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.")
1 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).
2 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).
3 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
4 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
5 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.
6 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.”)
7 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
8 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.
9 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.
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.
10 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.