Title VII: To protect and serve? Harassment claim sent back to Utah court
You may have heard the term “summary judgment.” It means that if the facts of a case are so clear that only one outcome is possible at trial, a court will forgo a trial and decide the case. This process ensures that resources aren’t wasted arguing over inarguable evidence. After all, trials are held to resolve factual disputes, and if there isn’t a factual dispute, why hold a trial?
Recently, the U.S. District Court for the District of Utah granted summary judgment in favor of Wasatch County in a sexual harassment case filed by a court bailiff. In essence, the court found that given the law at issue—Title VII of the Civil Rights Act of 1964—and the evidence the parties presented, there was no way the county could lose. Thus, the court did not hold a trial. The bailiff, however, appealed that decision, arguing that she found evidence that justified a trial.
The U.S. 10th Circuit Court of Appeals (whose decisions apply to all Utah employers) agreed with the bailiff and ordered the lower court to hold a trial. Although there were disputes as to what actually happened—disputes that neither the trial court nor the appellate court resolved—the 10th Circuit’s decision provides important guidance for employers that want to avoid sexual harassment claims. And don’t all employers want to avoid sexual harassment claims?
Read on to see how the 10th Circuit reached its decision that the bailiff should receive her day in court. Please understand that the recitation of the facts is largely based on a disgruntled former employee’s version of events. What actually happened has not yet been determined by a court.
Foot rubs, Coke, and alleged sexual assault
Camille Kramer was employed by the Wasatch County Sheriff’s Department first as a jailor and then as a bailiff. In 2006, Kramer complained to Sheriff Kenneth Van Wagoner about events at her jail. Specifically, she complained of offensive comments coworkers made about her breasts, sexually offensive material on department computers, and graphic sexual conversations.
Van Wagoner called a staff meeting. In response to Van Wagoner’s request, Kramer volunteered to role play with him during the meeting. Van Wagoner acted out the scenarios Kramer had described to him, with Kramer playing the role of the victim. After acting out the scenarios, Van Wagoner told the group, “That’s harassment. Don’t do it.” The events left Kramer humiliated and did not stop the objectionable behavior. After she complained again, Van Wagoner told her, “You might want to avoid that area [of the jail].”
In late 2006, Kramer was assigned to work as a bailiff at the courthouse. She worked with sergeant Rick Benson and Brad Hulse. Benson managed Kramer and Hulse, scheduled their work, and delegated assignments to them. He also had the authority to recommend demotions, promotions, and terminations to Van Wagoner. According to Kramer, Benson started sexually harassing her after she began working with him. For instance, he asked her to give him foot rubs several times, which she refused.
After repeat requests, she jokingly told him that she would give him a foot rub only if he provided a doctor’s note. He responded by giving her a purported doctor’s note written on prescription paper. According to Kramer, at that point, Benson’s behavior became “intimidating and kind of scary.” She complained to Van Wagoner’s secretary, but she did not file a formal complaint because she believed that doing so would adversely affect her chances of receiving a promotion. Kramer eventually agreed to give Benson a foot rub if he would “shut up about it.” He said he would stop talking about it if she would go to his house for the massage. During the foot rub, Benson promised Kramer that he would take her out for road training. After the massage ended, Benson grabbed Kramer, pulled her on top of him, and tried to kiss her. Kramer fled Benson’s house, but she did not report the incident because she believed that he controlled her job and she feared being demoted.
After repeat requests, Benson took Kramer on the road training he had promised her during the foot rub. However, while in his car, he sexually assaulted her twice and told her, “Don’t act weird. Don’t act weird on me.” Because she feared being demoted and thought Benson had complete control over her job, Kramer did not report the assaults to Van Wagoner.
After the assaults, Benson took other actions against Kramer, including denying her requests for leave. On one occasion, he approved her leave request but later denied it, forcing her to reschedule surgery for her son. He also learned the route she usually took home from work. If she took another route, he would call or text her to find out where she was going.
