Allen v. University of Vermont

Citations: 2009 VT 33; 973 A.2d 1183; 185 Vt. 518; 2009 Vt. LEXIS 35Docket: 2008-132

Court: Supreme Court of Vermont; March 27, 2009; Vermont; State Supreme Court

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Rachel Allen, a former student at the University of Vermont (UVM), filed a lawsuit against the university for monetary damages, alleging discrimination under the Vermont Public Accommodations Act (VPAA). Allen claimed that UVM failed to treat her report of rape as a harassment claim and did not conduct an investigation as required by 16 V.S.A. § 14, a statute mandating such procedures in educational settings. The Chittenden Superior Court granted summary judgment in favor of UVM, asserting that Allen did not exhaust her administrative remedies, which is a prerequisite for her claim under the same statute.

On appeal, Allen raised three main arguments: (1) UVM’s failure to provide her with its harassment policy at the time of her report negated its defense regarding exhaustion of administrative remedies; (2) there are existing statutory exceptions to the exhaustion requirement that apply to her case; and (3) even if existing exceptions do not apply, the circumstances warrant recognizing an additional, extra-statutory exception. The court disagreed with all of Allen's arguments and upheld the superior court's ruling.

The case background reveals that on September 12, 2005, Allen, an eighteen-year-old freshman, reported via email to UVM's Women’s Center that she had been drugged and raped at a fraternity party. Two days later, she met with the Center’s Advocacy and Violence Prevention Coordinator, who filled out an intake form that identified the incident as "Sexual Assault" but not "Sexual Harassment." The Coordinator did not refer Allen to UVM's harassment reporting policies and procedures, focusing instead on other reporting options, including contacting the police and UVM’s Center for Student Ethics and Standards.

Plaintiff did not report the rape to law enforcement but filed a formal complaint with the university's Center on October 10, 2005. A no-contact agreement between the plaintiff and the accused was established on October 21. A hearing was held on December 9, 2005, where the hearing panel found insufficient evidence to uphold the rape allegation on January 26, 2006, yet the no-contact order remained in place. Following the university's decision, the plaintiff's father sought a satisfactory resolution from university officials, but the general counsel stated that the university had acted appropriately. The plaintiff withdrew from the university in May 2006, and neither she nor her father claimed the incident constituted harassment, nor did any university officials assess it under anti-harassment policies.

In August 2006, the plaintiff filed a lawsuit against UVM under the Vermont Public Accommodation Act (VPAA), alleging harassment due to the sexual assault and the university's failure to investigate, which caused her emotional distress and withdrawal from the institution. The superior court ruled against the plaintiff on her harassment claim, stating she failed to exhaust her administrative remedies as required by 16 V.S.A. § 14(b), since she did not report her complaint to designated officials. The court emphasized that a private action under the VPAA is generally barred unless the plaintiff first brings the claim to the proper university representatives.

On appeal, the plaintiff contends that the university's failure to provide its harassment policy should prevent dismissal based on failure to exhaust remedies and argues that exceptions to the exhaustion requirement apply. The appellate review will assess whether UVM proved there were no genuine issues of material fact and was entitled to judgment as a matter of law.

The VPAA prohibits discrimination by places of public accommodation based on characteristics like race or sex (9 V.S.A. § 4502(a)). In 2004, Vermont enacted § 14 of Title 16, establishing procedures for addressing harassment claims in educational institutions. Schools that receive actual notice of potential harassment must promptly investigate to determine if harassment occurred (16 V.S.A. § 14(a)). If harassment is found, the institution must take appropriate remedial action to stop it (Id. § 14(b)). A civil action under the VPAA cannot be initiated until all administrative remedies under the institution's harassment policy are exhausted, except in specific statutory exceptions (Id. § 14(b)). Notice is defined as either a written complaint or oral information regarding possible harassment provided to a designated employee (Id. § 14(c)(3)). UVM has designated its Dean of Students and the Executive Director of Affirmative Action as the employees responsible for receiving harassment complaints. 

