dissenting. I believe that the Vermont Labor Relations Board’s (Board) determination that a hostile environment sufficient to support an inference of discrimination on the basis of sex existed was flawed.
First, its decision was based in part upon incidents that occurred at the Vermont Police Academy (Academy), a statutorily separate body administered by the Criminal Justice Training Council and not maintained or controlled by the Department of Public Safety (Department). The Board did not find that the Academy was authorized to act for the Department or that the Department exercised any control over the Academy. While it recognized that the Director of the Academy was not in the Department chain of command and was not grievant’s supervisor, it nevertheless attributed his actions to the Department because they occurred during employer-mandated training. The proper inquiry should have been whether his acts were attributable to the Department under agency principles. See Mentor Sav. Bank v. Vinson, 477 U.S. 57, 72 (1986) (for employer liability, courts should look to agency principles for guidance). There is no finding or conclusion that would support a holding that an agency relationship sufficient to impute the Academy’s acts or omissions to the Department existed. Nor does the suggestion in the majority opinion that the Department exercises “plenary control,” see 166 Vt. at 429, 697 A.2d at 664, over the training program suffice to make it liable for the Academy incidents. The Commissioner of Public Safety' is but one member of a twelve-member council that adopts rules respecting training, and conducts and administers training schools for all law enforcement officers. See 20 V.S.A. § 2355(a), (b). The requirement that the Commissioner develop and conduct training programs for state police officers, which must be approved by the council, see id. § 2364, does not create an agency relationship.
The majority then suggests that the Academy experience did not play a large role in the Board’s decision and was cited only to explain *433grievant’s reluctance to complain. It is clear from the Board’s findings and conclusions that the occurrences at the Academy entered into its determination that grievant was the victim of intentional sex discrimination. The Board stated that it was necessary to examine grievant’s entire work history, including the incidents at her Academy training, and concluded from the other occurrences at the Academy that “inferences of discriminatory animus” had been raised.
The Board’s inclusion of the Academy experience in reaching its conclusions was error for another reason. The Board opined that the employer could be held liable for co-worker harassment only where the employer provided no reasonable avenue for complaint, or the employer knew, or should have known, of the harassment and failed to take remedial action. A reasonable avenue for complaint existed. The Board found that the Department had a detailed sexual harassment policy with reporting procedures that required an employee believing himself or herself to be sexually harassed to immediately report the harassment to the immediate supervisor, or, if the complaint involved that supervisor, then to the supervisor’s supervisor. It further provided that if the employee was uncomfortable about complaining through the chain of command he or she could complain to the Department’s Personnel Officer, the Employee Assistance Coordinator, the Commissioner, or any member of the Employee Relations staff. The policy prohibited sexual harassment and did not suffer from the reporting deficiency found in Meritor. See Meritor, All U.S. at 73 (bank’s grievance procedure required employee to complain first to her supervisor, employee’s alleged perpetrator). The Board simply excused grievant’s failure to avail herself of the procedures designed to eliminate harassment because she had received “a powerful message” from the Director of the Academy not to complain. The Board was thus able to avoid deciding what consequences should result from the failure to follow the reporting requirements. Such failure should weigh heavily against imposing liability on the Department. See Hartleip v. McNeilab, Inc., 83 F.3d 767, 776 (6th Cir. 1996) (grievant’s failure to avail herself of company policy for reporting harassment weighs strongly against imposing liability on company). Grievant should not have been relieved of the reporting requirements because of the remarks of the Director at the Academy.
Second, while the Board recognizes that different rules apply where the hostile environment is created by supervisors as opposed to co-workers, there is no analysis of their proper application in this case. The Department is held liable for the actions of the sergeant and *434the lieutenant because they were using their supervisory authority to further the alleged harassment. Their own harassment, however, consisted only of disparaging remarks concerning grievant’s relationship with a former trooper, which can hardly be equated with a workplace permeated with such “‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive’” to change the conditions of the grievant’s employment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor, 477 U.S. at 65, 67). How this criticism of grievant’s relationship with a former trooper could be found to be a use of supervisory authority to further the alleged harassment is not explained. See Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir.) (knowledge of “low-level supervisor” is not imputed to employer where supervisor does not rely on supervisory authority to carry out harassment), cert. denied, 512 U.S. 1213 (1994). Furthermore, the sergeant’s knowledge of co-worker harassment consisted of grievant’s complaint about being asked for a kiss by “one of the guys” and the comment about her size. The lieutenant had no knowledge of co-worker harassment. The Board assumes the knowledge of the sergeant to be the knowledge of the Department without discussion. For the knowledge of a supervisor to be imputed to the employer, the supervisor must be “at a sufficiently high level in the hierarchy” of the employer. Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992). The Board did not find or conclude that the lieutenant or sergeant was of a sufficiently high level to impute knowledge to the Department. In fact, the only relevant finding of the Board lists the lieutenant and sergeant last in the chain of command.
Because the claim of hostile environment was improperly attributed to the Department and, as the Board found, was “inextricably intertwined” with the claim of disparate treatment, I would reverse.