In mid-2007, Kramer put on her desk a sign that read, “Sexual harassment will not be tolerated, it will be graded.” Someone complained about the sign to Van Wagoner, who, instead of asking Kramer why she put up the sign, told her to take it down and placed a disciplinary note in her file.
Kramer cleaned houses part-time. When Benson learned this, he asked her to clean his house, but she refused. Benson told coworkers of her refusal, and some coworkers asked her why she wouldn’t clean Benson’s house. She finally agreed to clean the house after Benson promised that she could bring her children, his daughter would be there, and he would give her gas money and his daughter’s hand-me-down clothes. Although Kramer thought those steps would ensure her safety, Benson cornered and raped her while she was cleaning his room. Afterward, he again told her, “Don’t act weird.” He followed up with, “You better be quiet about this and not say anything. This is a career ender.”
Later, Benson failed to relieve Kramer at work on several occasions despite promises that he would do so. He also prepared and showed her a bad performance evaluation. When she objected to the evaluation, he changed it and said, “Keep [your] mouth shut and [do] not say anything, and [you will] be fine and . . . taken care of.”
After Kramer was raped, money disappeared from the courthouse, and Van Wagoner ordered an investigation of the court bailiffs. Benson accused Kramer of taking the money. Kramer agreed to take a lie detector test, which she passed. Before the test, however, Benson told her, “You better not say anything about anything that happened. . . It’s a career ender . . . and if I go down, you go down.” Kramer did not mention the sexual assaults during the test. Benson was the only courthouse employee who refused to take a lie detector test. During the investigation, Benson assigned Kramer to the courthouse magnetometer, which prevented her from obtaining road training.
While the investigation was being conducted, Kramer observed several things that made her believe Van Wagoner would not enforce department policies against Benson. First, she saw Benson deliberately disregard a justice of the peace’s order to stay out of his courtroom without any repercussions. Second, the investigation and Benson’s accusations against her were so upsetting that she requested administrative leave under the department’s policy manual. Van Wagoner denied her request, telling her that “we’re too small a department” to follow the policy.
Benson underwent surgery and took leave to recover. Despite being on leave, he often called the courthouse and asked to speak to Kramer. During the phone calls, he repeatedly asked her to bring him a Coke. When she refused, Benson asked Hulse to help convince her to bring him a Coke. After being badgered by Hulse and Benson, Kramer capitulated, thinking she would be safe since Benson was confined to bed. When she dropped off the Coke, Benson asked her to sit on his bed, saying, “Kramer, can we just talk about work?” She tried to keep her distance, but when she came near, he grabbed her, pulled her on top of him, exposed his penis, and groped her.
After the last assault, Kramer was in a car accident and took sick leave. While she was recovering, several court clerks visited her, and she told them about the assaults and rape. She also told them that she was in a consensual sexual relationship with someone else and was pregnant as a result of the relationship. The clerks told her to report the assaults and suggested that she talk with detective Todd Hull, who was conducting the investigation into the missing money. Kramer refused, but she allowed one of the clerks to tell Hull about Benson’s actions.
Van Wagoner found out from one of the clerks that Kramer was pregnant. He also learned, in his own words, that “Benson had sexually assaulted her or . . .sexual misconduct had taken place, leading me to believe that maybe [Benson] was the father. And if that was in fact the case, that’s a definite violation of our policy and procedure . . . especially if it’s on-duty.”
Van Wagoner assigned detective Brian Gardner to investigate the allegations against Benson. Gardner was not an HR employee and did not receive any policies or procedures for conducting the investigation, which consisted almost entirely of trying to determine who the father of Kramer’s baby was. Gardner told Kramer that unless she identified the father, no one would believe her claim that Benson raped her. Accordingly, she identified Layne Clyde, a Wasatch County firefighter, as the father. She also indicated that she had been intimate with Clyde while he was on duty. Kramer was disciplined for violating county policy.
