David A. Gauthier v. Keurig Green Mountain, Inc. f/k/a Green Mountain Coffee Roasters, Inc.

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@state.vt.us 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.


                                        2015 VT 108

                                        No. 2014-240

David A. Gauthier                                            Supreme Court

                                                             On Appeal from
   v.                                                        Superior Court, Washington Unit,
                                                             Civil Division

Keurig Green Mountain, Inc. f/k/a                            December Term, 2014
Green Mountain Coffee Roasters, Inc.


Helen M. Toor, J.

Oreste V. Valsangiacomo, Jr. of Valsangiacomo, Detora & McQuesten, P.C., Barre, for
 Plaintiff-Appellant.

Kerin E. Stackpole, Kristina R. Brines and Emily E. Chamberlain of Paul Frank + Collins P.C.,
 Burlington, for Defendant-Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   EATON, J.      David A. Gauthier appeals the Washington Superior Court, Civil

Division’s entry of summary judgment in favor of employer Green Mountain Coffee Roasters 1

(Green Mountain) on his complaint for workers’-compensation retaliation and denial of his

motion to amend his complaint.2 We affirm.


        1
         At some point after the inception of this litigation, but prior to this appeal, employer
Green Mountain Coffee Roasters, Inc. changed its name to Keurig Green Mountain, Inc.
Because employer’s name was still Green Mountain Coffee Roasters, Inc. during the proceeding
below, we refer to employer as “Green Mountain.”
        2
          At oral argument, counsel for Gauthier raised an issue regarding the trial court’s
handling of discovery. Given that the matter was not briefed by either party, this argument is
       ¶ 2.    As a preliminary matter, we address Green Mountain’s motion to strike certain

portions of Gauthier’s printed case on the ground that it contains certain excerpts from

Gauthier’s deposition and two pages from Green Mountain’s employee handbook that were not

submitted to the trial court in the proceeding below by either party and thus are not part of the

record on appeal. See V.R.A.P. 10(a)(1) (setting forth, in relevant part, that “[t]he record on

appeal consists of the original documents, data, and exhibits filed . . . in the superior court”

(emphasis added)); V.R.A.P. 30(a)(1) (requiring appellant to prepare a printed case “containing

extracts from the record that are necessary to present fully the questions raised” (emphasis

added)).

       ¶ 3.    Gauthier responds that he is not seeking to introduce “entirely new document[s]”

and contends that the portions of his printed case that Green Mountain seeks to strike are “merely

certain pages of his deposition transcript, large portions of which were presented to the trial

court.” Gauthier also contends that the cited portions of his printed case go to the weight of the

evidence, provide context, or are established by other parts of the record.

       ¶ 4.    There is no merit to Gauthier’s contentions, and thus we grant the motion to

strike. Our review of the trial-court record reveals that the deposition excerpts and employee-

handbook pages that Green Mountain seeks to strike from Gauthier’s printed case were never

“filed . . . in the superior court” and accordingly they are not part of the record before us,

V.R.A.P. 10(a)(1), and thus are inappropriate for inclusion in Gauthier’s printed case, V.R.A.P.

30(a)(1). That other portions of Gauthier’s deposition transcript may have been submitted into

the record in the proceeding below does not automatically convert the entire transcript into



waived and we decline to address it. See TD Banknorth, N.A. v. Dep’t of Taxes, 2008 VT 120,
¶ 33, 185 Vt. 45, 967 A.2d 1148 (declining to address claim not briefed and raised for first time
at oral argument); see also State v. Sullivan, 2013 VT 71, ¶ 26 n.*, 194 Vt. 361, 80 A.3d 67
(recognizing that “[a]lthough [this Court] retain[s] the discretion to take up issues raised at oral
argument, we usually do not”).

                                                 2
record material that this Court may review on appeal.            See V.R.A.P. 10(a)(1), 30(a)(1)

(establishing what may constitute the record on appeal and what may be included in an

appellant’s printed case); see also Napro Dev. Corp. v. Town of Berlin, 135 Vt. 353, 355,

376 A.2d 342, 345 (1977) (granting motion to strike materials “not properly before us because

they are not part of the record”). To the extent other materials that are properly part of the record

on appeal establish the same or similar points, they are appropriately included in Gauthier’s

printed case and we shall consider them. Given our posture in reviewing a summary-judgment

decision, in determining whether there is a genuine dispute as to a material fact, we will accept

as true the facts as alleged by Gauthier where they are supported by the portions of the record

developed in front of the trial court, giving Gauthier “the benefit of all reasonable doubts and

inferences.” See Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356, 848 A.2d 310.

       ¶ 5.    Accordingly, the record developed before the trial court reveals the following

material facts. Gauthier began work at Green Mountain in May 2007 on an at-will basis as a

full-time maintenance technician and was responsible for maintaining and repairing production

machinery. His shifts were Sunday through Tuesday, 5 a.m. to 5 p.m., and every other Saturday.

Gauthier did not have his own work computer, but would routinely use internet-enabled Green

Mountain computers during his workday to assist with his job duties, including using in-house

software to locate a part number for a machine part. In order to access a Green Mountain

computer, he would enter his Green Mountain computer credentials, consisting of a unique user

ID and password. Occasionally, Gauthier would need to leave his computer logged in and attend

to a maintenance request. Several times over the course of his employ, Gauthier would return

from the maintenance job to discover that someone had changed the settings on his computer,

including the background image on his desktop.

       ¶ 6.    During his employment with Green Mountain, and prior to the incident resulting

in this appeal, Gauthier was subjected to at least two internal disciplinary proceedings. In July

                                                 3
2009, Green Mountain placed Gauthier on a “corrective action plan” (CAP) to resolve issues he

was having with co-workers. Gauthier completed the conditions of the CAP, and the plan was

terminated several months later with no further action taken.

