March 23, 2019

Tenth Circuit: In Sexual Harassment Case, Summary Judgment For County and Judge Affirmed in Part and Reversed in Part

The Tenth Circuit Court of Appeals published its opinion in Eisenhour v. Weber County on Wednesday, March 12, 2014.

Marcia Eisenhour worked for Weber County for 24 years, serving as the Court Administrator for the Weber County Justice Court under the direct supervision of Judge Storey. According to Ms. Eisenhour, Judge Storey began acting inappropriately toward Ms. Eisenhour in early 2008. He became “touchy” and would often stand so close to her that his groin rubbed against her. In addition to the touching, Judge Storey once told her that he had a dream about her in which she was naked. Ms. Eisenhour also found a poem by Judge Storey, which revealed his romantic feelings for her. According to Ms. Eisenhour, she was also subjected to unreasonable demands about her activities away from work.

The County launched an investigation, but ultimately decided not to discipline Judge Storey. The matter was later referred to Utah’s Judicial Conduct Commission, which the Commission dismissed.

Between August and December 2009, the County Commissioners closed the Justice Court, which meant the loss of Ms. Eisenhour’s job. Ms. Eisenhour applied to the County for three vacant positions. Unsuccessful, she lost not only her job but also the potential for retirement benefits. She eventually spoke to the media about the Judicial Conduct Commission’s investigation of Judge Storey.

Marcia Eisenhour sued Weber County, three of its county commissioners, and Judge Storey. She claimed violations of Utah’s Whistleblower Act, the First Amendment, the Fourteenth Amendment’s Due Process and Equal Protection Clauses, and Title VII. The district court granted summary judgment to the defendants on all claims. Ms. Eisenhour appealed.

Ms. Eisenhour first challenged the district court’s exclusion of her testimony on disciplinary proceedings involving the judge. The Tenth Circuit affirmed. The exclusion of Ms. Eisenhour’s testimony during the disciplinary proceedings involving Judge Storey was proper, since, under the applicable Utah statute, section 78A-11-112(1), testimony taken during the course of proceedings before the Judicial Conduct Commission cannot be introduced in a civil action.

Ms. Eisenhour asserted a claim under Title VII for retaliation. The district court held that it lacked jurisdiction over the claim because Ms. Eisenhour failed to exhaust administrative remedies. The Tenth Circuit agreed. Ms. Eisenhour filed an EEOC claim for sexual harassment, but this claim did not refer to any of the retaliatory acts underlying the eventual cause of action under Title VII. As a result, the court affirmed the award of summary judgment to the County on the Title VII retaliation claim.

Next, Ms. Eisenhour invoked the First Amendment, claiming that the County retaliated against her by closing the Justice Court when she spoke to the media about the Judicial Conduct Commission’s investigation of Judge Storey. The Tenth Circuit held that triable issues of fact existed and that the district court erred in granting summary judgment to the County. When the court is faced with a First Amendment claim by a public employee, the district court must balance the First Amendment interests of that employee, speaking as a concerned citizen, with the government’s interests in promoting the efficiency of the public services it performs through its employees. The Tenth Circuit held that her comments to the media involved protected speech and that she presented sufficient evidence for a reasonable fact-finder to infer that her comments were a motivating factor in the County’s decision to close the Court. The evidence also created a genuine issue of fact about the legitimacy of the County’s explanation for closing the Justice Court.

On the First Amendment claim for retaliation, Ms. Eisenhour also sued three county commissioners in their personal capacities. This claim was based on the Commissioners’ decision to close the Justice Court. Their motivation, according to Ms. Eisenhour, was to retaliate for her comments to the media. Like the County, the Commissioners argued that Ms. Eisenhour’s speech was not protected under the First Amendment and that the County closed the courthouse because of budgetary considerations rather than a retaliatory motive. As discussed above, these arguments involved factual issues turning on the resolution of conflicting evidence, thereby preventing summary judgment for the County.

Ms. Eisenhour further alleged that the County violated Utah’s Whistleblower Act, which prohibits government employers from retaliating against employees who report employer misconduct. According to Ms. Eisenhour, the County violated the state law by closing the Justice Court and refusing to hire her. Ms. Eisenhour waited more than 180 days from the alleged violation to assert a Whistleblower Act claim, so this claim was time-barred. However, for her claim relating to the closing of the court, the claim did relate back to the original filing, so it was not time-barred.

Ms. Eisenhour argued that the County deprived her of a property interest in her job without due process of law. The district court held that Ms. Eisenhour had failed to establish a protected property interest. The Tenth Circuit agreed. For purposes of the Fourteenth Amendment’s Due Process Clause, property interests must derive from some independent source, such as state law, contract, or other understandings that give rise to a claim of entitlement. However, her employment was at-will. And at-will employees lack a property interest in continued employment.

Ms. Eisenhour asserted that the County violated her right to equal protection, and the district court granted summary judgment to the County on the ground that Judge Storey was not an official policymaker. The Tenth Circuit agreed with the district court’s decision. A municipality can be liable under Section 1983 for the acts of a municipal official only when the official possesses final policymaking authority to establish municipal policy with respect to the acts in question.

Judge Storey lacked policymaking authority to touch Ms. Eisenhour inappropriately under the County’s sexual harassment policy. Further, his monitoring of her whereabouts (when missing work) did not violate the Equal Protection Clause. As a result, the County was entitled to summary judgment on the equal-protection claim.

Ms. Eisenhour further asserted an equal-protection claim against Judge Storey. The district court concluded that Judge Storey was entitled to qualified immunity. The Tenth Circuit reversed the district court’s grant of summary judgment to Judge Storey, concluding that he was not entitled to qualified immunity and that there was a fact-issue about whether Judge Storey inappropriately touched Ms. Eisenhour.

To overcome a defense of qualified immunity, a plaintiff must show that: (1) the defendant’s conduct violated the law, and (2) the law was clearly established when the violation occurred. The Tenth Circuit held that Ms. Eisenhour made the threshold showing and that issues of fact precluded summary judgment.

For the reasons stated above, the Tenth Circuit affirmed the award of summary judgment on Ms. Eisenhour’s claims against the County under the: (1) Whistleblower Act for a refusal to rehire her, (2) Title VII, and (3) § 1983 based on a deprivation of due process and denial of equal protection. The court also held that the district court properly excluded Ms. Eisenhour’s testimony taken during the judicial-misconduct investigation. But the court agreed with Ms. Eisenhour that genuine issues of fact precluded summary judgment on: (1) her § 1983 claim against the County and the County Commissioners based on the First Amendment, (2) the Whistleblower Act claim against the County based on the court closing, and (3) the § 1983 claim against Judge Storey based on the Fourteenth Amendment’s Equal Protection Clause.

Accordingly, the case was REMANDED to the district court with instructions to VACATE the award of summary judgment on these claims.

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Defendant Craig Storey requested rehearing, arguing in part: (1) The panel opinion erroneously relied in part on sworn testimony before the Judicial Conduct Commission even though the testimony was deemed inadmissible; and (2) the evidence did not support Ms. Eisenhour’s claim that Defendant Storey knowingly and intentionally committed sexual harassment by telling her about a dream. On these issues, Defendant Storey also requested en banc consideration. In addition, he sought en banc consideration on the issue of qualified immunity.

The panel granted rehearing on the first issue, which involved reliance on the Commission testimony by Ms. Eisenhour. The remainder of the petition for panel rehearing was denied. In light of the partial grant of the petition, however, the panel vacated the opinion issued on December 31, 2013. The clerk was directed to substitute the amended decision above and to file it contemporaneously with this order.

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