Gates v. Mack Molding Co.

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2024 Vt Super 032502

DONALD L. GATES, JR., Plaintiffs v. MACK MOLDING COMPANY, INC., JEFFREY SOMPLE, JESSICA FREDETTE, NANCY CEFLO, and BUD PAGLICCIA, Defendants

No. 23-CV-2626

Superior Court of Vermont, Civil Division, Rutland Unit

March 25, 2024

DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS

MARY MILES TEACHOUT SUPERIOR JUDGE (RET.)

Plaintiff Donald L. Gates, Jr. asserts several claims against his former employer, Defendant Mack Molding Company, Inc. ("Mack Molding"), and against four current or former employees or officers of Mack Molding: Defendants Jeffrey Somple, Jessica Fredette, Nancy Ceflo, and Bud Pagliccia (collectively hereinafter "Defendants"). Defendants move to dismiss Mr. Gates' complaint under Rule 12(b)(6) of the Vermont Rules for Civil Procedure asserting that Mr. Gates has failed to state claims for which relief can be granted. Defendants assert the affirmative defense of statute of limitations.^[1]

Mr Gates is represented by Siobhan M. McClosky, Esq. Defendants are represented by Timothy E. Copeland, Jr., Esq., and F David Harlow, Esq. For reasons that follow, the motion is granted in part and denied in part.

Dismissal of a claim pursuant to Rule 12(b)(6) may occur only when "it is beyond a doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Dernier v. Mortgage Network, Inc., 2013 VT 96, ¶23, 195 Vt. 113, 121(2013). The general pleading standard on a motion to dismiss is "exceedingly low," Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 576, as "[t]he purpose of a motion to dismiss is to test the law of the claim, not the facts which support it." Powers v. Off. of Child Support, 173 Vt 390, 395 (2002). "Motions to dismiss for failure to state a claim are disfavored and are rarely granted." Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1, 6. "We assume that all factual allegations pleaded in the complaint are true" and "accept as true all reasonable inferences that may be derived from plaintiffs pleadings." Dernier, 2013 VT 96, ¶ 23.

Factual Allegations

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.

Mack Molding is a domestic for-profit corporation, with its principal place of business in Arlington, Vermont. (Compl ¶ 9.) Mack Molding manufactures injection molded plastic parts for sale, and sells manufacturing services as well. (Id. ¶ 10.) Mr. Gates was employed full-time at Mack Molding's manufacturing plant in Cavendish, Vermont, as a shift technician in finishing from March, 1995, until May 11, 2019, at which time Mack Molding terminated his employment involuntarily. (Id. ¶ 3.)

Mr. Gates' wife, Angela M. Gates, was employed at the same plant as a molder, and then as a finisher, from December, 1996, until May 20, 2016, when Mack Molding terminated her employment involuntarily. (Id. ¶ 8.) In the weeks preceding her termination, Ms. Gates unsuccessfully sought a light-duty work assignment as a reasonable accommodation for a physical condition stemming from an earlier workplace-related injury. (Id. ¶ 26.) She also filed a claim for workers' compensation benefits, and when Mack Molding's insurance carrier denied that claim in late May of 2016, she appealed the denial to the Vermont Department of Labor. (Id. ¶ 30.)

On two unspecified dates-several weeks apart from each other, but within the time between late May of 2016 and late October of 2017-the manager of the maintenance department at the Cavendish plant, Ed Garrow, and an employee supervised by Mr. Garrow, Adam Holden, accused Mr. Gates of causing spills of a chemical on the plant floor. (Id. ¶¶ 32-33.) Mr. Gates did not cause the spills, and yet Mr. Garrow and Mr. Holden convinced another supervisor, Kevin Peets, to issue written disciplinary notices naming Mr. Gates as the responsible party. (Id. ¶ 32-47.) Mr. Gates told Mr. Peets that Mr. Garrow and Mr. Holden were trying to "set [Mr. Gates] up for the spill," and that this was "interfering with his job." (Id. ¶ 43.)

On October 30, 2017, Ms. Gates filed a civil suit against Mack Molding and others in Vermont Superior Court, Bennington Civil Division. (Id. ¶ 78.)^[2] The suit included, inter alia'. (1) two claims for disability discrimination under the Vermont Fair Employment Practices Act ("FEPA"), 21 V.S.A. §§ 495-496a, for Mack Molding's failure to reasonably accommodate her on two occasions; and (2) a claim of retaliation under the Vermont Employer's Liability and Workers' Compensation Act ("WCA"), 21 V.S.A. §§ 601-711, for terminating her shortly after she filed a claim for workers' compensation benefits. See Gates v. Mack Molding Co., Inc., 2022 VT 24, ¶¶ 11-12,216 Vt. 379.^[3]

