Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Rachel Allen v. University of Vermont

No. 2008-132

SUPREME COURT OF VERMONT

2009 VT 33; 2009 Vt. LEXIS 35


March 27, 2009, Filed

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.

PRIOR HISTORY:  [**1]
   On Appeal from Chittenden Superior Court. Dennis R. Pearson, J.

DISPOSITION:    Affirmed.

COUNSEL: Heather E. Thomas of Lynn, Thomas & Blackman, P.C., Burlington, for 
Plaintiff-Appellant.

Karen McAndrew of Dinse, Knapp & McAndrew, P.C., Burlington, for 
Defendant-Appellee.

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

OPINION BY: BURGESS

OPINION
 [*P1]  BURGESS, J. Plaintiff, a former University of Vermont (UVM) student, 
sued the university for monetary damages, claiming discrimination under the 
Vermont Public Accommodations Act (VPAA). 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. ß 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. ß 14(b). 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 ass
ault precluded UVM's failure-to-exhaust-administrative-remedies defense;  
[**2] (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.
 [*P2]  On September 12, 2005, the then-eighteen-year-old plaintiff, who had 
just begun her freshman year at UVM, reported by e-mail to the university's 
Women's Center in the Campus Advocacy Program that she had been given a "date 
rape" drug at a fraternity party and subjected to nonconsensual sexual 
intercourse. Two days later, plaintiff met with the Center's Advocacy and 
Violence Prevention Coordinator (Victim's Advocate), described by the student 
handbook as the person who can provide information about available services 
when a student experiences any form of sexual violence, including sexual 
assault or sexual harassment.
 [*P3]  The Victim's Advocate completed a standardized intake form and 
interviewed plaintiff. On the form, the Victim's Advocate checked off several 
reasons for plaintiff contacting the Center, including "Sexual  [**3] 
Assault," but did not check off the box designated for "Sexual Harassment." 
Plaintiff did not couch her rape in terms of having been "harassed," and the 
Victim's Advocate viewed the allegation as rape rather than harassment. The 
Victim's Advocate advised
plaintiff of several options, including reporting the rape to a police task 
force specializing in sexual-assault investigations--the Chittenden Unit for 
Special Investigations. The Victim's Advocate also informed plaintiff that 
she could report the incident to UVM's Center for Student Ethics and 
Standards (the Center) as a violation of UVM's code of student conduct. 
Taking the record in the light most favorable to plaintiff, the Victim's 
Advocate did not refer plaintiff to UVM policies and procedures for reporting 
harassment.
 [*P4]  Plaintiff opted not to report the rape to police, but on October 10, 
2005, she did file a formal complaint with the Assistant Director of the 
Center. On October 21, the Center obtained plaintiff's and the accused 
perpetrator's written agreement not to contact each other. On December 9, 
after several delays, a hearing took place, conducted as required by 
university rules governing disciplinary actions against students.  [**4] 
Following the hearing, on January 26, 2006, the hearing panel concluded that 
plaintiff failed to prove her charge against the accused rapist. 
Nevertheless, the Center continued the no-contact order.
 [*P5]  During the next few months following the Center's decision, 
plaintiff's father contacted UVM officials, including an associate general 
counsel for the university, seeking a more satisfactory resolution of his 
daughter's complaint. According to plaintiff's father, the general counsel 
informed him that she had reviewed the case and concluded that the university 
had done nothing wrong,20and that there was nothing more to do. In May 2006, 
plaintiff withdrew from the university. At no time after the assault did 
plaintiff or her father assert that the rape should be treated as a 
harassment complaint; nor did any UVM official assess whether the rape 
described by plaintiff could or should be considered harassment in violation 
of university anti-harassment policies.
 [*P6]  In August 2006, plaintiff filed a lawsuit against UVM under the VPAA, 
9 V.S.A. ßß 4500-4508. The Act creates a private right of action for persons 
discriminated against in places of public accommodation, including 
educational institutions.  [**5] See Washington v. Pierce, 2005 VT 125, P 18, 
179 Vt. 318, 895 A.2d 173 (concluding that "the VPAA encompasses hostile 
school environment claims based on peer harassment"). The complaint alleged 
that plaintiff experienced harassment in the form of a sexual assault by 
another student and that UVM failed to conduct a prompt investigation as 
required by 16 V.S.A. ß 14, thereby causing her to suffer emotionally and 
eventually withdraw from the university.
 [*P7]  In response to the parties' cross-motions for summary judgment, the 
superior court ruled that plaintiff could not prevail on her harassment claim 
because she failed to exhaust her administrative remedies, as required by 16 
V.S.A. ß 14(b). It was undisputed that plaintiff did not complain to the 
officials specifically designated by UVM to receive and respond to harassment 
claims. Absent an applicable exemption, a private=2
0cause 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. ß 
14(b).
 [*P8]  In reviewing the trial court's  [**6] ruling, we consider whether UVM 
demonstrated that there was no genuine issue of material fact and that it was 
entitled to judgment as a matter of law. White v. Quechee Lakes Landowners' 
Ass'n, 170 Vt. 25, 28, 742 A.2d 734, 736 (1999). Plaintiff argues on appeal 
(1) that UVM's failure to provide her with a copy of its harassment policy 
precluded the trial court from dismissing her suit based on a failure to 
exhaust remedies, and (2) in any event, exceptions to the exhaustion 
requirement apply. To put these arguments in context, we first review the 
statutes at issue in this case.
 [*P9]  The VPAA prohibits a "place of public accommodation" from denying any 
person advantages or privileges based on characteristics such as race or sex, 
among others. 9 V.S.A. ß 4502(a). In 2004, the Legislature enacted ß 14 of 
Title 16, which sets forth procedures for addressing harassment claims in 
schools. The statute mandates educational institutions receiving "actual 
notice of alleged conduct that may constitute harassment" to conduct a prompt 
investigation to determine whether any harassment occurred. 16 V.S.A. ß 
14(a). The statute also recognizes the potential for harassment cl
aims under the VPAA, providing,  [**7] with respect to such claims, that "if 
after notice, the educational institution finds that the alleged conduct 
occurred and that it constitutes harassment, the educational institution 
shall take prompt and appropriate remedial action reasonably calculated to 
stop the harassment." Id. ß 14(b).
 [*P10]  The statute explicitly provides, however, that no civil action under 
the VPAA may be brought "until the administrative remedies available to the 
claimant . . . pursuant to the harassment policy of a postsecondary school 
have been exhausted." Id. "Notice" is statutorily defined as "a written 
complaint or oral information that harassment may have occurred which has 
been provided to a designated employee." Id. ß 14(c)(3). "Designated 
employee" is defined, in turn, as "an employee who has been designated by an 
educational institution to receive complaints of harassment . . . in 
accordance with the harassment policy of a postsecondary school." Id. ß 
14(c)(1). Pursuant to its adopted and publicized harassment policy, UVM 
expressly designated its Dean of Students and the Executive Director of the 
Office of Affirmative Action and Equal Opportunity, to receive and respond to 
harassment complaints. Under  [**8] the statute, this exhaustion requirement 
is waived only if the claimant demonstrates one of five enumerated statutory 
exceptions. Id. ß 14(b). The exceptions are discussed below.
 [*P11]  In Washington, we considered a harassment claim in the context of a 
VPAA action, and in20particular the exhaustion requirement contained in ß 14. 
There, we held "that the VPAA encompasses hostile school environment claims 
based on [student-student] harassment," but that the claimant
 
