Galipeau v. Solomon, No. 123-4-12 Bncv (Hayes, J., May 31, 2012)

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                                                      VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Bennington Unit                                                                                        Docket No. 123-4-12 Bncv

                                                                         │
Krista Galipeau                                                          │
 Plaintiff                                                               │
                                                                         │
 v.                                                                      │
                                                                         │
Paul Solomon and                                                         |
Clinical Neuroscience                                                    |
Research Associates, Inc.                                                │
 Defendant                                                               │
                                                                         │

                                                 DECISION ON MOTION TO DISMISS

          In this case, plaintiff has made a “hostile work environment” claim under 21 V.S.A. § 495d(13)(C)
of the Vermont Fair Employment Practices Act. Under this section, plaintiff must allege that defendants
made “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a
sexual nature when . . . the conduct has the purpose or effect of . . . creating an intimidating, hostile or
offensive work environment.”
          In the instant motion, defendants move for dismissal under V.R.C.P. 12(b)(6), arguing that
plaintiff has failed to state a claim for sexual harassment. Defendants argue that to properly assert a
claim for sexual harassment, plaintiff must allege that she herself was the target of the complained of
sexual behavior. Motions to dismiss are not favored, and are rarely granted. Gilman v. Maine Mutual
Fire Ins. Co., 2003 VT 55, ¶ 14, 175 Vt. 554 (mem.). The purpose of a motion to dismiss is to test the law
of the case, not the facts which underlie the complaint. Kane v. Lamothe, 2007 VT 91, ¶ 14, 182 Vt. 241.
In considering a motion to dismiss, the court assumes all factual allegations in the complaint to be true
and gives the benefit of all reasonable inferences to the non-moving party. Richards v. Town of Norwich,
169 Vt. 44, 48 (1999). A motion to dismiss should not be granted unless it is beyond doubt that there
exist no facts or circumstances which would entitle the plaintiff to relief. Assoc. of Haystack Property
Owners, Inc. v. Sprague, 145 Vt. 443, 446-47 (1985).
          The court’s task is one of statutory interpretation. First, the court must “look to the language of
the statute and seek to construe it according to its plain and ordinary meaning. Where the language is
clear and unambiguous, we enforce the statute according to its terms.” Payne v. U.S. Airways, Inc., 2009
VT 90, ¶ 24, 186 Vt. 458 (citation omitted). If the terms of the statute are not sufficiently clear to
illuminate the legislative intent behind it, the court looks to “the statute’s subject matter, its effects and
consequences, and the reason and spirit of the law.” State v. Kimmick, 2007 VT 45, ¶ 12, 181 Vt. 635
(citation omitted).
         The language of the statute is not ambiguous. On its face, it contains no requirement that the
harassment be directed toward the complaining employee. It merely requires that the harassment be of
a sexual nature, and have the effect of creating a hostile work environment.
         Although no reported Vermont Supreme Court decisions address this issue directly, Vermont
looks to the federal courts’ interpretations of Title VII as persuasive authority in addressing issues under
the Fair Employment Practices Act. Lavalley v. E.B. & A.C. Whiting Co., 166 Vt. 205, 209 (1997)
(“[F]ederal decisions represent persuasive authority on the proper interpretation of FEPA.”). Federal
case law has established that Title VII does not require that the claimant herself be the victim of sexual
advances in order for such advances to create a hostile work environment. See, e.g., Cruz v. Coach
Stores, Inc., 202 F.3d 560, 571 (2000) (“[E]ven if [plaintiff] herself were not present or were not the
target of some of Bloom's racial remarks, a jury plausibly could find that his persistently offensive
conduct created an overall hostile or abusive environment”) (quotation omitted).
         Because neither the statute nor relevant case law shows that the plaintiff must show that she
was the target of sexual advances in order to prove her claim, defendants’ motion to dismiss must be
denied.

                                                  ORDER

        Defendants’ Motion to Dismiss (MPR #1), filed April 23, 2012, is denied.


                Dated at Bennington, Vermont this 31st day of May, 2012.



                                                                  ______________________________
                                                                  Katherine A. Hayes
                                                                  Superior Court Judge