Right after Ms. Gates filed her civil suit, Mr. Gates was told by both Patty Plesko, a human resources manager for Mack Molding, and Defendant Bud Pagliccia, the Cavendish Plant Manager, that Mr. Gates "had to accept another position as a die setter," and report to Edgar Billings, rather than Mr. Rogstadt, who had been Mr. Gates' supervisor previously. (Id. ¶ 82.) When Mr. Gates responded that "he didn't want the die setting job and wanted to keep his old job[,] Patty told him he could apply for a new painter or finisher position[,] which involved lesser pay and a loss of seniority." (Id. ¶ 83.) Mr. Gates' career until that point had consisted of finishing-related work; he had not performed nor been trained in die setting. (Id. ¶¶ 3, 84, 92-93, 100.) He considered die setting a "bad job that is greasy and dangerous," and he informed his superiors that, given his lack of qualifications, die setting would be dangerous for him to perform. Id. ¶¶ 84, 92.) Given those concerns, Defendants assigned an "experienced tech" to work alongside Mr. Gates when engaged in die setting. (Id. ¶ 93.)

On November 16, 2017, Mr. Peets notified Mr. Billings, Mr. Rogstadt, and Ms. Plesko via email that another employee, Mark Harwood, would be assigned to split or share the die setting job position, together with Mr. Gates, and that each work day Mr. Rogstadt would choose whether Mr. Gates or Mr. Harwood would handle die setting. (Id. ¶¶ 89-90.)

On November 20, 2017, Mr. Gates met with Defendant Ceflo, then the director of human resources, and complained that the die setting assignment was retaliation for his wife's recent civil suit. (Id. ¶ 98.) Mr. Gates secretly recorded this meeting on a small audio recording device. (Id. ¶ 101.) Ms. Ceflo responded that the new job assignment had "nothing to do with" Mr. Gates' wife and promised that Mr. Gates' "job would not change." (Id. ¶ 99.) Mack Molding eventually made an outside hire to fill the die setting position, and Mr. Gates was allowed to keep his old job. (Id. ¶¶ 103-04.) Yet, he had to continue performing die setting work-sharing the position with another co-worker-on top of his other job duties, through his date of termination. (Id.) In the meantime, the new outside hire received training for a period lasting more than a year. (Id.)

During a meeting in early January, 2019, Mr. Gates learned from Mr. Pagliccia, Defendant Jessica Fredette (then the director of human resources for Mack), and another supervisor, Jon Scheiner, that Scheiner would soon become Mr. Gates' new supervisor and that Mr. Gates would be obligated to keep a daily log of his work activities. (Id. ¶ 152.) When Mr. Gates protested these changes as retaliation for his wife's ongoing lawsuit, and asserted that no other employee in the plant was forced to keep a work log, Ms. Fredette threatened Mr. Gates with insubordination. (Id. ¶ 153.)

On January 8, 2019, Mr. Gates met with Ms. Fredette and Mr. Pagliccia, and again complained that he was being subjected to retaliation because of his wife's lawsuit. (Id. ¶ 154.) Mr. Gates secretly recorded the audio of this meeting, even though Ms. Fredette asked him if he was recording it and told him that he did not have permission to record the meeting. (Id. ¶ 157.) Ms. Fredette and Mr. Pagliccia denied that anyone was retaliating against Mr. Gates and ordered him to abide by their decisions, such as requiring Mr. Gates to furnish a work log to Mr. Schreiner at the end of each day of work. (Id. ¶¶ 159-60.) Mr. Gates reminded Ms. Fredette of statements made to him in November of 2017 by Ms. Ceflo-that Mr. Gates would be able to keep his job and would continue to report to Mr. Rogstadt-but Ms. Fredette replied that he did not have a contract with Mack Molding to that effect, and that his actions were "creating a negative work environment." (Id. ¶¶ 162-64.)

Later that same day, while standing outside of Ms. Fredette's office, Mr. Gates overheard and then began secretly recording Ms. Fredette while she was on a phone call. (Id. ¶¶ 166-171.) Mr. Gates believes she was speaking with Mack Molding's President, Jeff Somple, and she stated the following: Mack Molding could terminate Mr. Gates if he responded negatively to increased scrutiny; "one more incident with [Mr. Gates] and he's done"; she intended to request that Mr. Scheiner monitor Mr. Gates and report his findings to her; and that she had responded to Mr. Gates' claims of retaliation made earlier that day by telling him to "move on" and drop it. (Id. ¶¶ 171-72.)

On May 3, 2019, during the course of Ms. Fredette's deposition in Ms. Gates' civil suit, Ms. Gates's counsel (who was also Mr. Gates' counsel) introduced into the record certain audio recordings that Mr. Gates had made secretly of recent workplace conversations, including the conversation from January 8, 2019 with Ms. Fredette and Mr. Pagliccia. (Id. ¶ 189.) After some questioning of Ms Fredette about the recordings, defendants' counsel halted the deposition,...