Petition for Writ of Certiorari — Zephryn (Stephanie) Hammond, Petitioner v. University of Vermont Medical Center

Supreme Court briefOct 4, 2023

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APPENDIX A

Decision of the Vermont Supreme Court of Appeal Denying Motion for Reargument

Vermont Supreme Court

Filed: July 17,2023

VERMONT SUPREME COURT

109 State Street

Montpelier \T 05609-0801

802-828-4774

www.vermontjudiciary.org

Case No.

22-AP-197

ENTRY ORDER

JULY TERM. 2023

Zephryn (Stephanie) Hammond* v.

University of Vermont Medical Center

1

»

APPEALED FROM:

}

Superior Court, Chittenden Unit, Civil

Division

CASE NO. 945-10-19 Cncv

In the above-entitled cause, the Clerk will enter:

Plaintiffs motion for reargument fails to “state with particularity the points of law or factpresented in the briefs upon the original argument-that . . . the Court has overlooked or

misapprehended and that would probably affect the result.” V.R.A.P. 40(b)(1). The motion is

therefore denied.

BY TOE COURT:

Harold E. Eaton, Jr.Associate Justice

R*wl(f^ll?AssociateJustice

illiam D. Cohen. Associate Justice

Nancy J. Wfliles, Associal

ice

APPENDIX B

Motion for Reargument

i

IN THE SUPREME COURT OF THE STATE OF VERMONT

SUPREME COURT DOCKET NO: 22-AP-197

ZEPHRYN (STEPHANIE) HAMMOND

APPELLANT

v.

UNIVERSITY OF VERMONT MEDICAL CENTER

APPELLANT

MOTION TO REARGUE

Zephryn Hammond

71 Sunset Drive

Burlington, VT 05408

(802)318-7645

zenhers51 @ gmail.com

Pro Se Litigant

MOTION TO REARGUE

PRETEXT:

Proving the defendant’s legitimate, non-discriminatory reasoning for

terminating my employment is a lie would show pretext although evidence need

not be of “smoking gun variety.” AV2-41. The defendant’s reasoning: corrective

action due to my performance. AV2-43.

Although a pro se litigant, I do know right from wrong and what I

experienced the last 10 months of working at UVMMC, ending in termination,

was an avoidable injustice.

I tried showing pretext in my appeal, although ineffectively, with the

following: Investigation delayed and not thorough. Ms. Cortright didn’t

document my race complaint 6/5/18 or produce the write-ups proving my errors.

Co-workers were not issued corrective action for errors (comparators) or treated

as poorly. Ms. Cortright fabricated reasoning for verbal warning and isn’t

credible. Corrective action based on a majority of false allegations, deviated from

UVMMC policy and was retaliatory. I was set-up for failure. Ms. Cortright

deviated from UVMMC policy to illegally punish me. Past work history doesn’t

align with the last 10 months of employment.

INVESTIGATION DELAYED AND NOT THOROUGH

Thorough investigation immediately following my race and disability

complaints would’ve prevented most of what I suffered through and

termination? Ms. Cortright should’ve stopped the discriminatory treatment I

1

began receiving from Ms. Mitchell after I made the first verbal race complaint on

6/5/18, instead I was sent to speak to her myself, and I did 6/8/18 which

ultimately ended my career. AVI-171 to 173, AVI-232, AV2-271, AV2-347 and

AV3-155 to 156. I followed up with Ms. Cortright 6/11/18 about speaking to Ms.

Mitchell. AVI-296. Cortright later only mentioned my complaint, after issuing

the letter of understanding. AVI-207 to 208.

On 7/27/181 met with Ms. Armstrong for the first time having made

complaints about race and disability including: being retaliated against after my

race complaint 6/5/18( verbal warning), being forced to work on IHC and triage

which weren't accommodating, and the harsh punishment I received for using an

accommodation (told not following protocol). AVI-203 to 204, AV2-215,

AV2-231 to 237, and AV3-161. She carelessly wrote “race” in a separate column

of her notes, not to be addressed until 1/9/19. AV2-193 and 231. I told her and

Ms. Gallagher, I recently (adulthood) learned from Ms. Cortright, after she

discussed Ms. Mitchell’s treatment possibly being racially motivated with Ms.

Carpenter, that being racist isn’t solely using derogatory language, but

treatment, since prior to that I didn’t consider her racist and now agreed.

AVI-358 and AV3-141. She noted “disability” off to the left in her notes

minimizing its significance. AV2-228 and AV2-231.

In my evaluation appeal of 2018, again, I attempted to make a complaint

about my treatment which I felt was due to my disabilities and race, but again,

Ms. Cortright failed to address this in her response to my appeal. AVI-166, and

AVI-251 to 252.

In February of 2019,1 met with another HR representative, because the

environment was toxic and treatment was getting worse. AVI -254 and AV2-270

2

to 273. She questioned myself, and Ms. Cortright (perpetrator), then concluded

she couldn’t substantiate my claim. AV2-275 and AV2-277. She never

questioned Ms. Cortright about the toxic work environment or the fact that I was

being bullied. AVI-279 and 281. She said Ms. Cortright had valid reasons

(allegations) for issuing corrective action which would’ve been disproven had she

listened to my recordings when we met, reviewed my evidence, and questioned

co-workers before ending the investigation. AV2-273, AV2-275, and AV3-177. I

was never given a deadline to submit my evidence etc., but the investigation

ended and I was terminated before I had a chance to. AVI-182, AV2-275, and

AV2-311.

MS. CORTRIGHT DIDN’T DOCUMENT MY RACE COMPLAINT 6/5/18 OR

PRODUCE THE WRTTF TIPS PROVING MV ERRORS

When I complained about Ms. Mitchell’s racially motivated behavior, I

asked Ms. Cortright if she still thought Ms. Mitchell possibly be racist. AV2-346.

Ms. Cortright admitted we met in early June of 2018 to discuss issues I had

related to Ms. Mitchell. AVI-369 and AVI-394. Ms. Cortright was responsible

for taking notes during meetings we had which would prove I made a race

complaint. AV2-339 to 340.

I was told all my mistakes/errors were written up (who, what, when,

where, why) but haven’t seen any in the record as proof that Ms. Cortrights

claims of my incompetence hold true. AVI-234, AVI-324.

COWORKERS NOT ISSUED CORRECTIVE ACTION FOR ERRORS OR TREATED

POORLY (COMPARATORS!

3

Mr. Barker/Rowe testified he was spoken to by Ms. Mitchell 1-2 times a

week for errors, and was shown 1-2 errors a month with his slides on Mr.

Tembruells benches but was never given any corrective action for too many

errors, let alone terminated. AV2-100 and AV2-130. I made less errors purposely

subjected to a hostile work environment and was terminated. AVI-184,

AVI-234, AVI-409, and AV2-272.

In 2017, my shift was 4:30AM-12:30PM, and I was told I’d get a verbal

warning if I didn’t go to break at 10 AM because it was against UVMMC policy,

even with a doctor's note although I received a verbal warning 6/22/18 because I

was told I don’t alter my break which is ridiculous. AVI-192 and AVI-403.

Regardless as to when I left, I returned by 10:30, which didn’t disrupt workflow,

allowing Mr. Tembruell his break even though he worked the same shift.

AVI-373, AVI-392, AVI-403, AV2-225, and AV2-311. In 2018 my break was

switched to 10:45 because I was working from 4:00AM-12:30PM not because my

accommodation was finally put in place. AVI-392, and AV3-192 to 195.

Compared to everyone else, I was punished more harshly, treated

poorly/differently, monitored, and disciplined more by the leads. AVI-204 to

205, AVI-321 to 325, AVI-408 to 410 and AV2-169 to 170. Ms. Cortright wanted

me to believe she was allowed to single me out because I received a verbal

warning. AVI-232 to 234. Having Crohn’s Disease and being timed when using

the bathroom forced me to limit bathroom usage to twice a day in fear of being

terminated. AV2-230 and AV2-454.

MS. CORTRIGHT FABRICATED REASONING FOR VERBAL WARNING AND

ISN’T CREDIBLE

4

I asked several times for specific examples for issuing the verbal warning

from 6/22/18 until 3/30/19. AVI-222, 226 to 228, 232, 236 to 237. I was given

many false allegations from after 6/22/18 and told making an exhaustive list

wouldn’t be of any value which contradicts her testimony. AV2-352 to 354.

AVI-191 and 192. Ms. Cortright told Ms. Gallagher I was issued the verbal

warning for my tone when I muttered jeezum crow to Ms. Mitchell in annoyance

on 7/27/18. AVI-196,203 and 278. Pointing out that Ms. Cortright was relying

on one lie to justify another isn’t a distraction, it’s the truth. AVI-203 to 204.

She wouldn’t allow me access to my personnel file to review write-ups she

claimed were in it, so I reported this to Ms. Armstrong and she said whatever I

was looking for wouldn’t be there although I wanted to see the entire file.

AV2-238. Ms. Gallagher reviewed my file, which is concerning since I wasn’t

allowed. AVI-283, andAV2-333to 334.

False allegations always involved Ms. Cortright, Ms. Mitchell (IHC,

specialty benches), or Ms. Buskey (charge tech) and I never saw write-ups

(documentation). AVI-207, AVI-211, AVI-223 to 224, AVI-226, AV3-13, and

AV3-17 to 18. Sometimes I asked to see my errors and Ms. Cortright said it

wasn’t possible if slides were sent out, rather than providing the surgical number

to track it. AV2-387, AV3-265 and 266.

CORRECTIVE ACTION BASED ON A MAJORITY OF FAT.SF AT I .F. PATTONS

DEVIATED FROM UVMMC POLICY. AND WAS RETALIATORY

A warning before the verbal warning should’ve been issued considering

Ms. Cortright claimed to have met with me over 10 times prior and/or an

investigatory meeting held to go over concerns that would warrant possibly

5

receiving it, as Ms. Armstrong outlined. AVI-278, and AV2-206. It was

unexpected. AVI-396.

After making a race complaint 6/5/18,1 was issued a verbal warning

6/22/18 for no reason as mentioned previously. One of the allegations Ms.

Cortright listed falsely accused me of fixing a kidney specimen on 7/4/18 without

leaving a note about which step it was in although I told her I never touched it,

but documented it as a communication issue. AVI-227 and AV3-17. Without

this first step being warranted, I shouldn’t have been issued the letter of

understanding, especially with no mention of these concerns just 10 days prior.

AVI-296.

Counseling/coaching sessions never took place. AV2-206 to 207, AV2-339.

The only coaching session Ms. Armstrong suggested we have was regarding

floaters but Ms. Cortright ignored me several times, then months later I was

told I was responsible for 50% of the lab total. AV2-271.

I reported Ms. Cortright to Ms. Armstrong 7/27/18 and received a very

poor evaluation rating 8/14/18. AVI-204 to 205. I continued to report my

concerns to Ms. Armstrong for months, was issued a letter of understanding

11/22/18, then told my concerns regarding Ms. Mitchell would be addressed.

The letter of understanding issued 11/20/18 was against UVMMC protocol

since verbal warning wasn’t warranted, and stated I made 2 errors and had 2

unprofessional interactions with a co-worker Oust Ms. Mitchell). AV2-206 to 207

and AV3-20. I was taking notes in a meeting unaware Ms. Mitchell was speaking

to me because she refused to use my name so I was accused of ignoring her and

Ms. Cortright assumed I ignored Ms. Mitchell in the backroom too. AVI-207, and

AV3-20. Ms. Cortright claimed we met over 10 times since the verbal warning

6

although I called the meetings to speak about my treatment but was given

corrective action or accommodations discussed. AVI-207, AV2-271, and AV3-20.

I was accused of not following protocol and wrongfully punished because I had to

sit (accommodation) to label slides on 7/27/18. AVI-203 to 204. Those that

weren’t fond of me wouldn’t pick up my slides as they did for others when away

from their stations delaying patient slides but I was blamed for having used the

bathroom. AVI-184.

Ms. Armstrong questioned Ms. Mitchell 1/14/19 then I was placed on her

benches for 4-5 weeks in a row with the work environment as toxic as could be.

AVI-233 and AVI-301.

A final written warning was issued 2/20/19, hours after I was questioned

by Ms. Gallagher regarding my claim of a retaliatory hostile work environment.

AVI-357, and AV3-23 to 24. Ms. Cortright came up with a list of concerns she

said had taken place since 11/20/18, and again most of them were false or Ms.

Cortright purposely misconstrued my words. AVI-223 to 224 and AVI-232 to

234. For example I was falsely accused of leaving the lab for nearly half my shift

which is absurd and never happened. AVI-224. Again, I was told I don’t follow

protocol, but never told which one (IHC protocol on 7/27/18 only one). AVI-232.

I never denied responsibility for errors I did in fact make, I wasn’t the slowest

tech as she claimed, I wasn’t confrontational so others were afraid to speak to

me, and I notified leads if I was to be late for reporting to the next bench.

AVI-227, AVI-233, AVI-405, AVI-407, and AV2-107 to 108. I never told Ms.

Cortright I did things my way, I said I did things differently with

accommodations in place, but she continued to misconstrue my words

constantly. AVI-398. Ms. Cortright claims my slides had chatter but this was

7

fixed after having worked with Mr. Tembruell and everyone experienced this.

AVI-223, and AV3-149. I did in fact leave a slide in methanol but Ms. Kerr did as

well and was never reprimanded. AVI-163, AVI-223 and AV3-267. I was blamed

for delaying patient care when Ms. Mitchell neglected to tell me she had set-up a

processor for a bone marrow when it was finished fixing. AVI-223 and AVI-400

to 401. Oftentimes, Ms. Mitchell would tell me to perform tasks in a certain

order one day but the next would change it making it seem as if I was wrong.

AVI-224, AVI-232, and AVI-282. Told double checking with Ms. Mitchell if she

needed my assistance was a performance issue but I’m told I don’t

communicate. AVI-182 and AVI-224. I left for break notifying Ms. Mitchell and

Ms. Buskey they’d need to take care of patients' slides that would soon be ready

to send out but they chose not to, which was their responsibility which delayed

patient care but I was blamed. AVI-224. Ms. Cortright said I failed to take

ownership when I was falsely accused of being responsible for 50% of the lab

floaters even after I was accidentally sent the data disproving this. AVI-24. This

is why she avoided coaching sessions. AVI-279.

Ms. Cortright was investigated by Ms. Gallagher 3/6/19 and was furious

with me. AVI-276. She told me I could no longer work Saturdays, made more of

an effort to avoid me (no response to emails), and continued to falsely accuse

me of things that weren’t true. AVI-163, AVI-232 to 234.

Termination was 4/3/19. AV3-30. Ironically, Ms. Cortright claimed she

didn’t see the emails I sent both weekends prior to my termination regarding

matters that she ultimately terminated me for, which was never an issue in the

past with her. AVI-226 and AVI-160 to 161. I was ill 3/23/18, needed to leave

early so I emailed Ms. Cortright that I would do my best to get the embedding

8

/

done. AVI-397. She said I should’ve called although she blocked my number.

AVI-280 and AVI-396. I loaded everything from the specimen drop off area.

AV3-136. If the specimen existed, I hadn’t seen it, I didn’t miss it (used

interchangeably) which I admitted assuming it was behind a stack of folders I did

remember seeing. AVI-33, AVI-161, AV3-136to 137, andAV3-258. I never saw

a write-up and was told verbally. AV2-372 to 374.

Ms. Cortright told me I could work 4/1/19, but if I chose not to she’d code

it as scheduled herself, since I wasn’t on the schedule. AVl-160and 161. I

emailed her that I wasn’t going to work 4/1/19 but she never responded and then

claimed I was a no call/no show. AVI-160, AVI-286, AVI-310, and AV2-427.

Mr. St. John was aware of this before I was terminated and never looked into it.

AVI-160.

T WAS SET-UP FOR FAILURE AFTER 6/3/18

Subjected to retaliatory treatment by the leads shortly after my race based

complaint 6/5/18 to Ms. Cortright, I became very ill, I began making mistakes I

wouldn’t ordinarily make which I took responsibility for given the circumstances

but continued to deny any false allegations even though Ms. Cortright said

denying them increased risk of patient harm (gaslighting me). AVI -163,

AVI-188, AVI-207, AVI- 234, AV2-271, AV2-380, AV3-32-34, AV3-36, AV3-38,

AV3-40 to 41. AV3-249 to 250,and AV3-265

Their first retaliatory punishment I received after making my complaint

6/5/18, was purposely scheduling me on Ms. Mitchell’s benches and triage, which

weren’t accommodating so I stood most of the day. AVI -164, AV3-180 to 186.

Ms. Cortright knew Ms. Mitchell treated me poorly, and Ms. Buskey wasn’t fond

9

of me but assigned me to their benches for 1-3 weeks at a time which turned into

4-5. AVI-233 and AV2-271.

Cortright set unreal expectations for me, subjecting me to a very toxic

work environment, failed to accommodate me, timed me when using the

bathroom, and denied me a full break at times all while expecting me not to

make the few honest errors I did make. AVI-171 to 172, AVI-184 to 185,

AVI -194, AVI -234, AVI -244 and AV2-349. Being told I ignored the leads

because they wouldn’t use my name then issued corrective action for this is not

right. Ms. Cortright was aware she was subjecting me to an environment that

aggravated my Crohn’s symptoms yet didn’t have the heart to stop. AV2-272.

MS. CORTRIGHT DEVIATED FROM POLICY TO ILLEGALLY PUNISH ME

On 7/27/181 was illegally punished for using an accommodation for

plantar fasciitis when labeling IHC slides. AVI-187 to 188, AV2-215, AV2-236.