       ¶ 7.    In May 2010, Gauthier received a written warning for “frequently accessing non-

business sites during his shift” in violation of Green Mountain’s internet-use policy. Green

Mountain maintains a written policy regarding appropriate e-mail, software, and internet use.

The warning informed him that if he did not immediately improve his use of time it would

“result in disciplinary action up to and including termination.” Gauthier understood the possible

ramifications of violating the internet-use policy.

       ¶ 8.    On August 1, 2011, in response to a request by Gauthier’s supervisor that the

human resources (HR) department investigate internet use in the maintenance department, a

Green Mountain HR generalist requested a “Websense” report for the month of July 2011 for

eleven maintenance technicians, including Gauthier. A Websense report “provides detailed

information about internet use and access in connection with a particular employee’s log in

information.” Internet use is depicted as a number of “page hits,” with each hit representing an

“active ‘mouse click’ to select another page, from the current one.”3 Gauthier’s supervisor made

the request for an investigation because there was “a lack of maintenance productivity during

hours” when no supervisors were present. The requested Websense report for July 2011 was

generated on August 5, 2011. The report showed that, during July 2011, Gauthier had 41,750

internet hits, an amount of internet hits “more than double the internet usage that [Green

Mountain] generally considered excessive usage.”

       ¶ 9.    On August 2, 2011, the day after the HR generalist had requested the report, but

several days before it had been compiled, Gauthier sustained an injury while at work. Gauthier


       3
          The record contains no further information regarding the nature, limitations, or
accuracy of a Websense report.
                                           4
made a workers’-compensation claim, which Green Mountain accepted, and he continued to

work until the day before he underwent an operation for his injury on September 8, 2011.

Following the operation, he remained out on medical leave to recover for several weeks. Also,

effective August 21, 2011, Gauthier received a 12% “market adjustment” increase to his base

compensation rate.

          ¶ 10.   On August 22, 2011, based in part on the result of the Websense report, the HR

generalist submitted a disciplinary action plan to his supervisor recommending that Gauthier be

terminated. The report recounted that Gauthier was not required to access the internet frequently

for business purposes and that he had been “engaged in the [Green Mountain] discipline process”

for several years, including being placed on a CAP and receiving a written warning for violation

of Green Mountain’s internet-use policy. The report concluded that “[i]t is reasonably inferred,

given the CAP and then the Written Warning . . . , that [Gauthier] has not responded to

counseling nor the [Green Mountain] discipline process” and that “[Gauthier] has been given

ample opportunity in which to improve his performance.” On September 29, 2011, the HR

generalist’s supervisor informed him that Green Mountain had agreed to terminate Gauthier

based on his internet use. Due to the timing with Gauthier’s workers’-compensation claim,

however, the HR generalist was instructed to first send Gauthier a letter indicating that “there

were some issues related to his performance that needed to be discussed once he returned from

leave,” which was sent on October 3, 2011.

          ¶ 11.   When Gauthier returned to work from his medical leave, he met with two Green

Mountain HR generalists to discuss his July 2011 internet use as reflected in the Websense

report.     Gauthier denied the excessive internet use, and Green Mountain placed him on

administrative leave while it investigated the matter. Green Mountain’s information technology

(IT) department informed the HR department that the use could have come from someone other

than Gauthier only if he had shared his Green Mountain computer-login information with others.

                                                 5
Gauthier denied sharing his computer-login information, and Green Mountain subsequently

terminated him on November 8, 2011.           As a result of the investigation into the eleven

maintenance technicians’ internet use, one received a written warning, one was subjected to a

CAP, and two, including Gauthier, were fired.

       ¶ 12.   In March 2013, Gauthier filed a three-count complaint in the superior court, civil

division, alleging (1) workers’-compensation retaliation; (2) breach of the implied covenant of

good faith and fair dealing; and (3) intentional infliction of emotional distress. On February 13,

2014, following the completion of discovery, Green Mountain moved for summary judgment on

all three counts. On March 12, 2014, one month after Green Mountain had moved for summary

judgment and approximately one year after filing his complaint, Gauthier moved to amend his

complaint to add two new claims: one for breach of contract and another for whistleblower

retaliation. Gauthier also made two filings in opposition to summary judgment and filed a letter

from a computer expert that “preliminarily suggested that the ‘[Websense]’ report may have

been misinterpreted” by Green Mountain. In a June 2014 decision, the court denied the motion

to amend and entered summary judgment for Green Mountain on all three original counts. This

appeal followed, with Gauthier arguing that the court erred by entering summary judgment in

favor of Green Mountain on his claim for workers’-compensation retaliation and abused its

discretion in denying his motion to amend his complaint. Gauthier has not appealed the trial

court’s grant of summary judgment in favor of Green Mountain on his claims for breach of the

implied covenant of good faith and fair dealing and intentional infliction of emotional distress.

                           I.      Workers’-Compensation Retaliation

       ¶ 13.   We first address Gauthier’s argument that the trial court erred in entering

summary judgment in favor of Green Mountain on his claim for workers’-compensation

retaliation because Green Mountain’s firing of him upon his return from workers’-compensation

leave, in conjunction with the asserted weakness or implausibility of Green Mountain’s proffered

                                                 6
reason, indicates that Green Mountain used its internet policy as a pretext to fire him in

retaliation for making a workers’-compensation claim. To this end, Gauthier contends that the

trial court erred in applying the summary judgment rule in that it did not grant him the benefit of

all reasonable doubts and inferences and that the trial court erred in relying on a variety of the

“honest belief” rule which he claims “has been widely criticized and rejected” by federal courts.

We disagree and affirm.

