2009 VT = 90

Payne v. US Airways, = Cline,=20 Stanley and Ansaldi (2008-128)

2009 VT 90

[Filed = 25-Sep-2009]

NOTICE: This = opinion is=20 subject to motions for reargument under V.R.A.P. 40 as well as formal = revision=20 before publication in the Vermont Reports. Readers are requested = to notify=20 the Reporter of Decisions, Vermont Supreme Court, 109 State Street, = Montpelier, Vermont=20 05609-0801 of = any=20 errors in order that corrections may be made before this opinion goes to = press.

2009 VT=20 90

No. 2008-128

Kimberley Payne

Supreme = Court

On Appeal = from

=20 v.

Chittenden Superior Court

US Airways, Inc., Michael Cline, Tony = Stanley=20 and

Deb Ansaldi

October Term, 2008

Matthew I. Katz, J.

Thomas C. Nuovo of Bauer, Gravel, Farnham,=20 Nuovo, Parker & Lang, Burlington, = for

= Plaintiff-Appellant.

John A. Serafino and Glenn S. Morgan of Ryan Smith & = Carbine,=20 Ltd., Rutland,=20 and

Jeffrey I. = Kohn of=20 O=92Melveny & Myers LLP, New=20 York, New = York, for=20 Defendant-Appellee

Cline.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

=B6 1. = =20 BURGESS, J. Plaintiff appeals from a superior court = order=20 granting summary judgment to defendant Michael Cline on plaintiff=92s = claims that=20 he is not personally liable to her for acts of discrimination and = retaliation=20 under the Vermont Fair Employment Practices Act (VFEPA) and the = Workers=92=20 Compensation Act (WCA). The central issues on appeal are whether = the acts=20 provide a right of action against a coemployee or=20 supervisor in an individual capacity, rather than imposing direct and = vicarious=20 liability on employers only for unlawful discrimination by their = supervisors and=20 employees. The superior court concluded that the acts provide a = right of=20 action against employers alone, and not against individual employees or=20 supervisors. We reverse and remand.

I. Background

=B6 2. = =20 Plaintiff originally sued her former employer, US Airways, M. = Cline, her=20 former supervisor at US Airways, and several former coworkers for: = sexual=20 harassment and discrimination against a person with a disability under = the=20 VFEPA, discrimination for filing a complaint under the VFEPA, = discrimination for=20 filing a workers=92 compensation claim, and several other claims. = After US=20 Airways filed for bankruptcy, which placed an automatic stay on her = action,=20 plaintiff settled with US Airways so that she could proceed with her = claims=20 against the individual defendants. Plaintiff eventually dropped = her former=20 coworkers as defendants and, consequently, the sole remaining defendant = in this=20 action is her former supervisor, whom plaintiff now seeks to hold liable = under=20 the VFEPA and the WCA.

=B6 3. = =20 When reviewing a grant of summary judgment, we use the same = standard as=20 the trial court. Savage v. Walker,=20 2009 VT 8, =B6 5, ___ Vt. ___, 969 A.2d 121 (mem.). We must take all allegations of the = nonmoving=20 party as true, and uphold the grant of summary judgment only when = =93there are no=20 genuine issues of material fact and the movant is entitled to judgment = as a=20 matter of law.=94 Id; see also V.R.C.P. 56(c). = Accordingly, we=20 recite the background facts of this case as they have been alleged by=20 plaintiff.

=B6 4. = =20 The events giving rise to this lawsuit began in the spring of = 1999, when,=20 during her employment with US Airways, plaintiff suffered a work-related = back=20 injury. After learning of her injury, plaintiff=92s supervisor did = not=20 observe WCA mandates when he failed to promptly investigate her = complaint to=20 determine whether compensation was due, forced her to use sick leave as=20 compensation for the work days she missed while recovering from the back = injury,=20 interfered with her course of treatment, and then, after she requested = WCA=20 benefits, told her she could not receive any compensation = retroactively. =20 According to the record, supervisor did not allow plaintiff worker=92s=20 compensation for missed work until she filed a claim with the Department = of=20 Labor, complaining of US Airways=92 failure to compensate her through = the WCA=20 system.

=B6 5. = =20 When plaintiff returned to work in June 1999, she was on a = limited work=20 schedule to accommodate her recovery. Supervisor interfered with=20 plaintiff=92s medical treatment by calling her physical therapist to = request that=20 the therapist approve longer work hours. Additionally, = supervisor=20 began to have individual meetings with plaintiff to criticize her = performance,=20 to take away some of her supervisory duties, and to consult about = her=97as he had=20 not before=97with the employees she was supposed to supervise. = Prior to=20 these actions, plaintiff and supervisor maintained a problem-free work=20 relationship, and plaintiff=92s employment record, covering about ten = years with=20 US Airways, reflected only positive evaluations of her work. In = July 1999,=20 plaintiff complained directly to US Airways about supervisor=92s = treatment of=20 her. About a month after her written complaint to the company, = when she=20 felt that the company was not responding appropriately, she filed a = complaint=20 for workplace discrimination against US Airways with the Vermont = Attorney=20 General.