   must show that (1) 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; 
and (2) the plaintiff exhausted the administrative remedies available, or 
that circumstances existed that relieved the plaintiff of the exhaustion 
requirement.

 
Washington, 2005 VT 125, PP 18, 35.
 [*P12]  The second of the two elements quoted above was at the center of the 
dispute 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  [**9] second element of a student-to-student 
hostile-school-environment claim. Id. PP 23-34. We noted that the 
Legislature's purpose for including the exhaustion requirement was balancing 
"the coordinate duties of the school to provide a harassment-free environment 
and the harassment victim to look first to the school's mechanisms to redress 
in-school harassment." Id. P 34. We reasoned that adopting the exhaustion 
requirement as the second element of a student-to-student 
hostile-school-environment claim under the VPAA would eliminate "the 
necessity of a separate inquiry into the state
 of the school's knowledge or the notice received by the school," id. P 36, 
and instead would provide "courts with objective criteria for evaluating the 
conduct of the parties in a hostile school environment case to a greater 
extent" than the standards applied in Title IX and Title VII cases, id. P 37.
 [*P13]  With this legal background in mind, we now return to plaintiff's 
claims on appeal. She first contends that UVM's failure to provide her with a 
copy of its harassment policy precluded application of the exhaustion 
requirement. According to plaintiff, once she presented the Victim's Advocate 
and the Center's Assistant  [**10] Director with notice of conduct that could 
be construed as harassment, the university was obligated to provide her with 
a copy of its harassment policy, which would have informed her of the persons 
designated to receive complaints of harassment and allowed her to file a 
harassment complaint.
 [*P14]  We find this argument unavailing. As noted above, as a policy 
matter, the Legislature imposed a strict administrative exhaustion 
requirement upon those seeking to raise harassment claims against schools 
under the VPAA. This is particularly critical with respect to 
hostile-school-environment claims based on student-to-student conduct 
unrelated to harassment by school personnel. For that reason, in Washington, 
we adopted the exhaustion requirement as an element of such a claim under the 
VPAA. Indeed, we did so to avoid exactly what plaintiff wants the courts to 
do here--examine her report of
sexual assault and determine whether university officials should have 
understood it to be a claim of harassment.
 [*P15]  The reality is that plaintiff never expressed her complaint in terms 
of "harassment," and, not too surprisingly, the Victim's Advocate who met 
with plaintiff did not view plaintiff's report of rape  [**11] as one of 
civil harassment rather than a criminal rape and a violation of expected 
student conduct. The dissent states that UVM "chose not to treat this as a 
case of harassment," and inaccurately characterizes the university's response 
as a "refusal to view the conduct as harassment." Post, PP 42, 46. This view 
is neither supported by the record nor consistent with the trial court's 
finding that the Victim's Advocate perceived the complaint to be one of rape 
rather than harassment. University officials did not ignore or discount 
plaintiff's rape complaint, but rather informed plaintiff that she could 
report the incident to the police rape task force and file a complaint with 
the Center, which addresses student conduct violations. The university no 
more "chose not to treat this as . . . harassment," to use the dissent's 
phrase, post, P 42, than the plaintiff "chose" not to make a harassment claim 
rather than a rape complaint. Plaintiff complained about being raped, and the 
Victim's Advocate, as well as the Center's Assistant Director, simply 
responded to a rape complaint.
 [*P16]  Plaintiff, as well as the dissent, argues that university officials 
should have automatically construed her c
omplaint  [**12] as one of harassment. The dissent posits that it was not 
even "a close case" that a single incident of rape of one student by another 
should have been immediately treated as harassment. Post, P 46. The law, 
however, is not so certain. Assuming, arguendo, that plaintiff both made her 
complaint to the proper parties and meant to complain of "peer harassment" as 
contemplated by VPAA, isolated incidents of misconduct ordinarily are not 
"pervasive" in nature and thus and will not support an action under the VPAA 
alleging a hostile school environment created by student-student harassment. 
See Washington, 2005 VT 125, P 35 (holding 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"). 1 Nothing of 
that sort was brought to the attention of the Victims' Advocate or to the 
Center's Assistant Director. Nor did plaintiff's father, according to the 
record before  [**13] us, make such a claim to the associate counsel's 
office. Nor does anything in the record suggest that any university official 
had reason to treat the alleged rape as a pervasive problem, either on campus 
or against plaintiff. We agree with the dissent that we need not consider 
today whether an isolated personal v
iolation can ever amount to sexual harassment, but note only that nothing in 
the instant complaint would necessarily lead the responding university staff 
to be cued to sexual harassment when reacting to an expressed complaint of an 
isolated and criminal rape.

