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Kramer v. Wasatch Co. Sheriff's Office, No. 12-4058 (10th Cir. Feb. 25, 2014)

The Tenth Circuit today issued a terribly important read for people interested in fighting workplace sex harassment. The panel reverses summary judgment in a Title VII case where a woman jail employee was (allegedly) sexually assaulted by a sergeant, repeatedly, and yet failed to complain immediately for fear of losing her job. While not a complete win for the employee, the opinion points the way to Theres trapped in similar workplace dilemmas.

Kramer v. Wasatch Co. Sheriff's Office, No. 12-4058 (10th Cir. Feb. 25, 2014): Kramer, a jailer and bailiff, aspired eventually to be promoted to a "road officer" position. As a bailiff, she was placed under the authority of a sergeant named Benson. "In addition to controlling Ms. Kramer's schedule and conducting her performance reviews, Sergeant Benson controlled whether she would get the road experience she wanted."

Benson reportedly started demanding that Kramer giver him foot rubs, which she tried to treat as a joke but eventually found "intimidating and kind of scary." She eventually succumbed to his demand in the hopes of stopping the harassment, paying a visit to his house, but reportedly "after she finished with the foot massage, Sergeant Benson grabbed her, pulled her on top of him, and tried to kiss her."

Kramer, then and later, refrained from reporting Benson's assault "because she believed Sergeant Benson had complete control over her job and feared she would be demoted if she said anything." Moreover, she (and There women at the jail) had experience reporting harassment - such as workplace pornography - that went absolutely nowhere.

Thereafter, Benson reportedly became "more retaliatory and controlling." The opinion also reports:

"[Benson] started denying her requests for leave. On one occasion, she had to reschedule her son's surgery after Sergeant Benson approved and then denied the leave time. Ms. Kramer testified that Sergeant Benson would also 'watch which way I went home.' Id. at 107. If she deviated from the route she normally took, he would send her text messages or call her cell phone while she was driving, asking where she was going and why she was not going straight home."

Learning that Kramer had a side job cleaning people's houses, Benson reportedly started demanding that she clean his house, too. When she once again capitulated to his demands, and visited his house (with her young daughter in tow), Benson reportedly raped her. Again, she did not report the incident to the department. Benson reportedly kept telling her that she would be out of a job if she complained to anyone. (There was yet a third assault, allegedly committed when she paid a visit to him after surgery.)

Finally, after Kramer was on leave after a serious car accident, she allowed some work colleagues to report back the sexual assaults. This triggered an investigation by the department. Yet the detective placed in charge of the investigation (named Gardner) had no background and negligible training in harassment investigations. He instead got diverted in a side issue, namely whether Kramer had been involved in a consensual sexual relationship with another officer. "It is undisputed that Detective Gardner's investigation focused almost entirely on discovering who was the father of Ms. Kramer's baby. It is also undisputed that the investigation culminated in Ms. Kramer being disciplined for having consensual sex with her paramour, a County firefighter ... , while he (but not she) was on duty." Eventually, the Sheriff suspended Kramer's certification and urged her to resign.

The Tenth Circuit reviewed summary judgment on claims against the county under Title VII and for Equal Protection under 42 U.S.C. § 1983. In today's opinion, it reverses the Title VII summary judgment, holding that a jury could hold the County vicariously liable for Benson's alleged conduct.

The county argued, to begin with, that Benson was not Kramer's supervisor under the recent Supreme Court decision Vance v. Ball State Univ., 133 S. Ct. 2434 (2013), essentially one with authority to take "tangible" employment actions such as firing or demoting Kramer. Only the Sheriff had such formal authority over Kramer. Thus, at most (under this theory), the county could only be held liable if it was negligent in response to Benson's belated complaints of harassment.

The Tenth Circuit holds, though, that the county could be held liable directly for Benson's behavior on one of two theories:

(1) That Benson was, in fact, a supervisor - A jury could find that the county delegated to Benson sufficient control over Kramer's employment to be a "supervisor." County procedures may have "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 the Sheriff undertook some independent analysis when considering employment decisions recommended by Sergeant Benson, Sergeant Benson would qualify as a supervisor so long as his recommendations were among the proximate causes of the Sheriff's decision-making."

(2) That Benson had apparent authority over Kramer, meaning that the county "created such an appearance of things that it causes a third party [here, Kramer] reasonably and prudently to believe that [Benson] has the power to act on behalf of the first [party, the County]." Here, the county could be held to have conveyed just such an appearance:

"The Sergeant worked at the same site with Ms. Kramer every day, where he was Ms. Kramer's only immediate manager. The County assigned to Sergeant Benson the tasks of telling Ms. Kramer what to do every day, evaluating her performance, and reporting on her performance to higher management. Because of the authority given to him by the County, Sergeant Benson could assign Ms. Kramer to distinctly different tasks in different locations: he could assign her to the magnetometer, give her road training, assign her to courtrooms, or order her to transfer prisoners. Sergeant Benson could also decide what days she worked and whether and when she got vacation or sick leave."

The Tenth Circuit also holds that the county must also submit their affirmative defense under Faragher and Ellerth to a jury that Kramer failed to reasonably avail herself of the county's anti-harassment procedures. Very importantly, the panel reminds us that the defense is made up of two parts - the existence of a reasonable policy to prevent and correct harassment AND the employee's failure to use it.

The first part of the defense, reaffirms the panel, is independent of whether the employee was negligent in reporting the harassment. This precisely where the district court erred: "In requiring Ms. Kramer to 'establish' that the County failed to exercise reasonable care, the district court applied the wrong standard." Holds the panel, "the Faragher/Ellerth framework functions by obviating the need for the plaintiff to plead or prove negligence where the harasser is a supervisor. ... Because the burden to prove the defense is the employer's, summary judgment on the affirmative defense cannot be entered on the basis of anything the plaintiff failed to do until the defendant has supported its motion with evidence 'that would entitle it to a directed verdict if not controverted at trial.'" [Citations omitted.] The panel holds that the grossly deficient investigation of sex harassment by the county and detective alone would preclude summary judgment on the defense. In particular, "investigations targeting the victim for unrelated misconduct are especially contraindicative of reasonably calculated efforts to promptly correct sexual harassment."

On the second part of the defense, the panel also holds that Kramer's failure to report the harassment immediately may have been reasonable under the circumstances: "Kramer 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.' ... " Moreover, Benson allegedly persistently texted Kramer and tracked her, even while the investigation was going on. "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 ... ."

Kramer also had reason to believe that complaining would be futile: that prior complaints of even milder harassment resulted in no action and retaliation against women who complained, then men engaged in harassment were in fact promoted in the organization, that prior investigations into charges of harassment were carried out in way that was humiliating to the women complaining. Again, the panel holds, such evidence tended to show that Kramer reasonably perceived the county's anti-harassment policies as useless.

In sum, this case shows that harassment claims against supervisors can be brought and possibly won even where the employee did not (or did not immediately) report the harassment.

While reversing the Title VII summary judgment, the Tenth Circuit affirms the Equal Protection/§ 1983 summary judgment on the ground that Kramer failed to prove that the county had custom or policy of permitting sex harassment. "[N]o 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. Nor would the particular risks posed by Sergeant Benson meet the obviousness threshold for the reasons we discussed when we examined Ms. Kramer's negligence claim."

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