Sean Kelly v. The University of Vermont Medical Center ( 2022 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2022 VT 26No. 21-AP-264
Sean Kelly Supreme Court
On Appeal from
v. Superior Court, Chittenden Unit,
Civil Division
The University of Vermont Medical Center March Term, 2022
Helen M. Toor, J.
William Pettersen of Pettersen Law PLLC, Colchester, for Plaintiff-Appellant.
F. David Harlow of Downs Rachlin Martin PLLC, Brattleboro, for Defendant-Appellee.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Waples, Supr. J.,
Specially Assigned
¶ 1. CARROLL, J. Plaintiff Sean Kelly appeals an order granting summary judgment
to the University of Vermont Medical Center (UVMMC) on employment discrimination and
breach-of-contract claims arising from UVMMC’s decision not to extend his one-year medical
fellowship. We affirm.
¶ 2. The following material facts are undisputed. Each year the Sleep Medicine
Program at UVMMC offers one fellowship to a physician who has completed a medical residency.
Each year, the fellowship begins on July 1 and ends on June 30. UVMMC has never trained more
than two fellows at once. UVMMC selected plaintiff for the 2017-18 fellowship. UVMMC was
aware that plaintiff suffered from an adrenal deficiency that had delayed the completion of his
residency. Prior to beginning the fellowship, plaintiff signed a contract with UVMMC called
“University of Vermont Medical Center Conditions of Appointment and Training for GME
Residents/Fellows, 2017-2018,” outlining many aspects of his training, including describing his
position as an “educational experience and training program.” The contract provided that the
fellowship would run from July 1, 2017, through June 30, 2018, and his annual base salary would
be $65,981. Plaintiff’s benefits included three weeks of paid time off, five sick or personal days,
and five days off for employment interviews. The contract contained provisions for family medical
leave and unpaid absences of up to six months for fellows with more than one year of service. The
contract also contained the following clause: “[e]xtended leave of absences [sic] may require the
resident/fellow to extend their training program to satisfy their program’s certifying Board and
Accreditation Council for Graduate Medical Education Requirements.” Finally, the contract
explained that plaintiff would be awarded a certificate of completion if he completed all
requirements for sleep-medicine board eligibility “and as determined by the program director.”
However, the contract did not guarantee a certificate of completion.
¶ 3. In the first five months of the fellowship, plaintiff missed nineteen full days and
parts of nine more days for various reasons, including job interviews, medical appointments, sick
days, a dog-walking injury, and car trouble. By February 2018, after missing several more days
and expressing that he felt “frustrated with [his] absences” and “overall inadequate as a fellow,”
program personnel became concerned that plaintiff was falling behind in his training. In a March
30 meeting set to discuss plaintiff’s options, the program director told plaintiff that his performance
had “deficiencies and these need[ed] to be addressed.” At some point during this period, the
director also told plaintiff that he “should plan on extending [his] fellowship due to [his] time out
and some minor deficits through August.” Plaintiff sent an email to other program personnel
expressing frustration at the prospect of staying through August to complete his training. The
director gave plaintiff a written plan for improvement on April 3.
2
¶ 4. On April 14, 2018, plaintiff suffered a stroke, and on April 19th he attempted
suicide. He was hospitalized from April 14 through May 3 and was not cleared to return to work
until June 1, 2018. In all, plaintiff missed approximately six more weeks of the fellowship. On or
about May 31, the director called plaintiff and told him that while UVMMC had determined he
needed six more months of training to finish the fellowship, it could not accommodate additional
training for that length of time. UVMMC paid plaintiff his remaining salary.