1   That the harassing action must be pervasive for purposes of establishing 
a hostile educational environment was imported into our construction of the 
VPAA from the United States Supreme Court's construction of the analogous 
provisions of Title IX designed to remedy harassing conduct "so severe, 
pervasive and objectively offensive that it can be said to deprive the 
victims of access to the educational opportunities or benefits afforded by 
the school." Washington, 2005 VT 125, P 26 (internal quotations omitted). As 
explained in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), 
"[a]lthough, in theory, a single instance  [**14] of sufficiently severe 
one-on-one peer harassment could be said to have such an effect, we think it 
unlikely that Congress would have thought such behavior sufficient to rise to 
this level in light of the inevitability of student misconduct and the amount 
of litigation that would be invited by entertaining claims of official 
indifference to a single instance of one-on-one peer harassment." Id. at 
652-53. Compare Williams v. Bd. of Regents, 477 F.3d 1282, 1297 (11th Cir. 
2007) (concluding that plaintiff alleged sufficient facts to show pervasive 
discrimination where she was subjected to two separate acts of sexual assault 
by multiple p
ersons during continuous series of events that were part of conspiracy to 
attack her), with Ross v. Corp. of Mercer Univ., 506 F. Supp. 2d 1325, 
1357-58 (M.D. Ga. 2007) (holding that single incident of alleged sexual 
assault is not sufficient to demonstrate pervasive discrimination because, 
however traumatic to its victim, it is not likely to have systematic effect 
on educational activities).
 [*P17]  Plaintiff, and her father, could also have made an explicit 
harassment complaint had they viewed the episode as harassment as well as 
rape. Plaintiff did not, however,  [**15] follow "the precise procedure 
contemplated by the statute" as claimed by the dissent. Post, P 50. Students 
were notified that UVM's harassment policy was available to students online 
on the university's website. The harassment policy explicitly named the 
individuals designated to accept claims of harassment, as required by 
statute. See 16 V.S.A. ß 14(c)(1). The student handbook stated that each 
student is responsible for being familiar with important rights and policies, 
including polices on sexual assault and harassment, and cited the specific 
web page where the policies could be found. The dissent faults the university 
for publishing the applicable policy "only online," as if online is obscure 
or unreasonably remote. Post, PP 32, 37, 43. In this age, however, it can 
hardly be doubted, especially for university students, that online is a 
prime, if not the primary, source for information.
 [*P18]  Plaintiff, and the dissent, seek to substitute
what she did--report a rape to the Victim's Advocate and the Center's 
Assistant Director, for what the statute and the university's harassment 
policy required: a report or claim of harassment to UVM's designated 
harassment officials. The dissent justifies  [**16] this substitution on a 
theory of actual notice (of what it maintains should have been considered as 
harassment) to persons who were capable of responding to a harassment claim, 
or capable of referring it to the proper officials. But this is exactly the 
kind of vicarious liability approach to notice not adopted by the 
Legislature. Indeed, the difficulty in determining if there was proper notice 
of harassment claims is why, in Washington, we adopted as an element of a 
VPAA action claiming peer harassment the express statutory requirement that 
complaints be made to the person explicitly designated to accept such 
complaints. See Washington, 2005 VT 125, PP 36-37. We cannot know, for 
example, whether the officials statutorily designated by UVM to handle sexual 
harassment claims--had they been notified as required by statute--would have 
considered plaintiff's report of a single incident of sexual assault by 
another student as warranting a harassment investigation.
 [*P19]  Even assuming, for argument's sake, that UVM's directions were too 
obscure for plaintiff to follow before she filed her lawsuit, she still did 
not seek her statutorily mandated administrative remedies even when that 
defense was  [**17] brought to her attention at the time she filed her civil 
suit claim
ing a violation of the VPAA. Instead, plaintiff chose to pursue her 
harassment claim in the first instance in a discrimination action filed 
directly in the superior court under the VPAA. We agree with the superior 
court that, consistent with our holding in Washington, the exhaustion 
requirement contained in ß 14(b) precluded her from independently filing suit 
without first pursuing her administrative remedy. Because plaintiff failed to 
notify UVM of a harassment claim according to the university's policy, and 
thus failed to satisfy the statutory exhaustion remedy, she is precluded from 
initiating this discrimination claim in the superior court under the VPAA.
 [*P20]  If we were to accept plaintiff's reasoning that the statutory 
exhaustion requirement should be waived because her assault complaint could 
have been construed as a harassment claim, then we would effectively mandate 
