July 21, 2019

Colorado Court of Appeals: Hearing Board Erroneously Judged Conduct Subjectively, Not Objectively

The Colorado Court of Appeals issued its opinion in City & County of Denver v. Gutierrez on Thursday, May 19, 2016.

Silver Gutierrez is a captain with the Denver Sheriff’s Department (DSD) and is on the board of the Denver Sheriff’s Foundation. Cheryl Arabalo is also a DSD captain and board member for the Foundation. On August 26, 2010, Arabalo went to Gutierrez’s office. Gutierrez was on the phone but he gestured for Arabalo to lift up her shirt and expose her breasts and then to sit on his lap. Two months later, Arabalo filed a complaint with the Colorado Civil Rights Division, alleging sexual harassment.

A hearing officer with the DSD Internal Affairs Bureau found that this type of behavior was prevalent among board members, who had a “locker room” culture and frequently engaged in sexualized behavior with each other. The DSD suspended Gutierrez for 75 days for violations of several Departmental Orders (DOs), but a hearing board reduced the suspension to 30 days. The hearing board decided that while Gutierrez’s conduct violated some of the DOs, it did not satisfy the criteria for the most egregious conduct.

The City appealed the hearing board’s decision to the district court pursuant to C.R.C.P. 106(a)(4). The district court determined the board had abused its discretion by applying a subjective standard rather than an objective standard to Gutierrez’s conduct. The district court remanded to the hearing board to reconsider, and Gutierrez appealed.

On appeal, the court of appeals agreed with the district court that, although the hearing board stated it was using objective criteria, it actually evaluated Gutierrez’s conduct using subjective standards. The hearing board considered the Foundation board’s “locker room” atmosphere and sexualized behavior in finding that Gutierrez’s conduct was not that bad. The court of appeals found this was in error, and the hearing board should have viewed the conduct as it would appear to an outside observer.

The court of appeals affirmed the district court and remanded to the hearing board for determination of appropriate disciplinary action.

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.

Tenth Circuit: In Sex Discrimination Case, Genuine Issues of Fact Existed as to Plaintiff’s Title VII Claims

The Tenth Circuit Court of Appeals published its opinion in Kramer v. Wasatch County Sheriff’s Office on Tuesday, February 25, 2014.

Camille Kramer worked for the Wasatch County Sheriff’s Department from 2005 to 2007. During that time, she was the victim of repeated sexual harassment, sexual assault and rape at the hands of Sergeant Rick Benson.

Ms. Kramer sued Wasatch County, alleging that the sexual harassment she experienced at the hands of Sergeant Benson constituted sex discrimination prohibited by both Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1), and the Constitution, 42 U.S.C. § 1983. The district court granted summary judgment to Wasatch County. The court held that Sergeant Benson was not Ms. Kramer’s supervisor for Title VII purposes because he did not have the actual authority to unilaterally fire her. It further held that supervisor status could not be premised on apparent authority because no reasonable juror could find Ms. Kramer reasonable in believing Sergeant Benson had the power to fire her. Even assuming Sergeant Benson was Ms. Kramer’s supervisor, the court concluded that Wasatch County was not vicariously liable for his conduct because Ms. Kramer suffered no tangible employment action and, alternatively, because Wasatch County was entitled to prevail on its Faragher/Ellerth affirmative  defense as a matter of law.

Finally, the district court held that Wasatch County was not negligent and thus could not be liable for Sergeant Benson’s harassment under co-worker harassment standards. As to Ms. Kramer’s § 1983 claims, the court determined that Sheriff Van Wagoner was entitled to qualified immunity, and that the County was not liable because it had no pattern, practice, or custom of illegal sex discrimination. Ms. Kramer appealed on all claims.

Sexual harassment in the workplace is a form of sex discrimination prohibited by Title VII. In general, an employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior. If the harasser is a supervisor rather than merely a co-worker, however, the employer may be vicariously liable for the conduct, depending on the circumstances.  If the supervisor’s harassment culminates in a “tangible employment action,” the employer is strictly liable for sex discrimination, with no defense. If no tangible employment action occurs, the employer may still be vicariously liable for the supervisor’s harassment if the plaintiff proves the harassment was severe or pervasive, and the employer is unable to establish the affirmative defense announced in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). For these reasons, whether the harasser was a “supervisor” within the meaning of Title VII is a critical threshold question in determining whether the employer can be held vicariously liable for the harassment.

The United States Supreme Court has held that a “supervisor” under Title VII is an employee whom the employer has empowered to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Importantly, however, an employee need not be empowered to take such tangible employment actions directly to qualify as a supervisor. A manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a “supervisor” under Title VII.

Sergeant Benson was Ms. Kramer’s direct supervisor. He completed her performance evaluations and made recommendations regarding her employment status. The record established that Ms. Kramer raised a genuine issue of fact as to whether the Wasatch County Sheriff’s Department effectively delegated to Sergeant Benson the power to cause tangible employment actions regarding Ms. Kramer by providing for reliance on recommendations from sergeants such as Benson when making decisions regarding firing, promotion, demotion, and reassignment.