After doing this for over a month, Ms. Mitchell started harassing me on 7/27/18,

then reported a complete fabrication to Ms. Cortright so I was punished although

I was following protocol. AVI-244, AV3-252 to 254. Ms. Cortright had Ms.

Mitchell physically change the IHC protocol to reflect what she told Mr. St. John

to make it seem as if I wasn’t following protocol. AVI-187 to 188. When I asked

her about it she gave different excuses: Ms. Mitchell’s always updating

procedures, the one procedure wasn’t updated yet, they were switching from

paper to media lab, I saw the wrong protocol, and that it was just an unfortunate

situation that I wasn’t punished for. AVI-33, AVI-187 to 188, AVI-282, AV2-391.

10

PAST WORK HISTORY DOESN’T ALTON WTTH THF. LAST 10 MONTHS OF

EMPLOYMENT

My performance evaluations from 2017 and 2018 differ drastically and

were both performed by Ms. Cortright, one before and the other after my race

complaint and prove her retaliatory motive. AVI-405 and AV2-435. I received a

rating of excellent for several years prior. AVI-199 and AVI-383. I couldn’t

prevent the stray criticisms Ms. Mitchell submitted into my evaluations

regarding communication and constructive criticism even though they were

false. Ms. Cortright testified she had seen my past evaluations prior to

termination, proving she falsely brought to light criticisms from the past,

however defense argues she never saw them. AV2-34 and AV2-335. One

example is not using my name when addressing me, accusing me of ignoring

them, then she made it seem as if I had longstanding communication issues

since Mitchell (specialty benches) said/did the same in past evaluations.

AVI-207, AVI-278, AV3-276.

11

STATE OF VERMONT

VERMONT SUPREME COURT

ZEPHRYN HAMMOND

Appellant

v.

DOCKET NO. 22-AP-197

THE UNIVERSITY OF VERMONT

MEDICAL CENTER

Appellee

CERTIFICATION OF COMPLIANCE AS TO WORD COUNT

I, Zephryn Hammond, certify pursuant to V.R.A.P.32(a)(7)(c) that the Brief

of the appellant has been calculated using Google Docs Word Count as consisting

of approximately, 2996 words (not including title page or this certificate).

Burlington, Vermont, this 30th day of June, 2023.

Zephryn Hammond

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APPENDIX C

The Vermont Supreme Court of Appeals Decision to Affirm Summary Judgment to the

Defendant

VERMONT SUPREME COURT

FILED IN CLERK'S OFFICE

ENTRY ORDER

JUN 022023

2023 VT 31

SUPREME COURT DOCKET NO. 22-AP-197

FEBRUARY TERM, 2023

Zephryn (Stephanie) Hammond

}

APPEALED FROM:

}

}

v.

}

}

Superior Court, Chittenden Unit,

Civil Division

}

University of Vermont Medical Center

}

CASE NO. 945-10-19 Cncv

In the above-entitled cause, the Clerk will enter:

Affirmed.

FOR THE COURT:

Sfancy XiftVjlples, Associate Justice

Concurring:

Paul L. Reiner, Chief Justice

JJfUJ

'f&old EL Eato$ Jr., Associate Justice

__ ___________

en R. Carroll, Associate Justice

illiam D. Cohen, Associate Justice

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109

State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made

before this opinion goes to press.

2023 VT 31

JUN 022023

No. 22-AP-197

Zephryn (Stephanie) Hammond

Supreme Court

On Appeal from

Superior Court, Chittenden Unit,

Civil Division

v.

University of Vermont Medical Center

February Term, 2023

Helen M. Toor, J.

Zephryn Hammond, Pro Se, Burlington, Plaintiff-Appellant.

Elizabeth K. Rattigan and Brendan Sage of Downs Rachlin Martin PLLC, Burlington, for

Defendant-Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

11.

WAPLES, J.

Plaintiff Zephryn Hammond appeals the decision of the civil

division awarding summary judgment to defendant University of Vermont Medical Center on

plaintiff’s claims of employment discrimination and retaliatory discharge.1 We affirm.

I.

12.

Defendant terminated plaintiff’s employment in April 2019. In October 2019,

plaintiff filed a complaint alleging that defendant had discriminated and retaliated against plaintiff

l

This Court previously granted plaintiffs motion to amend the case caption to reflect their

chosen name and to use plaintiffs preferred pronouns (they/their/them) in this opinion.

based on plaintiff s race and disabilities in violation of the Vermont Fair Employment Practices

Act (FEPA). In February 2022, defendantmovedforsummaryjudgment, which plaintiff opposed.

13-

The following facts were undisputed for purposes of summary judgment. Plaintiff

is African American. From 2002 until April 2019, plaintiff was employed by defendant in its

histology laboratory, which processes patient tissues and specimens. Plaintiff’s last position was

as a senior histotechnologist.

1 4.

Plaintiff experienced several medical issues while employed with defendant for

which plaintiff requested leave or accommodations, including Crohn’s disease, hysterectomy

surgery, a shoulder injury, and plantar fasciitis.2

Plaintiff received approval for several

accommodations, including limitations on lifting, more frequent breaks and changing their break

time, and sitting rather than standing. Plaintiff was also granted many weeks of leave under the

Family and Medical Leave Act.

15.

Over the years, plaintiff’s written performance-evaluation ratings were generally

positive. However, the evaluations contained criticisms about plaintiffs poor communication,

lack of respect for a supervisor, resistance to guidance and suggestions, lack of maturity, pushback

when asked to do tasks, and attitude. In a self-review completed in 2009, plaintiff stated that

“[ojverall, my attitude could be a bit better.” Plaintiff and a coworker, Jeannette Mitchell, did not

get along. Another coworker testified that Mitchell micromanaged everyone in the lab but was

particularly critical of plaintiff.

2 Plaintiff conceded that they received accommodations for their medical conditions but

asserted in their statement of disputed facts that the accommodation setting a 10:45 a.m. break

time was insufficient because, although it allowed plaintiff to take Crohn’s medication at 11:15

a.m., it interfered with plaintiff s medication schedule when not at work. However, it is not clear

that plaintiff ever raised this specific issue with Cortwright, and plaintiff testified at deposition that

taking their medication at 11:15 a.m. was “not a problem.” On appeal, plaintiff does not rely on

this assertion to support their disability discrimination claim.

2

U 6.

Until 2016, plaintiff was supervised and evaluated by Judith Carpenter. In 2017,

Valerie Cortwright became plaintiff’s new supervisor. Cortwright had worked in the histology

department since 2004. Plaintiff and Cortwright were friendly and had socialized together.

According to plaintiff, their relationship changed when Cortwright was promoted. Cortwright was

the only supervisor in the histology department and managed several other employees.

V-

In June 2018, Cortwright gave plaintiff a verbal warning about “some longstanding

issues that we are confident can be improved.” In an email memorializing the verbal warning,

Cortwright identified four areas that needed improvement, including accepting and completing

assigned tasks; maintaining professionalism in interacting with colleagues; adequately

communicating with colleagues regarding workflow issues, including informing others if plai ntiff

needed to leave the work area or was unable to complete a task; and “accepting responsibility for

[their] conduct, and working actively to foster a positive work environment and productive

relationships with colleagues.”3

H 8.

A week later, Cortwright sent plaintiff another email providing specific examples

of the conduct that Cortwright had identified in the earlier email. Cortwright stated that there had

been instances when plaintiff was asked to complete a task but had suggested that another

coworker or Cortwright do the task themselves. On multiple occasions, plaintiff had reported late

to certain assignments. Plaintiff also frequently failed to respond when spoken to by Cortwright

3 The parties disagree about what precipitated the verbal warning. Cortwright told human

resources officer Colleen Gallagher that plaintiff had snapped at Mitchell. Plaintiff asserts that

this explanation was false because the incident when they snapped at Mitchell actually occurred

in late July. According to plaintiff, the June 22 verbal warning was issued in retaliation for their

complaint to Cortwright on June 5, 2018, that Mitchell’s behavior was racially motivated.

However, the record does not support plaintiffs assertion that they complained to Cortwright of

racial discrimination on June 5. Plaintiff testified that they told Cortwright on that date that

Mitchell was being “super condescending” and “harboring all this negativity,” and referred to a

previous conversation between Cortwright and former supervisor Carpenter about whether

Mitchell could be racist. This oblique reference to alleged past speculation between Cortwright

and Carpenter about Mitchell’s motivations cannot reasonably be construed as a complaint by

plaintiff that Mitchell was targeting plaintiff due to their race.

3

or Mitchell. Cortwright stated that plaintiff had left the work area without informing coworkers,

resulting in confusion over what step a sample was in or where it had come from. Cortwright

stated that much of the lab’s work was time sensitive and that by leaving the work area ■without

notifying coworkers, plaintiff put completion of important tasks at risk.

II 9.

Plaintiffs 2018 performance evaluation rated them as “meeting many

expectations,” which was a lower rating than plaintiff had received previously. Plaintiff sought

reconsideration of the evaluation, alleging that Cortwright had been influenced to give them a

lower rating by Mitchell. Plaintiff asserted that Mitchell was seeking revenge against plaintiff

because the previous supervisor thought highly of plaintiff. Plaintiff also stated, “I can’t help but

feel discriminated against for reasons beyond my control, i.e.: Crohn’s, plantar fasciitis, shoulder

injury, post-op, and lastly my race? I can’t help but think race has something to do with it.”

Cortwright met with plaintiff to review the evaluation and subsequently sent plaintiff a letter

stating that she would revise some of the language in the evaluation, but that plaintiffs overall

rating would remain unchanged.

U 10.

In November 2018, Cortwright provided plaintiff with a “letter of understanding.”

The letter stated that this was “the second level of corrective action” concerning plaintiff’s

performance. The letter identified similar issues as the verbal warning, including leaving the work

area for extended periods without informing colleagues, not communicating with colleagues in a

respectful manner, and questioning assigned tasks in a manner that was disruptive to workflow.

The letter also stated that “you frequently deny responsibility for errors that were clearly yours,

and you do not demonstrate an understanding of the risk these errors pose to patient care.”

H 11.

Plaintiffmet with Cortwright and a human resources (HR) officer, Lisa Armstrong,

in January 2019 to discuss the corrective action and plaintiff’s working relationship with Mitchell.

After the meeting, Armstrong sent an email to plaintiff and Cortwright to summarize what was

discussed at the meeting. The summary did not mention any allegation that plaintiff had been

4

discriminated against based on their race or medical condition. Instead, the summary stated that

plaintiff felt Mitchell was condescending to plaintiff, was always judging plaintiff, and simply did

not like plaintiff.

H 12.

Plaintiff met with another HR officer, Colleen Gallagher, shortly afterward.

Plaintiff told Gallagher that plaintiff and Mitchell had always had issues, and that Mitchell had

said that she did not like plaintiff because she felt the previous supervisor, Judith Carpenter, had

always favored plaintiff. Plaintiff also told Gallagher that before Cortwright became supervisor,

plaintiff asked Cortwright if she thought Mitchell was racist. Cortwright said she did not know.

Later, when Cortwright became supervisor, she said that Mitchell was not racist. Gallagher’s note

stated that “[plaintiff] said [they] never thought [Mitchell] was racist but [they] recently learned

that being racist doesn’t just mean someone using racistterms,”but can also include when someone

is treated differently due to their race. Plaintiff told Gallagher that it was hard to prove that plaintiff

was being treated differently because of their race but they did not know of another reasoa

Plaintiff stated that they were the only African American in the department.

K 13.

Gallagher investigated plaintiff s complaint and subsequently wrote to plaintiffthat

she could not substantiate that plaintiff had been targeted or discriminated against. Gallagher

stated that plaintiff could send her any additional documentation and she would review it. Plaintiff

did not send Gallagher any additional information.

1f 14.

In February 2019, Cortwright issued a “final written warning” to plaintiff. The

letter stated that plaintiffhad continued to deny responsibility for mistakes, often refused to follow

directions and established processes, and felt that they should only be held accountable for actual,

and not potential, patient harm. Plaintiff appealed the final written warning internally. Cortwright

upheld the warning, stating that the concerns listed were valid and that she was not confident that

plaintiff would address them going forward. Plaintiff then appealed to Cortwright’s supervisor,

who also upheld the warning.

5

U 15.

In April 2019, Cortwright terminated plaintiff’s employment.

In a letter,

Cortwright stated that since the final written warning was issued in February, there continued to

be concerns with plaintiff s performance, “most recently a missed specimen on 3/23/19 and a no

call no show on Monday 4/1/19.” Plaintiff did not dispute that in late March 2019 they failed to

see an urgent bone marrow biopsy for which they were responsible and missed a blinking red light

signaling that a voicemail message had been left regarding the biopsy. With regard to the “no call

no show,” plaintiff asserted that Cortwright told plaintiff that they “had the option” not to work

that day. Plaintiff did not appeal the termination.

H 16.

Plaintiff testified at deposition that they were the only African American who

worked in the lab in 2018 and 2019, although they were not the only person of color. Although

plaintiff felt “singled out” by some colleagues, plaintiff could not recall those individuals making

any offensive comments to plaintiff about race. Cortwright testified that she was never told of

such comments by others.

^117.

In addition to the above facts, plaintiff alleged that the following facts were material

to their claim. Plaintiff alleged that “Mitchell engaged in a near-constant campaign of criticisms,

micromanagement, and condescending and belittling behavior toward plaintiff that she did not

release on anyone else,” and that other coworkers confirmed this. Plaintiffasserted that Mitchell

and other coworkers did not like plaintiff because plaintiff had been the former supervisor’s

favorite. Plaintiff complained to Cortwright about Mitchell’s behavior, but Cortwright failed to

act. Two of plaintiffs coworkers were concerned about how Mitchell treated plaintiff. However,

neither of them told management or testified at deposition that Mitchell’s treatment was related to

plaintiff’s race or medical conditions.

^118.

Plaintiffalso points to testimony by another histotechnologist, Elisha Johnson, that

she once heard a male lab employee refer to plaintiff as an “urban princess” outside of plaintiff’s

earshot, which Johnson assumed was a reference to plaintiffs color. Plaintiff testified that the

6

male lab employee was “the type of person that has, like, a Confederate flag on his car.” The male

employee never made an offensive comment to plaintiff about race.

H 19.

Plaintiff told HR officers that fifty percent of the mistakes for which plaintiff was

criticized in the letter of understanding were not plaintiff’s fault. Plaintiff asserted that the letter

falsely stated that Cortwright met with plaintiff ten times to discuss performance issues, because

some of the conversations were actually prompted by plaintiffs complaints.

f 20.

In a June 2018 email to Cortwright, plaintiff asked why they were being made

uncomfortable for having to use the bathroom so much when they needed to do so due to Crohn’s

disease. Plaintiff also sent an August 2018 email to HR officer Armstrong, which referred to

plaintiff being criticized for needing to sit rather than stand. In a February 2019 email to

Cortwright and Armstrong, plaintiff mentioned medical restrictions that caused plaintiff to do

things differently or more slowly than other employees.

1f 21.

Based on these facts, the civil division concluded that plaintiff had established a

prima facie case that plaintiff’s termination was motivated by racial discrimination. However, it

ruled that defendant had articulated a legitimate basis for the termination decision, namely, the

performance issues identified in plaintiff’s evaluations and during the disciplinary process, and

plaintiff had failed to prove that defendant’s proffered reasons were pretextual. The court

determined that plaintiff failed to establish a prima facie case that plaintiff’s termination was the

result of disability discrimination. Finally, the court concluded that the fact that plaintiff was

terminated shortly after complaining of possible racial and disability discrimination created a

prima facie case of retaliation, but that defendant offered legitimate nondiscriminatory reasons for

termination and plaintiff had failed to show that the stated reasons were false. It therefore granted

summary judgment to defendant on each of plaintiff’s claims. This appeal followed.

7

II.

\22.

On appeal, plaintiff argues that the trial court erred in granting summaryjudgment

because there were numerous factual disputes that, if resolved in plaintiffs favor, support their

claims of racial and disability discrimination and retaliation. We conclude that plaintiff failed to

present sufficient evidence to create a genuine issue of fact on any of their claims, and therefore

affirm the decision below.

f 23.

We review a decision granting summary judgment de novo, using the same standard

as the trial court. Wentworth v. Fletcher Allen Health Care. 171 Vt. 614, 616,765 A.2d 456,459

(2000) (mem.). “The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

V.R.C.P. 56(a). In determining whether there exists a genuine dispute as to any material fact, we

accept the allegations made by the party opposing summary j udgment as true if they are supported

by affidavits or other admissible evidence, and we draw all inferences in favor of the nonmoving

party. Robertson v. MvlanLab’vs. Inc.. 2004 VT 15, f 15,176 Vt. 356, 848 A.2d 310. A dispute

of fact “is material only if it might affect the outcome.” In re Est. of Fitzsimmons. 2013 VT 95,

U 13,195 Vt. 94,86 A.3d 1026 (quotation omitted). “Where the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”

Kelly v. Town of Barnard. 155 Vt. 296,305 n.5,583 A.2d 614,619 n.5 (1990) (quotation omitted).

24.

We begin by reviewing the legal framework applicable to employment

discrimination and retaliatory discharge claims brought under Vermont’s FEPA. The FEPA makes

it unlawful for an employer to discriminate against any individual based on race or disability, or

to discharge or otherwise retaliate against an employee because the employee opposed

discriminatory practices. 21 V.S.A. § 495(a)(1), (8). The FEPA “is patterned on Title VH of the

Civil Rights Act of 1964, and the standards and burdens of proof under [the] FEPA are identical

8

to those under Title VII.” Hodgdon v. Mt, Mansfield Co.. Inc.. 160 Vt. 150, 161, 624 A.2d 1122,

1128(1992).

U 25.