=B6 6. = =20 In November 1999, plaintiff took another medical leave from = her=20 job, this time claiming anxiety and depression from her workplace = conditions,=20 not because of her back injury. For the next two years, plaintiff = did not=20 return to work. During this time, plaintiff=92s doctor and = therapist=20 submitted letters to US Airways stating she was suffering anxiety and = depression=20 =93clearly related to and aggravated by her ongoing stressful work = situation,=94 and=20 recommending that plaintiff not return to work until her workplace = problems=20 could be successfully mediated. US Airways terminated = plaintiff=92s=20 employment in October 2001. In its termination letter, the company = stated=20 that plaintiff failed to abide by the US Airways policy of providing=20 supplemental medical reports and seeking an extension of medical leave = every=20 ninety days, and this failure led the company to conclude that she had=20 apparently abandoned her employment. The Attorney General=92s = office=20 completed its investigation of plaintiff=92s discrimination complaint in = April=20 2002 and agreed that plaintiff had been subject to discrimination for = asserting=20 a workers=92 compensation claim, but determined that there was = insufficient=20 evidence to support plaintiff=92s claim that US Airways discriminated = against her=20 based on gender. Plaintiff filed this lawsuit in May 2002. =

II. Individual Liability under the Vermont Fair = Employment=20 Practices Act

=B6 7. = =20 Plaintiff=92s amended complaint states VFEPA claims against = supervisor for:=20 sexual harassment, 21 V.S.A. =A7=A7 495(a)(1), 495d(13), = discrimination for=20 lodging complaints against US Airways with the Vermont Attorney = General=92s Office=20 and with the Vermont Department of Labor and Industry, id.=20 =A7 495(a)(5), and discrimination for being perceived to suffer = from a=20 handicap, id. =A7 495(a)(1). Supervisor=92s motion for = summary=20 judgment on these claims argued first, that there is no provision for = individual=20 liability under the VFEPA and second, that plaintiff failed to make a = prima=20 facie showing of sexual harassment or discrimination based on disability = or=20 handicap. The superior court granted summary judgment for = supervisor based=20 on its determination that there is no individual liability under the = VFEPA.[1]

=B6 8. = =20 The VFEPA prohibits =93any employer, employment agency or labor=20 organization=94 from engaging in a range of discriminatory acts and=20 practices. Id. =A7 495(a). = The term=20 =93employer=94 refers to =93any individual, organization, or = governmental body=20 . . . whether domestic or foreign . . . and any agent = of such=20 employer, which has one or more individuals performing services for = it=20 within this state.=94 Id. =A7 495d(1) = (emphasis=20 added). Plaintiff argues that the term =93any agent of such = employer=94=20 extends liability to employees, as individuals, who engage in = discriminatory=20 actions forbidden by the VFEPA.

=B6 9. = =20 This Court has yet to construe the term =93any agent=94 in the = context of the=20 VFEPA. While the question has been raised here in at least two = earlier=20 cases, we have never reached it before today. See Robertson v. = Mylan Labs., Inc., 2004 VT 15, =B6 49, = 176 Vt. 356,=20 848 A.2d 310 (upholding summary judgment for defendants on other = grounds, thus=20 not reaching the issue of individual liability); Gallipo v. City of Rutland, 173 Vt. = 223,=20 238-39, 789 A.2d 942, 953-54 (2001) (not reaching the issue because = separate=20 statutory provision dictated that municipal officers could not be sued = in their=20 individual capacities).[2] As with any issue of = statutory=20 construction, we seek here to give effect to legislative intent. = To do so,=20 we start with the language of the statute and read it according to its = plain and=20 ordinary meaning. Burlington=20 Elec. Dep=92t v. Vt. Dep=92t of = Taxes, 154=20 Vt. 332, 335,=20 576 A.2d 450, 452 (1990). Under this approach, the Legislature=92s = use of=20 the conjunctive =93and any agent=94 in the definition of =93employer=94 = in the VFEPA=20 signals that the Legislature intended that, in addition to those = traditionally=20 categorized as employers, agents of the employer can be held = liable. The=20 employer-employee relationship is a traditional, common-law agency=20 relationship. Restatement (Third) Agency =A7 1.01, cmt. c (2006). Thus, an ordinary reading of = the=20 language =93any agent=94 supports the conclusion that the statute allows = for suits=20 against employees acting as agents for the employer. Although no = ambiguity=20 exists on the face of this statutory definition, and thus we would = ordinarily=20 simply enforce the statute according to its plain meaning, State v.=20 O=92Dell, 2007 VT 34, =B6 7, 181 Vt. 475, 924 A.2d 87, = supervisor entreats=20 us to consider the large body of federal law reaching the opposite = conclusion=20 with respect to the federal Fair Employment Practices Act. 42 = U.S.C.=20 =A7 2000e(b).