       ¶ 14.   We review summary judgment decisions 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.). Summary judgment will be granted “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); see also In re Estate of Fitzsimmons, 2013 VT 95, ¶ 13, 195 Vt. 94,

86 A.3d 1026 (“An issue of fact is material only if it might affect the outcome.” (quotation

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

(“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.” (quotation omitted)). Although we view

the record as a whole, “[i]n determining whether there is a genuine issue as to any material fact,

we will accept as true the allegations made in opposition to the motion for summary judgment,

so long as they are supported by affidavits or other evidentiary material.” Robertson, 2004 VT

15, ¶ 15; see also Pierce v. Riggs, 149 Vt. 136, 139, 540 A.2d 655, 657 (1987) (explaining that

we accept facts as alleged by nonmoving party as true only “if [they are] supported by affidavits

or other evidentiary material” (quotation omitted)). In examining the record, “the nonmoving

party receives the benefit of all reasonable doubts and inferences.” Robertson, 2004 VT 15, ¶ 15.

       ¶ 15.   Under Vermont law, “[n]o person shall discharge or discriminate against an

employee from employment because such employee asserted . . . a claim for benefits under

[Vermont’s Workers’-Compensation Law] or under the law of any state or under the United

                                                7
States.”   21 V.S.A. § 710(b).     In the absence of direct evidence of unlawful discharge or

discrimination, as is the case here, we apply the three-part burden-shifting framework as laid out

by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Robertson, 2004 VT 15, ¶ 18 (“If the plaintiff presents only circumstantial evidence of

discrimination . . . the three-step burden shifting analysis of McDonnell Douglas is applied.”

(citing Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 162, 624 A.2d 1122, 1129 (1992)). Thus,

for Gauthier to withstand Green Mountain’s motion for summary judgment on his claim of

unlawful retaliation for filing a workers’-compensation claim, he must first present a prima facie

case of retaliatory discrimination. See Murray v. St. Michael’s Coll., 164 Vt. 205, 210, 667 A.2d

294, 299 (1995); see also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56 (1981)

(“First, the plaintiff has the burden of proving by the preponderance of the evidence a prima

facie case of discrimination.”).     If he succeeds in establishing a prima facie case, Green

Mountain must then come forward with a legitimate, non-discriminatory reason for the

challenged conduct. Murray, 164 Vt. at 210, 667 A.2d at 299. If Green Mountain can articulate

such a reason, then Gauthier will be required to show that the proffered reason was a “mere

pretext” for discrimination. Id. If Gauthier cannot do so, then Green Mountain is entitled to

summary judgment. Id.

                                       A. Prime Facie Case

       ¶ 16.   To make out a prima facie case, Gauthier is required to show “that (1) he was

engaged in a protected activity, (2) his employer was aware of that activity, (3) he suffered [an]

adverse employment decision[], and (4) there was a causal connection between the protected

activity and the adverse employment decision.” Id.; see also McDonnell Douglas, 411 U.S. at

802 (outlining prima facie elements for a discrimination claim under Title VII of the Civil Rights

Act of 1964). Gauthier’s burden at this stage is “relatively light.” Gallipo v. City of Rutland,

2005 VT 83, ¶ 15, 178 Vt. 244, 882 A.2d 1177; see also Burdine, 450 U.S. at 253 (“The burden

                                                8
of establishing a prima facie case . . . is not onerous.”). As the United States Supreme Court has

explained:

               Establishment of the prima facie case in effect creates a
               presumption that the employer unlawfully discriminated against
               the employee. If the trier of fact believes the plaintiff’s evidence,
               and if the employer is silent in the face of the presumption, the
               court must enter judgment for the plaintiff because no issue of fact
               remains in the case.

Burdine, 450 U.S. at 253 (footnote omitted).

       ¶ 17.   Here, the parties do not dispute that Gauthier has met the first three requirements

of establishing a prima facie case. Green Mountain contends on appeal, however, as it did

below, that Gauthier has not established a causal connection between his claim for workers’-

compensation benefits and his subsequent termination. Specifically, Green Mountain argues that

its HR department’s investigation into the eleven maintenance department workers’ internet use

began prior to Gauthier’s workers’-compensation claim and that “[t]his fact eliminates any

causal connection between [Gauthier’s] injury and his termination.” In support of its argument,

Green Mountain cites to our decision in Robertson, where this Court concluded that there was no

causal relationship between the plaintiff’s filing of gender discrimination complaints and her

demotion where her demotion occurred before the claims had been filed. 2004 VT 15, ¶¶ 42, 46.

       ¶ 18.   Robertson is distinguishable from this case. In Robertson, in part relevant here,

the plaintiff complained that she had been demoted from “Senior Project Manager” to “Project

Manager” as a result of her filing gender-discrimination complaints with her employer and the

Vermont Attorney General’s office. Id. ¶ 43. The record revealed, however, that the plaintiff’s

demotion occurred prior to her filing the complaints and thus this Court concluded that “the

causation element of the prima facie case is not satisfied.” Id. ¶ 46. In this case, the record on

appeal reveals that, although Green Mountain’s request for the Websense report for Gauthier’s

internet use was made the day prior to his injury, Green Mountain’s decision to terminate him


                                                9
was not made until after he had filed his workers’-compensation claim.             Here, unlike in

Robertson, the adverse employment action (termination) occurred after the protected activity had

taken place (filing a workers’-compensation claim), and thus Robertson does not control.

       ¶ 19.   Gauthier was injured on August 2, 2011 and Green Mountain terminated him on

November 8, 2011—within several months of his claim for workers’-compensation benefits and

within weeks of his return to work from the injury. This temporal proximity between the

adverse-employment decision and the protected activity is sufficient under the burden-shifting

analysis outlined above to meet Gauthier’s initial “relatively light” burden of establishing the

causation portion of a prima facie case for workers’-compensation retaliation. See, e.g., Murray,

164 Vt. at 212, 667 A.2d at 300 (timing of adverse employment decision relative to the filing of

a workers’-compensation claim is sufficient, for purposes of a prima facie case, to establish a

causal connection (citing Gallipo v. City of Rutland, 163 Vt. 83, 93, 656 A.2d 635, 642 (1994));

see also El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932 (2d Cir. 2010) (per curiam) (“By

demonstrating temporal proximity between his complaint and his discharge, [the plaintiff]

arguably established a prima facie case of retaliation under Title VII.”); Seeger v. Cincinnati Bell

Tel. Co., 681 F.3d 274, 284 (6th Cir. 2012) (concluding, in addressing causal-link requirement

for establishing prima facie case of retaliation under federal Family and Medical Leave Act, that

“the nearness in time between [the plaintiff’s] return from FMLA leave and his termination—

three weeks after his reinstatement and less than two months after he first notified [the

defendant] of his medical leave—suffices in these circumstances to meet the low threshold of

proof necessary to establish a prima facie case of retaliatory discharge”).