When, as in this case, the evidence of discrimination is circumstantial rather than

direct, we apply the three-part framework set forth by the United States Supreme Court in

McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). Robertson. 2004 VT 15, f 18. Under

that framework, to avoid summary judgment on a claim of employment discrimination or

retaliation, the plaintiff must first establish a prima facie case by demonstrating that they suffered

an adverse employment action under “circumstances which give rise to an inference of unlawful

discrimination.” Texas Dep’t of Cmtv. Affs. v. Burdine. 450 U.S. 248,253 (1981). The elements

of a prima facie case vary depending on the type of claim being asserted and the facts of each case.

Robertson. 2004 VT 15, Tf 25. If the plaintiff establishes a prima facie case, it becomes the

employer’s burden to articulate “a legitimate, nondiscriminatory reason for the challenged

conduct.” Gauthier v. Keurig Green Mountain. Inc.. 2015 VT 108, If 15, 200 Vt. 125, 129 A.3d

108. If the employer comes forward with a legitimate explanation for the conduct, then the plaintiff

has the ultimate burden of proving “that the proffered reason was a ‘mere pretext’ for

discrimination. Id. (quoting Murray v. St. Michael’s Coll.. 164 Vt. 205, 210, 667 A.2d 294, 299

(1995)). Using this framework, we analyze each of plaintiff’s claims in turn.

A. Racial Discrimination Claim

If 26.

We first consider plaintiff’s claim that their termination was motivated by racial

animus. To establish a prima facie case of racial discrimination under the FEPA, plaintiff must

show that (1) they belonged to a protected group; (2) they were qualified for the position; (3) they

suffered an “adverse employment action”; and (4) “the circumstances surrounding this adverse

employment action permit an inference of discrimination.” Robertson. 2004 VT 15, 125.

Plaintiffs burden at this initial stage is “relatively light.” Hodgdon. 160 Vt. at 159, 624 A.2d at

9

1127; see also Carpenter v. Cent. Vt. Med. Ctr.. 170 Vt. 565, 566, 743 A.2d 592, 595 (1999)

(mem.) (describing plaintiffs burden ofproof in prima facie case as “minimal” and “de minimis”).

27.

It is undisputed that plaintiff has established the first three elements of a prima facie

case: plaintiff is African American, was qualified for the senior histotechnologist position, and

suffered an adverse employment action in the form of termination. Defendant argues, however,

that the circumstances surrounding plaintiff’s termination do not give rise to an inference of

discrimination because plaintiff failed to demonstrate that non-African-American employees who

were treated more favorably had similar performance issues as plaintiff. See Shumwav v. United

Parcel Serv.. Inc.. 118 F.3d 60, 64 (2d Cir. 1997) (stating that to establish fourth element of prima

facie case for gender discrimination, plaintiff had to show she was treated differently than other

similarly situated males, and those comparators must be “similarly situated in all material

respects”). We are not persuaded that the law requires such a specific showing at the initial stage

of the McDonnell Douglas inquiry in every case. “[B]ecausethe facts inevitably vary in different

employment discrimination cases,... the prima facie proof required in a given case will depend

on the specific facts in question.” McGuinness v. Lincoln Hall. 263 F.3d 49, 53 (2d Cir. 2001).

As the Second Circuit has explained, the comparator in a disparate-treatment claim must be

similarly situated, not “identically situated.”

Id. at 54.

Thus, “[i]n the run of the mill

discrimination cases,... a plaintiff can make a showing of disparate treatment simply by pointing

to the adverse employment action and the many employees who suffered no such fate.” AbduBrisson v. Delta Air Lines. Inc.. 239 F.3d 456,467 (2d Cir. 2001).

H 28.

Here, plaintiff testified at deposition that they were the only African-American

person who worked in the lab during 2018 and 2019; that their supervisor, Cortwright, constantly

watched plaintiff, did not allow plaintiffto take a full break when others were permitted to do so,

and gave plaintiff longer assignments to a particular location than others were given; that

coworkers had observed that Mitchell, the lead histotechnologist in the lab, singled out plaintiff

10

for harsher criticism and feedback than other technologists; and that Cortwright relied on

Mitchell’s opinions about plaintiff s performance in evaluations and in the disciplinary process

that ultimately led to termination.4 We agree with the trial court that this evidence was sufficient

to meet plaintiffs “very light burden” of showing that the circumstances surrounding thentermination suggest unlawful discrimination based on race. Robertson. 2004 VT 15, *|) 30; see also

Boulton v. CLP Consulting Ene’rs. Inc.. 2003 VT 72, f 16, 175 Vt. 413, 834 A.2d 37 (holding

that plaintiff established prima facie case of discrimination based on sex by showing she was

qualified female engineer who lost her managerial position and was replaced by male manager);

cf. Shumwav, 118 F.3d at 64 (holding plaintiff failed to meet fourth element of prima facie case

because individuals to whom she attempted to compare herself reported to different supervisors

than she did).

^129.

Because plaintiff established a prima facie case of race-based discrimination, the

burden shifted to defendant to produce a “legitimate, nondiscriminatory reason for the challenged

conduct.” Murray. 164 Vt. at 210, 667 A.2d at 299. “In order to prevent summary judgment in

favor of the plaintiff at this stage, the employer’s explanation must, if taken as true, permit the

conclusion that there was a nondiscriminatory reason for the adverse action.” Gauthier. 2015 VT

108, U 20 (quotation omitted).

30.

Here, defendant provided such a reason: the performance issues identified in

plaintiffs evaluations and during the progressive disciplinary process. These included poor

communication, lack of attention to detail, resistance to constructive feedback, the missed biopsy

in March 2019, and plaintiffs “no call no show” on April 1, 2019. Plaintiff was counseled about

communication and other issues as early as 2008, when plaintiffwas still under the supervision of

Judith Carpenter, with whom plaintiffhad a good relationship. “Terminating an employee because

4 Plaintiff alleged that the person hired to replace them was Caucasian but presented no

admissible evidence to support this assertion.

11

he fails to perform satisfactorily is a legitimate and nondiscriminatory reason to end his

employment.” Cicero v. Bore-Wamer Auto.. Inc,. 280 F.3d 579, 588 (6th Cir. 2002). Further,

“[a] legitimate reason for discharge may include the plaintiff’s lack of improvement in the specific

areas in which she was counseled.” Doucette v. Morrison Cntv.. Minn.. 763 F.3d 978, 983 (8th

Cir. 2014) (quotation omitted).

131.

Once defendant produced a legitimate, nondiscriminatory justification for

terminating plaintiff s employment, the burden shifted back to plaintiffto demonstrate an issue of

fact about whether defendant’s reason was pretextual. “Bluntly stated, to show pretext, a plaintiff

must establish that the defendant’s proffered legitimate, nondiscriminatory reason is a lie.”

Gauthier. 2015 VT 108, f 22.

U 32.

Plaintiff asserts that many of the reasons identified by defendant for disciplining

plaintiffwere false or did not occur in the way that defendant characterized them. Plaintiff argues

that the June 2019 verbal warning was based on false accusations and that when asked for examples

of the conduct outlined in the verbal warning, Cortwright identified incidents that occurred after

the verbal warning. Plaintiff also asserts that some of the specific instances of poor performance

identified by Cortwright in the letter of understanding and written warning were inaccurate, and

that plaintiff was unfairly blamed for errors that they did not make. Plaintiff claims that Gallagher

failed to conduct a full and fair investigation of plaintiff’s claims of racial and disability

discrimination. Plaintiff also asserts that the missed bone marrow specimen was actually

Mitchell’s fault.

TJ 33.

Without more, these arguments are insufficient to show pretext. “[A]n employer

need only honestly believe in its proffered legitimate, nondiscriminatory reason for the challenged

adverse employment action in order to prevail on a motion for summary judgment at the pretext

stage.” Gauthier. 2015 VT 108,

29. Thus, “arguing about the accuracy of the employer’s

assessment is a distraction because the question is not whether the employer’s reasons for a

12

decision are right but whether the employer’s description of its reasons is honest.” Id- 132

(quotation omitted).

K 34.

While plaintiff claims that defendant had its facts wrong and that its investigation

was inadequate, plaintiff has not demonstrated “weaknesses, implausibilities, inconsistencies, or

contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action” from

which a jury could infer that the reasons were pretextual. Zann Kwan v, Andalex Group LLC. 737

F.3d 834, 846 (2dCir. 2013). To the contrary: defendant consistently identified a pattern of poor

communication, resistance to feedback, and lack of concern about how errors jeopardized patient

safety as reasons for disciplining plaintiff, and it consistently identified the missed bone marrow

specimen and plaintiff s April 2019 “no call no show” as the ultimate reasons for firing plaintiff.

Plaintiff admits that these two latter incidents occurred.5 Plaintiff also conceded that they had

communication issues as early as 2008 and that their former supervisor made other criticisms

similar to those later identified by Cortwright. Plaintiff has failed to provide other evidence from

which a jury could conclude that plaintiffs termination was actually motivated by race, such as

evidence that other, non-African-American employees who had similar performance issues were

not disciplined or terminated, or that defendant deviated from its normal policy or practice in how

it treated plaintiff.6 See Boulton. 2003 VT 72,

19-24 (analyzing claim of pretext based on

allegedly differential treatment of male managers who were similarly situated); Mellin v. Flood

Brook Union Sch. Dist.. 173 Vt. 202, 212,790 A.2d 408,418 (2001) (recognizing that employer’s

5 Although plaintiff argues that Cortwright indicated in an email that they had permission

not to attend work on April 1,2019, this evidence is not in the record.

6 The only statement that could potentially be construed as evidencing racial animus—the

“urban princess” remark—was made by a male histotechnologist outside of plaintiff s presence.

There is no evidence that this individual was involved in the termination decision or that

Cortwright was aware of his remark. “A statement will not be considered direct evidence of an

employer's discriminatory intent if it is made by an individual who was not a participant in the

decision-making process.” Robertson. 2004 VT 15, 20 (quoting 1 L. Larson, Employment

Discrimination § 8.07[3], at 8-86 (2d ed. 2003)).

13

failure to follow established policy may be evidence of pretext). Under these circumstances,

defendant was entitled to summary judgment on plaintiffs racial-discrimination claim.

B. Disability Discrimination Claim

T| 35.

We turn to plaintiffs claim that they were terminated because of their disabilities.

To establish a prima facie case of disability discrimination based on an adverse employment action,

a plaintiff must show that: (1) they were an individual with a disability; (2) the employer was

notified of their disability; (3) they were “otherwise qualified to perform the job, with or without

reasonable accommodations”; and (4) they “suffered an adverse employment action because of

[their] disability.” Sista v. CPC Ixis N. Am.. Inc.. 445 F.3d 161, 169 (2d Cir. 2006) (quotation

omitted). It is undisputed that the first three factors were satisfied. However, plaintiff failed to

provide evidence sufficient to create an inference that their termination was related to their

disabilities.

^136.

The record shows that plaintiff had multiple medical conditions ofwhich defendant

was aware and that defendant had provided various accommodations to plaintiff over the years,

including allowing plaintiffto sit rather than stand, limiting the amount of weight plaintiffhad to

lift, granting multiple leave requests, and allowing plaintiff to take frequent breaks. Plaintiff

acknowledges these accommodations but asserts that they were harassed and ultimately terminated

due to their medical conditions.

K 37.

Plaintiff first argues that Jeannette Mitchell bullied and harassed plaintiff and that

another coworker “rolled her eyes” when plaintiff asked for help. Plaintiff points to no evidence

that this behavior was connected to plaintiffs disabilities. Plaintiffalso contends that Cortwright

gave plaintiff negative performance reviews for taking breaks that had been approved and were

necessary to manage plaintiff’s Crohn’s symptoms and shoulder and foot pain.

This is a

mischaracterization ofthe record. In the reviews, Cortwright criticized plaintiffnot for taking the

breaks, but for leaving the work area without communicating to coworkers that they were doing

14

so, sometimes in the middle of a task. Plaintiff also claimed that they were criticized for sitting

rather than standing when they had been given permission to sit. However, neither the 2018

performance evaluation nor the disciplinary warnings mention sitting as an issue. Finally, plaintiff

asserted that another coworker who took unscheduled breaks due to gastrointestinal issues was not

reprimanded, but plaintiff did not support this assertion with any admissible evidence. This record

is simply insufficient to create an inference that plaintiff’s employment was terminated because of

their disabilities. The trial court therefore properly granted summary judgment on this claim.

C. Retaliation Claims

H 38.

Finally, plaintiff claims that they were terminated in retaliation for complaining to

management about racial and disability discrimination. To avoid summary judgment on these

claims, plaintiff first had to present a prima facie case of retaliatory discrimination by showing

“that (1) [they were] engaged in a protected activity, (2) [their] employer was aware of that

activity, (3) [they] suffered adverse employment decisions, and (4) there was a causal connection

between the protected activity and the adverse employment decision.” Murray. 164 Vt. at 210,

667 A.2d at 299.

H 39.

Here, as with plaintiffs other claims, defendant concedes that the first three

elements are satisfied. We therefore consider whether there was a causal connection between the

protected activity and the adverse decision. Plaintiff appears to argue that the first retaliatory

adverse employment decision was the verbal warning Cortwright issued on June 22, 2018.

However, the first documented instance of plaintiff complaining of disability discrimination was

in plaintiffs response to Cortwright’s email about the verbal warning. This was followed by

plaintiffs complaint to Lisa Armstrong that they were being criticized for sitting rather than

standing. As discussed above, plaintiff s first complaint to management of racial discrimination

occurred in August 2018, when they appealed the 2018 performance evaluation. See infra.

7

n.3, 9. This was also after the verbal warning. Although plaintiff asserts that they complained to

15

Cortwright that Mitchell was racist earlier in June 2018, there is no admissible evidence to support

this assertion. The verbal warning therefore cannot be viewed as retaliatory, since it occurred

before plaintiff engaged in any protected activity.

1140.

Plaintiff also appears to claim that they were terminated in retaliation for then-

complaints to HR that they were the subject of racial and disability discrimination. Plaintiff made

these complaints to HR officer Gallagher in February 2019, less than two months before plaintiff’s

employment was terminated. We agree that the relatively close proximity between the complaints

and plaintiff s discharge was sufficient to meet the fourth element of a prima facie case. See Oninn

v. Green Tree Credit Corp,. 159 F.3d 759,769 (2d Cir. 1998), abrogated in part on other grounds

by Nat’l R.R. Passenger Corp. v. Morgan. 536 U.S. 101 (2002) (holding that employee met causalconnection element of prima facie case by showing that her discharge came less than two months

after she filed complaint with management and ten days after she filed complaint with human

resources department).

1f4l.

In response, defendant offered legitimate, nondiscriminatory reasons for

terminating plaintiff s employment—the performance issues discussed above—thereby rebutting

the presumption of retaliatory discrimination. This placed the burden on plaintiff to come forth

with evidence that the proffered reasons were a pretext for retaliation. See Robertson. 2004 VT

15,142.

142.

Plaintiff appears to rely solely on the closeness in time between the complaint and

termination to support their retaliation claim. “The temporal proximity of events may give rise to

an inference of retaliation for the purposes of establishing a prima facie case of retaliation ..., but

without more, such temporal proximity is insufficient to satisfy appellant ’ s burden to bring forward

some evidence of pretext.” El Saved v, Hilton Hotels Corp.. 627 F.3d 931,933 (2d Cir. 2010); see

Adams v. Green MountainR.R. Co.. 2004 VT 75,1 9,177 Vt. 521, 862 A.2d 233 (mem.) (“There

must be some evidence other than chronology that gives the factfinder reason to believe that the

16

timing is an indication ofimproper motive.”)- By the time plaintiff complained to HR, Cortwright

had already given plaintiff a verbal warning, the letter of understanding, and the final written

warning. This chronology is consistent with defendant ’ s stated reasons for firing plaintiff. Further,

plaintiff admitted the conduct that ultimately formed the basis for the termination decision—the

missed biopsy and plaintiffs failure to attend work on April 1, 2019. Because plaintiff failed to

demonstrate any other facts from which a jury could reasonably infer pretext, the trial court

correctly granted summary judgment on plaintiffs retaliation claims as well.

Affirmed.

FOR THE COURT:

Associate Justice

17

APPENDIX D

The Vermont Superior Court Decision to Grant Summary Judgment to the Defendant

Vermont Superior Court

Filed 06/29/22

Chittenden Unit

VERMONT SUPERIOR COURT

Chittenden Unit

175 Main Street, PO Box 187

Burlington VT 05402

802-863-3407

www.vermontjudickry.org

CIVIL DIVISION

Case No. 945-10-19 Cncv

Stephanie Hammond vs. University of Vermont Medical Center

ENTRY REGARDING MOTION

Title:

Filer:

Filed Date:

Motion for Summary Judgment; Memorandum in Opposition; Reply (Motion: 8)

University of Vermont Medical Center, Inc.

February 28,2022; April 14,2022; May 09, 2022

This is a dispute between plaintiff and her former employer. Plaintiff Stephanie

Hammond alleges illegal discrimination under the Vermont Fair Employment Practices

Act based upon her race and disability, and retaliation for making complaints about

such discrimination. Defendant University of Vermont Medical Center (the Hospital)

moves for summary judgment.

