[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Utah. (D.C. No. 2:08-CV-00475-TC).
Kathleen McDonald (Lynn C. Harris with her on the briefs) of Jones Waldo Holbrook & McDonough PC, Salt Lake City, Utah, for Plaintiff-Appellant.
Kristin A. VanOrman (Jeremy G. Knight with her on the brief) of Strong and Hanni, Salt Lake City, Utah, for Defendants-Appellees.
Before BRISCOE, Chief Judge, SEYMOUR, and BACHARACH, Circuit Judges.
SEYMOUR, Circuit Judge.
Camille Kramer sued the Wasatch County Sheriff's Department, her former employer, for sexual harassment under Title
VII of the Civil Rights Act and 42 U.S.C. § 1983. She appeals from the district court's grant of summary judgment to Wasatch County on all claims. We affirm summary judgment as to the § 1983 claim but reverse on the Title VII claim, which we remand for trial for the reasons explained below.
On review of summary judgment, we recite the facts in the light most favorable to Ms. Kramer, the nonmovant. Morris v. City of Colo. Springs, 666 F.3d 654, 660 (10th Cir. 2012). Viewed in that light, the facts are as follows.
Camille Kramer worked for the Wasatch County Sheriff's Department from 2005 to 2007, first as a jailor and later as a bailiff. In 2005, while working in the jail, Ms. Kramer was subjected to offensive comments about her breasts, saw sexually offensive material on workplace computers, and frequently heard graphic sexual conversations. Ms. Kramer's perception was that the male employees who engaged in this kind of conduct were not punished but instead were ultimately promoted, and that female employees who complained were given undesirable assignments and otherwise retaliated against. Ms. Kramer also experienced non-sexual harassment from her jail co-workers.
In 2006, Ms. Kramer complained about the sexual and non-sexual harassment to Sheriff Kenneth Van Wagoner, the head of the Sheriff's Department. Sheriff Van Wagoner told Ms. Kramer he'd " take care of it." Aplt. App. at 55. His response was to convene a staff meeting at which he asked for a volunteer. When Ms. Kramer volunteered, the Sheriff acted out the exact harassing scenarios she had described to him, using her in the role of the victim. The Sheriff told the group: " [t]hat's harassment. Don't do it." Id. at 56. Ms. Kramer found the Sheriff's method humiliating and ultimately ineffective. She testified that the harassment got worse after the meeting. When she complained to the Sheriff that the jail harassment had not stopped, he told her " [y]ou might want to avoid that area." Aple. Supp. App. at 170.
Later in 2006, Ms. Kramer was assigned to the courthouse to work as a bailiff. Ms. Kramer was certified under Utah's law enforcement officer training standards (POST), and her goal was to be promoted to a " road officer" position. She believed the bailiff position would provide her with the opportunity to obtain the road experience she needed to help her secure that promotion because it involved transporting prisoners. There were three bailiffs: Sergeant Rick Benson, who supervised the bailiffs, Ms. Kramer, and Brad Hulse, an employee who had some seniority over Ms. Kramer but was below Sergeant Benson. The district court described their roles in the hierarchy as follows:
The bailiffs, under Sergeant Benson's direction, were in charge of security at the courthouse, including maintaining a security presence in the courtrooms.... Sergeant Benson's job duties included managing the other two bailiffs, scheduling,
delegating tasks such as monitoring the magnetometer, transporting and managing prisoners in court, and serving warrants.... He also wrote [Ms. Kramer's] performance evaluations, which were submitted to Captain Rogers and then to Sheriff Van Wagoner for review.... Only Sheriff Van Wagoner had the authority to hire, fire, promote, and demote employees. Sergeant Benson, however, had authority to make a recommendation to the Sheriff about demoting, promoting, or firing Ms. Kramer.
Kramer, 857 F.Supp.2d at 1195. 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.