a subjective examination of what school officials knew, or should have known, 
at the time--exactly the debate we intended to foreclose and avoid in 
Washington. For the reasons stated in Washington, we will not undermine the 
plain intent of the Legislature  [**18] to require administrative exhaustion 
as an express precondition to civil harassment claims under the VPAA.
 [*P21]  Plaintiff argues, however, that even if exhaustion is not excused by 
UVM's alleged failure to act on her complaint, statutory exceptions to the 
requirement apply in this case. Under ß 14(b), a plaintiff bringing a 
harassment claim under the VPAA need not exhaust admin
istrative remedies if (1) the educational institution did not maintain a 
harassment policy; (2) there was no timely determination on a harassment 
complaint; (3) requiring exhaustion of administrative remedies would have 
jeopardized the health or safety of the complainant; (4) exhaustion would 
have been futile; or (5) requiring exhaustion would have subjected the 
student to substantial and imminent retaliation. Plaintiff relies upon the 
first, second, and fourth exceptions.
 [*P22]  Plaintiff's reliance on the first two exceptions is based upon her 
erroneous assumption that harassment policies, time frames, and responses 
mandated by 16 V.S.A. ß 565, but not followed by UVM, control this case. 
Section 565 requires school boards and school districts to establish policies 
and procedures to prevent harassment in local elementary  [**19] and 
secondary schools. Section 14(b) precludes VPAA actions "until the 
administrative remedies available to the claimant under the policy adopted by 
the educational institution pursuant to subsection 166(e) or 565(b) of this 
title or pursuant to the harassment policy of a postsecondary school have 
been exhausted." As indicated above, the first exception to the exhaustion 
requirement is that the educational institution did not maintain a harassment 
policy as required by statute. Plainly, that is not the case here. Section 
166(e) relates to independent schools, and ß 565(b) relates to public school 
districts operating elementary and secondary schools. Because ß 565 relates 
only to public school districts, it
s mandatory provisions with respect to their harassment policies are not 
applicable to post-secondary harassment policies at UVM.
 [*P23]  Instead, the statutory requirements for harassment policies 
implemented by UVM are set forth in 16 V.S.A. ß 2284(a). There is no claim 
that they were not met here. Indeed, UVM is a postsecondary school that had a 
harassment policy in place under ß 2284(a) during all times relevant to this 
case. Therefore, the first exception to the exhaustion requirement  [**20] 
does not apply.
 [*P24]  The second exception waives the exhaustion requirement if the 
educational institution failed to render a determination on a harassment 
complaint within the time limits set forth in ß 565(b)(1). As just indicated, 
ß 565 concerns public elementary and high school districts and does not apply 
to college harassment policies governed by ß 2284. Even if plaintiff argued 
that the Legislature nevertheless intended ß 565 response time limits to 
apply to all educational institutions, including post-secondary colleges, 
with respect to ß 14(b), we need not address such an argument given 
plaintiff's failure to provide actual notice of a harassment complaint and 
exhaust her administrative remedies. Therefore, the second exception does not 
apply.
 [*P25]  Plaintiff also argues that raising a harassment complaint and 
exhausting her administrative remedies would have been futile, given that (1) 
UVM's associate general counsel told plaintiff and her father that the 
university had done everythi
ng that they were legally obligated to do; and (2) UVM's litigation counsel 
later took the position, in defense against plaintiff's civil action, that 
rape was not harassment. We find no merit to this argument.  [**21] According 
to the record, the incident was brought to the associate counsel's attention 
as the father's dissatisfaction with how the university responded to his 
daughter's rape. The associate counsel wrote only that there appeared nothing 
more for UVM to do in following up on the rape complaint, not that it was 
refusing to treat or investigate the complaint as a claim of sexual 
harassment--again, not an issue asserted by father. That UVM later asserted 
certain legal positions in response to plaintiff's discrimination 
lawsuit--after her withdrawal from the university and its processes--does not 
necessarily confirm that UVM's designated employees would have responded the 
same way to a claim of harassment, had such an explicit complaint been made 
by plaintiff. We cannot presume that the university would have refused to 
recognize or investigate a harassment claim simply because, in the context of 
defending against a lawsuit where all defensive theories must ordinarily be 
asserted or waived, its outside legal counsel later took a position that the 
conduct claimed as triggering plaintiff's right to sue was legally 
insufficient to constitute harassment.
 [*P26]  As the trial court concluded, nobody--neither  [**22] plaintiff nor 
university officials--apparently perceived that they were dealing with 
