exhaustion requirement in Vermont

2020We have previously explained that “[t]he term ‘exhaustion’ is used to describe both the judge-made common-law doctrine and a statutory direction that judicial review is available only if specified administrative procedures are first employed.” Stone v. Errecart, 165 Vt. 1, 4 , 675 A.2d 1322, 1325 (1996).

2020We have previously explained that “[t]he term ‘exhaustion’ is used to describe both the judge-made common-law doctrine and a statutory direction that judicial review is available only if specified administrative procedures are first employed.” Stone v. Errecart, 165 Vt. 1, 4 , 675 A.2d 1322, 1325 (1996).

2017The purpose of the exhaustion requirement is "to afford the parties and the courts the benefit of the administrative agency's experience and expertise, and to afford the agency the opportunity to cure its own errors." Jordan , 166 Vt. at 516 , 702 A.2d at 62 -63 .

2017The purpose of the exhaustion requirement is "to afford the parties and the courts the benefit of the administrative agency's experience and expertise, and to afford the agency the opportunity to cure its own errors." Jordan , 166 Vt. at 516 , 702 A.2d at 62 -63 .

2021Based on this statutory language and the statute’s definition of harassment, as well as the role schools play in protecting students, we held that “the VPAA encompasses hostile school environment claims based on peer harassment,” but that a plaintiff bringing such a claim must show 20 that (1) the harassing conduct was “so severe, pervasive, and objectively offensive” as to deprive the plaintiff of the educational institution’s benefits or opportunities; and (2) “the plaintiff exhausted the administrative remedies available, or that circumstances existed that relieved the plaintiff of the exha

2021Based on this statutory language and the statute’s definition of harassment, as well as the role schools play in protecting students, we held that “the VPAA encompasses hostile school environment claims based on peer harassment,” but that a plaintiff bringing such a claim must show 20 that (1) the harassing conduct was “so severe, pervasive, and objectively offensive” as to deprive the plaintiff of the educational institution’s benefits or opportunities; and (2) “the plaintiff exhausted the administrative remedies available, or that circumstances existed that relieved the plaintiff of the exha

1998We have recognized an exception to the exhaustion requirement where “an employer fails or refuses to perform actions required of it under contract and thus prevents the employee from complying therewith.” Furno v. Pignona, 147 Vt. 538, 541 , 522 A.2d 746, 749 (1986).

1998We have recognized an exception to the exhaustion requirement where “an employer fails or refuses to perform actions required of it under contract and thus prevents the employee from complying therewith.” Furno v. Pignona, 147 Vt. 538, 541 , 522 A.2d 746, 749 (1986).

2025See 1 This final grievance demonstrates the purpose of the exhaustion requirement, which "is designed to ensure that a grievance is fully explored and litigated before the administrative body possessing the pertinent experience and expertise in the subject area" in order "to preserve the authority of the administrative body, and to promote judicial efficiency." See Mullinnex, 2020 VT 33 , q 17.

2020“The exhaustion doctrine is designed to ensure that a grievance is fully explored and litigated before the administrative body possessing the pertinent experience and expertise in the subject area; the doctrine thus serves to preserve the authority of the administrative 12 body, and to promote judicial efficiency.” Rennie v. State, 171 Vt. 584, 585 , 762 A.2d 1272, 1275 (2000) (mem.) (affirming dismissal for failure to exhaust where plaintiff’s efforts “did not satisfy the prerequisites, or the purposes, of the exhaustion doctrine”).

2020“The exhaustion doctrine is designed to ensure that a grievance is fully explored and litigated before the administrative body possessing the pertinent experience and expertise in the subject area; the doctrine thus serves to preserve the authority of the administrative 12 body, and to promote judicial efficiency.” Rennie v. State, 171 Vt. 584, 585 , 762 A.2d 1272, 1275 (2000) (mem.) (affirming dismissal for failure to exhaust where plaintiff’s efforts “did not satisfy the prerequisites, or the purposes, of the exhaustion doctrine”).

2020See Oriakhi v. United States, 165 F. App’x 991, 993 (3d Cir. 2006) (“there appears to be unanimous circuit court consensus that a prisoner may not fulfill the PLRA’s exhaustion requirement by exhausting administrative remedies after the filing of the complaint in federal court”).

2016Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012) (“all circuits that have addressed [this issue] have concluded that the PLRA’s exhaustion requirement is satisfied if prison officials decide a procedurally flawed grievance on the merits”).

2015Prescott Publ’g Co., 457 F. Supp. 915, 920 (D.

