Human Rights v. Agency Education

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 23-CV-03565
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Vermont Human Rights Commission v. Vermont Agency of Education

Opinion and Order on the Agency of Education’s Motion to Dismiss

Plaintiff the Vermont Human Rights Commission (the “HRC”) claims that the

Vermont Agency of Education (the “Agency”), the sole defendant in this case, violated the

Vermont Fair Housing and Public Accommodations Act (the “Act”), 9 V.S.A. §§ 4500–

4507. The HRC maintains that the Agency violated the Act by discriminating against

Mr. Mario Macias, Director of Guidance at Burlington High School (BHS) from 2016 to

2019, on the basis of race and color in the course of investigating and prosecuting him for

unprofessional conduct and incompetence. His professional license eventually was

revoked. The HRC seeks relief in the public interest and for the benefit of Mr. Macias.

The Agency has filed a motion to dismiss for failure to state a claim. Vt. R. Civ. P.

12(b)(6). It argues: (1) the complaint improperly attributes non-Agency conduct to the

Agency; (2) the administrative licensing proceeding collaterally estops any assertion of

discrimination here; (3) all individual actors mentioned in the complaint are entitled to

absolute, prosecutorial, or qualified immunity that, in turn, automatically immunizes the

Agency; and (4) any discrimination claim arising out of the administrative licensing

proceeding is not subject to the Act.

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Oral argument on the motion took place on August 27, 2024. The HRC was

represented by Mitchell Rotbert, Esq. The Agency was represented by Assistant

Attorney General Patrick Gaudet.

I. Procedural Standard

A motion to dismiss for failure to state a claim faces a high bar. The Vermont

Supreme Court has described the familiar standard for Rule 12(b)(6) motions to dismiss

for failure to state a claim as follows:

“A motion to dismiss . . . is not favored and rarely granted.” This is
especially true “when the asserted theory of liability is novel or extreme,” as
such cases “should be explored in the light of facts as developed by the
evidence, and, generally, not dismissed before trial because of the mere
novelty of the allegations.” In reviewing a motion to dismiss, we consider
whether, taking all of the nonmoving party’s factual allegations as true, “‘it
appears beyond doubt’ that there exist no facts or circumstances that would
entitle the plaintiff to relief.” We treat all reasonable inferences from the
complaint as true, and we assume that the movant’s contravening
assertions are false.

Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309, 316–17 (citations

omitted); see also 5B A. Benjamin Spencer, et al., Fed. Prac. & Proc. Civ. § 1357 (4th ed.)

(“Ultimately, the burden is on the moving party to prove that no legally cognizable claim

for relief exists.”).

The Agency submitted into the record voluminous exhibits in support of its motion,

including: (a) the Agency licensing investigation activity log and report/recommendation;

(b) the formal administrative charging document and supporting affidavit; (c) the

supplemental formal charging document and amended recommendation and supporting

affidavit; (d) the final decision of the hearing panel; (e) Mr. Macias’s appellate brief to the

State Board of Education; (f) the Secretary’s appellate brief; (g) the report of the review

subcommittee and proposed appellate decision; and (h) the State Board of Education’s
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decision on appeal. The Agency’s position seems to be that because the HRC refers in the

complaint to the administrative process generally, it is free to rely on any documents

generated in or reflecting that administrative process. The HRC disagreed.

In material respects, the Court agrees with the HRC’s position regarding the scope

of the record. The record for Rule 12(b)(6) purposes generally is limited to the four

corners of the complaint and any attachments to it. See Nash v. Coxon, 152 Vt. 313, 314–

15 (1989) (“[I]f matters outside the pleadings are presented and not excluded by the

court, the motion to dismiss must be treated as one for summary judgment.” (internal

quotation and citation omitted)). There is a limited exception: documents sufficiently

referred to and relied upon in the complaint may properly be considered in a motion to

dismiss even if not attached to the complaint. See Kaplan v. Morgan Stanley & Co., 2009

VT 78, ¶ 10 n.4, 186 Vt. 605, 609.