harassment. Cf. Washington,202005 VT 125, P 43 (refusing to apply futility 
exception, given that plaintiff "offered no evidence that the school had 
mishandled or refused to deal with issues of which it was aware"). Rather, 
plaintiff reported a rape, and UVM treated it as such. If the futility 
exception applied every time a plaintiff complained of an incident that was 
clearly a crime, but not perceived as also amounting to harassment--with no 
opportunity for the respondent to answer a specific claim of harassment--it 
could effectively swallow the exhaustion requirement. Cf. Davenport v. Harry 
N. Abrams, Inc., 249 F.3d 130, 133-34 (2d Cir. 2001) (rejecting claim of 
futility as excuse for failing to exhaust administrative remedies where party 
claiming futility did not demonstrate that she had made unambiguous 
application for benefits that was clearly denied in decision by 
administrative body).
 [*P27]  UVM is entitled to have its designated employees answer an express 
harassment claim before its opportunity to examine and correct its position 
is foreclosed. Cf. MFS Sec. Corp. v. Sec. & Exch. Comm'n, 380 F.3d 611, 
621-23 (2d Cir. 2004)  [**23] (holding that administrative remedies must be 
exhausted, notwithstanding claims of futility based on past errors or bias, 
because purpose of administrative review is to promote efficient resolution 
of disputes and give administrative bodies opportunity to correct their own 
errors and provide foundation for further review). Because exhaustion of 
administrative remedies is a critical predicate to a VPAA action claiming a
hostile school environment based on student-to-student conduct, UVM is 
entitled to avoid litigation by addressing duly reported harassment. That did 
not occur here, and thus plaintiff fails to demonstrate that the futility 
exception to the exhaustion requirement applies.
 [*P28]  Finally, plaintiff argues that, even if none of the explicit 
statutory exceptions to exhaustion apply, this Court should recognize an 
additional exception to that statutory requirement based on the circumstances 
of this case. In making this request, plaintiff does not suggest a specific 
exception in addition to those enumerated in the statute, but simply posits 
that the exhaustion requirement should not apply here. Plaintiff essentially 
contends that she should not have to exhaust her administrative  [**24] 
remedies as required by statute because UVM did not inform her plainly enough 
of her right to pursue a complaint under its harassment policy.
 [*P29]  This argument fails both as an appeal to fairness and as an 
invitation to rewrite the statute. Assuming, for argument's sake, that UVM 
"dropped the ball" in failing to refer plaintiff to the officials designated 
to respond to harassment complaints, plaintiff shows no prejudice that could 
not have been cured by filing a claim of harassment after harassment was 
specifically alleged in her civil lawsuit. Even after her disappointment with 
the university's initial response, complying with the exhaustion requirement 
would have been but a slight burden on plaintiff, requiring her to postpone 
her lawsuit whil
e the university did or did not act upon a duly filed harassment complaint. 
But plaintiff chose not to follow "the precise procedure contemplated by the 
statute," as the dissent contends she did. Post, P 50.
 [*P30]  The dissent would reverse the trial court based on the principle 
that notice of the alleged rape to the Victim's Advocate and the Center's 
Assistant Director should be considered notice to the employees designated to 
accept harassment complaints,  [**25] even though the statute explicitly 
requires that harassment complaints be made to the designated employees. Such 
constructive notice cannot apply here because plaintiff's VPAA cause of 
action does not exist outside of the statute that makes it explicitly 
conditioned upon exhaustion of administrative remedies by actual notice to 
the designated employee, unless excused by specific statutory exceptions. 
Those exceptions do not recognize constructive notice to designated persons 
through reports to other, non-designated employees. Indeed, such would 
frustrate the clear intent of the statute and the import of Washington.
 [*P31]  Nor do the statutory exceptions include a "catch-all" exhaustion 
exemption based on general circumstances such as described by plaintiff. Even 
if the university could have posted its procedures differently, they were not 
hidden. While responsive to her rape complaint, nothing in the record 
suggests the university sought to defeat or discourage a sexual harassment 
claim by plaintiff. In effect, plaintiff advocates that we simply erase from 
the statute
 the exhaustion requirement of ß 14(b), explained in Washington as a critical 
element of a VPAA action claiming discrimination  [**26] based on 
student-to-student harassment. We decline to do so. See Murphy Motor Sales, 
Inc. v. First Nat'l Bank, 122 Vt. 121, 123, 124, 165 A.2d 341, 342, 343 
(1960) (noting that courts "may not legislate in the guise of [statutory] 
construction," and that "great care should be exercised by the court not to 
expand proper construction of a statute into judicial legislation").
Affirmed.