After hearing that Kramer had accused Benson of rape, Van Wagoner transferred Gardner’s investigation to Hull. Hull and others interviewed Kramer about the sexual assaults, but that was the end of the investigation, according to Van Wagoner. Van Wagoner reported that Kramer had an affair with Clyde to Peace Officer Standards and Training (POST). Because Kramer and Clyde had been intimate while Clyde was on duty, POST suspended Kramer’s certification for six months for actions unbecoming of an officer. Van Wagoner believed it would be best if Kramer resigned. Gardner conveyed that message to her and urged her to resign. Kramer believed Van Wagoner reported her to POST to have her decertified because “they clearly didn’t want me to come back because I had told on [Benson].” By that time, Van Wagoner had decided to terminate Benson, but Benson resigned before that could happen.
After Hull completed his investigation, he forwarded his report to the county attorney’s office. Because of a “friendly relationship” with Benson, the county attorney recused himself from the case. Apparently, Benson was not prosecuted, and Kramer did not return to work at the sheriff’s department.
Kramer sued the county for sex discrimination under Title VII. The district court ruled in favor of the county without conducting a trial. According to the court, the evidence did not justify holding the county liable for Benson’s actions because, among other reasons, he was not Kramer’s “supervisor” for Title VII purposes. Kramer appealed to the 10th Circuit in Denver, arguing that it was not clear whether Benson was her supervisor under Title VII and that she should be allowed to proceed to trial and present evidence that Benson was her supervisor for purposes of Title VII.
10th Circuit’s decision
The 10th Circuit explained that under Title VII, an employer is strictly liable for sexual harassment committed by a supervisor if the harassment results in a “tangible employment action.” If no tangible employment action occurred, the employer still may be vicariously liable if the employee can prove that the harassment was severe or pervasive. An employer will not be liable if it can show that (1) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and (2) “the . . . employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
Who is a “supervisor” under Title VII? According to the U.S. Supreme Court, for purposes of Title VII, an employee is a supervisor if he is empowered to make 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, an employee “need not be empowered to take such…actions directly to qualify as a supervisor.” Thus, an employee who has the power to recommend significant changes is a supervisor under Title VII.
The trial court based its decision on its belief that Benson was not Kramer’s supervisor because he did not have the authority to demote or fire her. That authority was vested solely in Van Wagoner. However, the 10th Circuit ruled that the trial court’s belief was incorrect and that Kramer presented enough evidence to justify a trial to determine whether Benson was her supervisor.
The 10th Circuit pointed to, among other things, the fact that Benson, as Kramer’s direct manager, was the sole person who could write her performance evaluations, which could cause her to be promoted, demoted, or fired. Furthermore, the county considered Benson to be Kramer’s supervisor, and Benson could recommend that any of his subordinates be fired. The sheriff’s department’s policy manual stated that an officer could be relieved of duty “in cases where a supervisor finds it necessary.”
In short, the 10th Circuit found that Kramer presented sufficient evidence to call into question the county’s argument that Benson was not her supervisor. Thus, she should have been allowed to present that evidence to an impartial jury at trial.
Apparent authority. The 10th Circuit clarified that even if Benson was not Kramer’s actual supervisor, the county could still be responsible for his actions if it had given him apparent supervisory authority. Apparent authority exists when an employer acts in a way that causes a third party to reasonably believe that the employer has given an employee the authority to act on its behalf. The 10th Circuit ruled that Kramer should have been allowed to present evidence regarding Benson’s apparent authority at trial.
According to the 10th Circuit, Kramer had evidence that could show that even if Benson did not have actual supervisory authority, he had apparent supervisory authority. Van Wagoner considered Benson to be Kramer’s supervisor, and Benson worked with Kramer at the courthouse every day. Also, Benson had the responsibility of assigning Kramer’s daily duties, and he evaluated her performance and reported to high-level management. Benson could determine Kramer’s work schedule and had control over her vacation and sick leave. Furthermore, Kramer testified that Benson had repeatedly told her that he had the authority to fire her. Accordingly, the 10th Circuit determined that she should have been allowed to present this evidence at trial.