                           B. Legitimate, Non-Discriminatory Reason

       ¶ 20.   Because we conclude that Gauthier made out a prima facie case for retaliation, the

burden then shifts to Green Mountain to articulate “some legitimate, nondiscriminatory reason

for the challenged conduct.” Murray, 164 Vt. at 210, 667 A.2d at 299. At this point in the

                                                 10
summary judgment proceedings, “defendants have only a burden of production, rather than one

of persuasion.” Robertson, 2004 VT 15, ¶ 31; see also Burdine, 450 U.S. at 253 (“The nature of

the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and

intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the plaintiff.”). “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.’ ” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d

107, 123 (2d Cir. 2004) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). “If

the defendant carries this burden of production, the presumption raised by the prima facie case is

rebutted . . . .” Burdine, 450 U.S. at 255 (footnote omitted).

       ¶ 21.   The record establishes that Green Mountain produced evidence that Gauthier used

the internet in violation of its internet-use policy during July 2011 and had been involved in two

other internal disciplinary proceedings in the past, including a previous warning for a violation of

Green Mountain’s internet-use policy in May 2010. Green Mountain’s proffered reason, as the

trial court found, and as Gauthier concedes, if taken as true, would permit the conclusion that

Gauthier was terminated for a legitimate, non-discriminatory reason. See, e.g., Sarkis v. Ollie’s

Bargain Outlet, 560 F.App’x 27, 30 (2d Cir. 2014) (accepting violation of store policy as

legitimate, non-retaliatory reason for disciplining and terminating employee); Desardouin v. City

of Rochester, 708 F.3d 102, 106 (2d Cir. 2013) (recognizing termination of employee for

violation of departmental policy as legitimate and non-discriminatory); Hamza v. Saks Inc.,

533 F.App’x 34, 36 (2d Cir. 2013) (“[The defendant] proffered highly persuasive evidence that

[the plaintiff] was terminated because of deficiencies in her performance, her inadequate

customer service skills, her inability to work well with others and her failure to comply with [the

defendant’s company] policies.”).

                                                 11
                                           C. Pretext

       ¶ 22.   Finally, because Green Mountain has articulated a legitimate, non-discriminatory

reason for the Gauthier’s termination, Gauthier must present evidence from which a factfinder

could reasonably conclude that such reason was a “mere pretext.” See Murray, 164 Vt. at 210,

667 A.2d at 299. Bluntly stated, to show pretext, a plaintiff must establish that the defendant’s

proffered legitimate, non-discriminatory reason is a lie. See, e.g., Castro v. DeVry Univ., Inc.,

786 F.3d 559, 565 (7th Cir. 2015) (“To show pretext, an employee must present evidence

suggesting that the employer is dissembling.” (quotation omitted)); Smith v. Chrysler Corp.,

155 F.3d 799, 805-06 (6th Cir. 1998) (“In challenging an employer’s action, an employee ‘must

demonstrate that the employer’s reasons (each of them, if the reasons independently caused [the]

employer to take the action it did) are not true.’ ” (emphasis omitted) (quoting Kariotis v.

Navistar Int’l Transp. Corp., 131 F.3d 672, 676 (7th Cir. 1997)). Of course, to establish pretext

and thus survive summary judgment, “a plaintiff is not required to come forward with evidence

of the ‘smoking gun’ variety,” Resare v. Raytheon Co., 981 F.2d 32, 43 (1st Cir. 1991); rather,

because the plaintiff “bears the ultimate burden of persuasion, [the plaintiff] must adduce enough

evidence of discrimination so that a rational fact finder can conclude that the adverse job action

was more probably than not caused by discrimination,” Back, 365 F.3d at 123. A plaintiff can

carry this burden “by demonstrating weaknesses, implausibilities, inconsistencies, or

contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action. From

such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a

prohibited reason.” Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013); Castro,

786 F.3d at 565. If the plaintiff cannot meet that burden, then the defendant is entitled to

summary judgment. See Wentworth, 171 Vt. at 618, 765 A.2d at 462.

       ¶ 23.   In ruling on Green Mountain’s motion for summary judgment, the trial court

concluded that Gauthier had not adduced sufficient evidence such that a reasonable juror could

                                               12
conclude that Green Mountain’s proffered reason was pretextual. The court found that Gauthier

had offered nothing to counter Green Mountain’s proffered reason other than to allege, without

factual support, that Green Mountain “was suspicious of [Gauthier’s] worker compensation

claim.”     The court concluded that suspicions alone, even if factually supported, would be

insufficient to establish that Gauthier’s termination had been retaliatory and explained that,

without more, temporal proximity between a protected activity and an adverse employment

action is insufficient to establish pretext.   See Davies v. New York City Dep’t of Educ.,

563 F.App’x. 818, 820-21 (2d Cir. 2014). Accordingly, the court entered judgment for Green

Mountain.