DISSENT BY: JOHNSON

DISSENT
 [*P32]  JOHNSON, J., dissenting. It is absurd, on this record, for the 
University of Vermont to claim that plaintiff failed to provide it with 
notice of "conduct that may constitute harassment," and that plaintiff 
thereby failed to exhaust her administrative remedies. Plaintiff followed the 
precise reporting process urged upon her by the university. She informed the 
Victim's Advocate that she had been sexually assaulted by another student. 
Following the advocate's advice, she filed another complaint with the 
university's Center for Student Ethics and Standards (CSES). Her failure to 
file a third complaint with one of two individuals designated by the 
university to receive harassment claims--individuals whose identities were 
available only online--was an error invited by the university and it was 
harmless.  [**27] The purpose underlying the statutory notice requirement was 
plainly satisfied in this case and the university was not entitled to 
dismissal on exhaustion grounds. I would20reverse the trial court's decision 
and I therefore dissent.
 [*P33]  In enacting the laws at issue in this case, the Legislature 
recognized both that "students should be free of harassment in educational 
institutions" and that "educational institutions should have the opportunity 
to remedy promptly and appropriately allegations of harassment." 2003, No. 91 
(Adj. Sess.), ß 1(3), (4). The notice and exhaustion requirements in 14 
V.S.A. ß 16 serve these goals. Thus, the statute requires that when an 
educational institution receives "actual notice of alleged conduct that may 
constitute harassment," it must "promptly investigate to determine whether 
harassment occurred." 16 V.S.A. ß 14(a). If, after notice, the school "finds 
that the alleged conduct occurred and that it constitutes harassment," it 
must "take prompt and appropriate remedial action reasonably calculated to 
stop the harassment." Id. ß 14(b). The statute defines "notice" as oral or 
written information that harassment may have occurred provided to certain 
designated  [**28] officials. This presumably ensures that individuals with 
the ability to address the alleged conduct are aware of the allegations. Cf. 
Ross v. Corp. of Mercer Univ., 506 F. Supp. 2d 1325, 1346, 1346 n.30 (M.D. 
Ga. 2007) (explaining that recovery for student-on-student sexual harassment 
under Title IX, 20 U.S.C. ß 1681(a), is predicated on a showing that an 
"appropriate person" had actual knowledge of alleged discrimination or 
harassment, and stating that an appropriate person "'is, at a minim
um, an official . . . with authority to take corrective action to end the 
discrimination'" (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 
274, 290 (1998))).
 [*P34]  As an additional protection, 16 V.S.A. ß 14(b) requires that a 
claimant exhaust any administrative remedies available under a school's 
harassment policy before filing a discrimination claim under the Vermont 
Public Accommodations Act, 9 V.S.A. ßß 4500-4508. We have stated that this 
standard "eliminates the necessity of a separate inquiry into the state of 
the school's knowledge or the notice received by the school" because "notice 
on the part of the school would follow logically from a showing that the 
plaintiff exhausted his or her  [**29] remedies." Washington v. Pierce, 2005 
VT 125, P 36, 179 Vt. 318, 895 A.2d 173. Additionally, we have noted that the 
exhaustion requirement provides "courts with objective criteria for 
evaluating the conduct of the parties in a hostile school environment 
harassment case," more so than a "knew or should have known" standard as 
employed in Title VII cases, or one that evaluates whether a school has been 
deliberately indifferent to known student-on-student harassment in its 
schools as applied in Title IX cases. Id. P 37 (quotation omitted). As 
relevant here, the exhaustion of administrative remedies is not required 
where the claimant demonstrates that exhaustion would be futile. 16 V.S.A. 
14(b)(4).
 [*P35]  In Washington, the plaintiff, a high school student, claimed that 
she was denied access
to full and equal educational opportunities because of a hostile environment 
caused by pervasive student-on-student racial and sexual harassment. We 
concluded, as a matter of law, that the claim failed because plaintiff could 
not demonstrate that she had exhausted her administrative remedies or "that 
she somehow was relieved of that responsibility." Washington, 2005 VT 125, P 
40. In Washington, the plaintiff  [**30] did not lodge any complaint with the 
school administration, nor did she present any evidence that misconduct had 
occurred in the presence of school personnel. While plaintiff's mother had 
made general complaints to unidentified school officials, none of these 
complaints were specific to plaintiff's case. Accordingly, we concluded that 
"by choosing not to raise any complaints with a school official, plaintiff 
failed to exhaust her administrative remedies." Id. P 41.
 [*P36]  The majority misreads Washington to support dismissal of this case 
on similar grounds. Unlike Washington, however, the university here had both 
notice of the alleged conduct and an opportunity to respond. Plaintiff 
repeatedly complained to the university about being sexually assaulted by 
another student, and she complained to those individuals specifically 
identified by the university as appropriate. The university concluded that a 
proper response to a claim of sexual violence was to hold a student 
disciplinary hearing with the alleged victim acting as the prosecutor. 
Plaintiff engaged in this hearing process--she availed herself of the 
administrative remedies offe
red to her by the university and she exhausted them.
 [*P37]  Indeed,  [**31] the university created the very procedure it now 
claims is insufficient. It advised its students to contact the Victim's 
Advocate "[i]f you or someone you care about experiences sexual violence 
(including rape, sexual assault, sexual harassment, unwanted sexual touching 
or contact, etc.)." The student handbook stated that the Victim's Advocate 
would provide assistance and information "about what services exist on and 
off campus" and that she would "help you decide what to do after an assault." 
This advice was reiterated several times throughout the student handbook. The 
sexual harassment policy, in contrast, was not included in the handbook but 
was instead available only online.
 [*P38]  Thus, following the university's direction, plaintiff contacted the 
Victim's Advocate, first by email and then in person. She reported being 
raped--conduct that, from an objective standpoint, "may constitute 
harassment." 2 16 V.S.A. ß 14(a); see also id. ß 11(26)(A) (defining 
"harassment" in part as "an incident or incidents of . . . physical conduct 
based on or motivated by a student's . . . sex . . . that has the purpose or 
effect of objectively and substantially undermining and detracting from or 
interfering  [**32] with a student's educational performance . . . or 
creating an objectively intimidating, hostile, or offensive environment"); 
Office for Civil Rights, U.S. Dep't of Educ., Sexual Harassment: It's Not 
Academic 4, 7 (2008), available at
 http://www.ed.gov/about/offices/list/ocr/docs/ocrshpam.pdf ;(explaining that 
"[s]exual harassment includes conduct that is criminal in nature, such as 
rape, sexual assault, [and], dating violence," and noting that if 
sufficiently severe, single or isolated incidents of sexual harassment can 
create a hostile environment for purposes of Title IX); Univ. of Vt., Sexual 
Harassment: Students (effective January 2, 2008) (defining sexual harassment 
to include physical conduct of a sexual nature where conduct has effect of 
objectively and substantially undermining and detracting from or interfering 
with a student's educational performance or access to school resources or 
creating an objectively intimidating, hostile, or offensive environment, and 
providing as an example "unwelcome touching"), available at 
http://www.uvm.edu/uvmppg/ppg/student/sexharassstudent.pdf. Certainly, "[i]t ;
goes without saying that forcible rape is 'unwelcome physical conduct of a 
sexual  [**33] nature,'" and that "[r]ape is also, by definition, a form of 
harassment based on sex." Lapka v. Chertoff, 517 F.3d 974, 982-83 (7th Cir. 
2008) (quotation omitted); see also Little v. Windermere Relocation, Inc., 
301 F.3d 958, 966 (9th Cir. 2002) (stating that "rape is unquestionably among 
the most severe forms of sexual harassment," and citing cases recognizing 
that an isolated incident, if sufficiently serious, can create hostile work 
environment). Plaintiff plainly described both sexual assault and sexual 
harassment to the Victim's Advocate. Cf. Brock v. United States, 64 F.3d 
1421, 1423 (9th Cir. 1995) ("Just as e
very murder is also a battery, every rape committed in the employment setting 
is also discrimination based on the employee's sex.").