In this case, the complaint does not sufficiently cite and rely upon all of the

documents submitted by the Agency to warrant their consideration by the Court at this

juncture. Merely referring to an administrative process does not bring within the scope

of the rule all documents generated in that proceeding. The Court limits its analysis

here to the four corners of the complaint and does not exercise its discretion under the

Rule to convert the motion into one seeking summary judgment. See Parada v. Banco

Indus. De Venez., C.A., 753 F.3d 62, 67-68 (2d Cir. 2014) (decision on whether to exclude

extra-record documents or transition motion to summary judgment is discretionary).

II. Allegations of the Complaint

The thrust of the complaint is as follows. Mr. Macias, who is both Hispanic and

African American, was the Director of Guidance at BHS from 2016 to 2019. Once he

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started working there, his all-white staff were “exceedingly hostile” and complained

about him. A white parent told him how he should do his job and did not think that he

should be in the position of Director. BHS administrators took steps to help him with his

leadership skills.

At an August 8, 2017, school board meeting, white parents and white, former

guidance staff publicly accused him of being mean and disrespectful. Agency investigator

Robert Stafford began a secret investigation of Mr. Macias involving unrecorded

interviews with confidential witnesses, though neither the school district nor supervisory

union had requested any such investigation. Mr. Stafford knew that administrators had

taken, or were taking, corrective measures to address Mr. Macias’s performance issues.

In his eventual report, however, Mr. Stafford intentionally lied and said that no such

measures had been or were being taken.

Based on Mr. Stafford’s deceptive report, an investigation committee opened a

formal investigation regarding unprofessional conduct (not described in the complaint)

and incompetence regarding an incident involving the handling of a student transcript

(not more specifically described in the complaint). The Agency also began investigating

the principal and the director of special education, both white, in relation to the same

transcript incident. Mr. Stafford conducted the formal investigation of Mr. Macias,

during which he is alleged to have deviated in highly prejudicial ways from standard

policies and practices as to how such investigations typically are undertaken and how

they always have been done when investigating white educators.

The investigation as to the transcript incident was quickly closed as to the

principal and the director of special education but pursued against Mr. Macias. Mr.

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Macias’s supervisors and BHS and District administrators did not believe the transcript

incident was misconduct of any kind. One administrator who is Hispanic would have

testified positively about Mr. Macias, but Mr. Stafford decided not to interview him.

A hearing panel eventually conducted the licensing hearing. One of the panel

members was a close friend of Mr. Stafford. That member neither disclosed the

relationship nor recused from the proceeding. The panel substantiated the allegations

and revoked Mr. Macias’s license. No white educator had ever faced revocation in similar

circumstances.1

The implication running throughout the complaint is that Mr. Macias was treated

harshly and unfairly as soon as he started working in Burlington and throughout the

administrative licensing proceeding, and that the harsh and unfair treatment amounts to

discrimination based on race and color.

III. Analysis

The Agency makes a number of arguments in support of its motion. The Court

will address each in turn.

A. Non-Agency Conduct

The Agency contends that the HRC is improperly attributing non-Agency conduct

to the Agency. The actions referred to in the complaint include those of the Standards

Board for Professional Educators, 16 V.S.A. § 1693; the Board of Education, 16 V.S.A. §

161; and the hearing panel, 16 V.S.A. § 1702. These all may be entities that are

1 What the similar circumstances may have been are not recited in the complaint, which

was drafted in a conclusory manner throughout.
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independent of the Agency, although some are “attached” to the Agency for

administrative purposes.

The Court need not delve deeper into that question, however, as the HRC has

clarified that its claim in this case is exclusively predicated on the conduct of two Agency

employees: Mr. Stafford and the Agency attorney appointed to prosecute the licensing

action against Mr. Macias. Given that cabining, references in the complaint to the

conduct of others is merely contextual and does not provide a basis for dismissal.