          ¶ 24.   Additionally, in regard to Gauthier’s supplemental memorandum suggesting that

Green Mountain’s reliance on the Websense report was misplaced, the trial court concluded that

“[a]n employer can make bad or incorrect decisions, but so long as they are not motivated by an

improper reason (such as, for example, discrimination or retaliation), they are not grounds for

recovery by the employee.” The trial court, citing to American Jurisprudence, set forth that,

“[u]nder the ‘honest belief’ rule, as long as an employer has an honest belief in its proffered

nondiscriminatory reason for its employment action, an employee cannot establish that the

reason is pretextual even if the employer’s reason is ultimately found to be mistaken, foolish,

trivial, or baseless.” See 45B Am. Jur. 2d Job Discrimination § 956. The court explained that

Gauthier had offered no evidence that Green Mountain “actually knew—or even should have

known—that the [Websense] report was being misinterpreted” and that even the preliminary

letter from Gauthier’s computer expert suggests that Websense reports “are inherently confusing

and easily misunderstood.” Ultimately, the court concluded that “[t]here is just no evidence

before the court to suggest that [Green Mountain] used this report as a pretext for some improper

termination decision.” Without some evidence that Green Mountain did something more sinister

than simply get it wrong, the trial court determined that Gauthier did not meet his burden. See

                                                13
Johnson v. Weld Cnty., 594 F.3d 1202, 1211 (10th Cir. 2010) (“That individuals and companies

sometimes make employment decisions that prove to be bad ones in hindsight usually suggests

no more than that—that they got it wrong. To support an inference of pretext, to suggest that

something more nefarious might be at play, a plaintiff must produce evidence that the employer

did more than get it wrong. He or she must come forward with evidence that the employer didn’t

really believe its proffered reasons for action and thus may have been pursuing a hidden

discriminatory agenda.”).

       ¶ 25.   Gauthier contends that the trial court misconstrued the record evidence when it

relied on a version of the “honest belief” rule that he contends has been “widely criticized and

rejected.” Gauthier argues that before an employer’s belief can be credited as honest, the

employer must first establish that its decision was premised on reasonable reliance on

particularized facts. Gauthier contends that, when viewed under that standard, the temporal

proximity between his workers’-compensation claim and his termination, in addition to three

record facts, show the weakness and implausibility in Green Mountain’s proffered reason such

that it is unworthy of credence. He therefore argues a jury question exists as to whether Green

Mountain’s proffered reason was but pretext for an unlawful motivation. Specifically, Gauthier

points to the following facts as undermining Green Mountain’s honest belief: (1) Green

Mountain did not rule out that another worker could and did use Gauthier’s password;

(2) Gauthier’s denial of excessive internet use is supported by the absence of evidence that his

job productivity was poor during that time and that “by all accounts, [Gauthier’s] performance

was exemplary” and that in August of 2011 he received a 12% “merit pay increase”; and (3) the

Websense report shows Gauthier was accessing websites such as Facebook, a site that Gauthier

has stated he does not use.

       ¶ 26.   We begin by addressing the proper application of the “honest belief” rule. The

parties’ briefing indicates that a split between the United States Courts of Appeal for the Sixth

                                               14
and Seventh Circuits has been percolating since at least the late 1990s. See generally Rebecca

Michaels, Note, Legitimate Reasons for Firing: Must They Be Reasonable?, 71 Fordham L. Rev.

2643, 2643, 2657-67 (2003) (analyzing the split between the United States Courts of Appeal for

the Sixth and Seventh Circuits “regarding whether an employer’s belief in its legitimate

nondiscriminatory reason for firing an employee must simply be honest or must also be

reasonable”). The substance of the split revolves around whether an employer’s belief in its

proffered legitimate, non-discriminatory reason need merely be honestly believed, see Kariotis,

131 F.3d at 676, or whether, before an employer’s belief will be accepted as honest by a court,

the employer must first establish that it stems from a reasonable reliance on particularized facts,

see Smith, 155 F.3d at 806.

       ¶ 27.   The Seventh Circuit’s articulation of the rule, which Gauthier contends should not

be applied by this Court, simply requires that an employer honestly believe in its proffered

reasons, “even if the reasons are foolish or trivial or baseless.” See Kariotis, 131 F.3d at 676; see

also McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1997) (“[T]he issue of

pretext does not address the correctness or desirability of reasons offered for employment

decisions. Rather, it addresses the issue of whether the employer honestly believes in the reasons

it offers.”); Visser v. Packer Eng’g Assocs., Inc., 924 F.2d 655, 658-59 (7th Cir. 1991)

(concluding that termination for an unethical reason is not evidence of age discrimination);

Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560 (7th Cir. 1987) (“No matter how medieval a

firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the

firm’s managers, Title VII and § 1981 do not interfere.”). Under this standard, “arguing about

the accuracy of the employer’s assessment is a distraction, because the question is not whether

the employer’s reasons for a decision are right but whether the employer’s description of its

reasons is honest.” Kariotis, 131 F.3d at 677 (internal citation and quotation marks omitted).

Thus, in order for a plaintiff to prevail at the pretext stage, the plaintiff “must demonstrate that

                                                 15
the employer’s reasons (each of them, if the reasons independently caused [the] employer to take

the action it did) are not true. Moreover, if the company honestly believed in those reasons, the

plaintiff loses even if the reasons are foolish or trivial or baseless.” Id. at 676 (internal citation

omitted); see also Clay v. Holy Cross Hosp., 253 F.3d 1000, 1007 (7th Cir. 2001) (“To prove

pretext, [an employee] must present facts that cast doubt on the [employer’s] specific reasons for

[the employee’s] termination.”).

       ¶ 28.   Gauthier advocates for a stricter construction of the rule as developed in the Sixth

Circuit, which requires slightly more of an employer. In Smith v. Chrysler Corp., the Sixth

Circuit expressly rejected the reasoning of the Seventh Circuit in Kariotis, explaining, “[t]o the

extent the Seventh Circuit’s application of the ‘honest belief’ rule credits an employer’s belief

without requiring that it be reasonably based on particularized facts rather than on ignorance and

mythology, we reject its approach.” 155 F.3d at 806. Rather, instead of a defendant-employer

merely honestly believing in its proffered reason for termination, the Smith Court required that

an employer also establish its “reasonable reliance on particularized facts.”