2   The question of whether plaintiff's allegations are sufficient to support 
her discrimination claim is not before us, and her failure to describe 
"pervasive" misconduct to the Victim's Advocate is immaterial. Ante, P 16. 
The university has an obligation to respond to complaints of conduct that may 
constitute harassment, not merely claims of pervasive misconduct.
 [*P39]  Yet the Victim's Advocate, and apparently the university, did not 
consider sexual  [**34] assault to be a form of sexual harassment, and 
despite the handbook's promise, the Victim's Advocate did not advise 
plaintiff of all of the services available to her. She did not inform 
plaintiff that the university would conduct an investigation into her 
allegations only if plaintiff filed an additional complaint with one of two 
individuals designated by the university to receive harassment complaints. 
The Victim's Advocate did not report the alleged conduct to the designated 
individuals herself. She did not refer plaintiff to the online sexual 
harassment policy. Instead, the Victim's Advocate informed plaintiff that she 
had two choices--she could file a complaint with the CSES alleging a 
violation of the Code of Student Rights and Responsibilities, or she could 
file a criminal complaint with the police. 3

3   In fact, the Student Code allows members of the university staff to 
report code violations to the CSES, an
d it also states that "[p]erceived criminal activity should be reported 
immediately to UVM Police Services, which will then share information with 
the Dean of Students or CSES as appropriate." The Dean of Students is the 
university official responsible for oversight of the  [**35] Student Code; he 
was also one of the two employees designated by the university to receive 
harassment complaints. I note that the university's "Procedures for 
Investigating and Resolving Discrimination Complaints," effective April 18, 
2007, now requires certain university officials who become aware of conduct 
that they believe may violate the University's nondiscrimination policies to 
report that conduct to the Affirmative Action and Equal Opportunity Office. 
This includes, but is not limited to: supervisors or managers; a chair, 
director or dean of an academic unit; any other person with a title at the 
level of Director or higher; and Student Affairs personnel with oversight 
responsibilities for students or employees. See Univ. of Vt., Procedures for 
Investigating and Resolving Discrimination Complaints, available at 
http://www.uvm.edu/aaeo/pdf/discrimination.pdf.
 [*P40]  Plaintiff, an eighteen year old freshman, opted to pursue a 
complaint with the CSES, and she executed a written document that described 
being drugged and sexually assaulted on campus by another student. The 
Assistant Director of the CSES, who oversaw the hearing process, again saw no 
need to have the university independently  [**36] investigate plaintiff's 
allegations. Rather, plaintiff, acting alone,=2
0was required to prove her rape case against the alleged perpetrator, who 
brought three of his friends as witnesses, in a hearing before the student 
judicial council. Approximately six weeks after this hearing, the alleged 
perpetrator was found "not responsible" for the alleged violations of the 
student code, including "offenses against persons," a nonconsensual sexual 
act, sexual assault, and possession or use of an illegal substance.
 [*P41]  Both before and after this decision, plaintiff's father contacted 
the university, expressing his concerns about the way in which plaintiff's 
sexual assault complaint was being addressed. In April 2006, the university's 
associate general counsel informed plaintiff's father that the university had 
violated no law or right of plaintiff in following the CSES process. At no 
time did the university assert that plaintiff had made the wrong claim or 
that she needed to file another complaint before the university would 
promptly investigate whether harassment had occurred. In May 2006, plaintiff 
withdrew from the university.
 [*P42]  Given this record, the university cannot credibly assert that 
plaintiff  [**37] failed to exhaust her administrative remedies. It relies on 
a statutory provision designed to protect schools that have no notice of 
conduct that may constitute harassment and thus, have no opportunity to take 
appropriate action to investigate the claims before being accused of 
discrimination. That the university chose not to treat this as a case of 
harassment, in violation of its own polic
y and a common-sense definition of the term, does not show that it had no 
notice. Nor does it absolve the university of its obligation to conduct an 
investigation into the alleged conduct. The question is not whether the 
victim "viewed the episode as harassment," ante, P 17, but whether her 
description of being raped was "conduct that may constitute harassment," 16 
V.S.A. ß 14(a).
 [*P43]  Particularly galling is the university's assertion that it "would 
simply be unworkable and unfair--and contrary to the expressed intent of the 
legislature"--to hold it responsible "where a student has complained to some 
University employee or official somewhere on campus of conduct that may [or 
may not] constitute harassment." The university would have us ignore the fact 
that it encouraged students to report rape, sexual  [**38] harassment, and 
other conduct to the Victim's Advocate in multiple places throughout the 
student handbook, while at the same time, it made its sexual harassment 
policy available only online.
 [*P44]  In keeping with its circular reasoning, the university also claims 
the right to take disciplinary steps against a student found to have engaged 