In a relevant case, Washington, the court addressed the exhaustion requirement within the context of a VPAA harassment claim, establishing that a claimant must demonstrate that the harassing conduct was severe and pervasive enough to deny educational opportunities and that administrative remedies were exhausted or that exceptions applied (2005 VT 125, ¶ 18). The court emphasized the Legislature's intent behind the exhaustion requirement as a means to balance the school’s responsibility to ensure a harassment-free environment with the victim's duty to utilize available institutional mechanisms for addressing harassment (Id. ¶ 34). The court's approach aimed to provide objective criteria for evaluating hostile school environment claims, distinguishing it from the subjective standards applied in Title IX and Title VII cases (Id. ¶¶ 36-37).

Plaintiff argues that UVM's failure to provide its harassment policy prevented her from fulfilling the exhaustion requirement for her appeal. She claims that upon notifying the Victim's Advocate and the Center’s Assistant Director of conduct that could be seen as harassment, the university was obligated to share its harassment policy, which would have guided her in filing a complaint. However, this argument is rejected based on the strict administrative exhaustion requirement imposed by the Legislature under the VPAA, particularly for hostile-school-environment claims stemming from student-to-student conduct. The court emphasizes that the plaintiff did not frame her complaint as harassment; instead, she reported rape, which the Victim's Advocate recognized as such. The dissent's assertion that UVM ignored the harassment aspect is deemed unsupported by the record, which shows that university officials addressed her rape complaint and offered her options to report the incident. Furthermore, the dissent's suggestion that university officials should have automatically treated the complaint as harassment is challenged, as the law does not clearly mandate this. The court notes that isolated incidents typically do not meet the threshold for establishing a hostile environment under the VPAA. The record does not indicate that the plaintiff's complaint or her father's communication with the university officials suggested a pervasive issue that would warrant treatment as harassment.

The court acknowledges the dissent's view that an isolated personal violation could potentially qualify as sexual harassment but emphasizes that the current complaint does not clearly indicate that university staff should recognize a complaint of criminal rape as sexual harassment. The plaintiff and her father had the option to file a harassment complaint but did not adhere to the statutory procedures outlined in the university's policy. UVM's harassment policy was accessible online and specified designated officials for harassment claims, fulfilling statutory requirements. The dissent criticizes the online-only publication of the policy, but the court argues that online resources are widely used and appropriate for university students.

The plaintiff's failure to report the incident to the designated officials is highlighted, as this is contrary to the statutory requirements for handling harassment claims. The dissent's reliance on the concept of actual notice is rejected, as it contradicts legislative intent regarding vicarious liability. The court cannot ascertain whether the designated officials would have deemed the incident worthy of investigation had they been properly notified.

The plaintiff did not pursue the necessary administrative remedies before filing a discrimination lawsuit, violating the exhaustion requirement mandated by the law. Accepting the plaintiff's argument for waiving this requirement would undermine the intent of the Legislature to enforce administrative exhaustion for civil harassment claims under the Vermont Fair Employment Practices Act (VPAA). Consequently, the plaintiff is barred from initiating her discrimination claim in superior court due to her failure to comply with the university's policy and the statutory exhaustion requirement.

Plaintiff contends that statutory exceptions to the exhaustion requirement for filing a harassment claim under the Vermont Postsecondary Education Anti-Harassment Act (VPAA) apply in this case, despite UVM's alleged inaction on her complaint. The relevant exceptions under § 14(b) include: (1) lack of a harassment policy by the educational institution, (2) failure to make a timely determination on a harassment complaint, (3) potential jeopardy to the complainant's health or safety, (4) futility of exhaustion, and (5) substantial and imminent retaliation against the student. Plaintiff cites the first, second, and fourth exceptions.

Regarding the first exception, Plaintiff incorrectly assumes that UVM's adherence to 16 V.S.A. § 565's harassment policies governs this case. However, § 565 applies only to public school districts, not to post-secondary institutions like UVM, which has its harassment policy under 16 V.S.A. § 2284(a). UVM has maintained a harassment policy throughout the relevant period, thus the first exception does not apply.

For the second exception, which pertains to the timeliness of complaints, § 565's time limits are not applicable to UVM’s post-secondary policy governed by § 2284. Even if Plaintiff were to argue that these limits should apply to all educational institutions, her failure to provide actual notice of a harassment complaint and to exhaust her administrative remedies precludes this exception.