Even if it was determined that Sergeant Benson lacked the actual supervisory authority described above, he could still qualify as a supervisor under apparent authority principles. In the usual case, a supervisor’s harassment involves misuse of actual power, not the false impression of its existence. But in the unusual case, apparent authority can suffice to make the harasser a supervisor for Title VII purposes, so long as the victim’s mistaken conclusion is a reasonable one. Under the circumstances here, given the County’s and the Sheriff’s manuals, there was a genuine issue of fact as to whether Ms. Kramer was reasonable in believing that Sergeant Benson had additional powers – such as the power to transfer, discipline, demote, or fire her. A jury was especially likely to conclude such beliefs were reasonable because Sergeant Benson repeatedly told Ms. Kramer he did in fact possess such powers.

If Sergeant Benson was a supervisor, Wasatch County would be strictly liable for his harassment of Ms. Kramer if it culminated in a tangible employment action. However, the Tenth Circuit held that none of the following actions constituted tangible employment actions: (1) the rape; (2) the bad performance evaluation that was never submitted; (3) Sergeant Benson denying her vacation days; and (4) Sergeant Benson refusing to give her road training and assigning her to the magnetometer full-time. The Tenth Circuit held that no tangible employment action occurred. Because these actions did not constitute “tangible employment action,” the County could not be held strictly liable for sex discrimination.

Even absent a tangible employment action, if Sergeant Benson qualified as a supervisor, the County could be vicariously liable for his severe or pervasive sexual harassment unless it could establish the affirmative defense announced in Faragher and Ellerth. This defense has two elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The Tenth Circuit held that Wasatch County did not support its summary judgment motion with evidence that entitled it to judgment as a matter of law under either of the affirmative defense’s two prongs. Wasatch County’s evidence did not establish as a matter of law that the County took reasonable means to prevent and promptly correct sexual harassment. The County did not provide any evidence that the Sheriff Department’s interventions were reasonably calculated to end the harassment, deter future harassers, or protect Ms. Kramer. Not only did the investigation here fail to demonstrate that the County employed reasonable means to discharge its Title VII obligations, the Sheriff’s response to Ms. Kramer’s allegations suggested that he did not understand he had a Title VII compliance matter on his hands. There was no evidence the Department sought to improve its sexual harassment prevention program or otherwise reduce the risk of future harassment. On this record, there remained a genuine issue of fact as to whether the County’s response to Ms. Kramer’s sexual harassment complaint fell short of demonstrating that the County took reasonable efforts to discharge its duty under Title VII, as required to establish the affirmative defense.

Under prong two of the affirmative defense, Wasatch County’s evidence did not compel the conclusion that Ms. Kramer was unreasonable. Ms. Kramer did not lodge a formal complaint. However, she testified that on numerous occasions Sergeant Benson sexually assaulted her and subsequently told her to “be quiet” and “not say anything” or it would be “a career ender.” Sergeant Benson also threatened Ms. Kramer with a poor evaluation unless she would keep her mouth shut and not say anything. The court concluded that the record demonstrated a persistent theme: Sergeant Benson was an intimidating person with job-related power over Ms. Kramer who would sexually harass her and then threaten that she would lose her job if she complained.

Ms. Kramer’s fear that Sergeant Benson would make good on his threats was not per se unreasonable given that he did in fact take adverse job actions against her at work – denying her leave time, threatening her with a bad performance evaluation, and giving her long shifts on the magnetometer. Even if these actions did not rise to the level of a tangible employment action, a reasonable employee could well find a combination of threats and actions taken with the design of imposing both economic and psychological harm sufficient to dissuade him or her from making or supporting a charge of discrimination. This evidence raised a genuine issue of fact as to whether Ms. Kramer’s fears of Sergeant Benson were credible and reasonable because they were grounded in concrete reasons to apprehend that complaint would result in affirmative harm to the complainant.

Taken together, the evidence was also sufficient to raise a genuine issue of fact as to whether Ms. Kramer was reasonable in believing it would be futile and potentially detrimental to herself to complain. Accepting Ms. Kramer’s version of the facts, a picture emerged in which Sergeant Benson used his job-related power over Ms. Kramer to compel, pressure, or coerce her to do his bidding. While Ms. Kramer technically could have avoided some of the encounters, the record did not establish that she could have done so without incurring some form of adverse employment action.

Accordingly, the Tenth Circuit reversed summary judgment for Wasatch County on both prongs of the Faragher/Ellerth defense.

However, the court affirmed the district court’s holding that the County’s liability could not be premised on negligence. The record evidence viewed in the light most favorable to Ms. Kramer failed to support an inference that the County had actual or constructive knowledge of Sergeant Benson’s sexual harassment before Ms. Kramer’s car accident.

Finally, the County was not liable for sex discrimination under § 1983. As to institutional liability under § 1983, the County could only be liable for the actions of Sergeant Benson if it had a custom, practice, or policy that encouraged or condoned the unconstitutional behavior – here, workplace sexual harassment. Kramer had to demonstrate a direct causal link between the municipal action and the deprivation of federal rights, and she had to show that the municipal action was taken with deliberate indifference to its known or obvious consequences. Ms. Kramer had to establish that the County failed to prevent sexual harassment with deliberate indifference, that the need for more or different action was so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. The court held that, on the record in this case, no reasonable jury could find that the risk of sergeants sexually assaulting their subordinates was “so obvious” the County’s policymakers should have known about it.

The Tenth Circuit therefore AFFIRMED summary judgment as to the § 1983 claim, but REVERSED on the Title VII claim, which the court REMANDED for trial.