2015See Republic Steel Corp. v. Maddox, 379 U.S. 650, 653 (1965) (explaining that employee must afford union opportunity to act on his or her behalf, and such activity complements union’s status as exclusive bargaining representative by permitting it to actively participate in the continuing administration of contract; employer interests also served by limiting choice of remedies available to aggrieved employees).

2014See Goebert v. Lee Cnty., 510 F.3d 1312, 1322 (11th Cir. 2007) (concluding that exhaustion not required where grievance procedure not in inmate handbook and inmate not told about procedure).

2011Co., 521 N.E.2d 447, 453 (Ohio 1988).

2009Cf. 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). ¶ 27.

2009Cf. 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). ¶ 27.

2005Because there is no dispute that she did not even begin to engage, let alone exhaust, the school’s remedial process, we conclude that her VPAA claim founders and was properly dismissed by the superior court. ¶ 48.- In the context of a summary judgment motion, “[w]here the moving party does not bear the burden of persuasion at trial, it may satisfy its burden of production by showing the court that there is an absence of evidence in the record to support the nonmoving party’s case.” Ross v. Times Mirror, Inc., 164 Vt. 13, 18 , 665 A.2d 580, 583 (1995).

2005Because there is no dispute that she did not even begin to engage, let alone exhaust, the school’s remedial process, we conclude that her VPAA claim founders and was properly dismissed by the superior court. ¶ 48.- In the context of a summary judgment motion, “[w]here the moving party does not bear the burden of persuasion at trial, it may satisfy its burden of production by showing the court that there is an absence of evidence in the record to support the nonmoving party’s case.” Ross v. Times Mirror, Inc., 164 Vt. 13, 18 , 665 A.2d 580, 583 (1995).

2000Nonetheless, the exhaustion doctrine does not bind the parties if the issue “does not qualify as a matter of contract interpretation, if an overriding statute negates deferral, or if the Board’s own deferral guidelines indicate that deferral would not serve the purposes of the statute.” Id. at 520 , 594 A.2d at 423 .

2000Nonetheless, the exhaustion doctrine does not bind the parties if the issue “does not qualify as a matter of contract interpretation, if an overriding statute negates deferral, or if the Board’s own deferral guidelines indicate that deferral would not serve the purposes of the statute.” Id. at 520 , 594 A.2d at 423 .

1990See Hinsdale v. Village of Essex Junction, 153 Vt. 618, 626 , 572 A.2d 925, 929 (1990).

1990See Hinsdale v. Village of Essex Junction, 153 Vt. 618, 626 , 572 A.2d 925, 929 (1990).

1986Andrews v. Victor Metal Products Corp., 239 Ark. 763, 765-66 , 394 S.W.2d 123, 124 (1965); see also Boone v. Armstrong Cork Co., 384 F.2d 285, 289 (5th Cir. 1967) (“refusal [of employer] to abide by contractual terms requiring the processing of a matter through a grievance procedure” constitutes a repudiation of the procedure, waiving the requirement of exhaustion); Annot., 72 A.L.R.2d 1439 , 1449-51 (1960).

1986Andrews v. Victor Metal Products Corp., 239 Ark. 763, 765-66 , 394 S.W.2d 123, 124 (1965); see also Boone v. Armstrong Cork Co., 384 F.2d 285, 289 (5th Cir. 1967) (“refusal [of employer] to abide by contractual terms requiring the processing of a matter through a grievance procedure” constitutes a repudiation of the procedure, waiving the requirement of exhaustion); Annot., 72 A.L.R.2d 1439 , 1449-51 (1960).

1986Nevertheless, a recognized exception to the exhaustion requirement exists “when the conduct of the employer amounts to a repudiation of those contractual [grievance] procedures.” Vaca v. Sipes, 386 U.S. 171, 185 (1967). 2 When an employer fails or refuses to perform actions required of it under contract and thus prevents the employee from complying therewith, the employer is estopped from asserting as a defense the failure of the employee to comply with the contract.

1986Judgment affirmed; cause remanded for hearing on costs. 2 Although it has been observed that this part of the opinion in Vaca is dictum, Vaca, 386 U.S. at 199-200 (Fortas, J., concurring), the Supreme Court as well as lower federal and state courts have recognized and applied the exceptions to the exhaustion requirement discussed in Vaca .

1986Andrews v. Victor Metal Products Corp., 239 Ark. 763, 765-66 , 394 S.W.2d 123, 124 (1965); see also Boone v. Armstrong Cork Co., 384 F.2d 285, 289 (5th Cir. 1967) (“refusal [of employer] to abide by contractual terms requiring the processing of a matter through a grievance procedure” constitutes a repudiation of the procedure, waiving the requirement of exhaustion); Annot., 72 A.L.R.2d 1439 , 1449-51 (1960).