Lastly, Plaintiff claims that exhausting administrative remedies would have been futile, citing statements from UVM’s counsel. However, the record indicates that the associate general counsel simply noted a lack of further action required on UVM's part regarding the complaint, not a refusal to treat it as harassment. UVM’s legal defenses in response to Plaintiff’s later civil action do not imply a predetermined outcome to a properly filed harassment complaint. Thus, the argument of futility lacks merit.

The university's legal counsel's position on the insufficiency of a harassment claim does not imply a refusal to recognize or investigate such claims. Both the plaintiff and university officials did not perceive the situation as harassment, which undermines the applicability of the futility exception. Previous case law supports that exhaustion of administrative remedies is essential, and complaints of clear criminal incidents do not negate this requirement without specific allegations of harassment being addressed. The university has the right to respond to harassment claims before litigation begins, and the plaintiff's failure to report harassment precludes the futility exception. The plaintiff's argument for an additional exception to the exhaustion requirement, based on inadequate guidance from the university, lacks merit. She has not demonstrated prejudice that could not have been addressed by filing a formal harassment claim. Compliance with the exhaustion requirement would have posed only a minor burden, yet the plaintiff chose not to follow the prescribed procedures.

The dissent argues for reversing the trial court's decision based on the assertion that notice of the alleged rape given to the Victim’s Advocate and the Center’s Assistant Director should be considered valid notice to the employees designated for receiving harassment complaints. However, the dissent contends that constructive notice does not apply, as the plaintiff’s VPAA claim explicitly requires exhaustion of administrative remedies through actual notice to designated employees, unless specific statutory exceptions exist. Such exceptions do not include constructive notice through reports to non-designated employees, which would undermine the statute’s intent. The dissent further states that there is no broad exhaustion exemption based on general circumstances, and despite the university's potential shortcomings in posting procedures, they were not concealed. The plaintiff's advocacy for ignoring the exhaustion requirement is rejected, referencing the principle that courts should not expand statutes through judicial interpretation. 

In contrast, Justice Johnson’s dissent highlights that the University of Vermont's claim of insufficient notice is unreasonable, as the plaintiff followed the university's reporting process by informing the Victim’s Advocate of the sexual assault and subsequently filing a complaint with the CSES. The dissent argues that the plaintiff’s failure to file a third complaint with the designated individuals—whose identities were only available online—was a harmless error encouraged by the university. The dissent concludes that the statutory notice requirement was satisfied, advocating for reversal of the trial court’s dismissal based on exhaustion grounds.

The Legislature established laws aimed at ensuring students are free from harassment in educational institutions while allowing schools to address allegations promptly. Under 14 V.S.A. § 16, educational institutions must investigate any actual notice of potential harassment and take appropriate remedial actions if harassment is confirmed. "Notice" is defined as any oral or written indication that harassment may have occurred, directed to designated officials capable of addressing the issue. Additionally, 16 V.S.A. § 14(b) mandates that individuals exhaust administrative remedies under a school's harassment policy before pursuing discrimination claims under the Vermont Public Accommodations Act. This requirement simplifies the inquiry into the school's awareness of harassment, as demonstrating exhaustion implies the school had notice of the allegations. The exhaustion standard offers courts objective criteria for evaluating cases of hostile educational environments, as opposed to the more subjective standards in Title VII and Title IX cases. Failure to exhaust is excused if it would be futile. In the Washington case, the court ruled against a plaintiff who did not exhaust her administrative remedies or substantiate her claims of harassment, as she had not lodged specific complaints with school officials.

The university's dismissal of the case is challenged due to its prior knowledge of the alleged sexual assault and the opportunity it had to respond. The plaintiff had consistently reported her sexual assault to the university and engaged in the disciplinary hearing process that the university established, thus exhausting her administrative remedies. The university had advised students to contact the Victim’s Advocate for assistance regarding sexual violence, yet the Victim’s Advocate failed to adequately inform the plaintiff about available services or the need to file an additional complaint for an investigation to occur. The plaintiff reported her assault as constituting harassment, which aligns with legal definitions of sexual harassment and rape as severe forms of such conduct. Despite the plaintiff's clear description of her experiences to the Victim’s Advocate, the university and the Advocate did not recognize the assault as sexual harassment and did not follow proper protocols to address her complaints.

