McDonnell Douglas framework in Vermont

2024Ctr., 2023 VT 31, ¶ 25 , __ Vt. __, 308 A.3d 421 (quotation omitted) (applying burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in context of Vermont’s Fair Employment Practices Act); Griffis v. Cedar Hill Health Care Corp., 2008 VT 125, ¶ 12 , 185 Vt. 74 , 967 A.2d 1141 (applying McDonnell Douglas test under whistleblower protection statute for healthcare employees).

2005Because the comments do not refer directly to Mr. Griswold=s motivation, the Court considers them only circumstantial evidence as to wrongful intent, requiring the application of the McDonnell Douglas framework instead. 7 Inspired by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), this framework places an initial burden on the plaintiff to establish a prima facie case of disparate treatment.

2026Bd, 138 Vt. 15, 19 (1979)); cf. Spinette v. Univ. of Vermont, 2023 VT 12, ¶ 16 , 217 Vt. 550 (noting, in housing discrimination action, that the trial court applied the McDonnell Douglas framework).

2026Bd, 138 Vt. 15, 19 (1979)); cf. Spinette v. Univ. of Vermont, 2023 VT 12, ¶ 16 , 217 Vt. 550 (noting, in housing discrimination action, that the trial court applied the McDonnell Douglas framework).

2025Robertson, 2004 VT 15, ¶ 18 (quotation omitted). ¶ 15.

2025Robertson, 2004 VT 15, ¶ 18 (quotation omitted). ¶ 15.

2020If defendant meets that burden, the ultimate burden of persuasion returns to the plaintiff to show that the nondiscriminatory reason for the employment decision promoted by the employer was a pretext for discrimination.3 See id. n.3; see also Gallipo v. City of Rutland, 163 Vt. 83 , 89 n.2 (1994) (“If the plaintiff fails to establish that an impermissible factor played a motivating part in the employment decision, then the McDonnell Douglas analysis applies.”). 3 The Court notes that while the burden of persuasion under McDonnell Douglas always remains with the plaintiff, the burden of product

2020If defendant meets that burden, the ultimate burden of persuasion returns to the plaintiff to show that the nondiscriminatory reason for the employment decision promoted by the employer was a pretext for discrimination.3 See id. n.3; see also Gallipo v. City of Rutland, 163 Vt. 83 , 89 n.2 (1994) (“If the plaintiff fails to establish that an impermissible factor played a motivating part in the employment decision, then the McDonnell Douglas analysis applies.”). 3 The Court notes that while the burden of persuasion under McDonnell Douglas always remains with the plaintiff, the burden of product

2024See Gauthier, 2015 VT 108 , 11 15 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

2024See Gauthier, 2015 VT 108 , 11 15 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

2023Tilford, Charging Party v. Jeffre, Fair Housing-Fair Lending (P-H) P 25,020, 1991 WL 442788 , at *6 (Dec. 18, 1991) (finding direct evidence of discrimination based on familial status where owner did not allow prospective tenant with child to “inspect and apply for the apartment,” told applicant and “others that the apartment was available for singles only,” and “stated that it is her policy not to rent to people with children”); cf. United States v. Badgett, 976 F.2d 1176, 1178 (8th Cir. 1992) (concluding in housing-discrimination case that trial court “failed to apply the McDonnell Douglas s

2023Tilford, Charging Party v. Jeffre, Fair Housing-Fair Lending (P-H) P 25,020, 1991 WL 442788 , at *6 (Dec. 18, 1991) (finding direct evidence of discrimination based on familial status where owner did not allow prospective tenant with child to “inspect and apply for the apartment,” told applicant and “others that the apartment was available for singles only,” and “stated that it is her policy not to rent to people with children”); cf. United States v. Badgett, 976 F.2d 1176, 1178 (8th Cir. 1992) (concluding in housing-discrimination case that trial court “failed to apply the McDonnell Douglas s

2026Bd, 138 Vt. 15, 19 (1979)); cf. Spinette v. Univ. of Vermont, 2023 VT 12, ¶ 16 , 217 Vt. 550 (noting, in housing discrimination action, that the trial court applied the McDonnell Douglas framework).

2026Bd, 138 Vt. 15, 19 (1979)); cf. Spinette v. Univ. of Vermont, 2023 VT 12, ¶ 16 , 217 Vt. 550 (noting, in housing discrimination action, that the trial court applied the McDonnell Douglas framework).

2024Comm’n v. LaBrie, Inc., 164 Vt. 237, 244 , 668 A.2d 659, 665 (1995) (concluding there was “no need to apply the McDonnell Douglas framework . . . because plaintiff presented direct evidence of discrimination”); see also Spinette v. Univ. of Vt., 2023 VT 12, ¶ 16 , 217 Vt. 550 , 292 A.3d 1225 (applying McDonnell Douglas framework in absence of direct evidence of discrimination).

2024Comm’n v. LaBrie, Inc., 164 Vt. 237, 244 , 668 A.2d 659, 665 (1995) (concluding there was “no need to apply the McDonnell Douglas framework . . . because plaintiff presented direct evidence of discrimination”); see also Spinette v. Univ. of Vt., 2023 VT 12, ¶ 16 , 217 Vt. 550 , 292 A.3d 1225 (applying McDonnell Douglas framework in absence of direct evidence of discrimination).