Undisputed Facts

The following facts are undisputed.1 Hammond was employed by the Hospital in

its Histology Laboratory. The lab processes patient tissue samples and specimens. She

worked in the lab in different positions from 2003 to 2019. Her last position was Senior

Histotechnologist. Over the years her performance reviews were generally good but

contained some criticisms regarding her communication, lack of respect for a

supervisor, resisting guidance and suggestions, lack of maturity, pushback when asked

to do tasks, and attitude. She admitted in 2009 that her attitude “could be a bit better”

1 The court may reference additional facts from the record in the discussion below.

Entry Regarding Motion

945-10-19 Cncv Hammond vs. University of Vermont Medical

Page 1 of 15

and that she had “had trouble” with coworkers. She and a coworker, Ms. Mitchell, did

not get along. Mitchell micromanaged everyone in the lab.2

A new supervisor, Valerie Cortright, took over in 2017. She and Hammond had

previously been friends and socialized together. Cortwright supervised several

employees. In June of 2018 she gave Hammond a verbal warning, then a “Letter of

Understanding” in November, which she described as a second step in a “corrective

action process,” and a “Final Written Warning” in February of 2019. Hammond

appealed the latter unsuccessfully. In April of 2019, Hammond was terminated.

The subsequently-stated basis for the June 2018 verbal warning included the

need to accept and complete tasks, maintain professionalism and respect, inform

colleagues if she had to leave her work area or was unable to complete a task, accept

responsibility for her conduct, and work on fostering productive relationships with

colleagues. The Letter of Understanding cited ongoing issues with Hammond leaving

her work area for extended periods without informing colleagues, not communicating in

a professional manner, and .disrupting workflow by questioning tasks assigned to her. It

also stated that she frequently denied her errors, and that she did not understand the

risk those errors posed to patient care. The Final Written Warning noted the ongoing

nature of many of the same issues. The ruling on her appeal by Ms. Cortright’s superior

on April 2, 2019, stated that the concerns were “representative of a pattern of issues”

with Hammond.

2 Although Defendant disputes the admissibility of this fact, another coworker described Mitchell as “a

tyrant.” Kerr Depo. K13.

Entry Regarding Motion

945-10-19 Cncv Hammond vs. University of Vermont Medical

Page 2 of 15

The termination notice issued on April 3 noted continuing concerns with

Hammond’s performance, and gave as an example a “missed specimen on 3/23/19”

when Hammond failed to see an urgent bone marrow biopsy and missed a blinking light

alerting her to a voicemail about that same biopsy. The notice also cited her failure to

appear for work on April 1. Hammond does not deny missing the biopsy and missing the

warning light, saying she did not see the light because of a pile of folders that she did not

put away. She admits missing work on April 1, but says showing up that day was

optional.

Hammond is African-American. She was not the only person of color employed in

the lab. She testified at deposition that she recalls no one ever making offensive

comments about her race. Her supervisor, Ms. Cortwright, says she was never told of

any such comments by others.3

Hammond also suffers from Crohn’s Disease. During her employment,

Hammond made numerous requests for leave or accommodation because of her Crohn’s

Disease and multiple other medical conditions—plantar fasciitis, a hysterectomy, and a

shoulder injury. She received approval for many such accommodations over many years,

such as sitting rather than standing, changing her break time, and limiting what she had

to lift. She was also given many weeks of Family and Medical Leave.

On August 24, 2018, several months after the verbal warning, Hammond

appealed her performance evaluation and stated among other things: “I can’t help but

feel discriminated against for reasons beyond my control, i.e.: Crohns, plantar fasciitis,

3 Hammond speculates that Cortright must have known of such comments, but offers no evidence to

support that. She offers evidence of only one potentially racist comment by a coworker in all the years she

worked at the Hospital, as discussed below.

Entry Regarding Motion

945-10-19 Cncv Hammond vs. University of Vermont Medical

./

Page 3 of 15

shoulder injury, post-op, and lastly my race? I can’t help hut think race has something to

do with it..In January of 2019 she reported to HR that Mitchell used to like her and

treat her well, but that had changed over time. On March 2, 2019, Hammond wrote that

Mitchell “dislikes me and has for years” and that she felt “discriminated against due to

assumption that I was old supervisor’s favorite . .

and said she wanted the “bullying

and retaliation to stop.” There was no mention of race or disability in that document.

Later in March, Hammond talked to a counselor about issues at work and said she had

issues with a coworker and did not know why. She made no mention of race.

After her termination, Hammond applied for several jobs for which she was not

qualified, such as dental hygienist, truck driver and teacher. She declined offers to

interview for several other jobs, such as delivery driver, online tutor, and substitute

teacher. She has not applied for any histology jobs in Vermont, or any other UVM

Health Network positions. As of her deposition in March of 2021, she had not applied

for any jobs for over a year. At her deposition she explained that she had not sought

positions at other medical facilities because she did not think she should have to relocate

to Barre or Morrisville for a position.

Disputed Facts

Hammond has presented additional facts that she alleges are material, as well as

numerous exhibits. Statement of Disputed Material Facts.* She alleges that many of her

“communication” issues at work related to problems with co-worker Ms. Mitchell; that

Mitchell engaged in a “near-constant campaign of criticisms, micromanagement, and

4 Plaintiff has made the court’s work harder by using numbers for her exhibits just as Defendant did.

Please, in future have one side use numbers and the other letters. It is a nightmare to have multiple

exhibits with the same numbers.

Entry Regarding Motion

945-10-19 Cncv Hammond vs. University of Vermont Medical

Page 4 of 15

condescending and belittling behavior toward Plaintiff that she did not release on

anyone else” (f 97), that other coworkers confirm this, and that other coworkers disliked

Hammond because she had been the former supervisor’s favorite. She adds that she was

not granted a needed accommodation to take medication on a set schedule, was

criticized by Cortwright for taking unscheduled bathroom breaks she needed due to her

illness, and told HR that 50% of the mistakes she was criticized for in the Letter of

Understanding were not her fault. Further, she says that the Letter falsely stated that

she and Cortwright had met ten times to discuss the issues, because some of those

conversations were not pre-scheduled meetings. She also says that a co-worker who also

took unscheduled breaks was not reprimanded as she was. She also alleges that she

suffered worse gastrointestinal issues from her Crohn’s disease because of the stress at

work, that some coworkers agreed she was treated harshly and unfairly, that one

employee heard another employee call Hammond an “urban princess” on one occasion

(which the person hearing it “assumed” was a reference to Hammond’s color), and that

Hammond was the only African-American in the lab in 2018 and 2019-5 Hammond also

alleges that the man calling her an urban princess had a confederate flag on his car, but

the only evidence as to the confederate flag is Hammond’s testimony that the coworker

in question was the "type of person” to have such a flag, not that he actually had one.

Hammond Dep. at 112. Two coworkers were concerned about how Hammond was

singled out by Mitchell, but neither reported to management, or testified at deposition,

that her treatment was based on either her race or disability. Although Hammond

s However, she admits that there were other employees of color in the department. Neither party has

offered a breakdown of the other employees’ races or dates of employment.

Entry Regarding Motion

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describes them as observing she was treated differently from “her white peers,”—

Opposition at 22—the evidence does not back that up. They made no mention of race.

With regard to her claims of retaliation, Hammond argues that she complained to

Cortwright, before the latter had become supervisor, that Ms. Mitchell was racist. The

evidence instead is that she asked Cortright if she thought Mitchell was racist, to which

Cortright responded that she didn’t know. Hammond alleges that the disciplinary

actions began only after she raised the issue of Mitchell possibly being racist, but the

evidence is that she first raised the issue in her August 2018 appeal from a performance

review—after the verbal warning in June. She alleges that she raised the issue with

Cortright just before the verbal warning, but cites to no evidence of that. St. Disp. Facts

1128. Instead, the detailed document she cites refers to her complaining about Mitchell,

but contains no suggestion that she alleged it was racially motivated. Ptf. Ex. 28. She

raised the question of whether co-worker Mitchell was racist in February of 20196 with

HR, but made no allegation that her supervisor’s disciplinary actions were based on race

or disability. Ptf. Ex. 5.

In a June 22, 2018, email to Cortright, Hammond asked why she was being made

uncomfortable for having to use the bathroom so much when that was due to her

Crohn’s disease. Ptf. Ex. 30. She also sent an August 16, 2018 email to Lisa Raino, which

referred to her being criticized for her need to sit rather than stand. Ptf. Ex. 34. A

February 27, 2019 email to Cortright and Lisa Armstrong mentioned the medical

restrictions that required Hammond to do some things differently from other

employees. Ptf. Ex. 37.

6 She also alleges she made a complaint in March of 2019, but the document she cites, although dated in

March, is clearly referring to her February complaint. See Ptf. Exs. 5 and 28.

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With regard to the issue of mitigation of damages, Hammond alleges that she

has participated in the State’s Vocational Rehabilitation program since her termination,

and that the program exempts her from the usual requirement of job searches to

maintain unemployment benefits. She says she was unable to apply for some remote

jobs because of a loss of her internet due to finances, and that she has applied for jobs in

various fields throughout 2021.

Discussion

There are three legal issues raised by the motion: (1) whether Plaintiff can

establish one of the necessary elements of a prima facie case of discrimination for any of

her claims, (2) whether even if she could, she could establish that the Hospital’s’

explanations were a pretext, and (3) whether she has so failed to mitigate her damages

that she can recover nothing.

The Claim of Discriminatory Termination Based Upon Race

On the first issue, the Hospital argues that Hammond cannot establish an

inference of racial discrimination. “In general, to establish a prima facie case of

employment discrimination, the plaintiff must demonstrate that: (1) she was a member

of a protected group; (2) she was qualified for the position; (3) she suffered an adverse

employment action; and (4) the circumstances surrounding this adverse employment

action permit an inference of discrimination.” Robertson v. Mvlan Laboratories. Inc..

2004 VT 15, H 24, 176 Vt. 356 (emphasis added). The Hospital argues that Hammond

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has no evidence as to the fourth element: that her termination was because of her race

or disability.?

Hammond responds that by proving the first three elements of a prima facie case,

she has automatically met the fourth element. Opposition at l. That is incorrect. There

are four elements, not three. Hammond cites two cases generally for her argument—

Gallipo v. City of Rutland. 2005 VT 83, and McDonnell Douglas Corp. v. Green. 411 U.S.

792, 802 (1973)—but without citations to any specific pages of the first and without

quotations from either. The court finds nothing in those cases supporting her argument

that there are only three elements to a prima facie case. To the contrary, it is only after

the fourth element is satisfied that “a presumption of discrimination arises.” Robertson.

2004 VT 15,126.

Hammond points to no concrete “circumstances surrounding this adverse

employment action [that] permit an inference of discrimination” based upon her race.

Id. 1 25. The only reference to race is her suspicions that race may have played a partsuspicions so uncertain that she herself put a question mark after one mention of race—

and the report that one coworker heard another call her an “urban princess.”8 No

evidence has been proffered that the term is one commonly used as a racist slur, and the

court has no basis for taking judicial notice of that as it might with a more commonly

7 ‘[A]n adverse employment action is a materially adverse change in the terms and conditions of

employment.” Kelly v. Univ. of Vermont Med. Ctr.. 2022 VT 26,118. Here, the termination is the adverse

action at issue.

8 Hammond’s response to the Hospital’s statement of facts also asserts with zero citation that Cortwright

made a race-based comment about her. Defs Reply to Ptfs Statement of Disputed Facts, H 58. The court

does not consider this, as there is absolutely no evidence to support it.

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used term. In any case, one stray comment by a coworker does not establish that the

termination by the employer was race-based.9 Robertson. 2004 VT15,111120-21.

However, a plaintiff may establish an inference of discrimination by showing

“that similarly situated employees of a different race were treated more favorably.”

Norville v. Staten Island Univ. Hosp.. 196 F.3d 89, 95 (2d Cir. 1999). “In order to make

such a showing, the plaintiff must compare herself to employees who are similarly

situated in all material respects.” Id. (quotation omitted). Hammond has presented

evidence that she was treated differently than other employees by her coworker

Mitchell, and states that she was the only African-American in the lab (though not the

only person of color) during the relevant period. Again, however, the fact that a

coworker treated her differently is not a basis for finding that the employer acted in a

discriminatory manner. The issue is whether the supervisor, Cortright, treated

Hammond differently than others about whom similar complaints were made.

Hammond asserts that Cortright treated her differently than Caucasian employees by

constantly watching her, soliciting information from others about her daily, restricting

her break time in ways that were not applied to other employees, and giving her longer

assignments to a set location than others were given. Hammond Dep. at 98-99. This

evidence is sufficient to create an inference of racial discrimination and thus establishes

a prima facie case.

However, the Hospital next argues that Hammond cannot show that the

Hospital’s explanation for its actions is a pretext for discrimination. The Hospital has

9 Hammond suggests in her statement of facts that the supervisor must have known of the use of that term

and permitted it, but offers no evidence of that. She also refers to it as “apparently a commonplace

nickname” for her, but the evidence supports only one instance of its use.

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articulated a legitimate basis for her termination: the work issues for which she received

progressive discipline for almost a year prior to her termination. This shifts the burden

back to Hammond. The inference discussed above is not enough: it is rebutted by the

legitimate explanation proffered by the Hospital. Gauthier v. Keurig Green Mounatin.

Inc.. 2015 VT 108, | 20, 200 Vt. 125. The burden of proving there was intentional

discrimination rests with Hammond. Id.

Hammond points to what she describes as an inadequate investigation when she

questioned whether race was playing a part in her bad performance ratings. That may be

evidence of less-than-ideal policies as to investigations, but it is not evidence of

discrimination. Hammond also argues that coworker Mitchell did not like her and

treated her poorly compared to others, and that management relied too much on

Mitchell’s reports of problems with Hammond. Coworkers can dislike and mistreat each

other, and the record here is crystal clear that Hammond and Mitchell’s relationship

was strained and stressful (apparently for both of them), but that does not suggest either

that the dislike, or the reliance by management on Mitchell’s reports, was race-based.

There is just nothing beyond speculation to support Hammond’s claim that her

termination was the result of racial discrimination. Summary judgment will be granted

on this claim.

The Claim of Disability Discrimination

Vermont law bars discrimination in employment based upon disability. 21 V.S.A.

§ 495(a)(i). Plaintiff makes out a prima facie case if she shows that she “is a qualified

handicapped individual, [s]he was discharged from h[er] job, and the discharge

occurred under circumstances giving rise to an inference of discrimination.” Kennedy v.

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Dep’t of Pub. Safety. 168 Vt. 601 (1998). The Hospital does not dispute the first two

elements, but argues that there is insufficient evidence to support an inference of

discrimination.

The evidence is that Hammond had been given accommodations for her Crohn’s

Disease for many years, such as letting her sit rather than stand and take breaks at

different times. The same was true of a shoulder injury, a hysterectomy, and plantar

fasciitis. Hammond responds that she “does not generally challenge defendant’s

accommodations for the disabilities.” Opposition at 25. What she argues is that she was

subjected to “consistent and steady bullying. . .” Id. She offers a long list of Mitchell’s

allegedly bullying behaviors, but does not tie them to her disabilities.

The only potential evidence of disability discrimination is that (1) Hammond

was criticized by supervisor Cortright for taking bathroom breaks that she needed

because of her medical conditions, (2) she was given a negative comment in an

evaluation for sitting rather than standing, when she had been given permission to do

so, and (3) another coworker had gastrointestinal issues and was not formally

reprimanded for taking unscheduled bathroom breaks. The evaluation was amended

when Hammond pointed out that she had been approved to sit. The only cited support

for the issue of a coworker being treated differently is an unauthenticated text message

from an unidentified person, which is thus inadmissible. Stmt. Disputed Facts H 128;

Ptf. Ex. 51. That leaves the claim that Hammond was criticized for her unscheduled

bathroom breaks. The Hospital responds that Hammond was criticized not for taking

the breaks, but for not telling her coworkers what step of the process the work was at

when she did so. The document cited by Plaintiff does, in fact, reflect that the issue was

Entry Regarding Motion

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the failure to communicate with coworkers about the breaks, rather than taking the

breaks. Ptf. Ex. 31 (“For example, this week a Kidney came in and you left for break

without leaving a note about what step it was in.”).

The question as to whether a prima facie case is shown is whether there is

evidence sufficient to infer that the adverse employment action—here, the termination—

was the result of discrimination based upon disability. Plaintiff points to the same

general evidence as in her race claim about being treated differently by her coworker

Mitchell, but offers insufficient evidence to tie that to discrimination as opposed to a

personality conflict, and insufficient evidence to tie her termination to disability

discrimination. Summary judgment will be granted on this claim.

The Retaliation Claims

To make out a prima facie case of retaliation, a plaintiff must prove “that (1)

[s]he was engaged in a protected activity, (2) h[er] employer was aware of that activity,

(3) [s]he suffered [an] adverse employment decision, and (4) there was a causal

connection between the protected activity and the adverse employment decision.”

Gauthier. 2015 VT108, H16 (quotation omitted).

Hammond says that she repeatedly complained of racial and disability

discrimination. Her first mention to management10 of her race being potentially at issue

was in the August 2018 appeal of her evaluation. The word “race” was followed by a

question mark, and essentially speculation that race might be a cause. Hospital Ex. 23.

She offered no evidence of that possibility. Nonetheless, the claim was investigated, and

no basis to find the issue was racial was found. She also argues that she complained of

10 Hammond had asked Cortwright before she was a supervisor, when they were merely friends, whether

Cortwright thought Mitchell was racist. Such a conversation between friends is not “protected activity.”

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racial discrimination in early June, before the verbal warning, but the evidence does not

bear that out. Instead, it shows a continuation of her general complaints that co-worker

Mitchell was treating her badly. Her later complaint referencing race was made in

February of 2019, after the next two steps in the disciplinary process.

With regard to claims that her medical conditions were being used against her,

Hammond raised the issue in the August 2018 appeal of her performance evaluation.