The Victim's Advocate presented the plaintiff with two options: file a complaint with the CSES regarding a violation of the Code of Student Rights and Responsibilities or file a criminal complaint with the police. The eighteen-year-old freshman chose to file with the CSES and documented her experience of being drugged and sexually assaulted by another student. The CSES Assistant Director did not initiate an independent investigation and required the plaintiff to prove her case against the alleged perpetrator during a hearing, where the accused brought three witnesses. Ultimately, the accused was found "not responsible" for the alleged offenses, including sexual assault.

Throughout this process, the plaintiff's father raised concerns about how the university handled the complaint, to which the university's associate general counsel responded that no laws or rights were violated under the CSES process. The university did not challenge the legitimacy of the plaintiff's claims or suggest alternative complaint avenues. In May 2006, the plaintiff withdrew from the university.

The university's argument that the plaintiff failed to exhaust administrative remedies is weakened by its failure to acknowledge the seriousness of the allegations and its obligations to investigate. The university misinterpreted statutory provisions meant to protect institutions without prior notice of harassment, suggesting it was not required to act on the plaintiff's report. The assertion that it would be impractical to hold the university liable if a student reported harassment to any employee contradicts the university's encouragement for students to report such incidents. The university's position, claiming it could take disciplinary action while simultaneously avoiding liability under the VPAA, is seen as illogical and undermines the legislative intent behind the relevant statute. The majority opinion supports the university's narrow interpretation of the law, which detracts from the statute's purpose.

The exhaustion requirement in 14 (b) serves to demonstrate that an educational institution was aware of conduct that may constitute harassment. Notice to the school logically follows if the plaintiff has exhausted their remedies. The designated individuals for receiving harassment complaints exist solely to ensure the university is informed and can respond. In this case, the university had clear notice of the alleged conduct and believed it responded appropriately; thus, dismissal on exhaustion grounds is not warranted. 

The court need not assess whether the university should have known about the harassment or interpret the plaintiff's report of sexual assault as a harassment claim. Unlike the precedent in Washington, the university's awareness of the conduct is undisputed, and its refusal to classify it as harassment is not decisive. The court only needs to determine if the alleged conduct, specifically rape, meets the definition of harassment, which is not a close case.

The university's claim that the plaintiff's report did not adequately describe sexual harassment is challenged; the same response would have occurred even if the plaintiff had reported the conduct multiple times to designated employees. The university has consistently maintained that it would not have treated the situation differently had it been framed as harassment. Thus, pursuing exhaustion would have been futile.

Additionally, the majority's argument that the plaintiff could have filed a complaint with designated employees after initiating the lawsuit is flawed. Prior to the lawsuit, the university indicated it had appropriately addressed the plaintiff's sexual assault claim. Given that the plaintiff no longer attends the university, filing a complaint at this stage does not substantiate the exhaustion requirement. The majority's assertion that the plaintiff opted to pursue her harassment claim in court first mischaracterizes the situation.

Plaintiff adhered to the statutory procedure for addressing in-school harassment, providing the university with the opportunity to respond prior to litigation. The dismissal of the case on exhaustion grounds was deemed inappropriate due to the university's failure to disclose essential information and respond adequately to harassment claims, undermining the legislative intent. The dissenting opinion references the requirement for harassing actions to be pervasive to establish a hostile educational environment, drawing on the U.S. Supreme Court's interpretation of Title IX. It notes that while a single severe incident could theoretically impact educational access, such cases are unlikely to be treated as pervasive due to potential litigation. Comparisons are made to other cases: one where multiple assaults constituted pervasive discrimination, and another where a single assault did not. The dissent clarifies that the sufficiency of the plaintiff's allegations for discrimination is not under review, emphasizing the university's obligation to address complaints of potentially harassing conduct, regardless of its perceived pervasiveness. The university's Student Code mandates reporting of violations and perceived criminal activity to appropriate authorities, including the Dean of Students and the CSES, and outlines new procedures requiring certain officials to report suspected violations to the Affirmative Action and Equal Opportunity Office.