               [I]n order for an employer’s proffered non-discriminatory basis for
               its employment action to be considered honestly held, the
               employer must be able to establish its reasonable reliance on the
               particularized facts that were before it at the time the decision was
               made. If the employer is unable to produce such evidence to
               support its employment action, then the “honest belief” rule does
               not apply.

Id. at 807 (citing Pesterfield v. Tennessee Vall. Auth., 941 F.2d 437, 443-44 (6th Cir. 1991)).

Once such a showing has been made, “the protection afforded by the rule is not automatic,” and

“the employee has the opportunity to produce proof to the contrary.” Id. (quotation omitted).

This test does “not require that the decisional process used by the employer be optimal or that it

left no stone unturned”; “[r]ather, the key inquiry is whether the employer made a reasonably

informed and considered decision before taking an adverse employment action.” Id. The Smith

Court further explained:

                                                 16
                 Although courts should resist attempting to micro-manage the
                 process used by employers in making their employment decisions,
                 neither should they blindly assume that an employer’s description
                 of its reasons is honest. When the employee is able to produce
                 sufficient evidence to establish that the employer failed to make a
                 reasonably informed and considered decision before taking its
                 adverse employment action, thereby making its decisional process
                 “unworthy of credence,” then any reliance placed by the employer
                 in such a process cannot be said to be honestly held.

Id. at 807-08.

       ¶ 29.     This Court has not yet addressed which, if either, application of the “honest

belief” rule is appropriate when addressing the issue of pretext under the McDonnell Douglas

three-part burden-shifting test.    We conclude that the Seventh Circuit’s articulation of the

“honest belief” rule is more appropriate, and thus we hold that an employer need only honestly

believe in its proffered legitimate, non-discriminatory reason for the challenged adverse

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

       ¶ 30.     We reach this conclusion because the Seventh Circuit’s articulation more closely

tracks the public policy rationale underlying Vermont’s anti-retaliation statute. As this Court has

recognized, “[w]orkers’ compensation law represents a public policy compromise in which the

employee gives up the right to sue the employer in tort in return for which the employer assumes

strict liability and the obligation to provide a speedy and certain remedy for work-related

injuries.” See Murray, 164 Vt. at 209, 667 A.2d at 298 (quotation omitted). Clearly, it would be

unacceptable to allow an employer to undermine this critical public-policy compromise by either

discriminating or retaliating against an employee who sought out a remedy for a work-related

injury. See id. at 209-10, 667 A.2d at 298. This is the reasoning underlying the anti-retaliation

provision, see 21 V.S.A. § 710(b), and in large part why we held in Murray that a private right of

action for monetary damages under § 710 is appropriate. See id. at 208-10, 667 A.2d at 298-99

(explaining that the limited remedies available under § 710 at the time would “be further

augmented by the employee’s right to obtain civil redress”). Section 710(b) is intended to

                                                 17
prevent action by an employer taken in retaliation for, and thus because of, the filing of a claim

for compensation.

       ¶ 31.   Of course, § 710(b) holds an employer liable only where it can be shown that the

employer has in fact retaliated or discriminated “against an employee from employment because

such employee asserted or attempted to assert a claim for benefits.”            If an employer has

terminated an employee following a claim for workers’-compensation benefits but has done so

for what is a legitimate, non-discriminatory reason that it honestly believes to be true, even if that

reason ultimately is shown to have been incorrect, then there can be no intent to retaliate or

discriminate in violation of the public policy compromise.

       ¶ 32.   It is important not to lose sight of the fact that Vermont’s anti-retaliation statute is

not aimed at protecting workers from receiving adverse employment decisions for non-

discriminatory or non-retaliatory reasons, or even for reasons that might strike a reasonable

person as poorly made or unwise. Rather, it is aimed at ensuring workers are not subject to

adverse-employment decisions for discriminatory or retaliatory reasons.              See Robertson,

2004 VT 15, ¶ 35 (“This Court may not second-guess an employer’s non-discriminatory business

decisions, regardless of their wisdom.” (quotation omitted)). As the Seventh Circuit explained,

an employer cannot have the intent to discriminate where the reason proffered for the challenged

adverse employment action is in fact determined to be legitimate and non-discriminatory and is

honestly believed. See, e.g., Little v. Ill. Dep’t of Revenue, 369 F.3d 1007, 1012 n.3 (7th Cir.

2004) (rejecting the invitation to adopt the Sixth Circuit’s articulation of the honest-belief rule,

noting that the indirect method of proving unlawful discrimination “is, after all, a means of

proving intentional discrimination”); see also Michaels, supra, at 2667 (advocating that courts

adopt the so-called “pure” honest-belief rule because “[t]here can be no intent to discriminate if

an employer has an honest and legitimate nondiscriminatory reason for the [adverse

employment] action”). And thus we agree with the Kariotis Court that “arguing about the

                                                 18
accuracy of the employer’s assessment is a distraction because the question is not whether the

employer’s reasons for a decision are right but whether the employer’s description of its reasons

is honest.” 131 F.3d at 677 (internal citations and quotation marks omitted). The critical piece

in an analysis of pretext in a discrimination or retaliation claim is whether a plaintiff can provide

sufficient evidence such that a reasonable juror could conclude that the employer’s proffered

legitimate, non-discriminatory reason was not in fact its real reason for taking an adverse job

action. Whether an employer’s reason for the adverse employment action is ultimately shown to

be well advised or not is beside the point.

       ¶ 33.   Therefore, in order to establish pretext, the employee must call the employer’s

honesty or credibility into question by rebutting the proffered reason with facts from which a

factfinder could reasonably conclude that the proffered reasons are unworthy of credence. See

e.g., Castro, 786 F.3d at 565; Clay, 253 F.3d at 1007. We emphasize that the proffered reason

that the employer honestly believes must, of course, be a legitimate, non-discriminatory reason

for the challenged adverse employment action.