B. Collateral Estoppel

The Agency argues that Mr. Macias had the opportunity to argue any claim of

discrimination in the administrative proceeding, and the doctrine of collateral estoppel

prevents the HRC from raising any similar claim here. “The elements of collateral

estoppel are: (1) preclusion is asserted against one who was a party in the prior action;

(2) the same issue was raised in the prior action; (3) the issue was resolved by a final

judgment on the merits; (4) there was a full and fair opportunity to litigate the issue in

the prior action; and (5) applying preclusion is fair.” In re Tariff Filing of Cent. Vermont

Pub. Serv. Corp., 172 Vt. 14, 20 (2001).

The Court declines to get into the weeds of the Agency’s collateral estoppel

argument at this point. Even if the doctrine properly could be asserted against the HRC,

which was not a party to the administrative proceeding, the argument depends heavily

on reference to the content of the extrinsic documents submitted with the Agency’s

motion, which the Court has excluded from consideration under Rule 12(b)(6). Moreover,

at the August 27 hearing, counsel for the Agency conceded that to the extent the doctrine

applies to the HRC, it does so in a relief-specific manner. See Walsh v. Cmty. Health Ctr.

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of Richmond, Inc., No. 21CV3094ARRTAM, 2022 WL 4539264, at *6 (E.D.N.Y. Sept. 28,

2022).

Here, the HRC is plainly seeking relief that could not have been available in the

administrative proceeding, including injunctive relief related to future discrimination for

the benefit of the public and a civil penalty under the Act. Even if the doctrine applies,

then, it will not be a basis for outright dismissal of this case.

Further, analysis of the issues surrounding the question of “privity” between Mr.

Macias and the HRC, the application of the collateral estoppel factors set out above, and

of the types of relief that are ultimately being sought in this action2 are matters better

addressed on a stronger factual record.

C. The Immunity Doctrines

The Agency argues that each individual actor described in the complaint—had any

of them been sued—would be protected by absolute, prosecutorial, or qualified immunity,

all forms of official immunity. It then cites Czechorowski v. State, 2005 VT 40, ¶¶ 28–29,

178 Vt. 524, 533 for the proposition that when the liability asserted against the State

derives from the conduct of State employees who have official immunity, that official

immunity also immunizes the State. It asks the Court to engage in a full analysis of the

potential immunity available to unnamed individual actors and, if such immunity exists,

use it to sever the legal line of responsibility to the Agency for any of their alleged

misconduct.

2
At oral argument, the HRC was unsure, for example, whether it is actually seeking
reinstatement for Mr. Macias.
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In Czechorowski, there were several claims predicated on State employee conduct

asserted in a derivative capacity against the State. In other words, the basis for suit

against the State was the employee conduct attributed to the State. Regarding

individual conduct that the Court found was subject to official immunity, the Court said

as follows:

Finally, plaintiff argues that the trial court erred by immunizing the State
from suit for the actions of its employees Blinn and Monahan. Plaintiff’s
complaint against the State alleged that “[a]s a result of Blinn’s and
Monahan’s . . . actions . . ., the [S]tate of Vermont is liable to the Plaintiff for
the prosecution of the Plaintiff without probable cause and with malice.”
Thus, the claims against the State are derivative of the claims against the
individual defendants, and because we have held that Monahan’s
challenged conduct was protected by absolute and qualified immunity, the
State claims predicated thereon must also fail.

2005 VT 40, ¶ 28, 178 Vt. at 533.

For that legal conclusion, the Court cites to Winfield v. State, 172 Vt. 591, 594

(2001). In Winfield, however, the Court focused on the State employees’ entitlement to

qualified immunity. The Court then explained:

Plaintiff’s claims against the State are derivative of the tort claims against
the individual defendants. Since we have held that the conduct complained
of was within the scope of the individual defendants’ discretionary duties, or
simply failed to violate any established rights to which plaintiff was
entitled, we discern no basis for the claims against the State. See 12 V.S.A.
§ 5601(e)(1) (state not liable for tort claims arising out of state employee’s
exercise of, or failure to exercise, discretionary duties); Hudson, 161 Vt. at
173–74 n. 1, 638 A.2d at 565 n. 1 (noting that although some courts have
held that discretion in context of official immunity is broader than
discretionary function exception to sovereign immunity, rationale of
doctrine is same).

