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

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] 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 en vironment” claim under 21 V.S.A. § 495d(13)(C) of the Vermont Fair Employment Practices Act. Unde r this section, plaintiff must allege that defendan ts made “unwelcome sexual advances, requests for sexua l favors, and other verbal or physical conduct of a sexual nature when . . . the conduct has the purpos e or effect of . . . creating an intimidating, host ile or offensive work environment.” In the instant motion, defendants move for dismiss al under V.R.C.P. 12(b)(6), arguing that plaintiff has failed to state a claim for sexual ha rassment. Defendants argue that to properly assert a claim for sexual harassment, plaintiff must allege that she herself was the target of the complained o f sexual behavior. Motions to dismiss are not favore d, 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 compl aint. **Kane v. Lamothe,** 2007 VT 91, ¶ 14, 182 Vt. 241. In considering a motion to dismiss, the court assum es all factual allegations in the complaint to be t rue 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 n ot 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 it s plain and ordinary meaning. Where the language i s clear and unambiguous, we enforce the statute accor ding to its terms.” **Payne v. U.S. Airways, Inc.** , 2009 VT 90, ¶ 24, 186 Vt. 458 (citation omitted). If th e terms of the statute are not sufficiently clear t o illuminate the legislative intent behind it, the co urt looks to “the statute’s subject matter, its eff ects 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 i ts face, it contains no requirement that the

harassment be directed toward the complaining emplo yee. 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 decision s address this issue directly, Vermont looks to the federal courts’ interpretations of Tit le 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 authorit y on the proper interpretation of FEPA.”). Federa l case law has established that Title VII does not re quire that the claimant herself be the victim of se xual advances in order for such advances to create a hos tile 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 pl ausibly could find that his persistently offensive conduct created an overall hostile or abusive envir onment”) (quotation omitted). Because neither the statute nor relevant case law s hows 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 31 st day of May, 2012.



### ______________________________ Katherine A. Hayes Superior Court Judge