However, she points to nothing after that reflecting any express complaints she made

regarding disability discrimination. Her June 22, 2018 email to Cortright could

potentially be considered such a complaint, as she asks why she is being made

uncomfortable for having to use the bathroom so much when that is due to her Crohn’s

disease. Ptf. Ex. 30. The same is true of her August 16, 2018 email to Lisa Raino, which

refers to her being criticized for her need to sit rather than stand, Ptf. Ex. 34, and her

February 27, 2019 email to Cortright and Lisa Armstrong in which she mentioned the

restrictions that required her to do some things differently from other employees. Ptf.

Ex. 37.

Hammond does not clearly describe what she believes to be evidence of a prima

facie case of retaliation. The court concludes, however, that the timing of the April

termination does create a prima facie case because it occurred within a short time after

her February 2019 complaint to management in which she again raised the specter of

possible racial discrimination, and the February 27 email that mentioned issues with her

medical restrictions. See Robertson. 2004 VT15,147 (citing case holding that a period

of less than six months can create a prima facie case).

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The Hospital, however, has shown a legitimate nondiscriminatory reason for the

termination: the work deficiencies that are referenced at each step of the disciplinary

process. Hammond must, therefore, overcome that with evidence of pretext. “There

must be some evidence other than chronology that gives the factfinder reason to believe

that the timing is an indication of improper motive.” Adams v. Green Mountain R. Co..

2004 VT 75, f 9, 177 Vt. 521 (discussing retaliatory discharge in violation of public

policy). None of the facts to which Hammond points are evidence that the disciplinary

actions and termination were actually retaliatory. Again, while there is plenty of

evidence that Hammond was treated poorly by Ms. Mitchell, it is the termination that is

the adverse employment action here, not the behavior of others in the workplace.

Hammond argues that many of the reports of mistakes or behavioral issues

described in the various disciplinary actions are not accurate, but she does not offer any

evidence that Cortwright did not honestly believe them to be true. “[T]o show pretext, a

plaintiff must establish that the defendant’s proffered legitimate, nondiscriminatory

reason is a lie.” Gauthier. 2015 VT 108, 1 21. There is just nothing to support such a

suggestion here. “[A]n employer need only honestly believe in its proffered legitimate,

nondiscriminatory reason for the challenged adverse employment action in order to

prevail on a motion for summary judgment at the pretext stage.” Id., H 29.11 Hammond

has not presented evidence sufficient to show pretext here. Summary judgment will be

granted on this claim.

11 Hammond argues that the “honest belief’ doctrine should be rejected because of criticism of it in other

jurisdictions, but this court must follow Vermont’s high court.

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Mitigation of Damages

Finally, the Hospital argues that Hammond cannot recover anything because she

has failed to mitigate her damages. The evidence is that she has made some attempts to

seek employment, although she admits she applied for no jobs at all for at least a year.

She argues that because the Vocational Rehabilitation program she is in does not

require her to keep applying for jobs, she did not have to do so. The court’s jury

instruction on this issue includes the following: “If you find that Plaintiff failed to take

reasonable steps to minimize any damages she suffered, you must reduce your award of

damages by the amount you find she could have avoided.” The juiy would certainly be

entitled to consider the lack of attempts to seek employment regardless of what

Vocational Rehabilitation required. Nonetheless, the issue would be how much any

damages were reduced, and that is a question for a jury to ponder. Summary judgment

on this issue is not appropriate.

Order

The motion for summary judgment is granted.

Electronically signed on June 28, 2022 pursuant to V.R.E.F. 9(d).

Helen M. Toor

[Superior Court Judge

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APPENDIX E

The State of Vermont Department of Labor Decision Allowing Unemployment Benefits

STATE OF VERMONT

DEPARTMENT OF LABOR

OFFICE OF ADMINISTRATIVE HEARINGS

PO Box 488 / 5 Green Mountain Drive

Montpelier, Vermont 05601-0488

Telephone 802 828 4368

FINDINGS AND DECISION

OF THE ADMINISTRATIVE LAW JUDGE

Docket No. 05-19-039-06

In re Claim of:

Employer involved:

ID No. 8166

Steph Hammond

71 Sunset Dr

Burlington, VT 05408

080-1424

University of VT Medical Center

111 Colchester AV-227SM2

Burlington, VT 05401

Pet: May 8, 2019 App: May 14, 2019

Decision Date:

Hrg: June 5, 2019

JJJ^ 0 7 2018

Before:

Mark Horowitz, Chief Administrative Law Judge

Participants:

Steph Hammond, claimant

issues:

21VSA§ 1344

Discharge from Employment;

Deductible Income

The claimant appealed a claims adjudicator's determination which found she was

discharged by her last employing unit for misconduct connected with her work.

Accordingly, she was disqualified for benefits for the weeks ending April 6, 2019 through

June 8, 2019, and her maximum benefit was capped at 23 times her weekly benefit

amount. The determination also found she received gross wages and vacation pay at or

shortly after separation, and because the gross wages and vacation pay were greater than

I

Docket No.

05-19-039-06

Page 2 of 6

her weekly benefit amount, she was disqualified for benefits for the weeks ending April 6

2019 through May 25, 2019, the period immediately following her separation from

employment, to which the gross wages and vacation pay was allocated.

Findings of Fact:

As a preliminary matter, the claimant is not appealing the determination on the

receipt of vacation pay, only the separation.

The claimant, Steph Hammond, was employed for just under seventeen years as

the Senior Histologist at the University of Vermont Medical Center. Ms. Hammond was

paid $35.28 per hour and her last day of work was April 3, 2019. The nature of Ms.

Hammond's separation was a discharge.

Sometime in 2017, Ms. Hammond's former supervisor.left and a new individual,

Valerie Cortright, took over. Ms. Cortright and Ms. Hammond had a less than harmonious

working relationship. Prior to the appearance of Ms. Cortright, in her then thirteen years

employment, claimant had no reprimands, warnings, or any other type of adverse

personnel action.

On November 20, 2018, Ms. Cortright presented a document entitled "Letter of

Understanding" to the claimant. The letter contained the employers perceived concerns

about Ms. Hammond's interactions with coworkers, following procedure, and patterns of

error.

Ms. Hammond's original schedule was Tuesday through Saturday. On Tuesday

through Friday the claimant worked from 4am to 12:30pm, and on Saturday's from 3am

until 11, or whenever a job was finished. At some point Ms. Cortright took away the

claimants Saturday hours.

Ms. Cortright presented Ms. Hammond with a document entitled "Final Written

Warning" on February 19, 2019.

Ms. Hammond disagreed with the final written warning and complained about the

Docket No.

05-19-039-06

Page 3 of 6

document and her working relationship with Ms. Cortright to Ms. Cortright's immediate

supervisor, Tim St. John. Ms. Hammond told Mr. St. John that she was contemplating

hiring an attorney.

During the weekend of March 30, there was some confusion about whether Ms.

Hammond would be working Saturday. Part of the problem was that Ms. Cortright sent

an email to Ms. Hammond after Ms. Hammond had left the building.

As stated above, the claimant normally did not work on Monday's. Ms. Hammond

was puzzled about why Ms. Cortright considered her a .no call no show. In any case Ms.

Cortright left a note for the claimant to meet and during the day on April 3 Ms. Cortright

presented Ms. Hammond with her termination letter

The primary reason for the

termination was the employers belief that the claimant was a "no call no show" and that

the claimant had somehow missed a sample that had been left in the lab. That event

apparently took place on or about March 16 and the employer did not provide any

rationale as to why the subject was not raised until April 3.

Conclusion:

Section 1344 of Title 21, Vermont Statutes Annotated provides in relevant part as

follows:

(a) An individual shall be disqualified for benefits:

(1) For not more than 15 weeks nor less than 6 weeks

immediately following the filing of a claim for benefits ... if the

commissioner finds that:

(A) He or she has been discharged by his or her

last employing unit for misconduct connected with his or her

work[.]

Section 1340 of Title 21, Vermont Statutes Annotated provides in relevant part as

follows:

-

Docket No.

05-19-039-06

Page 4 of 6

(b) An individual who is discharged by his or her last employing

unit for misconduct connected with his or her work under

subdivision 1344 (a)(1)(A) of this title is limited to a maximum

amount during the benefit year which is the lesser of the

maximum amount determined under subsection (a) of this

section or 23 times his or her weekly benefit amount, provided

that the individual has not already received more than 23 weeks

in his or her benefit year.

Section 1344 of Title 21, Vermont Statutes Annotated provides in relevant part as

follows:

(a) An individual shall be disqualified for benefits:

(5) For any week with respect to which he or she is

receiving or has received remuneration in the form of:

(B) Vacation pay or holiday pay.

Vacation pay due at time of separation in accordance

with a work agreement (whether a formal contract or

established custom) shall be allocated to the period immediately

following separation, or if due subsequent to separation, it shall

be allocated to the week in which due or the next following

week, and that number of weeks immediately following as

required to equal the total of the weeks of pay due.

. As the claimant has stipulated to the receipt of vacation pay that portion of the

adjudicator's determination must be sustained.

Insofar as the separation, under Vermont's unemployment statute in cases of

discharge the burden of proof is squarely on the employer.

The employer must

demonstrate that a claimants actions were in substantial disregard of the employers

interests, either willful or culpably negligent. The measure of proof in these hearings is

Docket No.

05-19-039-06

Page 5 of 6

the civil standard of preponderance of the evidence.

While the employer has raised a number of concerns, all the written

documentation is short on specifics as to what the actuality of the concerns were.

Allegations such as "failure to communicate with coworkers", are simply too broad and '

amorphous a category to fit the statutory definition of work-related misconduct.

In sum, while the employer may have had sound management, administrative, or

other reasons for terminating the claimant, Vermont's Supreme Court has consistently

ruled that the fact that some behavior may merit discharge does not necessarily mean

that the same actions require disqualification from the receipt of benefits.

As the

employer has not met their evidentiary burden, disqualification cannot be imposed based

on the separation.

Decision:

The determination of the claims adjudicator dated May 8, 2019 is modified.

Claimant remains disqualified for benefits for the weeks ending April 6, 2019 through the

week ending May 25, 2019 based upon the receipt of vacation pay. Claims thereafter are

allowed provided the claimant meets all other eligibility requirements.

MARK HOROWITZ

Chief Administrative Law Judge

Docket No.

05-19-039-06

Page 6 of 6

APPEAL RIGHTS

The decision of the administrative law judge will become final unless, within 30 calendar days

of the decision date, a written request for review by the Employment Security Board is filed.

The appeal may be submitted:

1. by US mail at Appeals, Vermont Department of Labor, PO Box 488 Montpelier VT

05601-0488

2. by e-mail at labor.appeals@vermont.gov

3. by fax at 802-828-4289 or

4. in person at the administrative offices of the Vermont Department of Labor, 5 Green

Mountain Drive, Montpelier.

The postmark date of a mailed appeal will be considered the filing date, the e-mail date will be

treated as the filing date of an e-mailed appeal, and the fax date of a faxed appeal will be treated

as the filing date. An appeal filed in person will be date stamped by the person receiving the

appeal and the date stamp will be deemed the filing date. A copy of the notice of appeal will be

mailed to the other parties of interest. Upon appeal, the Employment Security Board will review

the evidence taken before the administrative law judge and his or her findings and conclusions.

Claimants who are filing an appeal to the Board should continue to file weekly benefit claims

in the usual manner while the appeal is under consideration.

APPENDIX F

Evidence in Support of Claims that Should Have Been Submitted and other Documentation in

Support of the Statement of the Case

r-i

APPENDIX F

Evidence in Support of Claims that Should Have Been Submitted and other Documentation in

Support of the Statement of the Case

1. Email dated 6/7/18 from myself to Ms. Cortright making another complaint due to the

leads having already begun making complaints about me just 2 days after I made the

initial race based complaint to Ms. Cortright. Ms. Cortright informed them of our

personal conversation since I hadn’t spoken to Ms. Mitchell until 6/8/19. Presented

during oral argument at the Vermont Supreme Court of Appeals.

2. Email dated 3/14/19 from Ms. Cortright falsely telling Ms. Gallagher that there were

ongoing concerns warranting my termination, which ended the investigation. Not only

that but it clearly states that Ms. Gallagher reviewed my personnel file which I was never

allowed. Presented during oral argument at the Vermont Supreme Court of Appeals.

3. Email from myself to Ms. Cortright on 3/28/19 proving that I had taken care of all the red

hots (urgent) specimens that are not communicated via telephone messages. After I

loaded the specimens from Copley I had to retrieve the cooler to put the empty specimen

containers in it. The cooler was near the folders and I did not see a bone marrow

assuming it could have been behind the folders. Ms. Cortright knew how much of a

disruption it would be for me by removing me from Saturdays.

4. Email from Ms. Cortright to myself on 3/29/19 telling me she would code 4/1/19 as

scheduled hours off since I was only allowed to work a half day 3/30/19 which I did. Ms.

Cortright stated there had been some changes since 3/15/19 so I was only allowed to

ip

$-

work a half day. This is why I never admitted to being a no call/no show which the

record states I had which is wrong. My name needs to be cleared of all the

inconsistencies within the decisions made by both Courts. During this time Ms. Cortright

had been falsely telling human resources that there were ongoing concerns which

warranted my termination yet she told me there were some changes taking place without

a mention of any issues warranting termination. She was setting up my termination by

playing both sides. Ms. Cortright lied to me when I questioned why Mr. Tembruell was

allowed an entire shift change for personal reasons but I was denied the ability to come in

early on days I had health related appointments. She tried making it seem as if her

actions weren’t discriminatory or retaliatory when they were. A text from Mr.

Barker-Rowe proves that Mr. Tembruell specifically told the both of us it was so he could

pick up his son from school since his wife was unable to any longer.

5. Email from Ms. Cortright to Ms. Armstrong 4/1/19 claiming I didn’t show up for work

when she was already aware that I wasn’t planning on doing so. She conveniently sent

Ms. Armstrong the very last email I sent her that weekend, although I sent her several

emails as stated but I never received a response. Not to mention that if that email was the

only one I had sent it was still prior to 4 AM.

6. Emails proving that both Ms. Mitchell and Ms. Cortright watched my every move while

waiting for me to make a mistake. Ms. Mitchell had a “Steph-docs” file where she would

compile anything she wanted and report it to Ms. Cortright.

7. This list of every criticism from my evaluations for over 10 years was given to Mr. St.

John and Tania Horton to read over prior to making the decision to terminate my

employment. I was unaware of this until discovery. Having extracted criticisms from my

if

¥»•

evaluations I knew that Ms. Carpenter was not responsible for making a majority of the

comments listed although her initials had been attached to them in this document, Ms.

Mitchell was. Criticisms that included words such as communication, resistance,

pushback, IHC, special stains, bookwork, frozen tissue, cutting muscles, making

solutions, frequent absences from bench, constructive feedback/criticism, refusal,

maturity, respect, guidance, stubborn, and attitude all pertained to Ms. Mitchell. Ms.

Carpenter didn’t observe the techs because her office wasn’t in the lab so she relied on a

majority of the input in our evaluations from both Ms. Quigley and Ms. Mitchell. This is

another reason why such criticisms were not in my 2017 evaluation because I hadn’t

worked with Ms. Mitchell. The arrows indicate criticisms pertaining to Ms. Mitchell and

some of them are found under ‘feedback from Charge Tech and Technical Specialist”

although in the document Ms. Carpenters initials are followed by these comments. I

couldn’t make copies of every evaluation which included my rebuttal to Ms. Mitchells

criticisms each year, so I included proof from a couple. I was not a perfect tech, I did

make mistakes, and I had both good and bad days.

8. Mr. St. John contributed to my evaluations after having signed off on them. He was well

aware of my work ethic, including both strengths and weaknesses.

9. A list concocted of allegations made by Ms. Cortright that I hadn’t seen until discovery. I

believe this was put in my personnel file making it seem as if the disciplinary action had

been warranted. A majority of the allegations are false and would be backed with

write-ups (incident reports). Ms. Cortright had told me that making a list would not have

been of any value and when I asked several times over the course of 10 months for such I

3F

was never given this. This list includes dates after the verbal warning was issued

6/22/18, without mention of a majority of these allegations in the disciplinary action

issued. For example, on 7/12/18 Ms. Cortright claimed we met for a verbal

counseling/performance discussion yet, in the list of allegations it says she emailed me

regarding IHC (Ms. Mitchell’s bench). We did meet on 7/27/18 but it was when I was

falsely accused of not following protocol and illegally punished, which isn’t a

performance discussion. As discussed in my arguments to the lower courts, I never had

verbal counseling sessions with Ms. Cortright, not even when Ms. Armstrong suggested

we do so. We couldn’t have verbal counseling sessions for false allegations. Regardless,

human resources could have better looked into this rather than trusting that these were

valid. After 7/27/18 when Ms. Cortright went out of her way to change an entire

procedure to make it seem as if I wasn’t following it as well as not allowing me to see my

personnel file, I simply do not trust her. Having seen my personnel file in the past, when

Ms. Carpenter allowed me to view it, I knew much of what it included and lists like this

were not part of it but there were a few write-ups (incident reports) for making mistakes

that were used as a tool to track trends. I was informed for making mistakes when

mounting slides since I was incredibly fast at microtomy, but this was corrected after

working with both Ms. Carpenter and Ms. Quigley. The amount of performance and

behavioral concerns over 16 years doesn’t compare to the 4 months of those listed. Mind

you she was supervisor for over a year without such concerns until I made my complaint

the first day I began working with Ms. Mitchell on 6/5/18.

10. Emails between myself and Watts Law Firm regarding not having submitted the text

message from 6/7/18 as evidence for summary judgment. Receiving two different

*s

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answers for the same question is extremely worrisome especially when I was told I had a

good case because of it.

11. Petition of Misconduct from 2/1/21 in regard to Norman Watts. This was during his time

of service which he never informed me of.

