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Sexual comments, but not sex on desk, revive discrimination claim

Though the regular use of a substance abuse counselor’s desk for sex by night-shift employees at a maximum security prison in Indiana was egregious, subjectively offensive, and severe, it did not support her hostile work environment claim where there was no evidence that the harassment was caused by her gender, a Seventh Circuit panel stated. However, based on the constant barrage of sexually charged comments directed toward her, the court reversed a district court’s grant of summary judgment in favor of her employer as to this claim. While it affirmed summary judgment on her retaliation claim, her sex discrimination claim, in which she alleged that she was treated differently than a male coworker with whom she was having an affair when she was terminated and he was allowed to resign and continue working for an outside contractor, was also revived (Orton-Bell v State of Indiana, July 21, 2014, Manion, D). No jeans, no riot. When the employee was first hired to work at the prison, she claimed that the superintendent invited her to come to department-head meetings so that he could “look down the table at her.” Nor apparently was she the sole object of his interest where “a good share of attractive women were there,” though there was no apparent reason for them to be. The superintendent also allegedly told her that she could not wear jeans on Fridays “because her ass looked so good that she would cause a riot.” Pat-downs. Though the superintendent was subsequently fired, the employee contended that pervasive sexual comments permeated the prison workplace. She alleged that male employees would congregate to watch female employees receive pat-downs on their way into the facility and would make sexual comments during the pat-downs. Specifically, she contended that they frequently said that they needed a cigarette after watching her get patted down because it was almost like having sex. Sex on desk investigation. After she and another female counselor complained that their desks were in disarray in the mornings, an investigation revealed that night-shift employees were using them for sexual liaisons. When she asked what she should do, the investigator told to wash her desk off every day and the superintendent told her that he didn’t care as long as offenders were not involved. Sex with coworker investigation. Around this same time, the superintendent began to suspect that the employee was having an affair with a major, who was a 25-year veteran in charge of custody at the facility. A second investigation revealed that the employee and major had sex at her home on their lunch breaks as well as in his office and that they used their work email accounts to schedule rendezvous and participate in sexually explicit conversations. Both employees were suspended and then terminated. While both appealed to a state commission, the major was allowed to resign in good standing, keep all benefits, and continue working at the prison as a contractor. The employee’s termination, however, was upheld. She then sued alleging sex discrimination, retaliation, and HWE in violation of Title VII and the district court granted summary judgment in favor of the employer on all counts. Sex on the desk. On appeal, the employee relied heavily on the sex-on-the-desk incident as sufficient evidence of a HWE. To the court, however, the notion that night-shift staff had sex on her desk because she was a woman was pure speculation. Indeed, the only evidence of any motive for having sex on her desk was that her office had curtains and was in a lockable suite that was accessible with the master key. Nor was there any evidence that the investigator’s and superintendent’s comments were based on her being a woman. And while she argued that it was hard to imagine how the incident did not relate to sex, the court pointed out that while the conduct was certainly sexual intercourse on her desk, that did not mean that night-shift staff had sexual intercourse on her desk because she was of the female sex. Accordingly, the incident, while egregious, did not support a HWE claim. Sexually charged comments. However, evidence of the sexually charged comments directed toward the employee was sufficient to support her claim. Here, the court pointed out that the first superintendent harassed her, ogled her, and ostensibly forbade her from wearing jeans because “her ass looked so good that it would cause a riot.” Moreover, the employee stated that while walking through the pat-down area, she was searched more thoroughly than men were, and that men watched and made sexual comments, which were part of a never-ending barrage. And while there was evidence that she engaged in vulgar banter through email with a coworker, that one private conversation was not enough for the court to conclude, as a matter of law, that she was not subjectively offended by the many other public, unwelcome, sexually charged comments in the prison. Employer liability. As to whether there was a basis for employer liability, the court observed that the employee complained about the comments on multiple occasions to the right individuals; however, nothing changed. Finding that the employee offered enough evidence of every element of her HWE claim for a jury to find in her favor, the appeals court concluded that it was error to grant summary judgment on this claim. Sex discrimination. Turning to her sex discrimination claim, the court noted that the issue was whether she was similarly situated to the major. Finding that they were similarly situated, the court observed that while they were in different branches of the chain of command, they were both fired by the same superintendent for the same conduct in violation of the same standards. As to whether there were “differentiating or mitigating circumstances as would distinguish” the employer’s treatment of the employee, the court noted that she was a counselor of two years and he was a 25-year veteran of the prison’s custody branch. And while the employer may have been more generous with him because of his long career, that also put him in a position to know better; thus, his offense was also worse. Observing that he violated the employer’s conduct standards while in a sensitive leadership position, the court found that the affair compromised his ability to perform his job far more than it compromised her ability to perform hers. Further, unlike the employee, this was not his first workplace affair. Different treatment. Moreover, the court noted, they “were certainly treated differently” as the employee was terminated and banned from working in any capacity for the employer while the major was able to enter into a settlement agreement that permitted him to resign, keep all his benefits including his pension, and work at the prison with an outside contractor. While the employer seemed to acquiesce to those outcomes as a result of the administrative appeal process, the court pointed out that the disparity of the consequences was the effect of its willingness to settle with the major and not with the employee. Even if it were to infer that the employer was merciful to the major because of his long career, the court found that the employee offered sufficient evidence of pretext. Specifically, while the firing of the major for an affair that compromised his ability to lead (especially given his repeated past violations of the conduct code) made sense, letting him resign and retain the ability to keep working (with all attendant benefits) while firing the female counselor with whom he had an affair was suspect, the court explained. Observing that there was very little development of the record below regarding the administrative appeal process and the employer’s decision to settle with the major, the court concluded that based on the evidence currently available, the discrimination claim must go forward, but more discovery was needed on these issues.
By Kathleen Kapusta, J.D.