As soon as Ms. Kramer started working for Sergeant Benson, he began his campaign of sexual harassment. He repeatedly asked Ms. Kramer to give him a foot rub, which she consistently refused to do. After her efforts to diffuse the situation were fruitless, she jokingly told him she would give him a foot rub only if he brought in a doctor's note. Apparently not one to take a hint, Sergeant Benson brought in a purported doctor's note on prescription paper, which said " Camille is to rub Rick Benson's feet three times a day." Id. at 1202. Ms. Kramer posted this note on the wall.
Ms. Kramer testified in her deposition that at this point Sergeant Benson's foot-rub harassment became " intimidating and kind of scary." Aplt. App. at 88. Although she complained about it to Sheriff Van Wagoner's secretary, Rae Davis, saying " I can't believe he really expects me to give him a foot rub," id. at 89, Ms. Davis apparently did not convey anything about the foot-rub harassment to the Sheriff, who testified that he was never made aware of it and that he never saw the " doctor's note" posted on the wall. Ms. Kramer told Sergeant Benson that she thought the joke had gone too far, asked him to stop, and reiterated that she had no intention of rubbing his feet. She did not file a formal complaint with the Sheriff at the time because, based upon what she had seen in the jail, she believed that complaints about sexual harassment would prevent her from being promoted and might cause adverse action to be taken against her.
Because Ms. Kramer refused to rub his feet even after he had brought in the " doctor's note," Sergeant Benson started calling her a liar. His continued demands for a foot rub, augmented by accusations of lying, caused Ms. Kramer increasing distress. She finally capitulated: " If I give you a foot massage," she told Sergeant Benson, " will you just shut up about it?" Id. at 90. Sergeant Benson said he would stop harassing her if she came to his house and gave him a foot massage, so Ms. Kramer agreed to do this. While she was at his house rubbing his feet, Sergeant Benson promised Ms. Kramer that he would take her out for the road training she wanted as soon as he could. But after she finished with the foot massage, Sergeant Benson grabbed her, pulled her on top of him, and tried to kiss her. She resisted, asking, " [w]hat are you doing?" Id. at 91. She freed herself from Sergeant Benson and left his house.
Ms. Kramer decided not to report this sexual assault to the Sheriff because she believed Sergeant Benson had complete control over her job and feared she would be demoted if she said anything. She also assumed that complaining would be ineffective given what she had seen other women experience in the jail and what had occurred in response to her earlier complaint to the Sheriff.
Ms. Kramer still hoped that Sergeant Benson would take her out for road training
as he had promised, but he did not. Instead, he took Brad Hulse (who had a lower POST certification than Ms. Kramer) for road training, which frustrated Ms. Kramer. She continued to ask Sergeant Benson for road training, and he finally agreed. Once in his patrol car, however, Sergeant Benson sexually assaulted Ms. Kramer -- twice. After each assault, he told her " don't act weird. Don't act weird on me." Id. at 98-99. She did not complain to the Sheriff after this incident for the reasons already noted.
Sergeant Benson's actions toward Ms. Kramer at work subsequently became more retaliatory and controlling. He 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.
In June 2007, Ms. Kramer posted a sign at her desk that said " Sexual harassment will not be tolerated, it will be graded." Id. at 152-53. Someone (it is unclear whom) reported this sign to the Sheriff, saying he or she found the sign offensive. The Sheriff did not ask Ms. Kramer why she had the sign or whether she had experienced additional sexual harassment. He did not mention that the County had a no-sexual harassment policy, tell her she had a right to a workplace free from sexual harassment, offer the County's support, or explain to her how she could complain about sexual harassment through appropriate channels. Instead, he admonished her to take the sign down and wrote a disciplinary note, which he placed in her file.