¶ 5. Plaintiff filed a grievance under the Graduate Medical Education rules. At a June
2018 hearing, the grievance committee affirmed UVMMC’s decision. Plaintiff thereafter filed a
complaint in the civil division in December 2018 alleging multiple causes of action. After plaintiff
amended his complaint, UVMMC moved for summary judgment on each of plaintiff’s claims,
which included discrimination and failure-to-accommodate violations of the Vermont Fair
Employment Practices Act (FEPA), breach of contract, promissory estoppel, and defamation.1
UVMMC’s overarching argument regarding plaintiff’s two FEPA claims was that they involved
academic decisions made by UVMMC, not employment decisions, and that courts accord
academic decisions deference. UVMMC maintained that once it fulfilled its obligations to plaintiff
with respect to any employment aspects of the fellowship, including providing him with his
remaining salary, the decision not to extend his fellowship was an academic decision because the
sole purpose of extending the fellowship was the opportunity to obtain an academic benefit—a
certificate of completion. UVMMC argued that plaintiff could not establish a prima facie case for
discrimination because one of the required elements was whether plaintiff suffered an “adverse
employment action.” Because the decision not to extend his fellowship was an academic decision,
there was no employment action and consequently no adverse employment action. UVMMC
1
The trial court granted summary judgment to UVMMC on promissory estoppel and
defamation because plaintiff did not respond to UVMMC’s summary judgment arguments on
those claims.
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contended that plaintiff’s accommodation claim failed because there was no reasonable
accommodation that would have allowed him to finish his fellowship. Finally, UVMMC argued
that it did not breach the contract when it declined to extend the fellowship, and plaintiff could not
establish any damages arising from a purported breach. It pointed out that, although plaintiff could
not take the Sleep Medicine Board Exam without a certificate of completion from a sleep-medicine
fellowship program, he had twice failed the Internal Medicine Board Exam, another prerequisite
for the Sleep Medicine Board Exam.
¶ 6. Plaintiff countered that he suffered an adverse employment action because
UVMMC denied extending the fellowship and terminated him after he took medical leave in April
and May 2018. He maintained that prior to his stroke and suicide attempt, the program director
had offered to extend his fellowship through August. He relied heavily on certain terms in the
contract that “required” UVMMC to extend the fellowship due to extended medical leave, and that
even if there was no requirement, the mere possibility of an extension was enough to survive
summary judgment.
¶ 7. Plaintiff argued that a six-month extension was a reasonable accommodation so
that he could perform the essential functions of his fellowship. He contended that the fellowship
contract contemplated at least a six-month extension,2 that a fellowship itself is a non-essential
position at the hospital, and that UVMMC had granted “dozens” of extensions in the past.
¶ 8. Plaintiff pointed to several provisions in the fellowship contract which UVMMC
had allegedly breached. He maintained that the “ACGME Sleep Medicine Requirements,” a set
of national standards for programs like the one at UVMMC, and which the fellowship contract
incorporated required fellows to suffer no “negative consequences” resulting from extended
medical leaves. He interpreted the ACGME as requiring UVMMC to alert its fellows “with
2
When asked during a September 2020 deposition whether he thought the employment
contract provided for an indefinite extension, plaintiff responded, “yes.”
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accurate information regarding the impact of an extended leave of absence upon the criteria for
satisfactory completion of the program.” He characterized the contract’s provision regarding
extensions as “affirmatively guarantee[ing]” an extension if needed after medical leave. Plaintiff
suggested that the word “may” in the “may be required to extend their training Program” clause
pertaining to extended medical leave does not carry its ordinary meaning. Instead, “may” in this
context means that a fellow may not need to extend a fellowship due to a medical leave “if they
are far enough ahead in their proficiency that they are able to complete on time despite the medical
leave.”
¶ 9. Plaintiff argued he had provided sufficient evidence of contract damages when he
offered an expert opinion showing that sleep-medicine physicians make approximately $20,000
more than plaintiff was currently making as a hospitalist, and that he would have passed the
Internal Medicine Board Exams if he had not been so frequently hospitalized, among other reasons,
during the periods leading up to previous test attempts.
¶ 10. The civil division granted UVMMC’s motion on all counts. It first agreed that it
must accord UVMMC deference because the decision to not extend the fellowship was an
academic decision. However, it concluded that academic deference “does not completely insulate
[UVMMC] from liability” because deference to academic decision-making cannot be “blind” to
discriminatory decisions made by an academic institution.