172 Vt. at 594.

The Court concluded in Winfield that the employees’ conduct was protected by

qualified immunity. As such, the conduct was within the employee’s permissible

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discretion. That was sufficient in that case also to demonstrate that the State’s

sovereign immunity was preserved under the statutory discretionary function exception

to the waiver. Although the legal tests are different, qualified immunity and the

discretionary function exception to the statutory waiver of the State’s sovereign

immunity both look to the employee’s underlying exercise of discretion.3

The cited portion of Czechorowski is confusing and has rarely been applied by our

Supreme Court,4 but the Court does not interpret it (or Winfield) to extend official

immunity to the State. “Official immunity is not derived from the state’s sovereign

immunity but from public policy considerations. Sovereign or governmental immunity

protects only governmental entities; official immunity encompasses the conduct of public

officers for purposes of personal tort liability.” See 1 Civ. Actions Against State & Loc.

3 While the inquires can overlap, as in Winfield, it is important to note that the

discretionary function analysis for sovereign immunity is not necessarily coextensive
with the “discretionary” component of the qualified immunity inquiry. The former
provides automatic immunity to the sovereign where the underlying decision was based
on the weighing of policy considerations. See Searles v. Agency of Transp., 171 Vt. 562,
563–64 (2000). The latter is merely one component of the qualified immunity analysis,
and it typically turns on whether the conduct was discretionary as opposed to merely
ministerial. See Cook v. Nelson, 167 Vt. 505, 509–10 (1998). For individual officials, the
question of immunity usually turns on the issue of whether the officer acted with
objective reasonableness in light of existing law. Id.

4 AAG Gaudet suggested at the hearing that Judge Toor ruled in Austrian v. City of

Burlington, No. 24-CV-370, that Czechorowski extends official immunity to the State in
the manner he advocates here. She did not. Austrian is a case of police misconduct
asserted against a municipality, not the State. The individual officers are not defendants
in that case, and Judge Toor did indicate that qualified immunity would have to be
determined at some point. But her observation had nothing to do with Czechorowski. By
statute: “When a municipality assumes the place of a municipal employee in an action as
provided in subsection (b) of this section, the municipality may assert all defenses
available to the municipal employee, and the municipality shall waive any defense not
available to the municipal employee, including municipal sovereign immunity.” 24
V.S.A. § 901a(c), cited in Austrian v. City of Burlington, No. 24-CV-370, Ruling on Motion
to Dismiss at 19 (Aug. 5, 2024). There is no analogous statute in this case.
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Gov’t § 4:4. There are no individual capacity defendants in this case, so there is no need

to consider official immunity. Otherwise, at the August 27 hearing, the Agency clarified

that it is not asserting that the State (through the Agency) is protected by sovereign

immunity from claims arising under the Act. There are no cognizable immunity issues in

this case.

Additionally, Czechorowski arose in the contest of a claim under the Vermont Tort

Claims Act, which contains an express waiver of the State’s sovereign immunity, and

focuses on the common-law tortious conduct of State actors. This action is not brought

under that provision and a separate waiver of immunity applies to the claims at issue

here. The focus is on a “governmental entity,” and its alleged failure to adhere to the Act.

9 V.S.A. § 4501. To the extent the Agency seeks to argue that the State can never be

liable, derivatively, when an employee against whom a claim is not even asserted is

immune from suit, such an argument would contravene longstanding agency principles.

See Restatement (Second) of Agency § 217 (a “principal has no defense because of the fact

that: ... (ii) the agent had an immunity from civil liability as to the act”); Glover v.