=B6 10. =20 Our construction of the VFEPA, which is patterned on Title VII of = the=20 federal Civil Rights Act protecting against employment discrimination = based on=20 race, color, religion, sex, or national origin, is often guided by the = federal=20 courts=92 interpretations of Title VII. Lavalley v. E.B. & A.C. Whiting = Co., 166=20 Vt. 205, 209,=20 692 A.2d 367, 369 (1997). Indeed, we have said that =93[the V]FEPA = is=20 patterned on Title VII of the Civil Rights Act of 1964, and the = standards and=20 burdens of proof under [V]FEPA are identical to those under Title = VII.=94 =20 Hodgdon v. Mt. Mansfield Co., = 160=20 Vt. 150, 161,=20 624 A.2d 1122, 1128 (1992). Supervisor points out that it is = settled law=20 in every federal circuit that has considered the meaning of the term = =93any agent=94=20 in Title VII=92s definition of = =93employer,=94 42 U.S.C.=20 =A7 2000e(b), that the phrase does not provide a right of action = against=20 individual employees. Lissau = v. S.=20 Food Serv., Inc., 159 F.3d 177, 181 (4th Cir. 1998) (citing cases = from the=20 Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, = and=20 District of Columbia Circuits of the United States Courts of Appeals).[3] Indeed, the federal = consensus is=20 that the =93any agent=94 language expresses congressional intent to hold = employers=20 vicariously liable for the acts of their employees, but not to hold = employees=20 individually liable for their own discriminatory acts in the = workplace. =20 See, e.g., Wathen v. Gen. Elec. = Co., 115=20 F.3d 400, 405-06 (6th Cir. 1997). The definition of = =93employer,=94 however,=20 is not a =93standard[] or burden[] of proof=94 as described in Hodgdon. Cf. Colby v. Umbrella, = Inc.,=20 2008 VT 20, =B6 9, 184 Vt. 1, 955 A.2d 1082 (discussing standard = for prima=20 facie VFEPA case by reference to federal Title VII case law); Gallipo v. City of Rutland, 2005 VT = 83,=20 =B6 15, 178 Vt. 244, 882 A.2d 1177 (same). Moreover, as = demonstrated=20 below, the definition of employer in the VFEPA is markedly and = substantially=20 different than that used in Title VII. Thus, even if the term = =93any agent=94=20 is identical in both definitions, the definitions as a whole are far = from=20 identical, which implies that we have no duty to interpret the VFEPA=92s definition of =93employer=94 identically = to how the=20 federal courts=92 have interpreted Title VII=92s=20 definition. And although federal decisions can be persuasive, they = are not=20 binding and =93we will not adopt an interpretation of [V]FEPA solely = because the=20 federal courts, including the United States Supreme Court, have so = interpreted=20 Title VII.=94 Lavalley, 166 = Vt. at = 209-10, 692 A.2d=20 at 369-70.

=B6 11. =20 While our past decisions demonstrate that we may depart from = federal=20 interpretations of Title VII when we construe our own fair employment = practices=20 law, it is important to explain why the federal analysis is particularly = unpersuasive in this case. The definition of =93employer=94 in the = federal=20 FEPA of Title VII is, in pertinent part:

a person=20 engaged in an industry affecting commerce, . . and any agent = of such=20 a person . . . , except that . . . a person = having=20 fewer than twenty-five employees (and their agents) shall not be = considered=20 employers.

42 = U.S.C.=20 =A7 2000e(b). In holding that this definition connotes only = vicarious=20 liability for employers, and not individual liability for their agents, = federal=20 courts have relied on two main rationales. The first is that the = federal=20 definition expressly excludes small businesses from liability by = excluding any=20 employer who employs fewer than twenty-five people. For example, = the=20 Fourth Circuit reasoned that =93it would be incongruous to hold that = Title VII=20 does not apply to the owner of a five-person company but applies with = full force=20 to a person who supervises an identical number of employees in a larger=20 company.=94 Lissau, 159 F.3d at = 180. =20 The federal courts have also noted that the definition of =93employer=94 = in Title=20 VII is =93essentially the same=94 as the definition in the Age = Discrimination in=20 Employment Act (ADEA). 29 U.S.C. =A7 630(b); Wathen, 115 F.3d at 404 n.6. Because = the courts=20 have held that there is no individual liability for age discrimination = under the=20 ADEA, based on similar reasoning regarding the small-employer exclusion, = they=20 have held that it is merely a logical extension of the ADEA case law to = hold=20 that Title VII does not impose individual liability for employment=20 discrimination based on race, color, religion, sex, or national = origin. =20 Lissau, 159 F.3d at 181. =

=B6 12. =20 This logic cannot apply to the VFEPA. Vermont=92s = law contains no=20 small-business exclusion. In fact, the definition of = =93employer=94 in the=20 VFEPA expressly includes any employer who has but a single employee = within the=20 state. Moreover, Vermont=92s definition of employer = includes =93any=20 agent=94 of such employer, regardless of size.