¶ 11. The court next considered UVMMC’s contention that a six-month extension was
not a “reasonable accommodation” of plaintiff’s disability under the FEPA. It weighed evidence
regarding UVMMC’s limited resources to train multiple fellows simultaneously and that only one
fellow gets trained a year, against plaintiff’s evidence showing UVMMC had given extensions in
the past and plaintiff had initially been offered an extension through August before his stroke and
suicide attempt. The court concluded that the evidence was “capable of multiple interpretations.”
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¶ 12. Next addressing plaintiff’s discrimination claim, the court reasoned that the
fellowship was a hybrid position that included both employment and academic aspects. It cited
federal case law for the proposition that the correct analysis was to focus on the “context of the
cause of action to determine whether the resident is to be treated as an employee or a student in a
given case.” Knapik v. Mary Hitchcock Mem’l Hosp., 90 F. Supp. 3d 292, 300 (D. Vt. 2015). It
reasoned that an “adverse employment action” under the FEPA must ultimately “be tied to the
employment relationship.” The civil division concluded that because plaintiff had received all the
economic benefits owed to him under the contract, and the only remaining benefit plaintiff did not
receive was the opportunity for additional academic training toward obtaining the certificate of
completion, there was no adverse employment action. Accordingly, the FEPA did not apply to
UVMMC’s decision not to extend the fellowship.
¶ 13. Turning to plaintiff’s contract claims, the civil division found that the breach-of-
contract claim failed for two reasons. First, while the contract required UVMMC to impose no
“negative consequences” for taking medical leave and required UVMMC to alert plaintiff in
advance what the impact of such an absence would be, these provisions did not necessarily extend
to a situation in which a fellow missed months of a one-year fellowship and fell six months behind
in his training. Second, plaintiff’s argument that the provision reciting that a fellowship “may” be
extended “[did] not mean [UVMMC] has to offer that option.” Plaintiff’s damages claim failed,
the court concluded, because the damages were “pure speculation,” and involved a lengthy causal
chain of uncertain future events.
¶ 14. On appeal, plaintiff renews his arguments that, by not extending the fellowship,
UVMMC (1) unlawfully discriminated against him, (2) failed to accommodate his disabilities, and
(3) breached the employment contract.
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I. Standard of Review
¶ 15. “On appeal, we review summary judgment de novo and use the same standard as
the trial court.” Gallipo v. City of Rutland, 2005 VT 83, ¶ 13, 178 Vt. 244, 882 A.2d 1177. We
will affirm if the moving party demonstrates that “there is no genuine dispute as to any material
fact and [it] is entitled to judgment as a matter of law.” V.R.C.P. 56(a); see State v. G.S. Blodgett
Co., 163 Vt. 175, 180, 656 A.2d 984, 988 (1995). We resolve all reasonable doubts and inferences
concerning the existence of a material fact in favor of the nonmoving party. Gallipo, 2005 VT 83,
¶ 13. “The nonmoving party may survive the motion if it responds with specific facts raising a
triable issue, and it is able to demonstrate sufficient evidence to support a prima facie case.” G.S.
Blodgett Co., 163 Vt. at 180, 656 A.2d at 988 (citation omitted).
II. Discrimination
¶ 16. We first address plaintiff’s discrimination claim under the FEPA, 21 V.S.A.
§§ 495-496a. Plaintiff asserts he suffered an adverse employment action because of UVMMC’s
“denial of [his fellowship] extension and termination of his fellowship.” He maintains that
UVMMC had already communicated an offer to extend his fellowship for two months, but after
his stroke and suicide attempt, reversed course and terminated him.
¶ 17. “Under [the] FEPA, the standard and burdens of proof are identical to those under
Title VII [of the United States Code].” Gallipo, 2005 VT 83, ¶ 15. In general, to make out a prima
facie case of employment discrimination, the plaintiff has the burden of establishing four elements.