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Policy number is 697296

I would call them today if possible.

Jun 7, 2018, 7:34 PM

I'm not okwith what Mark and JMM

heck of a lot throughout the day*

and have NEVER been spoken to

the way l have. At this point I really

dont know what to say or do but if it

continues I'm going to have to take

this further. I honestly have deait

with people saying things about me

and not having any evidence to

back it up. Its always well this

person said or that person sAid and

its ridiculous. Even with a hurt

shoulder I'm working my tail off

Mark is not very professional in

many ways but thats for you to find

out on your own. You were the one

who suggested that JMM may Be

racist but that all of a sudden

changed and youre going to believe

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changed and youre going to believe

things that she is saying yyhefvyou

know they arent true. I have rny

podcast in my ear and mind my own

business- i do what im supposed to

do and thats it. Why if i ask a

question am i giving push back? Im

almost 40 years old and I would

think that the days of JMM having it

out for me would be over- esp since

you know what im talking about. If

you want to take me off the 4AM

shift be my guest- at this point i

honestly dont care and thats the

truth. Im incredibly sick of being

told the 4AM shift is under constant

observation. Im NOT doing anything

wrong- i will continue to set up my

microtome the way i am supposed

to and I will continue to do my

duties as part of my shift. I have 2

witnesses that you obviously have

not spoken to to see where_the

tLuth_ljes. Enough is enough Val and

you need to do something about it

Pomtmg the f.nger at me isnt going

be m aHnymore‘ 1 work too hard to

be made out as if im not

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can think of that sums upthispast

year. No i dont want to talk about

this i just want to see some positive

changes- for instance- the way

JMM speaks to me and the way

Mark neglects to speak to me. I

want the target off my back.

I apologize for the passive

aggressive text but i really cant

take this being called into your

office being told that i dont carry

my weight. Im not the best, the

fastest, i take bathroom/drink

breaks just as everyone else does

sometimes more for GOOD reason i

will always have questions, i wont *

always agree, but there has never

been a day that i didnt give all i

could for that day. Never have i

come to work with the intent to

what^atl-ent C3re~ re9arcNess of

what'do ,m making a difference.

Jun 8, 2018.n:i8AM

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Attachments:

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Cortright Valerie <Vale(ie.CoruigM3uvmhcalt!vorg>

Thursday, March 14.2019 &03 AM

Gallagher, Colleen

Armstrong, Lisa

Rfc information Request

Histo-Evaluation Ratings Defined doc Final Written Warning *

o

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y.

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.doc

! do have documentation of

meetings with these employees regarding performance or behavior issues, j___________ jwere both

terminated, I have attached some documentation fromKB, Just so you can see an example.

Attached are the Msto Evaluation ratings. This is posted in the microtomy area, as well as available on the share

drive.

Steph was under a verbal warning for her performance at the time of evalua tions, I had met with her on several

occasions to discuss her performance and had seen no improvement, understanding or willingness to improve.

o ___had shown willingness to improve and had engaged in a conversation with me that refleeted Ms

willingness. His compliance with safety glasses was corrected after sneaking to him.

let me know if there is anything else, i am planning to have an investigatory meeting with Steph to consider moving

forward to a termination due to ongoing concerns, t understand that you guys feel it is Important to finish this

investigation first. Please let me know if i understand that properly.

Thank you!

vai

Valerie Comight, 8A. CUHC, HTl™

Supervisor - Histopathology & Surgirai Pathology

Pathology £> laboratory Medicine

University of Vermont Medical Center

EP2-J01

802-847-S116

University■Afermont

ME oicaI cekies

From: Gallagher, Colleen <Colleen.Gallagher@uvmhealth,org>

Sent: Thursday, March 14,2019 7:44 AM

To: Cortright, Valerie <Va1erie.Cortright@uvmhealth.org>

Cc: Armstrong, Usa <Usa ArmstrenglS'uvmhealthvorg?*

Subject; Information Request

HiVal,

Thank: you for providing me with Stephanie's file. I need a bit more time with it if it Is ok with you. Also, would you be

able to provide me with the below information?

Names of other employees who have received coaching or corrective action since you became Supervisor. I

don't need ail of the detail of the corrective action but a brief description of what it was for would be helpful.

1

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(wiji take some additional time to review the rest of your concerns in this email, f will also give additional thought to

what you are asking for in regards to continuing to work Saturdays. I do recognize that this is important to you and do

not. take this decision lightly.

Thank you.

Val

Vaferie Cortright, 8A, QIHC, HTLCM

Supervisor - Histopathotogy & Surgical Pathology

Pathology R Laboratory Medicine

University of Vermont Medical Center

EP2-IQ1

802-847-5m

Universihr/Vcrmont

Mf EMC At Cf K! Cit

from: Hammond, Stephanie <Slephanie.Hammond<13uvmhcalth.ori»>

Sent: Thursday, March 28.2019 4:30 PM

To: Cortright, Valerie <Valorie,Cortrmhtf5utfmhcalth.ore>

Subject: RE: Saturdays

Val,

I can't work Mondays, as that is a day that i have prior engagements. I can't: just cancel the things that I have scheduled,

or not stay committed to things that i normally do on Mondays. Having to work Mondays creates yet another day where

I need to use CTO and FMLA (or appointments which I also would rather not do.

Being taken off Saturdays for these reasons you have given me Is not fair, i sent you an email Saturday morning telling

that I was not feeling well at all. I did the best I could given that I needed to get Red Hoi's out and embed. I check the

messages every Saturday, load the bone marrows, and so much more. You telling me that I do nothing but make

mistakes is not fair, I make mistakes but so would anyone else, it's just that I am held to a different standard. Sy not

loading the brain due to them riot being in the brain bucket, does not mean that I am incapable of working

Saturdays, tike I said the bone marrow must have been behind the pile of folders that was also on the shelf, which too

blocked the phone. I would have seen it, no doubt, when singling slides or even when I grabbed the Copley cooler that

was also next to the pile of folders. I know exactly who the first person in on Monday was. I know for a fact that they

too didn't see the bone marrow or the message only had they moved the folders. I probably should have moved the

folders and I take accountability for not having done so. I have never had a problem with this in the past and you know

that l take care of all of these tasks, as there has never been an instance when the phones went unchecked. You can't

miss the blinking red light il you tried except for when there is a stack of folders piled high right in front of the phone. I

beat myself up about not taking care of the folders as 1 normally would, and for picking ap the portable phone when the

switchboard called.

If you are concerned about coverage for weekends once I am off, then why not have whomever doesn't feel 100% about

working, come in for a few hours so I can train them. When I was off for my hysterectomy there was no issue with

coverage and perfomlng Saturday duties. Nobody had ever come in with my to train prior.

Val, i stated that 1 am able to work and do just about anything as I have bean, given my accommodations, Me doing

other things like cleaning and sorting blocks was something 1 eouid do which would give me a break from embedding

only because I wanted to make It known that t am doing work when not embedding. If I was to say, i am able to get a 2

minute break from embedding by using the bathroom or getting a drink you would t hen tell me that working Saturdays

was contingent upon me being able to use the bathroom or get a drink. Then every' time I wasn't scanning anything into

4

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personal obligations that I tend to on my day off, although it's really not a day off. Why complicate things and make

everything that much more stressful, and chaotic for me? It would have been easiest to have all the techs that signed up

for Saturdays go back to their regular schedules. Instead you want to change mine around and this doesn't do anything

for me, or you for that matter. You want me to use CTO for Monday, and l can't do this. I don' t know What I a m going to

do. I don't want to come in Monday as It is my day off. Not only am I frustrated but Jen is as well. She is wondering why 1

am coming in if she is and since I’m not on leave, why am I not working Saturdays per usual. Could you please explain

the Gi biopsy Issue with me again? Why am I the only one hearing about this? Other techs have said that there is no

difference between cutting them on Monday verse any other day of the week. You had mentioned t hat the sections are

worse off on Mondays because of being exposed to warm temps for long periods of time.

I also spoke to Mark today about the missed phone message. I asked him what it said, as i was under the impression that

it was a STAT bone marrow and me not getting it processed had a major negative impact on the patient. Regardless of

what happened 1 felt stupid for doing it and continue to beat myseif up over it.

Also, why can’t 1 come in at my regular Saturday time tomorrow? Don't we want the Gl's to be embedded as fast as

possible so they are exposed to less heat? Processors come off at anywhere from 3AM on. What exactly am I supposed

to do tomorrow since there will be two of us? Instead of using CTO why can't I work 3-11? Especially since Jen will be

there and since alt I can do is embed? I can't afford to not work. Treat this as you would if you were doing this to anyone

else. I know* Mark now has an adjusted shift to accommodate his outside personal needs, so why am I different? I can't

even come in an hour early once a week, but he gets a whole new shift change, rather than have to use his CTO up, like,

I said, I hear all of your concerns I Just don't agree with them. Not sure what kind of compromise you were talking about

because Mondays just don't work for me end it's been this way for years,-.

Steph

From: Cortright, Valerie <Valerie.CortriEht@ui.Tnhealth.org>

Sent: Friday, March 29,201912:S1 PM

To: Hammond, Stephanie <Stephanie.Hammond@uvnnhealth.orE>

Subject: RE: Saturdays

You can take CTO for this Monday if you cannot work 4-8am, I was hoping that this would be an acceptable compromise

as it would free you to be at your appointments later in the day. Please let me know as soon as possible if you would like

me to use CTO,

I had informed you in advance to plan on working Monday and that I wo uld be keeping the Saturdays as scheduled, in

addition, there is an urgent need toaddressthe quality issues With the embedding that is being performed on Saturday.

We will have an opportunity to evaluate on Monday whether or not these issues are present with the Changes in the

sequence and timing on Saturday.

I will take some additional time to review the rest of your concerns In this email, i will also give additional thought to

what you are asking for in regards to continuing to work Safu rdays. I do recognize that this is important to you and do

not take this decision lightly.

Thank you.

Val

Valerie Cortright, BA, QIKC,

Supervisor- Histopalhology & Surgical Pathology

Pathology & Laboratory Medicine

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yon have the right to treat me the way you (eel, and vliw me the same way. Just don't ever fee! that yau need to lie to

me about anything or He about me to anyone. I have not once lied about you- Where would that get me especially since

il have no reason to lie about anything. At some point all of this has to stop because I can only take so much.

Steph

Sent: Friday, March 29, 2019 3:51 PM

To: Hammond, Stephanie <Stnohanin.Hammnnd6luvinhDalth.ore>

Subject: RE: Saturdays

Processors have been set for Sam tomorrow.

Maths schedule has not been changed far personal reasons, it has been adjusted temporarily for lab related reasons. Me

has * different job title, so them are tasks specific to him that l have asked him to take cate of.

(have spoken with Jen multiple times regarding this weekend and she has assured me she is fine.

You have a significant amount of CTO, ptetuy to cover your ant icipated leave with full pav and you would still have a

healthy balance when you ret urn.

I did not tell you it was your choice to come* in with the other Saturday person, I said we could explore it, and there have

been changes since the ISIh, I will code Monday as ScheduiedCTO if you chose to go that route, so you da not need to

be concerned about that atfdlng to your unscheduled CTO rate.

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Valeric Cortright, fit, QIHC, UTS.1"

Supervisor - Histopathology & Surgical Paitiotogy

Pathotngy ft Laboratory Medicine

University of Vermont Medical Center

EP2-101

802 B47-SU6

UnivcrSitydVermotll

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From: Hammond, Stephanie <Stcn1tanicXamniend6iuvni1iealth.org>

Sent: Friday, March 29, 2019 2:23 PM

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From: Cortrighl, Valerie <Valcrie.C<>rtriiihl!S'jiivnihealili.nrp>

Bate: April 1,2019 at 7:42:46 AM EDT

To: Armstrong, Lisa <l,isa.Armsironaf»nvmhcallh.orp>

Subject: FW: Monday

She did net show up. She sent this email at almost 10pm last night. 1 was very clear that she needed to

tell me if she wasn’t coming in, and I certainly did not mean 6 hours before the shift starts.

There is also a pediatric specimen that she did not follow the proper protocol on. This is not the first

time this has happened.

Valerie Cortrighl, BA, QIHC, HTLC“

Supervisor- Histcpmhologv ft Surgical Pathology

Pathology 6 laboratory Medicine

University of Vernier,; Medical Center

pP2-10t

soiwi-sns

University./Vermont

r-rroiCAi cprircrt

From: Hammond, Stephanie <Steohanle.Hammnndgiuvmhealth.ora>

Sent: Sunday, March 31,2019 9:47 PM

To: Cortright, Valerie <Valerie.Cortrieht@uvmhenlth.orr>

Subject Monday

fenn and I had plenty to do and I was only allowed to work d hours while she could have put in a full

day? This means that anywhere from 8 to 12 hours of work were put in without cither of us taking more

than a few short 2 second breaks to get sips of our drinks or to use the restroom. Had anyone else cut

the RED HOT Hirschspiungs cases, It would have taken them just as long or even longer to do so because

all 3 blocks needed to be soaked in betweeneach level. I'm sure that my sections are not flawless even

after having done this, as they were large pieces of tissue that were extremely dry.

(never got a response from you so I don’t know what l am going to do. If I am not to work tomorrow I

trust it will be scheduled CTO taken since I was able to work Saturday but was told l couldn't even

though it's my scheduled work day? My mom is going to attend my nephews conference alone even

though it was scheduled specifically on Monday since It was the only day I could go right before PT. I am

getting my taxes prepared tomorrow, and have "class" as well. This Is all too much and is now making

my time away from work stressful on what Is supposed to be my day off. Luckily Oeena Is able to drop

off and pick up Ava from school.

Steph

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From: Mitchell. Jeannotto M. <Jeannotte.Mitchen@uvmbontth.org>

Sent: Friday. February 15.2019 9:03 AM EST

To: Cortright. Voforio <V8torie.Cortright@uvmhoa11h.org>

Subject: RE: Document!

Attflchmont(s): ’Steph.docx*

ssSST”

Subject: RF.: Notes

Attochmeht(s): "Stoph.docx

Way ahead this timo. I have been documenting this week....

Here you go 1 lm a running document

From Cortrfurt. Vntertc .V»»-C«Bjl.ieFvinW.allh.<»9>

From: Cortright. Valerio <Valerie.Cortnght@uvmhe3tth.org>

Sent: Friday. February 15.2019 8:54 AM

To: Mdcheti, Jeannette M. <Joonnette.Mitd1eB@ifvmheaHh.or9>

Subjoct: Oocumentt

Subject: Notes

t know 1 know, you don't want to hoar this, but can you please document what occurred this owning?!

cmywsend™>you. nous Iron.O.oInstcouploolOoys..

Valerie Cortright. BA. QlHC. HTlCM

Supervisor - Hhtopamotogy A Surge* Ps&io'ogy

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St John. Timothy l.

Thursday. March 2& 2079 3:43 PM

Armstrong. Lise Cemight Valeri*

Hong. Tania C.

Feedback from Stephs evals before Val

SH Evaluation Summery.docx

“She needs to learn to respect those with more experience and respond in a positive manner to their

gut dance."

'Stephanie should adhere to the 30 minute break time policy which includes "travel" Ume and

bathroom breaks."

This is the document l mentioned to ad of you today.' I think this proves that the issues Val is dealing with are

longstanding.

Thanks,

Tim

"She docs need to use the microtome in a way that does not cause the counter to vibrate. She should

slow a little as this "bouncing" of the microtome affects other techs work areas (and nerves)."

mm^ 'She should not take offence to any incident report that may come out of a mistake she has made."

Si. John CT(ASCP)

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'She has to be careful about "kidding" others when she makes false statements and leads them to

believe they are true. She also should communicate her absences from the tab (and mlnimbe, tends to

leave lab very often}."

"Although Stcph has never refused a request I have made to her I have been told by several coworkers

that she has refused to do something that has been asked of her. Tasks that were necessary,

reasonable, and would help coworkers when they were busy doing other histology tasks. She must be

more cooperative and work well with others."

phmr.iae?)U?-SD<

MMilt

--------- : „t

Un i versit y <■/ Vermont

"Stcoh needs to recognize the goal of any guidance given her by those of more experience h to ensure

safety, quality of care, and productivity and try not to be overly sensitive when she receives input."

Mi-DIC At. CENTER

'I would like to see more encouragement and positivity since focusing on the negative things 1 do

doesn't really do anything for me. There Is such a thing as learning from my mistakes, but I would feci

better about them If i was also critiqued on the good things that I do." SH

SH S*lf Evaluation flftfltt/fnrp

/

To be honest, I don't feel supported, at least by most'

'All I see myself as when l am at work is a "trouble maker who can’t be taken seriously.""

"Just seems like whatever I do there isn't any good In It."