2026“For a plaintiff's claim to survive a motion to dismiss in a McDonnell Douglas case, he must plausibly allege that he ‘[1] is a member of a protected class, ... [2] suffered an adverse ... action, and [3] has at least minimal support for the proposition that the [housing provider] was motivated by discriminatory intent.’” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 73 (2d Cir. 2021) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)).

2026“For a plaintiff's claim to survive a motion to dismiss in a McDonnell Douglas case, he must plausibly allege that he ‘[1] is a member of a protected class, ... [2] suffered an adverse ... action, and [3] has at least minimal support for the proposition that the [housing provider] was motivated by discriminatory intent.’” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 73 (2d Cir. 2021) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)).

2026The Vermont Supreme Court has been clear that FEPA is patterned after Title VII of the federal Civil Rights Act of 1964, and the “standards and burdens of proof” under FEPA generally are the same as those under Title VII.2 Gallipo v. City of Rutland, 163 Vt. 83, 89 (1994); see also Carpenter v. Central Vermont Medical Center, 170 Vt. 565, 566 (1999) (so holding in age discrimination context); Lavalley v. E.B. & A.C.

2026The Vermont Supreme Court has been clear that FEPA is patterned after Title VII of the federal Civil Rights Act of 1964, and the “standards and burdens of proof” under FEPA generally are the same as those under Title VII.2 Gallipo v. City of Rutland, 163 Vt. 83, 89 (1994); see also Carpenter v. Central Vermont Medical Center, 170 Vt. 565, 566 (1999) (so holding in age discrimination context); Lavalley v. E.B. & A.C.

2026“For a plaintiff's claim to survive a motion to dismiss in a McDonnell Douglas case, he must plausibly allege that he ‘[1] is a member of a protected class, ... [2] suffered an adverse ... action, and [3] has at least minimal support for the proposition that the [housing provider] was motivated by discriminatory intent.’” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 73 (2d Cir. 2021) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)).

2026“For a plaintiff's claim to survive a motion to dismiss in a McDonnell Douglas case, he must plausibly allege that he ‘[1] is a member of a protected class, ... [2] suffered an adverse ... action, and [3] has at least minimal support for the proposition that the [housing provider] was motivated by discriminatory intent.’” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 73 (2d Cir. 2021) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)).

2024Ctr., 2023 VT 31, ¶ 25 , __ Vt. __, 308 A.3d 421 (quotation omitted) (applying burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in context of Vermont’s Fair Employment Practices Act); Griffis v. Cedar Hill Health Care Corp., 2008 VT 125, ¶ 12 , 185 Vt. 74 , 967 A.2d 1141 (applying McDonnell Douglas test under whistleblower protection statute for healthcare employees).

2024Plaintiff could do so by showing that: “(1) [he] [was] engaged in a protected activity, (2) [his] employer was aware of that activity, (3) [he] suffered an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action.” Hammond, 2023 VT 31, ¶ 38 (brackets omitted); Griffis, 2008 VT 125, ¶ 12 (recognizing that plaintiff’s prima facie case for retaliation must be established by preponderance of evidence).

2024Ctr., 2023 VT 31, ¶ 25 , __ Vt. __, 308 A.3d 421 (quotation omitted) (applying burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in context of Vermont’s Fair Employment Practices Act); Griffis v. Cedar Hill Health Care Corp., 2008 VT 125, ¶ 12 , 185 Vt. 74 , 967 A.2d 1141 (applying McDonnell Douglas test under whistleblower protection statute for healthcare employees).

2024Ctr., 2023 VT 31, ¶ 25 , __ Vt. __, 308 A.3d 421 (quotation omitted) (applying burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in context of Vermont’s Fair Employment Practices Act); Griffis v. Cedar Hill Health Care Corp., 2008 VT 125, ¶ 12 , 185 Vt. 74 , 967 A.2d 1141 (applying McDonnell Douglas test under whistleblower protection statute for healthcare employees).

2023We are not persuaded that the law requires such a specific showing at the initial stage of the McDonnell Douglas inquiry in every case. “[B]ecause the facts inevitably vary in different employment discrimination cases, . . . the prima facie proof required in a given case will depend on the specific facts in question.” McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001).

2023We are not persuaded that the law requires such a specific showing at the initial stage of the McDonnell Douglas inquiry in every case. “[B]ecause the facts inevitably vary in different employment discrimination cases, . . . the prima facie proof required in a given case will depend on the specific facts in question.” McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001).

2022See Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004) (per curiam) (applying McDonnell Douglas framework and holding that in order to make prima facie case in similar FMLA retaliation claim, plaintiff must establish that “(1) he exercised rights protected under the FMLA; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.”).

2022See Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004) (per curiam) (applying McDonnell Douglas framework and holding that in order to make prima facie case in similar FMLA retaliation claim, plaintiff must establish that “(1) he exercised rights protected under the FMLA; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.”).