Robertson v. Mylan Lab’ys, Inc., 2004 VT 15, ¶ 25, 176 Vt. 356, 848 A.2d 310. He “must
demonstrate that: (1) []he was a member of a protected group; (2) []he was qualified for the
position; (3) []he has suffered an adverse employment action; and (4) the circumstances
surrounding this adverse employment action permit an inference of discrimination.” Id. (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “Plaintiff’s burden at this stage
is relatively light.” Gallipo, 2005 VT 83, ¶ 15.
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¶ 18. The Second Circuit has explained that an adverse employment action is “a
materially adverse change in the terms and conditions of employment.” Galabya v. N.Y.C. Bd. of
Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quotation omitted), abrogated on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). A material change is “more
disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. (quoting Crady
v. Liberty Nat’l Bank & Tr. Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993). Such changes can
include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities, or
other indices . . . unique to a particular situation.” Id. (quotation omitted).
¶ 19. Medical fellowships constitute “both an employment relationship and an
educational relationship.” See Knapik, 90 F. Supp. 3d at 300; see also Shaboon v. Duncan, 252
F.3d 722, 729 (5th Cir. 2001) (“[I]t is well-known that the primary purpose of a residency program
is not employment or a stipend, but the academic training and academic certification for successful
completion of the program.” (quotation omitted)). Whether the plaintiff is to be treated as an
employee or a student is determined on a case-by-case basis by “examin[ing] the context of the
cause of action.” Knapik, 90 F. Supp. 3d at 300. We accord deference to academic institutions
when they make nondiscriminatory decisions “about the ethical and academic standards applicable
to [their] students.” Bhatt v. Univ. of Vt., 2008 VT 76, ¶ 15, 184 Vt. 195, 958 A.2d 637.
¶ 20. As an initial matter, UVMMC did not terminate plaintiff, as his counsel conceded
at oral argument. Instead, UVMMC did not extend his fellowship. Therefore, the question before
us is whether the non-extension of his fellowship constituted an adverse employment action. For
the following reasons, we hold it did not.
¶ 21. Plaintiff first argues that the non-extension of his fellowship is like the non-renewal
of an employment contract, and contract non-renewal can be an adverse employment action. He
primarily relies on Leibowitz v. Cornell Univ., 584 F.3d 487 (2d Cir. 2009), for this proposition.
8
Leibowitz was an instructor at Cornell University and was appointed to a five-year term, which
was renewable on a continuing basis. Although her contract was renewed once, it was not renewed
a second time. The Second Circuit held that the non-renewal of an employment contract could be
an adverse employment action where the employee seeks contract renewal. Leibowitz, 584 F.3d
at 500. However, Leibowitz is readily distinguishable because Leibowitz was subject to an express
renewal process for future five-year term appointments, which she had argued was similar to a
tenure-track position. Moreover, while Leibowitz and the school had an academic relationship,
the purpose of her continued employment at the school was not personal academic training
culminating in a degree or certificate. On the other hand, plaintiff concedes that UVMMC
provided him all the remuneration promised in the contract and that his contract period expired on
June 30, 2018, albeit “with the opportunity for extension” under certain circumstances. He further
concedes that he needed the certificate of completion to take the Sleep Medicine Board Exam, the
culmination of the advanced training to become a sleep-medicine physician.
¶ 22. Plaintiff next cites two cases, Wilkerson v. New Media Tech. Charter Sch. Inc., 522
F.3d 315 (3d Cir. 2008) and Flaherty v. Massapequa Pub. Schs., 752 F. Supp. 2d 286 (E.D.N.Y.