"* want to say that what people say and how they treat me does not bother me but with some of my

work as proof, it shows "

JAC Performance Evaluation 05/10/2007

"She still has a tendency to operate the microtome In a way that could be harmful to her and the

machine. She needs to slew down a little for her sake and the sake of ethers." EQ

l

UVM MC .00969

UVM MC.00970

I

J

sections are too high or time spent cleaning around sections for quality appearance. Steph's use of the

microtome should be according to manufacturers guidelines. At times Steph continues to use the

microtome manually at a very high rate of speed. Not only can this cause chatter It has been reported

as annoying by those dose by because the bench vibrates and causes waterhaths to ripple and the QA

scopctogoinandoutof focus. Begin immediately." JAC

"Motes from three (peer) reviewers can be summarized as Steph being “stubborn’ when asked to do

something or to do something a certain way and she needs to act more mature and promote team

work. lagrce.’JAC

"Demonstrate ability and professional maturity to accept constructive criticism and guidance without

taking offense or being disrespectful to those offering advice. Begin Immediatefy." JAC

Steph resisted teachlngAraining Pratl and Gopat on the H&E stalner maintenance when asked by Charge

Hlstotechnoiogist." JAC

"Any guidance Is meant to benefit timely diagnosis of patient specimens and shouldn't be Internalized as

being negative towards Steph." JAC

"When on the IHC bench, I would like Steph to follow the example of the other senior techs:

volunteering to cut IF, muscles or assist In cutting surgteals." JAC

"Jude will look into coursework which may help Steph with reducing her frustration level with coworkers and aspects of her position as Sr. Hhtmechnotogist.' JAC

"Steph was done the prep work in IHC and wanted to write control slides at 7am. The machines were

not coming off until 8:45. 1 asked her to cut the If Instead, she did not want to. She suggested that the

techs In special stabs do this. Special stains were very busy this particular day. Steph did end up cutting

the IF but she continued to give me a hard time. After cutting the IF. Steph continued to give me a hard

time for at least S minutes....She would not stop until I said yes you are right I Then she said, that's all I

wanted." JAC

“informed that Steph “refuses" to do )ob shadows/tours - this Is an expectation of a Sr.

Hlstotechnoiogist" JAC

JAC Performance Evahiation 07/13/3013

"Steph refused to stagger the IHC runs, there was a high volume. Jeannette tried to txplaln It was better

to stagger them and It was more LEAN. Steph still warned them all to come off at the same time. This Is

"batching" which Is not a LEAN process."

“One area that could use some Improvement is Steph tends to leave the lab for periods of time that

seem a little too long" JAC

"Steph did not put time off In Kronos, we need this info. Steph h now making the effort to put her time

off in Kronos as soon as she Is approved for time off and should be checking and approving her time card

each pay period."

"Steph had on encounter with Security on her parking h die garage one stormy morning, to Instances

such as these, we hope Steph will accept responsibility and calmly discuss with Security officers. Her

email to Charlie Zea only aggravated the situation."

"Feedback from recently trained histotechs: Docs not recommend Steph for training. “Some people are

born trainers, some aren't. Shcph's more of an Independent worker.' JAC

"Review and approve timecard In a more consistent manner. Begin immediately.' JAC

"As a Senior Histotechnologist we hope Steph will more readily accept suggestions to enhance the LEAN

process by not batching IHC.

"As an area for growth for Steph as a Sr. Hisotcchnlcian we look for her to be more open to suggestions

torn Charges and Technical Specialist as their only motive when they approach Steph Is timely and

quality patient care. In her role as Senior Histotechnotoglst Steph Is needed to teth/traln others and do

job shadows for guests. Her rating of excellent will be sustained if this happens in the coming year

(should begin Immediately). She must accept direction without hesitation or negative pushback." JAC

JAC Performance Evaluation 07/P1/701A

JAC Performance Evaluation 07/11/2016

Solid Review, no issues or areas of Improvement provided.

"Feedback from other techs working with Steph, regularly include a theme of communication issues and

frequent absences from the bench, this is especially common In Special Stains.“ JAC

~

"Steph to consistently review and approve timecard for 2015-2016, this was not done consistently, but

there was some Improvement Put time off requests In Kronos as they are approved.

JAC Performance Evaluation 07/1272015

"I may not have the best attitude but I put forth great effort Into every task that 1 complete.* SH

'l feel that I could become a bit (ess stubborn when being asked to do something although I may feet

~ / that others are just as capable of doing the Job." SH

"Steph must lower this error rate by taking more time at microtomy, IHC labelling, and

stogling/doubUng." JAC

A "Give a strong effort to promote a harmonious and cohesive team - no pushback when asked to do

r tasks or stick to lunch/break schedule by Charge Teehs/Tech Specialist. Begin immediately.* JAC

"Steph has matured a little this past year and has reduced her avoidance of certain tasks, still room for

w improvement." JAC

"Review timecard and approve on a regular basis. Begin now." JAC

UVM MC.00973

UVM MC.00974

' /

have her take a little extra time with H&E’i to enhance quality. Stef* should adhere to established

protocols and follow direction given to her by the Charge and/or R&D htstotechnotogfst without

becoming defensive as their guidance is only meant to enhance quality." JAC

"^here have been a couple of bumps In the road this past year with interactions between the ft&D Tech

and Steph. Hopefufiy these misunderstandings have diminished In number and intensity." JAC

"We ask Steph not text white working, as this is inappropriate and unprofessional. Personal

communication can be done on break.” JAC

JAC Performance Evaluation OS/3 iVMQft

"We look to Steph to reduce her error rate at microtomy and reduce the number of slides which show

less than optimal quality due to rapid microtomy. Wc encourage Steph to begin using the auto

microtomes as they are meant to be used, not manually, it Is also much more ergonomically sound to

use the auto-microtomes in automatic mode.” JAC

*

r

"Stef* needs to show more respect towards one of two who supervise her on the bench and accept

their guidance as It Is based on experience In delivering quality testify with the best TAT." JAC

JAC Performance Evaluation 05/31/3011

"Steph still occasionally has problems with her communication with other staff but she is working on

resolving these IssuesJAC

"As Steph matures and looks to expand her leadership and teambuilding skills we look to Steph to be

open to iwo way dialogue and to be accepting of constructive criticism." JAC

'Because Steph wants to be so productive she tends to overwork the microtome and this could loosen

the scttlngs/meehanlsms. Steph Is trying to use the microtome in auto mode more often which will

help. There also Is an Increase in debris around sections that require extra cleaning at triage which

decreases TAT. Wo ask Steph to stow down a little and save wear and tear on the microtome and the

necessity to do additional cleaning at H&Es {especially after sections are dried onto slides)." JAC

JAC Performance Evaluation OS/y/fflW

'Produce deaner slides, begin Immediately." JAC

'An area for QA Improvement is at microtomy as Steph had an unusually high number of mlsmounts this

past year resulting in a verbal warning to reduce her error rate and maintain a zero error rate at

microtomy for 30 days. Steph achieved this and hopefully she continues to take the time to check the

block in the microtome against the slide held for mounting the section on the waterbath. This Is crucial

to quality patient care and greatly appreciated." JAC

Performance Eviluatlon/Sclf Review 06/14/2012

"She must realize that not ail staff react well In situations but she can control how she reacts to them. I

believe Steph is becoming more understanding and accepting of the diversity of personalities in the tab

and working with people In a positive fashion." JAC

attitude Is definitely not as positive as I would like it. I blame this on many factors that arc all work

related." SH

"In the past I have been told that l mount my sections too high on respective slides. 1 have tried

correcting the problem by stowing down a bit, although I do have the occasional slip up..," SH

"i know that the politics etc. that go on in the Histology lab are so bad that I often do question working

here, i feel as If I meet every expectation and yet where does that get me? 1 work so hard each and

everyday but there is always something that I didn't do or could have done better. 1 don't want or even

expect a pat on the back, but It is tough sometimes knowing that the main focus of my work based on

tite errors that I make." SH

"We ask Steph to consistently review specimen block number/letter and slides numbcr/lctter at

microtomy to reduce her error rate and enhance quality patient care.' JAC

SH 6 Month ScH Evaluation 02/22/2010

“On regular work days when there Is less one on one Interaction with my coworkm etc. I feel It Is

extremely hard to communicate in an effective manner." SH

"Nothing truly went well for me this past year. The harder i work and the more energy and effort l put

Into my work, the worse off I am."

^

'I admit that 1 am stubborn at times but when I don’t agree with things that go on In the lab I feel I

should be able to voice my opinion." SH

‘I could have met my goals and expectations hadn't I been so stressed and motivated to do so.

Regardless of any certification l hold, i feel i'll never make it anywhere in Histology."

■

"The onty request I have of Steph with regard to her testing is perhaps to slow down a little. Her high

speed may contribute to Issues with H&E's and stowing down her speed cutting will also help preserve

our auto-mlcrotoroes longer. I realize she wants to be highly productive (which she Is) but we prefer to

UVM MC.00971

'• Khre respect to those who give it. When I'm lied about, gossiped about, etc., that makes me lose

respect for someone. I work too hard and don't have time to deal with any 'drama'". SH

"Improve slide quality (cleaner sections, lower sections). Work to produce slides which require fhtte or

no cleanup and mounted at proper height. 5?cph can decrease her speed (time per block) a little so

quality Isn't compromised. She would still be very high Wine with the lab productivity standard. Her

speed at microtomy (time per block) Is offset by others having to manually covcrsllp her slides because

UVM MC.00972

5-

Self Assessment Questions

assess isss^va&’s^ss&s^^^r*’

certification * Process Improvements •Quality Initiatives

pretty dose to It so that wxk is evenly dtepersed,

- In the past I have been told that I mount my sections too Ngh on respective sides, I have since tried

correcting the problem by siowfng down a bit, although I do have ibe occasional sbp*up...

sasx&m^sgg&E:

. Service to Others

Meeting the expectations set forth by your department * Collaborating with other departments/units to ensure

a positive customer experience

W^tiM5?a«ss!ft§8'ssMas“MigS

t«

be someone of inexperience.

S@/,ffiS<£tRSiir«®i»

errors that S make.

'HBnHHer

oneofvone fashion.

asked several times to be pul on a later shift. It's discouraging that I am never a person of reference.

microtomy.

XflntDate: 06/54/2012

Page 2 of 5

UVM MC.00690

n

a 1

4

tioais ana ueveiopmem rians

Individual Goals:

Employee Goals:

a^esw«naa»s»r',“^

.

””°

Loader Comments:

Steph worked several hours over on a Saturday to do sp sins on 2 slat kidneys I!

^feme in on a Sunday when Scott could no. due to the ice storm. She look care of the biopsies and none

v/'oPany hesitation plus re-sel the machines for Monday.

efforts on Saturday 6/14/14 after a FAHC systems shut-down

Steph received the following GEM for her herculean ■.

fouTh“;helpedUHis!clogyk>rany°many ways- especially doing 2 microwave

runs! You worked tirelessly over

WWffSU to our team.

Many thanks I

Thank you Steph!! WOW- definitely going above and beyond!!

Pam Gibson

Sleph has EXCELLENT attendance and punctuality. She is extremely reliable and my “go to" tech for any

tfelmoS fhan exceeded her CE reguiremenl at 22.25 units as of 6/16/14. Her studying for her QIHC will

ado even more credits. Well done I

360 Peer Review Summary:

3.7 out of 5

'works well without supervision

*rMpSectfu?and shows enthusiasm in daily work

’engaged and willing to work within team environment

Productivity Averages via Scan History Repc>f i:

£* phenomenal^ate^ofhi^i’pfoducfivity. Sleph excels at productivity without sacrificing slide

quality - kudos!!

s has been a big help

r on Saturdays. Steph

She is not

»Ss«^^

-IHC

Individual Development Plans:

Employee Development Plans:

I need to conlinue down the road I’m going down as I fee! I am finally headed

To become successful I believe i

Page 4 of 6

Print Date: 07/01/2014

UVM MC.00708

1

Goals and Development Plans

Individual Goals:

'mi

Leader Comments:

iteohlws^XCEtLE^f^oduSy levels a. embedding (0.6) and microtomy <1.0) with the group average being

0.7 Tor embedding and 1.3 for microtomy,

CU: 0.7%- very' good1 Lab Standard is 2% or less.

IvSrelHC reffi

putwith 2

«aS * Loves t, (slide reached

1

pathologist) tl4t was a mismount Steph did not catch at singling

time to focus at microtomy. IHC labeling,, and

singling/doubling.

>

CEtSteph has exceeded hGr CE requirement as of 5/22/ ■ 5 ! 1 hank-ycu -

Peer Review:

3.7 out of 5

Opportunities for Growth:

__________ ,«*

2KS^SaSS55WWSUSSSSf^S«Ws~~«.~-»-o*-"

Steph announced she passed herQIHC exam 1 Kudos Stepti!!

Seated a slide rack tog to enter H&E rack number and time out of oven. Huge improvemenl over paper

towel messy entries - great idea Steph .

1/10/15

Steph stayed late on Saturday to help gel a stat kidney bx out with Derek corning in also.

Stie very willingly came in and did the

Issues that had to be addressed:

Wanting to mount controls Instead of IF.

was something site would do.

Discussion about priorities ensued and Steph agreed cutting the IF

Steph resisted teaching/training Gopai and Prail on the H&E Stainer maintenance when asked by Charge

Hislotechnotogisl.

Page 4 of 7

Print Date: 06/29/2015

UVM MC.00714

*>

/

J

Goals and Development Plans

XI afenKstof/chnol^ " wouldte to see S.eph share in tours as well as assisting more in

fwouBlike lessee St^^slarfusing alHhrpe madjmes “ *jjjy^ioPioSHJ so they carDook

she co

fllSSLot stop until I said yes your right! Then she said - that's all I wanted!

-a**

Date Machine

y of slides Time

g^^SirJeMffl minutes

MM Machine Sc’ i'b 2 hours

The chart above shows that the smaller the load the more efficient the IHC Stainer is and TAT is enhanced.

SK£,i«

IfpS'llr^

upan extra biopsy run give^“rs or hem out

successful Steph is a strong individual player.

Feedback from other techs isrl?n chlr ^n^otoork^lfo'a^rnusdeSJMM helped train him on BW. I froze

moving along. Steph is a

'*** eeri°ds 01

,h3t S8em 3

little too long.

Steph's more of an independent worker.

ndividual Development Pjans^

Employee Development Plans.

as an

need help from fellow co-workers tp Uv to consider myself as more of the “team" rather than

ndividual. Requires effort on both sides.

Leader Comments:

Goals for 2015*2016

Wouiifl^c^o^eeSteph^ as3a Sc Histotechnologist. do a presentation in the coming year. Do this by May 1.

& and approve timecard in a mOT M^jtojjmanner.or stick to

feedback,

Be9in immediate,y- JUdS'° n'°n'l0r 3

Page 5 of 7

’riot Date: 06/29/2015

UVM MC.00715

1

» 5

Input frorh'Gharge Tebhsand Technical Specialist:

Steph does a great job on routine histology. Her work on weekends is very much appreciated. Steph Is very

helpu „

i

i

Monday. Mondays would be a nightmare without all the work that is done on Saturday. Steph has been nelpinq

Sarah studying for her exam.

|

Having a list or things to do in IHC has helped Steph work independently which what appears she looks to do.

ramin

orfdsT^off to^mbet/a^proCeSsor Ui'at was^ s^ef f st|jns completed for a red hot. Excellent job

afl^ks vvhS^nt^sbencf8j8wapcreated^o aid |teph and other techs in

overtime and is always wiNirig to come in on weekends.

|

Feedback from other techs working with Steph, regularly Include a theme of communication issues and frequent

absences from the bench, this is especially common In Special Stains.

ndividual Development Plans:

r~'

•molovee Development Plans:

feel as if my manager definitely sees my potential and shows that she is extremely grateful for it. With

hly c&?ng my job'and It^nglo d<?l? ^8||

'sn'^ a ^'9 deal but sometimes it does weign heavy orTme^ I’m

i.

I

Goal completion:

Steph presented Info from her attendance at the NSH Symposium and the Region I meeting.

intDate: 11/08/2019

Page 4 of 6

UVM MC.00721

9

a

Fieftcher

Allen^

CUB*

7>.

PERFORMANCE EVALUATION

/* mlllaite* aB

■'/

Employee Name:

Employee ID Number; 0000014392

Stephanie E Hammond

Job Title: Histoiechnolcg'et

job Code: C225

Department Name:

Department ID: 1213

M-Lab-Histology

Employee Red #: 0

Reviewer Name: Judith Ann Carpenter

Evaluation Type: Annual

Evaluation Year: FY10

OVERALL PERFORMANCE RATING

EXCELLENT

Summary of Employee's overall performance since last review:

Steph^asbeen an immeasurable help this past year with the extra hours she put in. excellent attendance and

ers

and stw is sn excellent s4,o our ,ab !

Many thanks steph! I JAG

|

This evaluation was reviewed with the omployeo on II

NOTICE TO EMPLOYEES

tsSSSSSSSSSSSSSS^smSSSST

You

after the performance review is received,

Print Date: 06/04/2010

UVM MC.00679

*

Fletcher

Allen

IfBAltH CAN1

A

PERFORMANCE EVALUATION

Vv«ai\

lr, jUionct tzith

Tht Ur,i\!tni:y of I'/rafOSf

Employee Name: Stephanie E Hammond

Emptcywe ID Number; 0000014392

Job Title: Histotechnologist

Jot) Code; C225

Department Name:

Department ID; 1213

M-l.ab-HiatoSogy

Employee Red #: 0

Reviewer Name: Judith Ann Carpenter

Evaluation Type: Annual

Evaluation Year: FY11

OVERALL PERFORMANCE RATING

EXCELLENT

Summary o( Employee’s overall performance since last review:

Steph has become an Invaluable.member of the Hislo/SP team She has developed excellent skills and is very

look >o Steph to help train now staff end be a resgurco for

MaT^pianks Steph for all your bard work end extra hours this past year promoting quality patient care !

Judo

|

months!

Tim

Employee's Comments;

What went well this yean

What'could have gone bolter:.

fS^etol^t^wifwnlSwn^Sal going to get done unless i do it. I am frustrated with the low

productivity brother staff.

This evaluation was reviewed with the employee on //

NOTICE TO EMPLOYEES

alter Iho.performance review is received.

Print Date: 05/31/2011

UVM MC.00688

«

Fletcher.