=B6 13. =20 The other rationale relied on by the federal courts for excluding = individual liability under Title VII relates to the enforcement = provisions in=20 that statute. 42 U.S.C. =A7 2000e-5. Originally, relief = included only=20 =93back pay and equitable relief such as reinstatement,=94 which are = remedies=20 available only from an actual employer, not from a mere supervisor or = fellow=20 employee. Lissau, 159 F.3d at = 181; accord=20 Tomka v. Seiler Corp., 66 F.3d = 1295,=20 1314 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., = Inc. v.=20 Ellerth, 524 U.S. 742 (1998). In = 1991,=20 Congress amended the relief provisions to include compensatory and = punitive=20 damages. 42 U.S.C. =A7 1981a, as amended by Pub. L. = No. 102-166,=20 105 Stat. 1072 (1991). However, the amendments tied the amount of = damages=20 available to a plaintiff =93to the size of the employer.=94 Lissau, 159 F.3d at 181; accord Tomka, 66 F.3d at 1315. Federal = courts=20 interpret this relationship between available relief and the size of the = employer as another indication that Congress did not intend for Title = VII to=20 provide a statutory cause of action against agents or supervisory = employees of=20 employers. Further, because there is no mention of =93individual = liability=20 as an available remedy,=94 even in the 1991 amendments, when Congress = could have=20 added it if it saw a need, the courts conclude that Title VII provides = no such=20 avenue of relief for potential plaintiffs. Lissau, 159 F.3d at 181.

=B6 14. =20 The VFEPA does not similarly limit its remedies to relief = typically=20 available just from employers rather than individuals working for the = same=20 company. The VFEPA originally contained a single penalty provision = stating=20 that any employer =93who willfully violates any of the provisions of = this act,=20 shall be fined not more than $500.00 for each violation.=94 1963, = No. 196=20 (Adj. Sess.), =A7 3. In 1976, the Legislature amended the = penalty=20 section generally, and recodified it as 21 V.S.A. =A7 495b. = 1975, No.=20 198 (Adj. Sess.), =A7 2. The new provision allowed the = Attorney General=20 or state=92s attorneys to enforce the act =93by restraining prohibited = acts, seeking=20 civil penalties, obtaining assurances of discontinuance and conducting = civil=20 investigations in accordance with the procedures established in [the = Consumer=20 Fraud Act] as though an unlawful employment practice were an unfair act = in=20 commerce.=94 Id. It also provided = that the=20 superior courts could impose the same civil penalties and costs, and any = other=20 relief for the State or injured employee, as they could under the = penalty=20 provisions of the Consumer Fraud Act. Id. Finally, the 1976 = amendment=20 to the VFEPA provided that the superior courts could =93order = restitution of wages=20 or other benefits . . . and may order reinstatement and other=20 appropriate relief on behalf of an employee.=94 These changes = provided that=20 the penalties could go toward making the injured employees whole, = instead of=20 merely punishing the employers. Further, it is apparent from these = amendments that the Legislature intended that employers could be forced = to stop=20 discriminatory practices and incur liabilities substantially greater = than a $500=20 fine.

=B6 15. =20 The 1976 amendments retained remedies usually imposed on = traditional=20 employers in control of payroll and hiring, rather than coemployees or supervisors who might not enjoy = such powers,=20 but later changes=97many of which occurred before the 1993 addition of = the term=20 =93any agent=94 to the VFEPA definition of employer=97evinced an even = more definite=20 expansion of the remedial scheme. The Legislature amended the = penalty and=20 enforcement provisions again in 1981=97twelve years prior to the =93any = agent=94=20 amendment=97adding subsection (b), which allows a private right of = action by=20 injured employees against an employer who violates the VFEPA. In = this=20 subsection, any =93person aggrieved by a violation=94 may seek = =93damages or equitable=20 relief, including restraint of prohibited acts, restitution of wages or = other=20 benefits, reinstatement, costs, reasonable attorney=92s fees and other = appropriate=20 relief.=94 1981, No. 65, =A7 2. In 1999, the = Legislature specified=20 that the damages available under the private right of action included=20 =93compensatory and punitive.=94 1999, No. 19, =A7 5. = 21 V.S.A.=20 =A7 495b(b). Any one of those remedies can be extracted from = an=20 individual agent or coemployee, as well as = from the=20 traditional employer.

=B6 16. =20 Reference to the penalty provisions for federal Title VII = violations as=20 interpretive support for the conclusion that Title VII allows for only = respondeat superior liability does not transfer = with equal=20 force to the VFEPA context. Comparison of the VFEPA penalty = provisions and=20 the federal penalty provisions illustrates that the VFEPA never existed = in a=20 form where a private right of action could be remedied by solely = equitable=20 remedies, which an employer, but not a supervisor, would be in a = position to=20 provide. Further, the VFEPA does not tie the size of the possible = damages=20 award to the size of the employer and there is no restriction on the = damages=20 available=97such as limiting the equitable remedy to back pay=97that = suggests the=20 Legislature intended that employers alone would be liable for VFEPA=20 violations. Consequently, the rationales of the federal courts = provide no=20 basis for interpreting the VFEPA to mean that employees cannot be held = liable as=20 individuals.