2010), for the proposition that “a renewal or an extension need not be guaranteed in order for the
denial to qualify as an adverse employment action.” However, Wilkerson and Flaherty, like
Leibowitz, are not cases concerning employment and academic relationships; instead, they concern
whether a non-renewal of an employment contract could constitute an adverse employment
action.3 That question is inapplicable here because this matter concerns a non-guaranteed
3
Flaherty nominally concerns a school district’s refusal to “extend” a superintendent’s
three-year contract. 752 F. Supp. 2d at 288, 296. However, the extension in Flaherty was
essentially a contract-renewal option, unlike the limited extension involved here. See, e.g., id. at
289 (“[T]he School Board informed Flaherty that her contract would not be renewed.”); id. at 298(allegedly discriminatory statement “not made until two months after Flaherty was told that her
contract would not be renewed”); id. at 300 (“[T]he [c]ourt assumes that Flaherty would have
received another 4% raise at the end of the third year of work had her contract been renewed.”).
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extension to a one-year fellowship for which the plaintiff had been fully remunerated under the
contract terms and the following year’s position had already been filled. In fact, plaintiff does not
cite a case holding that the refusal to extend a fellowship for the sole purpose of obtaining an
academic credential is an adverse employment action.
¶ 23. Plaintiff argues that the trial court’s reliance on Herrera v. Union No. 39 Sch. Dist.,
2006 VT 83, 181 Vt. 198, 917 A.2d 923, was error because he “lost the economic benefits of his
fellowship contract and employment,” including potential benefits associated with an extension,
when UVMMC did not extend the fellowship. In Herrera, a school board placed a high-school
principal on paid administrative leave before the end of his two-year employment contract. The
board decided not to renew the contract. Challenging these decisions, the principal claimed, under
42 U.S.C. § 1983, that the board deprived him of a constitutionally protected property interest in
his employment. This Court reasoned that “his [property] interest extends only as far as the
economic benefits that flow from his employment.” Id. ¶ 26. Consequently, because the principal
had been paid in full under the terms of the contract, we held that he was not deprived of a protected
property interest. Id.
¶ 24. The civil division, analogizing the deprivation-of-property-interest issue in Herrera,
concluded that because plaintiff had received all the economic benefits promised under the
fellowship contract, the contract contained no right to an extension, and because the one-year
fellowship had already been filled by another fellow, plaintiff “was not denied any employment
position because such a position did not exist.” Accordingly, the civil division continued, the non-
extension of the fellowship was not an employment action. We agree.
¶ 25. UVMMC’s decision not to extend plaintiff’s fellowship can in no way be construed
as a “ ‘materially adverse change’ in the terms and conditions of [plaintiff’s] employment.”
Galabya, 202 F.3d at 640. He was not terminated, he was not demoted, his salary was not
decreased, he did not receive a less distinguished title, he did not lose any benefits, and he did not
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suffer any diminished material employment responsibilities because he had none guaranteed after
June 30, 2018. In fact, plaintiff concedes his fellowship was ultimately “a non-essential position
for the hospital.” The only material responsibilities he may have had after June 30 would have
been maintaining the “ethical and academic standards applicable” to UVMMC fellows while he
attempted to finish the fellowship. Bhatt, 2008 VT 76, ¶ 15.
¶ 26. We are further persuaded that UVMMC’s decision was not an adverse employment
action because although “employment” is not defined in the FEPA, its ordinary meaning denotes
“the condition of having a paying job,” or “[w]ork for which one has been hired and is being paid
by an employer.” Employment, Black’s Law Dictionary (11th ed. 2020); see Brisson Stone, LLC
v. Town of Monkton, 2016 VT 15, ¶ 19, 201 Vt. 286, 143 A.3d 550 (“Words not defined with a
statute are given their plain and ordinary meaning, which may be obtained by consulting dictionary
definitions.”). There is nothing in the record indicating that UVMMC considered a possible
extension to ensure that plaintiff had “a paying job,” nor does plaintiff allege he was interested in
extending the fellowship for that purpose. Indeed, plaintiff expressed frustration at the prospect
of remaining at UVMMC beyond June 30 due to financial concerns.