       ¶ 34.   Under this standard, we conclude that Gauthier has not presented evidence from

which a jury could infer that Green Mountain did not honestly believe in its proffered reason.

The three record facts highlighted by Gauthier, even taken together with the temporal proximity

of his termination following his workers’-compensation claim and giving Gauthier the benefit of

all reasonable doubts and inferences, do not require a denial of Green Mountain’s motion for

summary judgment on the ground that Green Mountain could not have honestly believed in its

proffered reason because it was unworthy of credence.

       ¶ 35.   As to his first point, the record reflects that, at best, on several occasions while

Gauthier was away from his logged-in computer responding to a maintenance call, another

worker had accessed Gauthier’s account, without his permission, and altered his computer’s

desktop background image. Nothing in the record suggests that another worker had ever used

                                                 19
Gauthier’s Green Mountain computer-login credentials for an extended period of time or for

accessing the internet, let alone to the degree shown in the Websense report, nor that Green

Mountain was aware that Gauthier’s password had been compromised such that the Websense

results for his computer account for the month of July 2011 should have been considered suspect.

Even giving Gauthier all reasonable inferences and doubts, this evidence does not suggest that

Green Mountain’s stated reason for termination was pretextual such that a reasonable juror could

find in Gauthier’s favor.

        ¶ 36.   Gauthier’s next factual contention is similarly without merit. Green Mountain did

not proffer that it terminated Gauthier for poor job productivity—it terminated him solely on the

basis of a violation of its internet-use policy. Nevertheless, Gauthier argues that “had he been so

busy using the internet, which according to [Green Mountain] would have accounted for nearly

all of his time at work, he could not have performed his job.” He contends that, “[a]t a

minimum, his productivity would have been adversely affected. Yet [Green Mountain] has not a

shred of evidence to that effect, making its asserted basis . . . implausible.” He further suggests

that “by all accounts, [his] performance was exemplary” and notes that in August 2011 he

received a 12.12% raise, which, at the trial level, he suggested was “merit-based.”

        ¶ 37.   Gauthier misapplies the allocation of burdens under the applicable burden-shifting

test.   Upon Gauthier making out a prima facie case of retaliatory discrimination, Green

Mountain’s burden was to produce evidence of a legitimate, non-discriminatory reason for his

termination which, if taken as true, would permit the conclusion that his termination was

legitimate, which it has done. In response, Gauthier’s burden was to adduce sufficient evidence

of retaliatory termination such that a reasonable juror could find that Green Mountain’s proffered

reason was pretextual, which this evidence does not. It is insufficient to merely speculate that

the absence of evidence of poor job performance and an indication of “exemplary” performance



                                                20
necessarily leads to the conclusion that Green Mountain’s proffered legitimate, non-

discriminatory reason of excessive internet use is pretextual.

       ¶ 38.   The absence of evidence of poor job performance or the existence of evidence of

“exemplary” job performance does not constitute evidence of the absence of internet misuse—

even a high-performing employee could violate a company’s internet-use policy.                What is

missing from Gauthier’s challenge to Green Mountain’s motion for summary judgment is

competent evidence showing that he would not have had the time to misuse the internet to the

extent that the Websense report has suggested and still get his job done and that Green Mountain

knew this. Although the record evidence indicates some reason to believe that the internet usage

indicated by the Websense report would have accounted for a large portion of his hours worked

during July 2011, there is no evidence that he could not have performed his job and also used the

internet as alleged. Extrapolating out all inferences in Gauthier’s favor from his expert’s letter,

there is some reason to be skeptical of the Websense results—but not in that it shows he could

not have performed his job if the allegations are true. Rather, the inference is that perhaps the

report had picked up hits unrelated to his actual internet use. But even if Gauthier’s computer

expert is correct that “the computer being used was infected with computer Viruses, Trojans,

Malware, Browser Toolbars and possibly a keylogger” and that “[Websense] reports are often

known to record hits and [] it could be misleading in certain circumstances and infections could

multiply these factors greatly,” Gauthier has failed to establish that Green Mountain did not

honestly believe in its proffered legitimate, non-discriminatory reason. Ultimately, the accuracy

of the Websense report is not at issue because the validity of the results is not the test for pretext.

What is critical here is that the expert’s report does not say that the Websense report results on

their face are so completely out of the ordinary that no reasonable employer could have honestly

believed them to be true. We agree with the trial court that this evidence essentially shows that

these Websense reports are confusing and perhaps difficult to read; but what it does not show is

                                                  21
that Green Mountain was dishonest in its proffer that it honestly relied on the Websense report in

terminating Gauthier for a violation of its internet-use policy.

       ¶ 39.   Finally, Gauthier contends that he informed Green Mountain that he does not use

Facebook and argues that Green Mountain “could easily have confirmed that [Gauthier] did not

have a Facebook account and therefore could not have accessed Facebook as Websense reported

he had done repeatedly.” In further support of this contention, Gauthier references the letter

from his computer expert.

       ¶ 40.   Again, this argument is not convincing. The record shows that, upon return from

leave, Gauthier met with two members of Green Mountain’s HR department to discuss the

results of the Websense report for July 2011. At that meeting, the HR department told Gauthier

that they suspected he had violated Green Mountain’s internet-use policy based on the Websense

report and that the report showed he had accessed various websites, including Facebook.

Gauthier responded adamantly that he does not use Facebook, and Green Mountain placed him

on administrative leave while it investigated the matter. Thereafter, the record shows that the

HR department inquired with the IT department as to whether it was possible for someone else to

have been responsible for the internet hits shown on Gauthier’s Websense report. The IT

department told the HR department that the only way that was possible was if Gauthier had

shared his computer-login information with another worker.         Gauthier denied sharing his

password, and Green Mountain terminated him.