=B6 17. =20 Decisions by other state courts construing their own Title = VII-patterned=20 state statutes can also inform our construction of the VFEPA. = Lavalley, 166 Vt. at 210, 692 A.2d at 370. = Nearly half=20 of the states define =93employer=94 in their antidiscrimination statutes = similarly=20 to the VFEPA. These state statutory definitions either include the = phrase=20 =93an agent=94 of the employer, see, e.g., Mich. Comp. Laws = =A7 37.2201(a), or an=20 equivalent phrase, such as =93any person acting in the interest of an = employer,=20 directly or indirectly,=94 see, e.g., Wash. Rev. Code = =A7 49.60.040(3). =20 Of these similar statutes, eleven have been construed by state appellate = courts,=20 which have split six to five in favor of holding that the agency = provisions=20 render coemployees individually liable for=20 discriminatory acts in the workplace.[4]

=B6 18. =20 We are not convinced by the five state-court decisions that = preclude=20 individual liability. Two of the courts, Florida and Texas, give virtually no reason for = their=20 decisions. The California, = Idaho, and Tennessee courts cite the consensus = of the=20 federal courts regarding individual liability for agents under the = federal FEPA=20 as one of the main reasons for rejecting individual liability under = their state=20 workplace discrimination statutes. Reno, 957 P.2d at 1344-45;=20 Foster, 908 P.2d at 1232-33; Carr, 955 S.W.2d at 835. = These=20 courts have also rejected individual liability based on the fact that = their=20 states=92 statutes contain small-business exceptions to the definition = of=20 =93employer,=94 much like the federal statute. Cal. Gov=92t Code =A7 12926(d); Idaho Code Ann. =A7 67-5902(6); Tenn. Code=20 =A7 4-21-102(5). Again, that rationale cannot apply to any = construction=20 of the VFEPA, which does not contain a small-business exception. = Because=20 nothing in the federal opinions supports construing the VFEPA in this = manner, we=20 are no more persuaded by this rationale when borrowed by some state = courts in=20 construing their statutes.

=B6 19. =20 The California and Tennessee courts adopted an additional = approach to the=20 individual liability issue, which is to rely on the general rule that = agents are=20 not typically held =93individually liable for acts undertaken on behalf = of a=20 disclosed principal that are within the legitimate scope of the = delegated=20 management authority.=94 Carr, 955 S.W.2d at 835 (citing = Restatement=20 (Second) of Torts =A7 320 (1977)[5] and Janken v. GM Hughes Elecs., 53 Cal. Rptr. 2d 741,=20 745 (1966)). Under an agency theory of discrimination liability, = the=20 supervising employee is not a party to the employer=97third-party = employee=20 contract, unless otherwise explicitly agreed. Restatement (Third) = of=20 Agency =A7 6.01 (2) (2006) (expressing the general rule of =A7320 in the = revised and=20 renumbered restatement). Thus the agent is not subject to = liability if the=20 principal fails to perform obligations created by the contract, = Id. = =A7 6.01=20 cmt. a, even if those obligations include = protecting=20 the employee from discrimination by that very supervisor. However, = the=20 California=20 courts, in using this rule, were able to further rely on their statutory = distinction between workplace =93discrimination=94 and workplace = =93harassment,=94=20 specifying that while =93any person=94 may be liable for harassment, = only=20 =93employers=94 are liable for discrimination. Reno, 957 P.2d at 1335. = The=20 Reno court concluded that, since discrimination claims =93arise = out of the=20 performance of necessary personnel management duties=94 such as = =93hiring and=20 firing, job or project assignments, office or work station assignments,=20 promotion or demotion, performance evaluations, the provision of = support, [and]=20 the assignment or nonassignment of = supervisory=20 functions,=94 the legislature properly made only the employer liable for = discrimination claims. Id. at 1336, 1343 (quotation = omitted). =20

=B6 20. =20 Assuming, without deciding, that we were to apply the Restatement = =A7 6.01 (2) rule to limit the situations where employees = could be=20 individually liable under the VFEPA, =A7 6.01 (2) does not = apply to the=20 many situations where an employee might be acting outside the scope of=20 legitimate management authority. In these situations, existing = case law=20 establishes that employers are not insulated from liability under Title=20 VII. The United States Supreme Court has unequivocally concluded = that=20 Title VII makes employers vicariously liable for many discriminatory and = harassing acts of their employees that are outside the scope of=20 employment. Ellerth, 524 U.S. = at 758=20 (holding that employers are liable when the employee who unlawfully=20 discriminates beyond the scope of his or her employment, but = =93 =92was aided=20 in accomplishing the [discrimination] by the existence of the agency=20 relation.=92 =94 (quoting Restatement (Second) of Torts=20 =A7 219(2)(d))). We have not had occasion to consider the = Ellerth holding in the context of a VFEPA = claim, but=20 given that the VFEPA=92s =93standards and = burdens of proof=20 . . . are identical to those under Title VII,=94 Hodgdon, 160 Vt. at 161, 624 A.2d at 1128, = the=20 expansive employer vicarious liability standard of Ellerth is likely to apply equally under = the=20 VFEPA. In those cases where the employee is aided in his or her=20 discriminatory acts by the existence of the agency relation to the = employer, but=20 is acting outside the scope of his or her employment, Restatement = =A7 6.01=20 (2) would not bar the employee from being held individually liable for = his or=20 her actions, in addition to holding the employer vicariously liable for = the=20 same.