¶ 27. In sum, UVMMC’s decision not to extend plaintiff’s fellowship was not an adverse
employment action because it was an academic decision. See Regents of Univ. of Mich. v. Ewing,
474 U.S. 214, 225 n.11 (1985) (“University faculties must have the widest range of discretion in
making judgments as to the academic performance of students and their entitlement to promotion
or graduation.” (quotation omitted)). While plaintiff is correct in arguing that academic institutions
may not make discriminatory academic decisions, UVMMC made no such decision here. Patel v.
Univ. of Vt. & State Agric. Coll., 526 F. Supp. 3d 3, 10 (D. Vt. 2021) (noting that “academic
institutions are not entitled to deference for discriminatory decisions”). Plaintiff concedes he
missed significant periods of a one-year fellowship and had fallen behind in his training as early
as February 2018. After his stroke and suicide attempt, he fell even further behind. That UVMMC
11
ultimately concluded plaintiff needed six months of additional training and decided it could not
offer that to him given its limited resources, program description, and accreditation considerations,
is not discriminatory. Cf. Connors v. Dartmouth Hitchcock Med. Ctr., Nos. 2:10-cv-94, 2:12-cv-
51, 2013 WL 3560946, at *6 (D. Vt. July 11, 2013) (concluding hospital was not entitled to
deference for dismissing psychiatry resident for reasons not involving “ethical lapses or academic
deficiencies”). Requiring UVMMC to make a different decision on these undisputed facts would
improperly substitute the Court’s own preferences for UVMMC’s decisions regarding how best to
administer the fellowship, which is precisely why we accord academic institutions deference for
such decisions.
III. Failure to Accommodate
¶ 28. We next address plaintiff’s failure-to-accommodate claim under the FEPA. 21
V.S.A. § 495d(6) (defining protected class of qualified individuals with disabilities as persons
“capable of performing the essential functions of the job or jobs for which the individual is being
considered with reasonable accommodation to the disability”). In his principal brief, plaintiff
allocates two paragraphs to this claim. He argues that a prima facie failure-to-accommodate claim
under the FEPA does not require a showing of an “adverse employment action,” and recites the
elements he argues are required. He then makes the assertion that his claim should survive
summary judgment because he can satisfy all the elements, referring the Court to his summary
judgment papers for containing “the reasons” why.
¶ 29. An appellant’s principal brief must contain “the issues presented, how they were
preserved, and appellant’s contentions and reasons for them—with citations to the authorities,
statutes, and parts of the record on which the appellant relies.” V.R.A.P. 28(a)(4)(A); see Johnson
v. Johnson, 158 Vt. 160, 164 n.*, 605 A.2d 857, 859 n.* (1992). “It is the burden of the appellant
to demonstrate how the lower court erred warranting reversal. We will not comb the record
searching for error.” In re S.B.L., 150 Vt. 294, 297, 553 A.2d 1078, 1081 (1988).
12
¶ 30. Plaintiff’s briefing on this issue falls short of the standards for adequate briefing
under Vermont Rule of Appellate Procedure 28(a). His only citation is to a nonbinding case
potentially standing for the proposition that no “adverse employment action” is required to make
out a prima facie accommodation claim under the FEPA. He does not describe how the issue was
preserved or how the trial court erred on the issue, nor does he direct us to the parts of the record
he is relying on—other than his summary-judgment opposition memorandum. In effect, plaintiff
tells us to comb through the memorandum and the rest of the record to locate his arguments and
divine how the civil division erred as a result. This, we will not do. See Khan v. Alpine Haven
Prop. Owners’ Ass’n, Inc., 2020 VT 90, ¶ 29, __ Vt. __, 245 A.3d 1234 (concluding brief was
inadequate because it failed to discuss required elements of claim).
IV. Breach of Contract
¶ 31. Finally, plaintiff argues that UVMMC breached the employment contract by not
extending his fellowship. As a result, he is unable to make a sleep-medicine-physician salary,
which, he argues, is more than he currently makes as a hospitalist. We address plaintiff’s damages
claim first.