Ms. Kramer mentioned to her co-workers that as a single mother she sometimes supplemented her income by cleaning houses. Sergeant Benson frequently asked Ms. Kramer to clean his house for money; for obvious reasons, she always refused this request. These refusals started another campaign of harassment. Sergeant Benson began telling co-workers that Ms. Kramer thought she was " too good" to clean his house, even though she needed the money. Co-workers got into the act, saying " that's good money. Why aren't you [going to clean Sergeant Benson's house]?" Id. at 100. Ms. Kramer finally agreed to do so when he promised that his daughter would be there, that she could bring her kids, that she could have his daughter's old clothes for her daughter, and that he would give her money for gas. Unfortunately, not even this arrangement deterred Sergeant Benson. While the children were playing outside and Ms. Kramer was vacuuming his room, Sergeant Benson cornered her in the closet, pushed her against the wall, and raped her. Immediately afterward he said, " This is wrong. I can't believe you made me do this." Id. at 104-05. He then repeated his refrain: " Don't act weird." This time, he added a more specific threat, stating " You better be quiet about this and not say anything. This is a career ender." Id. at 105.
After the rape, Sergeant Benson continued to act at work in ways that Ms. Kramer found controlling and intimidating. He failed to relieve her on several occasions even though he had promised to do so, causing her to miss important family events. He prepared a bad performance evaluation of her and showed it to her. She argued with him about it and he changed the marks to better ones, saying
" keep [your] mouth shut and not say anything, and [you will] be fine and... taken care of." Id. at 112.
At some point after the rape, some money disappeared from the courthouse. The Sheriff asked state detectives to investigate Ms. Kramer, Sergeant Benson, and a few other County employees who worked in the area where the money had disappeared. Id. During this time (ostensibly because she was being investigated), Sergeant Benson assigned Ms. Kramer to work the magnetometer full-time -- an undesirable assignment that eliminated the possibility of road training. Sergeant Benson also persistently accused Ms. Kramer of taking the money, telling her that everyone thought she was the culprit. These accusations and rumors distressed and embarrassed Ms. Kramer. She agreed to take a lie detector test, and on the day of the test Sergeant Benson told her, " You better not say anything about anything that happened.... It's a career ender... [a]nd if I go down, you go down." Id. at 121. Ms. Kramer did not speak of Sergeant Benson's sexual assaults during the test, which she passed. Later that day, Sergeant Benson called Ms. Kramer six times on her cell phone; she did not answer his calls. Of all the suspected courthouse employees, Sergeant Benson was the only one who refused to take a lie detector test.
During the money investigation, Ms. Kramer made other observations reinforcing her belief that the Sheriff could not be relied upon to enforce County policies against Sergeant Benson. First, knowing that the Sheriff had ordered Sergeant Benson to stay out of the justice of the peace courtroom because he had been intimidating the female clerks there, she saw him deliberately disregard this order by entering the courtroom in question. She noticed that the Sheriff imposed no discipline on Sergeant Benson for disobeying the order. Second, the Sheriff denied her administrative leave under circumstances in which it appeared to be authorized. Being investigated by the County and accused of theft by Sergeant Benson caused Ms. Kramer so much distress that she decided to request administrative leave. The policy manual she consulted stated that an employee being investigated could be put on administrative leave, so Ms. Kramer went to Sheriff Van Wagoner and asked to be given paid or unpaid leave, whichever he preferred. The Sheriff refused, telling Ms. Kramer, " we're too small a department" to follow that policy. Id. at 58-59.
The final sexual assault occurred while Sergeant Benson was on leave after a surgery. He would call the court frequently from his house, usually asking to speak to Ms. Kramer. He would give her job-related instructions (such as telling her which inmates to transport), and would end the calls by instructing her to come to his house and bring him a Coke. Ms. Kramer always refused the last instruction, so Sergeant Benson asked Deputy Brad Hulse to assist him in bothering Ms. Kramer about it. Mr. Hulse started badgering Ms. Kramer to " bring your laid-up sergeant a Coke." Id. at 124. Finally, she capitulated and went to Sergeant Benson's house with a Coke. She thought she would be safe from sexual assaults because he was confined to bed, but she made sure to stay in the doorway just in case. She placed the Coke down near the door and then tried to leave. But Sergeant Benson had other plans. He repeatedly asked her to sit on the bed, saying " Kramer, can we just talk about work?" Id. at 125. When she came near where he was lying, he grabbed her, exposed his penis, pulled her on top of him, and groped her.