=B6 21. =20 Turning to state court decisions that adopt employee liability, = we find=20 two categories of reasoning in support of our conclusion regarding = individual=20 liability under the VFEPA. First, courts have noted, as we have, = that the=20 statutory language =93by its very terms, encompasses individual = supervisors and=20 managers whose conduct violates the provisions of [the nondiscrimination = statute].=94 Genaro, 703 N.E.2d = at 785;=20 accord Elezovic, 697 N.W.2d at 857 = (concluding=20 that =93if the words [of the statutory definition of =91employer=92] are = to be read=20 sensibly [they must] mean that the Legislature intended to make the = agent=20 tantamount to the employer so that the agent unmistakably is also = subject to=20 suit along with the employer=94); Cooper v. Albacore Holdings, = Inc., 204=20 S.W.3d 238, 244 (Mo. Ct. App. 2006) (holding that =93the plain and = unambiguous=20 language with the definition of =91employer=92 . . . imposes = individual=20 liability in the event of discriminatory conduct=94); Brown, 20 = P.3d at 926=20 (stating =93[w]e find [the statutory definition of =91employer=92], by = its very terms,=20 contemplates individual supervisor liability=94). Second, allowing such = suits is=20 consistent with the remedial purpose of those statutes =93to deter and = to=20 eradicate discrimination in [the state].=94 Brown, 20 P.3d = at 927=20 (quotation omitted).[6] In sum, we conclude that = by=20 including the phrase =93and any agent=94 in the definition of = =93employer,=94 the VFEPA=20 allows for suits against employees as individuals.

III. Individual Liability under the Workers=92 = Compensation=20 Act

=B6 22. =20 The second issue on appeal is whether the Workers=92 Compensation = Act=20 allows employees to be sued as individuals for discriminating against = another=20 employee who has asserted a claim for workers=92 compensation = benefits. =20 Although supervisor moved for summary judgment on the basis that = plaintiff=20 failed to establish a prima facie case of discrimination under the WCA,=20 plaintiff=92s opposition to summary judgment raised the issue of = individual=20 liability, and the superior court granted summary judgment on the basis = that the=20 WCA does not allow employees to be sued in their individual = capacities. =20 The court did not address whether plaintiff had made a prima facie case. = Accordingly, we review only the purely legal question of whether = the WCA=20 permits employees to be held individually liable and reverse summary = judgment on=20 that ground.[7]

=B6 23. =20 Under the WCA, =93[n]o person shall discharge or discriminate = against an=20 employee . . . because such employee asserted a claim for=20 benefits.=94 21 V.S.A. =A7 710(b). We decided in = Murray v. St.=20 Michael=92s College, 164 Vt. 205, 209-10, 667 A.2d 294, 298-99 = (1995), that=20 this statutory section provides a private right of action for = damages. =20 However, as with the VFEPA, whether the statutory term =93person=94 = means that=20 employees and supervisors, as well as employers, may be held personally = liable=20 for worker=92s compensation discrimination has not before been = addressed. =20

=B6 24. =20 As we have already stated, the starting point for statutory=20 interpretation is to give effect to legislative intent. We first = look to=20 the language of the statute and seek to construe it according to its = plain and=20 ordinary meaning. State v. LeBlanc, 171 Vt. 88, 91, 759 = A.2d 991,=20 993 (2000). Where the language is clear and unambiguous, we = enforce the=20 statute according to its terms. Id. As the term = =93person=94 is=20 not defined in the WCA, we are obliged to interpret the term = consistently with=20 the rules set out in Title 1, Chapter 3. 1 V.S.A. = =A7 101. =20 Chapter 3 defines =93person=94 as including =93any natural = person.=94 Id.=20 =A7 128. Accordingly, we find no ambiguity in the meaning of = =93person=94=20 in this statute, and we see no reason to second-guess what the = Legislature meant=20 by its use of the term.[8] The statute allows an = employee to=20 be sued as an individual=97which is consistent with the Legislature=92s = approach to=20 personal liability for violation of the VFEPA.

