by the City with regard to (1) the
conclusory nature of the allegations, (2) 24 V.S.A. § 901a and 901(a), and (3) the claim that there
is no crime alleged in Count I. The court grants their motions to dismiss Count I for failure to
state a claim, but otherwise denies their motions, for the reasons set forth above.
Order
1. Todd’s motion to amend the complaint is granted.
2. The City’s motions to dismiss are granted as to Count I (hate-motivated crime) but
otherwise denied.
3. The City’s motion to strike is granted in part and Plaintiff is directed to delete the
irrelevant language in paragraph 54.
4. Tremblay’s motion to dismiss all claims against him on the basis of qualified
immunity is granted.
15
5. The motions to dismiss of Geno, Tucker, Jensen and Baker are all granted with
respect to Count I (hate-motivated crime) but denied in all other respects.
6. Although the two new defendants added to the amended complaint have not yet been
served, the court concludes that Count I fails as to those defendants as well. Thus, the
court dismisses Count I (hate-motivated crime) in its entirety. Plaintiff is directed to
file and serve the amended complaint without that Count.
7. The parties are directed to submit a proposed discovery schedule within two weeks
after the new defendants have filed their answers (or, if the parties cannot agree,
competing proposals).
Dated at Montpelier this 23rd day of September, 2013.
_____________________________
Helen M. Toor
Superior Court Judge
16