Adequacy of the department’s response. The 10th Circuit explained that even if no tangible employment action is taken against an employee, an employer can still be liable for sexual harassment committed by a supervisor if the harassment is severe or pervasive. An employer will not be liable if it can show that (1) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and (2) “the…employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Both requirements must be met for an employer to avoid liability, and it is the employer’s responsibility to prove that the requirements were met.
According to the 10th Circuit, the county did not provide indisputable evidence that it met both requirements. To provide indisputable evidence, an employer must show that its response to sexually harassing behavior met minimal standards that are reasonably calculated to end the harassment and prevent future harassment. Kramer, however, provided evidence that showed that the department’s response did not meet the standard. For instance, when Van Wagoner learned of Kramer’s allegations of sexual assault, he did not consult the county’s HR department. Instead, he instructed Gardner to conduct an investigation because he “was the unfortunate guy that was on-duty on that particular day,” not because he was qualified for the task.
Furthermore, the facts that Gardner and Benson were friends and Gardner received no training on how to investigate a sexual harassment claim called into question the propriety of the county’s response. Additionally, Kramer discovered that Van Wagoner was apparently unaware of and did not follow the county’s policies regarding sexual harassment investigations. Instead, the investigation focused on determining who the father of Kramer’s child was and resulted in her being reported to POST. According to the 10th Circuit, “Investigations targeting the victim for unrelated misconduct are especially contraindicative of reasonably calculated efforts to promptly correct sexual harassment.”
Thus, the 10th Circuit determined that Kramer’s case should have proceeded to trial and that she should have been allowed to present evidence that called into question the county’s argument that its response to her allegations of sexual assault was appropriate. Also, the 10th Circuit held that Kramer should have been allowed to present evidence that she did not unreasonably fail to take advantage of preventive or corrective opportunities provided by the county or avoid harm in other ways. Although Kramer knew how to report sexual harassment, the 10th Circuit found that there was evidence to support her argument that her failure to report Benson’s actions was reasonable.
Indeed, the evidence depicted Benson as an intimidating person who (1) had the power to control Kramer’s job, (2) sexually harassed her, and (3) threatened her with loss of employment. Thus, the court held that if Kramer could make that evidence stick at trial, it could justify a jury determining that her failure to report Benson’s actions was reasonable. If her failure to report Benson’s actions was reasonable and the county did not take appropriate steps to prevent and correct the alleged sexual harassment, then the county could be held liable for Benson’s actions, even if no tangible employment action was taken against Kramer.
Ultimately, the 10th Circuit did not decide whether Kramer’s evidence was valid or whether she was entitled to a judgment. The 10th Circuit ruled that the lower court should not have deprived her of a trial and sent the case back to the lower court. At trial, Kramer will have a chance to present her evidence and prove that (1) for Title VII purposes, Benson was a supervisor with either actual or apparent authority, (2) the county cannot avoid liability for Benson’s actions because her failure to report his actions was reasonable, and (3) the county did not respond appropriately to prevent and correct the alleged harassment. The trial has not yet been held, and the ultimate outcome remains to be seen. Kramer v. Wasatch County Sheriff’s Office et al., 2014 WL 702111 (10th Cir.).
Lessons to be learned
Title VII has a broad remedial purpose. It is intended to prevent and correct sexual harassment in the workplace. Although actions by an employee’s coworkers may not lead to liability, actions by supervisors are different. The U.S. Supreme Court recently clarified that for purposes of Title VII, the term “supervisor” is not to be construed narrowly. Anyone with the actual or apparent authority to make (or simply recommend) substantive employment decisions (e.g., hiring, firing, promotion, or demotion) is a supervisor under Title VII. Wasatch County is learning this lesson the hard way.
Furthermore, this case is a warning that allegations of sexual harassment should be taken seriously and be addressed soberly, promptly, and carefully. Employers should have written sexual harassment policies that are known and followed, and employees, including high-level managers, should be trained on the policies. Finally, employers should engender a work atmosphere in which employees feel comfortable reporting harassment of any sort.
The author can be reached at firstname.lastname@example.org or 801-350-7620.