=B6 25. =20 The superior court, in reaching the opposite conclusion, stated = that=20 =93[i]f the Legislature wanted to create a = private right=20 of action against supervisors, it could easily have done so clearly and=20 directly.=94 It is not apparent, however, why the Legislature need = be more=20 clear than to use the term =93person=94 in its most plain and = all-encompassing=20 sense. This legislative language choice straightforwardly applies = the=20 nondiscrimination provision to coworkers as well as to employers. = As=20 plaintiff points out, the Legislature used the term =93employer=94 = throughout the=20 WCA to specify liability and responsibilities of employers for = work-related=20 injuries. Its decision to use the term =93person=94 in = =A7 710(b) instead=20 of =93employer=94 marks a clear departure from its approach to = employer-only=20 liability in the rest of the WCA. Rather than ignore this = distinction and=20 assume the Legislature meant what it did not say, we will interpret the = statute=20 according to its plain meaning.

=B6 26. =20 Supervisor argues that it undermines the overall structure and = purpose of=20 the WCA to interpret the nondiscrimination provision as applying to=20 individuals. The WCA =93represents a public policy compromise in = which the=20 employee gives up the right to sue the employer in tort in return for = which the=20 employer assumes strict liability and the obligation to provide a speedy = and=20 certain remedy for work-related injuries.=94 Murray, 164 = Vt. at=20 209-10, 667 A.2d at 298 (quotation omitted). Prohibiting coworkers = from=20 discriminating against those who file workers=92 compensation claims has = no=20 bearing on this original compromise. Statutory authorization for = employees=20 to sue other employees for discrimination exposes employers to no = greater risk=20 of suit or liability than an employer could expect from suits against = employers=20 alone based on statutory or vicarious liability for discrimination by = employees=20 or supervisors. Nor does this construction interfere with injured = workers=20 securing the speedy and certain compensation intended by the = enactment. =20 The legislative choice to expose coemployees = to=20 discrimination liability is consistent with preventing workplace = cultures that=20 discourage employees from obtaining compensation to which they are=20 entitled. Our reading of =A7 710(b) is fully consistent with = the WCA as=20 a whole.

=B6 27. =20 Supervisor cites case law from Texas, Illinois, and Kansas in = support of=20 construing Vermont=92s WCA to exclude employees from personal liability = for=20 violating the antidiscrimination clauses of the Act. However, = those cases=20 rely on reasoning we have already rejected as inapposite or = unpersuasive. =20 Particularly unconvincing is a Texas court=92s overly stingy reading of = the term=20 =93person=94 to exclude =93any person.=94 Stewart v. = Littlefield ,=20 982 S.W.2d 133, 136-37 (Tex. Ct. App. 1998) (quoting with approval = Stoker v.=20 Furr=92s, Inc., 813 S.W.2d 719, 723 = (Tex. Ct. App.=20 1991), which concluded that it was inconceivable that the Legislature = would have=20 intended =93person=94 to mean =93any person,=94 and =93[h]ad the = legislature intended to=20 create a cause of action against any =85person . , it = could have=20 easily said so=94). As stated above, we are content to interpret = the=20 statutory term =93person=94 as it is defined by statute, rather than as = meaning=20 =93employer=94=97a term eschewed by the Legislature.

=B6 28. =20 Supervisor next directs us to some courts that have limited = potential=20 defendants in common-law retaliatory-discharge suits to employers = alone. =20 The basis for this limit is that =93only the employer . . . has a = =91motive=92 to fire=20 an employee for seeking workers=92 compensation benefits.=94 = Buckner v.=20 Atl. Plant Maint., Inc., 694 N.E.2d 565, = 570 (Ill.=20 1998). While this is likely true, it fails to acknowledge that = Vermont=92s=20 statutory provision is clearly aimed at any form of discrimination, not = simply=20 discharges. Further, it is reasonable to understand that the = Legislature,=20 in enacting 21 V.S.A. =A7 710(b), was as concerned with ensuring = employees=92=20 access to workers=92 compensation benefits without fear of reprisal, in = any form,=20 as it was with removing employers=92 economic incentives to retaliate by = discharging those employees who file claims. From the = employee-protection=20 perspective, the Legislature had good reason to prohibit fellow = employees, not=20 just employers, from creating hostile work environments for those who = file=20 workers=92 compensation claims. In sum, none of the authority = offered by=20 supervisor is persuasive on this point, and we reverse summary judgment = on=20 plaintiff=92s WCA claim.

Reversed and remanded for further proceedings = not=20 inconsistent with this opinion.

FOR THE = COURT:

Associate = Justice

[1] Defendant argues that we can = affirm=20 the superior court=92s decision based on the lack of a prima facie case = for=20 discrimination. We do not take the court=92s aside that it was = =93mindful that=20 Plaintiff has not alleged acts of unwanted sexual conduct by [defendant] = and=20 claims that she is not capable of performing the essential functions of = her job=94=20 as a ruling on whether plaintiff made a prima facie case under the = VFEPA. =20 Further, we note that plaintiff=92s amended complaint relied on at least = one=20 provision of the VFEPA under which defendant did not argue that = plaintiff failed=20 to state a prima facie case. While we sometimes choose to reach = issues=20 that were not decided by the trial court, see Towns v. N. Sec. Ins. = Co.,=20 2008 VT 98, =B6 16 n.4, 184 Vt. 322, 964 A.2d 1150, we choose = not to do=20 so in this case.