2021Cf. Graziadio v. Culinary Institute of America¸ 817 F.3d 415, 429 (2d Cir. 2016) (In an analogous claim for retaliation under the FMLA, explaining that once defendant demonstrates a legitimate, nondiscriminatory reason for the adverse employment action, “the plaintiff must then show that defendant’s proffered reason is pretextual.”) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996)).

2021Cf. Graziadio v. Culinary Institute of America¸ 817 F.3d 415, 429 (2d Cir. 2016) (In an analogous claim for retaliation under the FMLA, explaining that once defendant demonstrates a legitimate, nondiscriminatory reason for the adverse employment action, “the plaintiff must then show that defendant’s proffered reason is pretextual.”) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996)).

2021Cf. Graziadio v. Culinary Institute of America¸ 817 F.3d 415, 429 (2d Cir. 2016) (In an analogous claim for retaliation under the FMLA, explaining that once defendant demonstrates a legitimate, nondiscriminatory reason for the adverse employment action, “the plaintiff must then show that defendant’s proffered reason is pretextual.”) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996)).

2021Cf. Graziadio v. Culinary Institute of America¸ 817 F.3d 415, 429 (2d Cir. 2016) (In an analogous claim for retaliation under the FMLA, explaining that once defendant demonstrates a legitimate, nondiscriminatory reason for the adverse employment action, “the plaintiff must then show that defendant’s proffered reason is pretextual.”) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996)).

2016Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 154 (2d Cir. 2010); Lewis v. City of Chicago Police Dep’t, 590 F3d 427, 439 (7th Cir. 2009); Armstrong v. Burdette Tomlin Memorial Hosp., 438 F.3d 240 , 249–50 (3d Cir. 2006). 6 chapter,” id. § 495(a)(8)(A).

2016Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 154 (2d Cir. 2010); Lewis v. City of Chicago Police Dep’t, 590 F3d 427, 439 (7th Cir. 2009); Armstrong v. Burdette Tomlin Memorial Hosp., 438 F.3d 240 , 249–50 (3d Cir. 2006). 6 chapter,” id. § 495(a)(8)(A).

2016Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 154 (2d Cir. 2010); Lewis v. City of Chicago Police Dep’t, 590 F3d 427, 439 (7th Cir. 2009); Armstrong v. Burdette Tomlin Memorial Hosp., 438 F.3d 240 , 249–50 (3d Cir. 2006). 6 chapter,” id. § 495(a)(8)(A).

2016Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 154 (2d Cir. 2010); Lewis v. City of Chicago Police Dep’t, 590 F3d 427, 439 (7th Cir. 2009); Armstrong v. Burdette Tomlin Memorial Hosp., 438 F.3d 240 , 249–50 (3d Cir. 2006). 6 chapter,” id. § 495(a)(8)(A).

1999See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981).

1999See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981).

1995See id. at 121-22 (McDonnell Douglas method of proof inapplicable where plaintiff presents direct proof of age discrimination in employment); Pinchback, 907 F.2d at 1452 (same in racial discrimination in housing); Lepore, 816 F. Supp. at 1017 (same in “family status” housing discrimination). 3 Neither party has addressed whether Vermont’s business necessity exemption, 9 V.S.A. § 4504(4), is applicable in a disparate-treatment claim, or is limited to disparate-impact claims.

1995See id. at 121-22 (McDonnell Douglas method of proof inapplicable where plaintiff presents direct proof of age discrimination in employment); Pinchback, 907 F.2d at 1452 (same in racial discrimination in housing); Lepore, 816 F. Supp. at 1017 (same in “family status” housing discrimination). 3 Neither party has addressed whether Vermont’s business necessity exemption, 9 V.S.A. § 4504(4), is applicable in a disparate-treatment claim, or is limited to disparate-impact claims.

1995Indeed, direct evidence of unlawful discrimination is often difficult to obtain. 2 Pinchback, 907 F.2d at 1452 ; see also United States v. Badgett, 976 F.2d 1176, 1178 (8th Cir. 1992) (“McDonnell Douglas test recognizes that direct proof of unlawful discrimination is rarely available”).

1995See id. at 121-22 (McDonnell Douglas method of proof inapplicable where plaintiff presents direct proof of age discrimination in employment); Pinchback, 907 F.2d at 1452 (same in racial discrimination in housing); Lepore, 816 F. Supp. at 1017 (same in “family status” housing discrimination). 3 Neither party has addressed whether Vermont’s business necessity exemption, 9 V.S.A. § 4504(4), is applicable in a disparate-treatment claim, or is limited to disparate-impact claims.

1995Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).

1995Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).

1994See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Hodgdon, 160 Vt. at 161 , 624 A.2d at 1128-29 (explaining different burdens of production depending upon evidence presented by plaintiff).

1994See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Hodgdon, 160 Vt. at 161 , 624 A.2d at 1128-29 (explaining different burdens of production depending upon evidence presented by plaintiff).

1992See Graff, 157 Vt. at 324, 598 A.2d at 1384 .

1992See Graff, 157 Vt. at 324, 598 A.2d at 1384 .