¶ 32. “The rule is clearly established in Vermont that breach-of-contract damages must
be proved with reasonable certainty.” Madowitz v. Woods at Killington Owners’ Ass’n, Inc., 2014
VT 21, ¶ 14, 196 Vt. 47, 93 A.3d 571 (quotation omitted). “Such damages therefore cannot be
based on mere speculation and conjecture.” Id. (quotation omitted). “An injury based on
speculation about uncertain future events is no injury at all.” See Hedges v. Durrance, 2003 VT
63, ¶ 12, 175 Vt. 588, 834 A.2d 1 (2003) (mem.).
¶ 33. Plaintiff maintains that he could make significantly more than his current $230,000
per year salary as a hospitalist if UVMMC had extended his fellowship. He submitted a report
prepared by an expert, which included a salary analysis comparing hospitalists with sleep-medicine
physicians. Plaintiff argues that, assuming UVMMC had extended his fellowship, the following
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scenario is enough to survive summary judgment: (1) he would have finished the fellowship and
received the certificate of completion; (2) he would have passed the prerequisite Internal Medicine
Board Exam; (3) he would have subsequently passed the Sleep Medicine Board Exam; and (4) he
would have obtained employment as a sleep-medicine physician. AAB 13. See Est. of Alden v.
Dee, 2011 VT 64, ¶ 16, 190 Vt. 401, 35 A.3d 950 (“[T]he facts alleged must be sufficient for a
reasonable jury to find in favor of the nonmoving party.”). We are not persuaded.
¶ 34. Plaintiff’s argument is certainly “mere speculation” that the above series of events
would have occurred if UVMMC had extended his fellowship for at least six months, and possibly
indefinitely. Madowitz, 2014 VT 21, ¶ 19 (concluding that calculation of lost profits flowing from
frustrated plan to construct forty condominiums after Act 250 construction permit deadline had
passed was “entirely speculation”). Even assuming for the sake of argument that plaintiff could
have finished the fellowship and obtained his certificate of completion, which is hard to imagine
given the uncontested facts, he still needed to pass an exam he had twice failed before he sat for
the Sleep Medicine Board Exam. He counters that he knew he had eight more chances to pass the
Internal Medicine Board Exam, and in any case he “did not study as hard as he could have . . . due
to a variety of reasons, including hospitalization.”4
¶ 35. Moreover, he argues that he would have subsequently passed the Sleep Medicine
Board Exam and secured employment in the field because he was enthusiastic about the field
generally, and he was drawn to work environments involving “less contact with contagious
4
Plaintiff cites Artunduaga v. Univ. of Chi. Med. Ctr., No. 12 C 8733, 2016 WL 7384432,
at *6 (N.D. Ill. Dec. 21, 2016), as evidence that other courts have not considered such damages
claims too speculative in this context. However, the district court in that case found that the
plaintiff had “an extensive, successful academic history,” and “[b]ased on her academic success
and work experience, there is a factual record supporting the assumption that [the] [p]laintiff would
have passed her licensing examinations.” Id. at *6. We are presented with the opposite situation
here; plaintiff has twice failed the prerequisite licensing exam, concedes that he did so in part
because he did not study hard enough, and concedes that he struggled with the academic
requirements of the fellowship throughout his tenure.
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patients, thereby protecting his immunocompromised state.” We do not doubt the sincerity of
plaintiff’s assertions, but we cannot agree that they would have been “reasonabl[y] certain[]” to
occur if UVMMC had extended his fellowship. Id. ¶ 14; see also Hedges, 2003 VT 63, ¶ 12.
¶ 36. Because plaintiff cannot prove damages, he cannot prove UVMMC breached the
fellowship contract. Smith v. Country Vill. Int’l, Inc., 2007 VT 132, ¶ 10, 183 Vt. 535, 944 A.2d
240 (mem.) (“Failure to prove damages is fatal to a claim for breach of contract.”). Accordingly,
we need not, and do not, proceed to a discussion of the contract terms plaintiff argues UVMMC
breached.
Affirmed.
FOR THE COURT:
Associate Justice
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