[2] Additionally, in a case = where the=20 issue was not raised, we allowed a suit for sex discrimination under the = VFEPA=20 to proceed against a supervisory employee as an individual. = Graff v.=20 Eaton, 157 Vt. 321, 598 A.2d 1383 (1991).

[3] As of this writing, the = United States=20 Court of Appeals for the First Circuit has not considered the issue. =

[4] The cases holding that state = antidiscrimination statutes allow employees to be held individually = liable are=20 Wallace v. Skadden, Arps,=20 Slate, Meagher & From, 715 A.2d 873, 887 (D.C. 1998); Elezovic v. Ford Motor Co., 697 = N.W.2d 851,=20 857-58 (Mich. 2005); Hill v. Ford Motor Co., 277 S.W.3d 659, 669 = (Mo.=20 2009); Fandrich v. Capital Ford = Lincoln=20 Mercury, 901 P.2d 112, 115 (Mont. 1995) (this case does not address = the=20 issue in the same manner that it is addressed here, but the reasoning = indicates=20 that employees are subject to individual liability); Genaro v. Cent. Transp., Inc., 703 = N.E.2d 782,=20 785-86 (Ohio 1999); and Brown v. Scott Paper Worldwide Co., 20 = P.3d 921,=20 926 (Wash. 2001) (en banc). The cases where courts have rejected=20 individual liability under state workplace antidiscrimination statutes = are=20 Reno v. Baird, 957 P.2d 1333, 1335-37 (Cal. 1998) (but suggesting = that=20 the harassment provision of the statute, which applies to =93any = employer=94 and any=20 =93person,=94 does impose individual liability on supervisors); = Patterson v.=20 Consumer Debt Mgmt. & Educ., Inc., 975 So. 2d 1290, 1292 (Fla. = Dist. Ct.=20 App. 2008); Foster v. Shore Club Lodge, Inc., 908 P.2d 1228, 1233 = (Idaho=20 1995); Carr v. United Parcel Serv., 955 S.W.2d 832, 834-35 (Tenn. = 1997),=20 overruled on other grounds by Parker v. Warren County Utility=20 Dist., 2 S.W.3d 170, 176 (Tenn. 1999) (suggesting, however, that = individuals=20 could be liable under the aiding and abetting provision of the law, = which=20 applies to =93any person=94); Washington v. Robertson County, 29 = S.W.3d 466=20 (Tenn. 2000) (holding that individuals can be liable under the malicious = harassment provision); and Jenkins v. Guardian Indus. Corp., 16 = S.W.3d=20 431, 439 (Tex. App. 2000).

[5]=20 While the Tennessee Supreme Court decision cites the Restatement = (Second)=20 of Torts, it is plainly referring to the rule expressed by the = Restatement=20 (Second) of Agency =A7 320. Restatement (Second) of Agency = =A7 320 (1958)=20 (=93Unless otherwise agreed, a person making or purporting to make a = contract with=20 another as agent for a disclosed principal does not become a party to = the=20 contract.=94).

[6] Where the statutory = definition of=20 =93employer=94 does not use the term =93agent,=94 but instead uses a = phrase such as =93any=20 person acting directly or indirectly in the interest of an employer,=94 = state=20 courts have reasoned that this language is =93much broader in scope than = that=20 employed by the analogous Title VII provision.=94 Genaro, 703 N.E.2d at 299; accord = Cooper, 204=20 S.W.3d at 244. We, however, read the =93any person acting in the = interest of=20 the employer=94 phrase as expressing essentially the same concept as the = =93any=20 agent=94 phrase expressed in the VFEPA. See Fandrich, 901 P.2d at 115 (construing = =93agent=94 in the=20 state nondiscrimination statute=92s definition of =93employer=94 in = =93the ordinary=20 meaning of the word =91agent,=92 =94 and thus holding that the term = =93includes=20 employees who are subject to an employer=92s control while performing = their job=20 duties=94); see also Restatement (Third) Agency =A71.01 (2006). = Consequently,=20 we do not find this last rationale to be a convincing reason to read the = =93agent=94=20 term in the VFEPA=92s definition of = =93employer=94 more=20 narrowly than these state courts have read the definition of = =93employer=94 in their=20 workplace antidiscrimination statutes.

[7] As with the VFEPA claims, = defendant=20 urges us to affirm the trial court=92s order on a separate ground, = namely, that=20 plaintiff failed to make a prima facie case for discrimination under the = WCA. Again, acknowledging we have the discretion to address issues = not=20 decided by the trial court, Towns, 2008 VT 98, = =B6 16 n.4, we=20 decline to do so here.

[8]=20 We acknowledge receipt of plaintiff=92s supplemental citation to a = transcript=20 purportedly relevant to the statute=92s underlying legislative history, = but note=20 that we did not consult or rely on this material in any respect in = reaching our=20 decision.