Failure to exhaust administrative remedies bars VPAA hostile school environment claims based on peer harassment.

Allen v. University of Vermont (2008-132) (27-Mar-2009) 2009 VT 33 (Burgess, J.) (Johnson, J., dissenting.)

Plaintiff, a former University of Vermont (UVM) student, sued the university for monetary damages, claiming discrimination under the Vermont Public Accommodations Act (VPAA). The VPAA, 9 V.S.A. §§ 4500-4508 creates a private right of action for persons discriminated against in places of public accommodation, including educational institutions. See Washington v. Pierce, 2005 VT 125, ¶ 18, 179 Vt. 318, 895 A.2d 173 (concluding that “the VPAA encompasses hostile school environment claims based on peer harassment”). Plaintiff complained that UVM did not treat her report of rape by another student as a harassment claim and did not investigate her charge as required by 16 V.S.A. § 14, a statute designed to prevent harassment in educational institutions. The superior court granted summary judgment in favor of UVM on the ground that plaintiff failed to exhaust her administrative remedies, which the same statute requires as a precondition to her cause of action. Id. § 14(b).

Absent an applicable exemption, a private cause of action under the VPAA against an educational institution is generally barred unless the plaintiff first satisfies the statutory precondition of bringing a claim of harassment to the attention of the persons designated by the institution to handle such complaints. 16 V.S.A. § 14(b). It was undisputed that plaintiff did not complain to the officials specifically designated by UVM to receive and respond to harassment claims. On appeal, plaintiff argues that (1) UVM’s failure to provide her with a copy of its harassment policy at the time she reported the assault precluded UVM’s failure-to-exhaust-administrative-remedies defense; (2) existing statutory exceptions to the exhaustion requirement apply to this case; and (3) even if those existing exceptions are not applicable here, the facts in this case should compel this Court to recognize an additional, extra-statutory exception to the legislated exhaustion requirement. We disagree with each of these arguments and affirm the superior court’s judgment.

In Washington, rather than adopt the subjectively based “deliberately indifferent” or “knew or should have known” standards applied respectively in Title IX and Title VII cases, we focused on the Legislature’s exhaustion requirement to satisfy the second element of a student-to-student hostile-school-environment claim. Id. ¶¶ 23-34. UVM is entitled to have its designated employees answer an express harassment claim before its opportunity to examine and correct its position is foreclosed. The reality is that plaintiff never expressed her complaint in terms of “harassment.” Plaintiff complained about being raped, and the Victim’s Advocate, as well as the Center’s Assistant Director, simply responded to a rape complaint. As the trial court concluded, nobody—neither plaintiff nor university officials—apparently perceived that they were dealing with harassment. Not too surprisingly, the Victim’s Advocate did not view plaintiff’s report of rape as one of civil harassment.

Washington, 2005 VT 125, ¶ 35 also holds that a plaintiff bringing a VPAA action based on a hostile school environment created by student-student harassment must show, in addition to exhaustion of administrative remedies, that “he or she was the victim of harassing conduct so severe, pervasive, and objectively offensive that it deprived him or her of access to the educational opportunities or benefits provided by the school”. Nothing of that sort was brought to the attention of the Victims’ Advocate or to the Center’s Assistant Director. For the reasons stated in Washington, we will not undermine the plain intent of the Legislature to require administrative exhaustion as an express precondition to civil harassment claims under the VPAA

Justice Johnson, in dissent, would not allow the university to escape the lawsuit at this stage, given the labyrinth it created, its failure to disclose critical information to the student, and its failure to respond to the complained-of conduct, claiming the majority ruling “makes a mockery of the Legislature’s purpose.”