Shortly after this incident, Ms. Kramer was in a serious car accident and took sick leave. When some of the court clerks came to visit her, she told them about Sergeant Benson's sexual assaults, including the rape. She also confided in them that she was having a consensual affair with another man and was pregnant as a result, but she refused to disclose his name. The clerks urged her to report Sergeant Benson's sexual assaults to someone. They suggested that she talk about it with Detective Todd Hull, who was investigating the missing money. Ms. Kramer did not want to speak to Detective Hull about the issue but agreed to allow Mindy Probst, one of the clerks, to tell Detective Hull about Sergeant Benson's harassment and assaults.
Sheriff Van Wagoner subsequently found out from one of the court clerks or secretaries (he can't remember whom) that Ms. Kramer was pregnant and that, in the Sheriff's words, " Rick Benson had sexually assaulted her or... some sex, or... sexual misconduct had taken place, leading me to believe that maybe Rick 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." Aple. Supp. App. at 166. The Sheriff testified that he started an internal investigation into possible " sexual misconduct" between Sergeant Benson and Ms. Kramer, which he assigned to Detective Brian Gardner because he was " the unfortunate guy that was on-duty on that particular day." Id. at 167. Detective Gardner was not a human resources specialist and was " probably" not trained in conducting sexual harassment investigations. Id. at 168. The Sheriff did not provide Detective Gardner with any " policy or procedures on how to conduct the investigation" because, according to the Sheriff, " We don't have any real hard-set investigative standards policy that, other than what the state has and the federal government has put out, as far as sexual harassment." Id. at 171-72. This ad hoc process reflected the fact that " [the Department doesn't] have many complaints." Id. at 168.
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 named Layne Clyde, while he (but not she) was on duty. Ms. Kramer had no intention of disclosing the identity of Mr. Clyde until Detective Gardner told her during his interview that no one would believe her claim that Sergeant Benson had raped her unless she disclosed who her baby's father was. When she grudgingly confessed to her affair, Detective Gardner asked her how many times she and Mr. Clyde had sex and in which locations. Ms. Kramer " felt like it became an interrogation and an investigation on me and my sex life with Layne [Clyde], which had nothing to do with the investigation with Rick [Benson]." Aplt. App. at 130. Indeed, Ms. Kramer does not remember Detective Gardner asking her about Sergeant Benson at all, other than warning her that her rape allegations would not be believed unless she admitted to, and gave intimate details about, her consensual affair with the other man. " [T]he purpose of the meeting," Ms. Kramer believed, " [w]as to find out who the father of my baby was.... [It felt like] I was being investigated for having sex and being pregnant." Id. at 131-32.
After hearing from Detective Gardner about the allegations of rape, the Sheriff transferred the " sexual misconduct" investigation from Brian Gardner to Todd Hull, the state detective handling the missing money investigation. Detective Hull and
others interviewed Ms. Kramer about Sergeant Benson's sexual assaults. According to the Sheriff, this is where his Department's sexual harassment investigation ended.
The Sheriff's only internal response, other than turning over the investigation to state detectives, was to report to POST that Ms. Kramer had an affair with Layne Clyde. Because she and Mr. Clyde had been intimate while he (but not she) was on duty, POST suspended Ms. Kramer's certification for six months for actions unbecoming an officer. The Sheriff decided that it would be best if Ms. Kramer resigned -- to save face for her, the Sheriff's Department, and Layne Clyde, who was married and had children. Ms. Kramer overheard the Sheriff telling Detective Gardner that she should resign. Detective Gardner, on a follow-up visit, told her numerous times that she should resign. Ms. Kramer believed the Sheriff had reported her affair to POST to get her decertified because " they clearly didn't want me to come back because I had told on Rick." Id. at 136. Although the Sheriff had decided to terminate Sergeant Benson, Sergeant Benson resigned before that could happen.
