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Orton-Bell v. State of Indiana, No. 13-1235 (7th Cir. July 21, 2014)

This case presents the nice question of whether an employer violated Title VII by punishing a woman more harshly than her male counterpart for the same misconduct, i.e., jointly carrying on a workplace affair. The Seventh Circuit says that there is enough of a genuine dispute of facts to reverse summary judgment and remand for further discovery. The court also remands a claim of sex harassment, which included the extraordinary complaint that the employer tolerated employees having after-hours sexual liaisons on the plaintiff's office desk (which the panel found, notably, was not a form of sex harassment).

Orton-Bell v. State of Indiana, No. 13-1235 (7th Cir. July 21, 2014): The plaintiff, a prison social worker, learned from an investigator, "who had been looking for security breaches, ... that night-shift employees were having sex on [her] desk...." Complaints to authorities led her to learn (1) that many in charge at the prison already knew about the illicit use of her office, and (2) they didn't intend to do anything about it, other than "suggest[ing that] she should probably wash off her desk every morning."

Apart from this unsanitary condition, Ms. Orton-Bell's other complaints were not too far out of the ordinary. She complained that she was subjected to a hostile work environment, including excessive and intrusive pat-down searches by (and in front of) male guards, and a non-stop stream of sexually-oriented talk - especially by a former prison Superintendent (named Mize).

Finally, plaintiff charged that when the prison discovered that she and an officer named Ditmer were engaged in a sexual affair (including use of the prison email and facility for meeting up), she was treated more harshly by the current Superintendent, named Finnan. Initially, the prison administration "believed that this was 'conduct that would interfere with the staff member's ability or fitness to effectively perform require[d] duties' in violation of the DOC Standards of Conduct." Both were suspended and fired, but  Ditmer settled with the prison, allowing him to "resign in good standing, keep all the benefits he had earned, including his pension, and to continue working at the prison as a contractor." Orton-Bell exhausted all of her appeals and ended up with nothing.

Orton-Bell brought Title VII claims for sexual harassment, termination and retaliation. The district court granted summary judgment on all claims. On appeal, the Seventh Circuit reverses summary judgment on the first two claims.

Dispensing with the most exotic claim first, the panel rejects the argument that the sexual encounters that took place out of plaintiff's presence on her desk constituted a hostile work environment, in the absence of any evidence that the employer tolerated the intrusions into her office because of her gender. "Her supervisors' insensitive and inattentive responses were callous mismanagement; but absent evidence that this inaction was based on her sex, it did not violate Title VII." (And for this reason, her retaliation claim based on her complaints about the illicit use of her office likewise fall away - complaining about the situation was not a protected activity under Title VII.)

Nonetheless, the panel reverses summary judgment on the remaining claims. The sex-suffused workplace presents sufficient evidence of a severe or pervasive environment:

"Superintendent Mize, the official formerly in charge of the entire prison, harassed her, ogled her, and ostensibly forbade her from wearing jeans based on his opinion that 'her ass looked so good that it would cause a riot.' Walking through the pat-down area, she says she was searched more thoroughly while men watched and made sexual comments. And she relays that these kind of comments were not rare, but were part of a never-ending barrage. We have found less egregious comments in less egregious contexts to be sufficiently severe."

The court also finds sufficient evidence that plaintiff was subjectively offended (despite her own occasional sexual banter) and that the prison could be held liable because she "made repeated complaints about the constant sexual comments, including complaints to the right individuals, but nothing changed."

Regarding the termination, the panel holds that a jury could find that the disparate harshness of Orton-Bell's punishment over Ditmer's was because of sex. She made out a prima facie case of being treated worse than an otherwise male employee: "Although in different branches of the chain of command, Orton-Bell and Ditmer were both fired by the same ultimate supervisor (Finnan) for the same conduct in violation of the same standards." And the efforts by the prison to distinguish the two circumstances, a jury might find, were implausible. A supervising officer with 25 years experience (versus plaintiff's four years) should, if anything, more aware of the rules and less excuse to violate them.

"[H]is offense was also worse. Ditmer violated the DOC's standards of conduct while in the sensitive leadership position of Major in Charge of Custody (a para-military leadership role); Orton-Bell was a substance abuse counselor. If there is any dissimilarity, it is that the affair compromised Ditmer's ability to perform his job far more than it compromised Orton-Bell's ability to perform hers. And unlike Orton-Bell, this was not Ditmer's first work affair."

The state, for its part, "has not seriously offered a reason for their disparate treatment."

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