in harassment, while at the same time avoiding liability under the VPAA until 
a victim "at the very least provide[s] the institution with notice of the 
harassment, and allow[s] it an opportunity to 'take prompt and remedial 
action reasonably calculated to stop the harassment.'" This is nonsensical. 
If the university is conducting a student hearing on a harassment
 claim, it plainly has notice of the alleged harassment. To hold otherwise 
allows the university to avoid liability under the VPAA if it succeeds in 
frustrating a student's ability to make a harassment complaint. Nothing could 
be further from the Legislature's intent in enacting 16 V.S.A. ß 14.
 [*P45]  The majority nonetheless credits the university's position, relying 
on a cramped interpretation of 16 V.S.A. ß 14(b) that undermines the very 
purpose the statute is designed to serve. We have construed the  [**39] 
exhaustion requirement in ß 14(b) as a means of showing that an educational 
institution had notice of conduct that may constitute harassment. Washington, 
2005 VT 125, P 36 (stating that "notice on the part of the school would 
follow logically from a showing that the plaintiff exhausted his or her 
remedies"). There is nothing talismanic about the two individuals designated 
by the university to receive harassment complaints--these individuals merely 
serve to ensure that the university has notice and an opportunity to respond 
to claims of harassment. Where, as here, the university plainly had notice of 
the alleged conduct, and in fact, responded in a way it believed was 
appropriate, how can dismissal possibly be appropriate on exhaustion grounds?
 [*P46]  This case does not require the Court to evaluate whether the 
university should have known about alleged harassment, as the majority 
suggests, or to examine plaintiff's "report of sexual assault and determine 
whether university officials should have20understood it to be a claim
 of harassment." Ante, P 14. It does not require us to engage in a "separate 
inquiry into the state of the school's knowledge or the notice received by 
the school." Washington, 2005 VT 125, P 36.  [**40] Unlike Washington, it is 
undisputed here that the university did know about the conduct, and its 
refusal to view the conduct as harassment is not dispositive. This Court need 
only review whether the conduct complained about--rape--was within the 
objectively stated definition of harassment. This does not present a close 
case, and it is certainly not an inquiry that the Court intended to foreclose 
in Washington.
 [*P47]  The majority also fails to recognize that the result in this case 
would have been exactly the same even if plaintiff had reported the conduct, 
for a third time, to the designated employees. The university suggests that 
the conduct reported by plaintiff "does not substantively describe sexual 
harassment which the University could address in any way differently than it 
treated her sexual assault complaint." It faults plaintiff for failing to 
identify "what additional remedial measures the University might have taken 
had she initiated the harassment-investigation process." The university's 
associate general counsel provided plaintiff's father with essentially the 
same message.
 [*P48]  The majority nonetheless reasons that one "cannot presume that the 
university would have refused to recognize  [**41] or investigate a 
harassment claim simply because, in the context of defending
 against a lawsuit where all defensive theories must ordinarily be asserted 
or waived, its outside legal counsel later took a position that the conduct 
claimed as triggering plaintiff's right to sue was legally insufficient to 
constitute harassment." Ante, P 25. The facts do not fit the majority's 
theory. The university refused to recognize and investigate this as a 
harassment claim at the outset, and it reiterates the validity of that 
position in this appeal. Giving plaintiff the benefit of all reasonable 
doubts and inferences, one can certainly presume from this record that the 
university would not have responded any differently in addressing plaintiff's 
claim had it been couched in terms of "harassment." Under these 
circumstances, exhaustion, if not already proven, would have been futile.
 [*P49]  Finally, I fail to grasp the majority's argument that the plaintiff 
could have easily filed a complaint with one of the university's "designated 
employees" after she filed this lawsuit to avoid dismissal on exhaustion 
grounds. Ante, P 17. As discussed above, the university had advised plaintiff 
prior to this lawsuit that  [**42] it had done nothing wrong in addressing 
her sexual assault claim through the CSES process. Plaintiff no longer 
attends the university. If filing a complaint with the university at this 
late stage would satisfy the majority, notwithstanding the fact that the 
university has provided plaintiff with all of the process it believes was 
appropriate, then the majority has truly turned the exhaustion provision in
to a meaningless requirement.
 [*P50]  This is not a case, as the majority asserts, where "plaintiff chose 
to pursue her harassment claim in the first instance" in superior court. 
Ante, P 19. To the contrary, plaintiff followed the precise procedure 
contemplated by the statute and described in Washington--she "look[ed] first 
to the school's mechanisms to redress in-school harassment," and the 
university had the "opportunity to respond to alleged harassment before being 
subject to litigation." Washington, 2005 VT 125, PP 32, 34. To 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, makes a mockery of the 
Legislature's purpose. This case was  [**43] wrongly dismissed on exhaustion 
grounds, and I therefore dissent.