In a retrial last week, a new jury reduced a $3.2 million verdict to just $55,000 in an employment lawsuit focused on whether the Northlands Job Corps Center in Vergennes retaliated against an employee after he reported health and safety concerns in the workplace.
The original jury in August 2021 awarded plaintiff Thomas Cole $3 million in punitive damages, one of the “largest employment verdicts in Vermont history,” according to court documents. In her decision to allow a retrial, U.S. District Court Judge Christina Reiss ruled that those punitive damages were excessive, writing that “the facts and circumstances of this case did not shock the conscience or fall so far outside accepted norms that they mandated severe punishment and substantial deterrence.”
In the retrial, the new jury ruled there would be no punitive damages, instead awarding the Londonderry resident $35,000 in back pay and $20,000 for emotional distress.
According to court documents, Cole worked at Northlands Job Corps Center as a residential counselor. The center offered free job training programs, during which students lived in on-site dorms. Education and Training Resources, a Kentucky-based business that operates several Job Corps Centers for the U.S. Department of Labor, took over the Vergennes center in June 2018.
The suit was filed against Foxmar, Inc., which was doing business as ETR in Vergennes. Kevin Kite, lead attorney representing the company, did not return a phone call requesting an interview Tuesday.
On a Monday in July 2018, Cole noticed the dorm he’d been assigned to was out of cleaning supplies, according to court documents. In a meeting the next morning, he alerted the site’s director to the need for cleaning supplies and voiced concern that his colleagues were not allowed to leave work when they were sick. Later that afternoon, Cole also felt sick, so he told the director’s assistant and left work early.
Cole was not scheduled to work Wednesday or Thursday, but in his time off he left voicemails with ETR’s corporate headquarters to say he was having trouble at the Vergennes site and needed help. On Friday morning, Cole sent an email to management expressing similar concerns about employee sick time and unsanitary dorms.
Later on Friday, Cole received notice that he had been fired for not reporting to work Monday, Tuesday and Wednesday — even though he had worked earlier that week. The company handbook stated that if an employee missed three consecutive days of work without notifying management, it would be considered “job abandonment,” a fireable offense.
The company, in its defense, argued that staff had made mistakes in firing Cole but had not acted with malice. It also argued that Cole was an “at-will” employee, meaning he could be fired for any reason, with no notice.
The first jury, in the 2021 trial, found that ETR had retaliated against Cole, violating both the Vermont Earned Sick Time Act and VOSHA, Vermont’s occupational safety law.
Reiss, in approving the retrial, agreed with Foxmar’s claim that the large penalty infringed on the company’s due process rights. In her decision, Reiss noted that Vermont statute calls for fines much lower than the awarded damages: For example, the Vermont earned sick time law says employers should not be fined more than $5,000 per violation.
In the retrial, the jury was not asked to reconsider whether ETR had retaliated against Cole; jurors were only asked to determine the size of the damages.
At the end of the weeklong trial in U.S. District Court in Burlington, the jury deliberated for about five hours, according to Cole’s attorney, William Pettersen.
In a press release Monday, Pettersen argued that strong punitive damages are an important deterrent against illegal labor practices.
“Retaliatory terminations can intimidate other employees and can be part of an overall plan by a business to suppress safety complaints for financial reasons. It is paramount this type of conduct is deterred because employees are often the first to observe health and safety issues that endanger employees, customers, and patrons,” Pettersen said. “As a result, when a business has a pattern of suppressing safety complaints, high punitive damages are needed. The amount of deterrence determined by the jury should almost always overcome financial Due Process arguments by the business given the essential public interests at issue.”
Cole intends to appeal the decision to the Second Circuit Court of Appeals.