Brassard v. Pallito, No. 463-8-13 Wncv (Toor, J., Aug. 21, 2014). 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.] 

VERMONT SUPERIOR COURT

WASHINGTON UNIT

CIVIL DIVISION

│ 

OLIVER BRASSARD, │ 

 Plaintiff │ 

│

 v. │ Docket No. 463-8-13 Wncv 

│ 

ANDREW PALLITO, │ 

 Defendant │ 

│ 

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT 

 Inmate Oliver Brassard seeks Rule 75 review of his disciplinary conviction for “making 

sexual proposals” in violation of the Vermont Department of Corrections’ (DOC) disciplinary 

rules. Brassard argues that there is no evidence that he violated the rule. The DOC argues that 

“some evidence” of the violation is in the record. 

 Brassard was found guilty of a major “B” violation for “making sexual proposals.” The 

proscribed conduct is described in Directive 410.01 as follows: 

Making sexual proposals to another person, including, but not limited to: repeated 

sexual advances, requests for sexual favors, verbal comments, or gestures or 

actions of a derogatory or offensive sexual nature by one inmate directed toward 

another inmate or staff person. 

The hearing officer explained that “making sexual proposals” is intended to encompass, among 

other things, “grooming” behaviors. Brassard is convicted for sexually assaulting a male child. 

 The hearing officer found Brassard in violation for “making some of the statements that it 

was alleged that you had made and perceived by the individuals as sexual in nature” without 

further specifying. Transcript at 34. The officer also found Brassard in violation for hugging 

another inmate while in “med line,” described as a “grooming type behavior.” Id. “On judicial 

review of the sufficiency of evidence at a prison disciplinary hearing, the hearing officer’s final 
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determination must be upheld if it is supported by ‘some evidence’ in the record.” Herring v. 

Gorczyk, 173 Vt. 240, 243 (2001). 

 The record includes reports from corrections officers as well as Brassard’s and another 

inmate’s testimony at the disciplinary hearing. The reports are largely based on statements by 

confidential informants. The hearing officer disregarded the statements by the confidential 

informants. See e-mail from Sarah Katz to Seth Lipschutz (dated Dec. 17, 2013) (indicating that 

the hearing officer relied exclusively on Brassard’s admissions and not on the confidential 

informants). He also disregarded the testimony of the other inmate. The hearing officer’s guilty 

finding was based on Brassard’s testimony alone. 

 Brassard admitted to having made a comment about putting a “shaft into a hole.” He also 

made clear that, as was reported, the comment was made in shop while he and others were 

working on a motorcycle. He was referring to putting “the rear axle shaft into the hole on the 

wheel.” Transcript at 8. He also admitted to greeting a fellow inmate while in “med line,” 

which by all accounts was not sexual in appearance, was mutual, and was merely a greeting. 

 The hearing officer’s general finding of guilt also may have been based on another 

statement to which Brassard admitted. He explained that a certain inmate who, while not 

wearing a shirt, on several occasions asked Brassard, “you like this?” Presumably, that was a 

reference to the other inmate’s shirtless torso. Brassard testified that he typically would say, “no,

not particularly,” but on one occasion he said, “you’re pretty well stacked.” 

 The problem with the hearing officer’s general finding of guilt is that is based on pure 

speculation. Saying that a shaft should be put into a hole when in fact there is a nonsexual 

situation in which a shaft is to be put into a hole may be entirely nonsexual. Two males greeting 

each other with a hug does not necessarily have any sort of sexual connotation. The comment 
3 

about being stacked presumably was a reference to muscular development and, again, does not 

necessarily have any sexual connotation. The hearing officer’s finding relied on his own belief 

about how others perceived Brassard’s comments. Transcript at 35. However, there was no 

evidence of those perceptions, nor of any basis for concluding that Brassard intended any sexual 

meaning. 

 The court understands that the DOC is appropriately concerned with grooming behaviors 

by sex offenders and that such behaviors may be subtle. In this case, however, the record simply 

lacks any evidence that Brassard’s behaviors were anything but purely innocent. There is no 

evidence establishing any basis for an inference that either Brassard’s statements or the hug had 

sexual connotations or were some sort of grooming behavior. Nor was there any evidence that 

Brassard had notice that, in his particular case, those sorts of otherwise innocent statements or 

actions would be considered “sexual proposals” under the DOC directive at issue. 

Order 

 Brassard’s summary judgment motion is granted and the DOC’s is denied. Brassard’s 

DR for “making sexual proposals” is vacated. The DOC shall expunge it from his record. 

Dated at Montpelier this 21st day of August 2014. 

 _____________________________ 

 Helen M. Toor 

 Superior Court Judge