After Ms. Kramer told Detective Hull what Sergeant Benson had done to her, Detective Hull sent his report to the County Attorney's office. The County Attorney excused himself from prosecuting Sergeant Benson " due to a friendly relationship with Benson." Id. at 171. There is no evidence Sergeant Benson was ever prosecuted. Ms. Kramer never returned to work for the Sheriff's Department.
Ms. Kramer sued the 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 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 appeals on all grounds.
We review a grant of summary judgment de novo. Garrison v. Gambro, Inc., 428 F.3d 933, 935, 150 Fed.Appx. 819 (10th Cir. 2005). " [W]e will affirm the district court's disposition only if our independent review of the record, viewing the facts in the light most favorable to [the nonmoving party], reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1207 (10th Cir. 2010) (citing Fed.R.Civ.P. 56).
Sexual harassment in the workplace is a form of sex discrimination prohibited by Title VII. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72-73, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). In general, " an employer is directly liable for an employee's unlawful harassment if the employer was negligent with respect to the offensive behavior." Vance v. Ball State Univ., 133 S.Ct. 2434, 2441, 186 L.Ed.2d 565 (2013). 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. Id. If the supervisor's harassment culminates in a " tangible employment action," the employer is strictly liable for sex discrimination, with no defense. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762-63, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). 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, Morris, 666 F.3d at 663, and the employer is unable to establish the affirmative defense announced in Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Ellerth, 524 U.S. at 765. See also Vance, 133 S.Ct. at 2439. 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.
A. Supervisory control under Title VII
In Ellerth, the Supreme Court explained that a harasser may be considered a supervisor if he or she possesses some amount of actual or apparent authority over the employee. 524 U.S. at 759, 761. But the Court did not specify exactly how much authority a harasser had to have (or appear to have) to qualify as a supervisor, and the circuits were split in answering that question. While Ms. Kramer's appeal was pending before this court, the Supreme Court resolved that circuit split in Vance, 133 S.Ct. at 2443. The Court 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.'" Id. (quoting Ellerth, 524 U.S. at 761). Importantly, however, the Court explained that 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. Id. at 2452.
The holding in Vance is consistent with the Court's decision in Staub v. Proctor Hospital, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011). There the Court held that employers could be liable for tangible employment actions influenced by a biased subordinate, even though the final decisionmaker was unbiased. Staub reasoned that to hold otherwise would defeat the purpose of employment discrimination laws.
An employer's authority to reward, punish, or dismiss is often allocated among multiple agents. The one who makes the ultimate decision does so on the basis of performance assessments by other supervisors. [Defendant's] view would have the improbable consequence that if an employer isolates a personnel official from an employee's supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee's personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action.
Id. at 1192-93 (emphasis in original).
The Court applied the same logic in Vance when it defined supervisor for Title VII purposes, explaining that an employer who " concentrates all decisionmaking authority in a few individuals... likely will not isolate itself from heightened liability under Faragher and Ellerth." 133 S.Ct. at 2452. This is so, the Court explained, because when the individuals vested with actual decisionmaking power do not interact regularly with the employee, they will " have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies." Id. We recently emphasized that the decisionmaker's reliance on a subordinate's biased recommendation must be an " uncritical" reliance, with no independent verification of the asserted reason for the proposed employment action. Lobato v. N.M. Env't Dep't, 733 F.3d 1283, 1294 (10th Cir. 2013).
The definition of " supervisor" handed down in Vance relies on another Title VII term of art: " tangible employment action." Whoever can take or substantially influence tangible employment actions is a " supervisor." Vance, 133 S.Ct. at 2448, 2452. While economic injury is almost always sufficient to create a tangible employment action, it is not always necessary. Ellerth, 524 U.S. at 762 (" A tangible employment action in most cases inflicts direct economic harm." (emphasis added)). For that reason, a tangible employment action can include not just the obvious firing or demoting, but also giving an employee " a less distinguished title [or actions resulting in] a material loss of benefits, ...