Hryniewich, 438 F. Supp. 3d 625, 637–39 (E.D. Va. 2020) (claim may proceed against

principal where agent enjoyed qualified immunity), aff’d in part, appeal dismissed in

part sub nom. Glover v. City of Norfolk, Virginia, 836 F. App’x 139 (4th Cir. 2020); see

also George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum.

L. Rev. 1175, 1187 (1977) (“Situations frequently arise in which it is appropriate to

require the government to compensate for harm done by a public official, even though it

is inappropriate to hold the official personally liable.”).

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Given the Court’s concerns regarding the scope of Czerhowowski; the fact that

HRC’s claims fall under the Act, rather than the Tort Claims Act; and its tension with

agency principles, the Court will not attempt to define its potential application to this

case at the threshold. At a minimum, the Agency has not convinced the Court of its

applicability to the instant circumstances to warrant dismissal.

D. Whether the Act Even Applies To The Alleged Conduct

The Agency contends that the Act, by its terms, does not extend to a

discrimination claim arising out of an administrative licensing proceeding. It argues

that there is no identified “place” of public accommodation operated by the Agency at

which any “accommodations, advantages, facilities, [or] privileges” were offered to the

“general public” but denied to Mr. Macias.

Under 9 V.S.A. § 4502(a), “An owner or operator of a place of public

accommodation or an agent or employee of such owner or operator shall not, because of

the race, creed, color, national origin, marital status, sex, sexual orientation, or gender

identity of any person, refuse, withhold from, or deny to that person any of the

accommodations, advantages, facilities, and privileges of the place of public

accommodation.” “Public accommodation” is defined as “an individual, organization,

governmental, or other entity that owns, leases, leases to, or operates a place of public

accommodation.” 9 V.S.A. § 4501(8). And “place of public accommodation” is defined as

“any school, restaurant, store, establishment, or other facility at which services, facilities,

goods, privileges, advantages, benefits, or accommodations are offered to the general

public.” 9 V.S.A. § 4501(1).

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The HRC largely eschews any competing interpretations of specific Act language.

Instead, it argues that the Vermont Supreme Court already has ruled that the Act

broadly applies to all State conduct no matter the setting, relying on Dep’t of Corr. v.

Hum. Rts. Comm’n, 2006 VT 134, 181 Vt. 225 [hereinafter Corrections]. The language

employed by the Supreme Court was facially sweeping and is supportive of the view that

the word “place” has little significance in the law. Nonetheless, the Agency responds that

the Corrections case arose in the unique disability discrimination context, which falls

under a different statutory regime from all other forms of discrimination and for which

the High Court had before it clear legislative history supporting an expansive view of its

scope and application to the State. On that basis, the Agency encourages the Court to

distinguish and disregard the case entirely on that basis.

The breadth of the Corrections decision and whether or how it may apply here, are

weighty and untested matters to be sure. The Court appreciates the parties’ efforts at

grappling with them so far. Matters that are novel and address unresolved legal issues,

however, are often best “explored in the light of facts as developed by the evidence”

rather than at the dismissal stage. Alger v. Dep’t of Lab. & Indus., 2006 VT 115, ¶ 12,

181 Vt. 309, 316 (citation omitted). Such is the case here. The issues are nuanced and

complicated and will be better resolved once the evidence has developed. See 5B A.

Benjamin Spencer, et al., Fed. Prac. & Proc. Civ. § 1356 (4th ed.) (Rule 12(b)(6) “is not a

procedure for resolving a contest between the parties about the facts or the substantive

merits of the plaintiff’s case.”). Indeed, neither side has provided the Court with any

legislative history regarding the specific provisions at issue in this case and neither has

explored how using the term “place” as a limiting term may impact web-based services

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that are provided by the government. Given such considerations, the Court deems it

advisable to deny the request to establish the perimeters of the Act on a cold and limited

record.

Conclusion

For the foregoing reasons, the Agency’s motion to dismiss is denied.

Electronically signed on Wednesday, September 25, 2024, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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