Allen jrv,

HRALTN CARO

PERFORMANCE REVIEW

In ollianct with

^

The University of Vermont

Employee Name: Stephanie Hammond

Employee ID Number; 0000014392

Job Title: Hislotechnotogisi Sr

Job Code: C226

Department Name:

Department ID: 1213

M-Lab-Histology

Employeo Red #: 0

Reviewer Namo: Judith Ann Carpenter

Evaluation Typo: Annual

Evaluation Year: FY12

OVERALL PERFORMANCE RATING

EXCELLENT

Summary of Employee's overall performance since last review;

swfHtetolMls^WgreX^pwda^

. ^

. SESSSISSSHSiEsssfp

r

Howpeopleareroiated ihrouqh various benches (embedding for example) have lire goal of improving oihors

NEVER lalo and 0.0%

unscheduled absence!

Major kudos and our many thanks to you Sleph I!

Judo

a very valuable

Tim

Loador has mot with the employee to discuss performance and lias confirmed that the employee has reviewed

their current job description on 06/13/2012.

NOTICE TO EMPLOYEES

after iho performance revieY/ is received.

Print Date: 06/14/2012

Page 5 of 5

UVM MC.00693

9

Fletcher.

Allen

HOALtH CARO

PERFORMANCE REVIEW

In alliance ttiti

"'

The C/nitjeniij? of Vermont

Employee Name: Stephanie Hammond

Employee ID Number: 0000014392

Job Title: Histotechnotogist Sr

Job Code: C226

Department Name:

Department ID: 1213

M-Lab-Histology

Employee Red it: 0

Reviewer Name: Judith Ann Carpenter

Evaluation Year: FY13(10/01/12- 09/30/13

Evaluation Type: Annual

OVERALL PERFORMANCE RATING

EXCELLENT

Summary of Employee’s overall performance since last review:

Steph is a very highly valued member of our team. She is excellent in her technical expertise and ability to

well in adjusting to the many changes of barcoding and specimen tracking. She has done so without complaint

Asa Sr HSechnotogisfwe^ojSstoph wil? more readily accept suggestions to enhance the LEAN process by

not batching IHC.

j

|5^,as!SBa^2KSXttsaKsS3:^S!Ja^-sg:sina‘^^

h-

Staph has contributed a great deal of hard work and effort this past year during many times of st ori

stalling.

This is greatly appreciated!

Thank-you Steph!

Jude

very challenging transition. Thank you for maintaining an open mind, for providing helpful suggestions, and

for beinq supportive of your co*worKers during this time. I think Stepn has had her best year since I have

been her manager. This is appropriately reflected in her '‘excellent employee rating. Thank you for all of

ycour extra efforts you have made during the review period!

Tiim

Leader has met with the employee to djscuss performance and has confirmed that the employee has reviewed

their current job description on //

NOTICE TO EMPLOYEES

You may requests Performance Conference Review^to investigate and^esolve any^isagreements^tt^^rnight^arise

your fiuman Resource SpeaaferSubmiTfhe'reqiies^oTlu'inan Resources rmiater then ten (10) calendar days

after the performance review is received.

Print Date: 07/23/2013

Page 6 of 6

UVM MC.00704

«

*

University c/Vermont

PERFORMANCE REVIEW

MEDICAL CENTER

Employee Name: Stephanie Hammond

Employee ID Number: 0000014392

Job Title: Histotechnotogist Sr

Job Code: C226

Department Name:

Department ID: 1213

M-Lab-Histology

Employee Red #: 0

Reviewer Name: Judith Ann Carpenter

Evaluation Year:

FY15(10/01,'14- 09/30/1 g

Evaluation Type: Annual

OVERALL PERFORMANCE RATING

EXCELLENT

Summary of Employee's overall performance since last review:

Steph is a highly valued and extremely productive Histotechnotogist. She is one of our most treasured

assets. Major kudos on passing vour QIHC in September!

_ . .

Stephanie Hammond, BS, HT, RTL, QIHC (ASCP).... you've done very well Steph I!

We benefit greatly with Steph working Saturdays as it takes a huge amount of workload off the

Monday morning rush. When Steph is working Saturdays I have confidence patient specimens are in caring

experienced hands. The lab never looks neater and more organized than when I arrive first thing Monday alter

Steph has worked the weekend I

As an area for growth for Steph as a Sr. Histotechnotogist we look for her to be more open to suggestions

from Charges and Technical Specialist as their only motive when they approach Steph is timely and quality

patient care. In her role as Senior Histotechnotogist Steph is needed to teach/train others and dp iob

shadows for guests. Her rating of excellent will be sustained if this happens in the coming year (should

begin immediately). Jude will monitor Steph's interactions with Charge Techs and Technical Specialist and

her response to tneir requests of her. She must begin to accepl direclion without hesitation or negative

pushback. This will help us meet our goals of timely patient care, strong & cohesive teamwork, and a

positive to visitors/job shadows.

Thank-you Steph for the outstanding amount of work you did this past year!!

Jude

I appreciate the thoughtful input Steph contributed to her self-evaluation. It reads very much like other

areas of the overall evaluation, in that everyone is on the same page regarding slrengths and areas for

growth, i can really relafe to Steph’s comments regarding youth sports since Fhave coached innumerable

teams over the years. I think she nails it on the head when she states that talent and contributions to a

youth team are not equal and coaches know this. The coach must still expect that each player will answer the

call when asked to run a play that will benefit the whole team. The workplace is really nol very differenl.

Our team Is much stronger with Steph contributing her skills to any area of need,

t want to congratulate Steph for attaining her QIHC certification, all of that studying paid off! I also

wanl to thank Steph for all of her hard work of weekends and week days. Our residents appreciate her

expertise and have made this known on many occasions.

Tim

Leader has mot with the employee to discuss performance and has confirmed that the employee has reviewed

their current job description on 06/17/2015.

NOTICE TO EMPLOYEES

You may request a Performance Conference Review to investigate and resolve any disagreemenls that might arise

over your performance rating. Please complete a Performance Review Conference Request Form available from

your Human Resource Specialist. Submit the request to Human Resources no later then ten (10) calendar days

Print Dale: 06/29/2015

Page 6 of 7

UVM MC.00716

6

v»

Examples of Performance/Errors that could impact patient care and safety 6/26/ to present:

6/26

Did not cut/start frozen stains, did not make slides, or kidney kits.

6/28

Shared concerns regarding the quality of Copley slides (Gl)

6/28

Mislabeled ribbons

7/3

Did not pick up 10:30 run (was also on triage)

7/3

Failure to write note on tissue that was chunked out

7/5

Asked to set up Lab Vision instrument, did not put any antibodies on. Did not respond

when asked about this.

I

7/11

Did not cut H.pylori in am. Was asked to cut by Tech Specialist

7/11

Confusion surrounding 11am IHC run. Transferred task to another tech during break

then back to SH. Confusion around running alk phos/AEC cases

7/11

Did not reply to JiyiM when asked about H.pylori that was not cut. 5:20am

7/12

Cervix biopsy missing - bubble in block, entire block of tissue missing.

8/1

Missing from embedding when PT module went off. Charge tech found her talking to

tech in IHC. SH reported they were discussing "procedures", tech reported they were discussing

coverage and afternoon shift not doing work.

9/18

High level of floaters on SH slides.

9/20

Stained cytology slides with incorrect stain. Sent BW person to ask JMNTabout this

situation, that person went to pathologist instead of SH.

9/24

Sunday Tech reports multiple things not being done on Saturday 9/23.

9/25

Asked to cut a Red Hot by Charge Tech at Sam, block not scanned until 5:28.

10/3

Cut frozen muscle at 20 microns.

10/3

Went into IHC looking for muscle block, did not communicate this to them. Reprinted

block rendering all current slides invalid.

10/16

Not wearing googles in Special Stains.

10/23

Floater found in block embedded by SH

10/24

Prostate slide quality issues brought to her attention.

11/3

Processor set incorrectly- note and email had been left. Came off Sunday

11/6

Breast master sheet indicated "no B19" - no further escalation of this. This block was

found under embedding station.

11/21

Arrived 15 min late with no communication to Charge Tech regarding why. Did email

me later in day to explain.

11/24

IHC slide placed in incorrect rack

11/29

Doing administrative tasks at 6:20am while two morning people out - delaying pt. care

12/8

No note on case embedding on Saturday - 2 pieces in block, block indicated 3.

UVM MC.00773

*

<•*

jmmunications/Ochavior:

• Timecard Approval

• . MccJiaLab sign off

•

■

Performance Evaluation

7/32 Sent email to SH asking about 7/13. issue regarding break,s/«ranslerring IHC am, site placet)

•

copy of this email Into Mayra's drawer,

7/3.1 Did not reply to JMM when asked about H.pylorl that was not cut. 5:20am

»

7/2G SH confronted me In tin un-professional manner that the "verbal warning has got to go". ;

•

7/27 SH responded In an un-professional manner when told site was not: following IHC mountlni

•

policy.

7/31 Did not report to Staff Meeting,, relurned at 10:45 and she was changing run down. Had :

told me earlier In the day there was a low workload, but did not let me or Charge know she

•

would not attend meeting,

8/1 Found in IHC Asked to return to Embedding, - took 19 minutes: '1:57-5:16

•

8/3 Asked to go from embedding to Special Stain bench at 6:45. At 7:40 3ech reported Special

•

Staips still not running down

8/3 Requested not to work with Jeannette.

•

•

8/7 Unprofessional discussion With JMM about the 7/27 IHC Interaction

8/8 Unprofessional discussion with JMM for 31 minutes about procedures that were "switched;

o Asked about: comfort level on IHC. In mowing without JMM, SH agreed she was fine, ,

»

8/8 Gave SH eval, said she could not meet: with me until she. reviewed eval and met with Hit.

°

Moved meeting from 8/10 to 8/16.

■

8/9 SH reported back that.she was not comfortable working In IHC In the morning without JMM

»

8/36 Eval meeting. SH find not reviewed eval even though we delayed meeting for this purpose

■

•

and It was past deadline,

j

9/18 Assigned lo SS bench, asked to be over there at 7,did not arrive until 7:20.

j

9/26 SH reported she could not: cover Triage due to (Win In her foot.Charge Tech asked her to

•

find someone to cover - "Why can't you?"

\

10/2 Old not communicate with SS partner. Went to break at 9:45, went to meeting, back to

break at 1.1:00. Apparent communication- SH "I have S minutes, what do yoti want me to do?"

»

RR Said "lust go to break".

10/3 Went Into IHC looking for muscle block, did not communicate this to them. Reprinted

•

block tendering all current slides Invalid.

10/4 Unprofessional discussion with SH. Hands on hips - "What did I ever do lo you? Why are

•

you targeting me?”

10/10 9:00 came in my office, snapped off gloves, "We need to talk about something",

•

•

10/16 Did not respond to JMM when asked about using Q-tips vs wooden sticks,

10/16 Gave Steph from 1.0-11. to do eval appeal and then 11:50-12:30.

j

I

UVM MC.00776

»

30/19 unprofessional confrontation with JMM -JMM asked to schedule something, SH kept

probing. This was at 3:20am when she was supposed to be doing the tasks agreed to.

10/30 SH did not reply when addressed by JMM in Stoll Meeting

o Approached by JMM after meeting and did not immediately reply, finished doing task,

went and spoke to JK, back to triage, slowly id back room. Appeared uninterested and

appeared to walk away from /MM when she was still talking to her.

11/1 Asked SH to come see me in my office after she was done embedding two blocks... after 11

minutes, went back in. She had continued embedding.

13/2 SH asked logo to triage at 9:02, did not report until almost 9:10. (First scan 9:59).

erformance:

•

6/26 Frustration from SS partner, did not cut/start frozen stains, did not make slides, or kidney.

•

kits.

6/28 Quality of Copley slides (Gl)

o

6/28 Mislabeled ribbons

•

7/3 Did not pick up 30:30 run (was also on triage)

o Pushback to Charge Tec!: when questioned - why would she be scheduled for both

•

things

7/3 Failure to write note on tissue that was chunked out

o Pushback to Charge Tech when questioned- did not remember that happening

O

7/5 Asked to set up Lab Vision instrument, did not put any antibodies on. Did not respond wire i

O

asked about this.

7/13 Did not cut H.pylori in am. Was asked to cut byTech Specialist

«

7/31 Confusion surrounding 11am IHC run. Transferred task to another tech during break then'

•

&

7/37. Cervix biopsy missing - bubble in block, entire block of tissue missing.

:

8/3 Missing from embedding when PI module went off. Charge tech found her talking to techj

in IHC. SH reported they were discussing ''procedures", tech reported they were discussing

back to SH. Contusion around running alk phos/AEC cases

«

»

coverage and afternoon shift not doing work.

8/29 SS tech reported difficulty with Sieph and communication

9/3A Discussed productivity of IHC in am. On this date, first block not cut until 1:7.5. Time was

•

spent cleaning microtome area.

9/18 High level of floaters on SH slides.

•

9/20 Stained cytology Slides with incorrect stain. Sent BW person to ask JMM about this

situation, that person went to pathologist instead of SH.

•

•

9/21 Sunday Tech reports multiple things not being done on Saturday 9/23,

9/25 Asked to cut a Red Hot by Charge Tech at Sam, block not scanned until 5:28.

UVM MC.00777

3

• 3/27 Complain! about $H not reporting to bench. Embedding to Microtomy took 30 minutes. SH

left room from 7:02-7:22. Asked to report to Triage 9|3S, cleaned for approx. 20 minutes, the i

went to break. InTrioge at 10:30.

• 10/3 Cut frozen muscle at 20 microns, Wtien questioned suggested that someone changed the

cryostat setting,

» 10/11 Approved to come in at 3:00 am to do specific list of things. These were not done.

• 30/1.6 Not wearing googles in Special Stains.

o When confronted argued that she did not know she was supposed to be wearing thet t

in Special stains. I pointed to the bottle ir. front, of her that said "Wear Safety Google:",

• 10/23.Floater found in block embedded by S!1

• J0/2A Prostate slide quality issues brought to her attention.

}

» 31/3 Processor set Incorrectly - note and email had beer', left. Came off Sunday

• 11/6 Breast master sheet indicated ”ru> 019“ - no further escalation of this. This block was :

found under embedding station.

Verba! Counscltng/Pcrformancc Discussions

7/12

7/13

7/26

i

7/27

S/1

S/16

B/20

9/18

9/27

1.0/2

30/a

10/30

1.0/18

11/1

UVM MC.00778

;

>

\*

’ ■*«!

10

'Vs

Norrrian Watts Apr 17, 2019

MW

•••

to me, Marqaux

Steph -1 will have some time on Monday to prepare

your complaint if we have all your documents, the

signed engagement letter and advance.

I think you have a good case. Look forward to

hearing from you.

NW

Norman E. Watts, Esq,

Watts Law Firm PC

Civil Litigation

19 Central Street/PO Box 270

Woodstock VT 05091-0270

802-457-1020

3

Norman Watts Apr 18, 2019

•••

to me x/

OK - we'll watch for the package. Eager to move

ahead b/c I believe in 3^011 and want to tar those

bigots.

Thank you.

•••

me Apr 19, 2019

IKii

to Norman v

ABSOLUTELY AGREE WITH YOU 100%.

•••

to

• ••

Why was this overlooked? This is the basis of the

entire lawsuit? This is when it all began. I mentioned

the racist

concern on several occasions and that Ms. Cortright

came to me initially stating that she believed Jeannette

to be racist based on treatment herself and Jude

witnessed firsthand- then Val turned it against me and

said she didn't know later on when asked- even during

deposition. I don't understand what proof I have to

offer if the recordings couldn't be used not to mention

that Val said she was aware of the recordings as she

had recordings as well? I just don't understand

Norman, everything I said and provided was made into

something so far from the truth.

* Verizon

2:44 PM

@ 73% CD

<■1

Valerie

jrm / /01« r

(»!.•.

I'm not ok with what Mark and

JMM are saying about me. There

are 2 others that have said they

leave a heck of a lot throughout

the day and have NEVER been

spoken to the way 1 have. At this

point I really dont know what to

say or do but if it continues I'm

going to have to take this further. I

mo J.

Zephryn -I also wanted to conclude the conversation where you

asked Norman about the text messages with Val. You

asked why they were not included -- but the substance

and language in the texts was in fact included.

In other words, although we didn't use the text

messages as exhibits, we used emails/other documents

from you to Val saying the exact same thing that you

said in the text messages (see, for example,

paragraph 128 & the accompanying exhibits, from

Plaintiff's Statement of Facts). And, Val doesn't

acknowledge any of your complaints in the texts, so

had we used them, they would have been duplicative of

other exhibits (again, emails) where you made the same

complaints.

tfTifv'nvf IWtdr,1.

Walls L»w Kirm, I*C

1*0 »t)\ ii-ti

' iCi/i

9:52

I'm still confused because the date of the text message

seems to be the most important piece of information.

The date was June of 2018 and it is stated that there

was no such mention of the race issue until my

evaluation in August. The text message shows a lot

especially showing that Val did in fact bring up the race

issue and changed her tune when I confronted it her

about her statement regarding such could in fact be

true. I picked apart the judges ruling and am so

disappointed. There are other areas that state there

isn't any evidence supporting my claims although there

is a lot. The unfair punishment I received that nobody

has ever had to undergo by bringing home all of the

protocol manuals due to the entire protocol switch by

Val. This was the same day I first met with HR when I

told Lisa about race, retaliation etc etc.. There is no

mention of any of this which shows how poorly I was

treated compared to any other co-worker. Why would

the judge overlook this and several other instances that

prove UVMMC wrong?

.1

£3

<

©

^ CD

0

Our response:

Zephryn Concerning your em

This text is long and has been trimmed here. Open the source document for the complete record.

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Petition for Writ of Certiorari — Zephryn (Stephanie) Hammond, Petitioner v. University of Vermont Medical Center | Frix