       ¶ 41.   Even giving Gauthier the benefit of all reasonable inferences, he has not met his

burden to create a genuine issue of material fact precluding summary judgment. At best, this

suggests that the Websense report inaccurately reported certain internet hits to Facebook and that

Green Mountain’s reliance on the Websense report may have ultimately been misplaced. Of

course, we do not require an employer to be correct. What we require is that an employer

honestly believe in its proffered legitimate, non-discriminatory reason, even if that reason is

                                                 22
ultimately shown to have been wrong. What it does not show, however, are weaknesses or

implausibilities in Green Mountain’s proffered non-discriminatory reason such that a reasonable

jury could conclude that Green Mountain used the alleged violation of its internet-use policy as a

pretext for retaliating against Gauthier for making a workers’-compensation claim. What makes

this insufficient to defeat Green Mountain’s motion for summary judgment is that there is no

evidence that Green Mountain lacked an honest belief as to the content of the Websense report.

That Gauthier’s expert identified issues with the Websense report is insufficient to create an

issue concerning Green Mountain’s honest belief unless his expert can also say that those

deficiencies are such that it would be unreasonable for Green Mountain to rely on the report.

Indeed, following the HR department’s discussion with Gauthier on his return from leave, the

HR department specifically inquired with the IT department whether there was any basis for

Gauthier’s denial of excessive use. Because Gauthier denied the one possibility that the IT

department presented, i.e., Gauthier having shared his password with another worker, Gauthier

has failed to adduce sufficient evidence that Green Mountain used the alleged violation of its

internet-use policy as a pretextual reason for retaliating against him for filing a workers’-

compensation claim such that a reasonable jury could find in his favor.

                              II.     Motion to Amend Complaint

       ¶ 42.   Gauthier also argues that the trial court abused its discretion by denying his

motion to amend his complaint which, although filed after Green Mountain had moved for

summary judgment, was filed before his response to the summary-judgment motion was due and

three months before the trial court entered summary judgment in favor of Green Mountain.

       ¶ 43.   Under the Vermont Rules of Civil Procedure, amendments to the pleadings may

be allowed at any time “by leave of court,” V.R.C.P. 15(a), and “trial courts are to be liberal in

permitting amendments to the pleadings,” Lillicrap v. Martin, 156 Vt. 165, 170, 591 A.2d 41, 44

(1989). As we have explained:

                                               23
               The principal reasons underlying the liberal amendment policy are
               (1) to provide maximum opportunity for each claim to be decided
               on its merits rather than on a procedural technicality, (2) to give
               notice of the nature of the claim or defense, and (3) to enable a
               party to assert matters that were overlooked or unknown to him at
               an earlier stage in the proceedings.

Id. (quoting Bevins v. King, 143 Vt. 252, 255, 465 A.2d 282, 283 (1983)). Rulings on motions

to amend are entrusted to the sound judgment of the trial court, and we will reverse only where

there is an abuse of discretion. Id. “When there is no prejudice to the objecting party, and when

the proposed amendment is not obviously frivolous nor made as a dilatory maneuver in bad faith,

it is an abuse of discretion to deny the motion.” Bevins, 143 Vt. at 254-55, 465 A.2d at 283; see

also Obolensky v. Trombley, 2015 VT 34, ¶ 43, ___ Vt. ___, 115 A.3d 1016 (reciting that abuse

of discretion will be found only where court failed to exercise its discretion, exercised it on

untenable grounds, or exercised it to an extent clearly unreasonable).

       ¶ 44.   Here, in denying Gauthier’s March 12, 2014 motion to amend his complaint, the

trial court concluded that Gauthier had not made a sufficient showing of “good cause” to justify

the delay in filing the amendment—almost one year after the initiation of the suit and two weeks

after Green Mountain had filed for summary judgment. The court explained:

                While the court freely grants amendments of complaints at the
               start of a case, once the other party has filed a summary judgment
               motion the court is less willing to do so. The court is much more
               hesitant to allow an amendment at that stage of the case because
               the other side has already marshaled its resources to respond to the
               allegations made in the existing complaint. The court requires
               good cause for the delay in raising new claims at this stage.

In response to Gauthier’s justification for the delay—that Green Mountain had not produced any

documentation regarding the alleged number of internet hits until November 2013—the court

observed that such documentation has nothing to do with the two new claims—breach of

contract and whistleblower retaliation—and that the new claims “are not based upon any new

information, and would require an entirely new round of summary judgment motions.”


                                                24
       ¶ 45.   Gauthier argues that “[t]here simply is no rule, as pronounced by the trial court,

that requests to amend must be denied when the opposing party has filed a summary judgment

[motion]” and that “the rule seems to be the contrary.” He further argues that there was no

showing of bad faith and that the new claims are not “obviously frivolous.”

       ¶ 46.   Contrary to Gauthier’s characterization, however, the trial court did not deny his

motion to amend because Green Mountain had already filed for summary judgment. Rather, the

record reflects that the court exercised its discretion in a considered manner and balanced the

policy objectives outlined above. Specifically, the court observed that Gauthier’s proffered

justification for the delay—Green Mountain’s production of documents in November 2013—was

not the basis for the new claims sought to be added to the complaint and further noted that Green

Mountain had already “marshaled its resources to respond to the allegations made in the existing

complaint.” These conclusions are all supported by the record and are in accord with the policy

objectives underlying Rule 15.

       ¶ 47.   The issue is not whether we would have granted the motion to amend had we

been similarly situated; nor is it whether the lower court could have granted the motion to amend

in the proper exercise of its discretion. Rather, the issue is whether the denial of the motion

constituted an abuse of discretion. For the reasons stated herein, we find the court did not abuse

its discretion in denying Gauthier’s motion to amend.

       Affirmed.


                                              FOR THE COURT:



                                              Associate Justice




                                               25