Employment Law Daily Employer reaction to employee’s alleged off-duty rapes by coworker could be hostile work environment
Wednesday, August 2, 2017

Employer reaction to employee’s alleged off-duty rapes by coworker could be hostile work environment

By Kathleen Kapusta, J.D.

Would an objective, reasonable woman find her work environment had been altered because her employer “condoned” her off-duty rapes by a coworker “and its effects?” A divided Ninth Circuit found a reasonable woman in the employee’s circumstances could perceive the repeated statements by supervisors of their concern for the coworker’s well-being as evincing their belief the employee was lying or perhaps valuing his reputation over her safety. Concluding that there was evidence that the employer’s actions were sufficiently severe or pervasive to create a hostile work environment, the appeals court vacated summary against her Title VII claim. In a lengthy dissent, Judge Ikuta argued that “this is the story of an employer that worked hard to do the right thing by effectively removing a potential threat from the workplace immediately and permanently, without smearing any employee’s reputation before an investigation had been completed. That it may nevertheless find itself liable is a testament not to its missteps, but to our failure to heed Oncale’s central lesson” (Fuller v. Idaho Department of Corrections, July 31, 2017, Hurwitz, A.).

Under investigation. Within months of starting her job as a probation and parole officer with the Idaho Department of Corrections (IDOC), the employee began an intimate relationship with a senior probation officer. Not long after, the state police notified IDOC that the officer was under investigation for rape. The officer was immediately placed on paid administrative leave, and at a staff meeting, the district manager (DM) told employees he was on leave because of a confidential, ongoing investigation. He also stated that IDOC looked forward to his prompt return to work.

Reported rapes. The next day, the employee, for the first time, disclosed her relationship with him to her supervisors, who did not reveal the nature of the investigation to her. Although she eventually learned he was accused of rape, she continued to see him until he allegedly raped her three times, all outside of the workplace. When the DM learned of the rapes, he took the employee to the sheriff’s office and sat in on the interview. He later told her the officer “had a history of this kind of behavior and he knew of several instances.”

Make sure he’s okay. An IDOC deputy chief (DC) directed the DM to keep in touch with the officer while he was on leave, inform him of the investigation’s status, and “make sure he’s doing okay in terms of still being our employee.” On the same day the employee obtained a civil protection order, the DM emailed staff telling them among other things “if you want to talk to [the officer], give him some encouragement, please feel free.”

Still our employee. The DM also informed the employee’s supervisors that she was taking leave and that if anyone asked why, they should say it was related to her known illness. But the DC denied her request for paid leave, explaining that only employees under investigation are eligible for administrative leave. He later told her, in response to her request for reconsideration, that her situation was not “unusual” enough. When she returned to work after taking FMLA leave, she alleged that coworkers ostracized her because they thought she was “faking being sick.”

Although she asked IDOC to inform her coworkers about the civil protection order against the officer because she felt he could walk in the building and no one would call the police, the DC told her “as much as you find this distasteful,” he is still our employee. The DM, however, sent an email reminding employees that the officer was not allowed in the office and “if you see him, please contact a supervisor.” The employee resigned that day, and the officer was ultimately terminated.

The employee sued IDOC, asserting a Title VII hostile work environment claim. Granting summary judgment in favor of her employer, the court found that the rapes themselves occurred outside the workplace and that IDOC had taken remedial action.

Reaction to rapes. On appeal, the employee argued that IDOC’s reaction to the rapes—effectively punishing her for taking time off, while both vocally and financially supporting her rapist—created a hostile work environment. Finding that she raised triable fact issues, the appeals court reiterated that when she reported the rapes, the DM told her the officer had a history of this kind of behavior and “he knew of several instances” of misconduct by him. Still, he almost immediately told the staff to “feel free” to “give [the officer] some encouragement” and that he “hate[d]” that he “cannot come to the office until the investigation is complete.” This came on the heels of his previous statement to staff that he looked forward to the officer’s quick return.

In light of the severity of the sexual assaults, which were documented by photographs of the employee, a reasonable juror could find IDOC’s public and internal endorsements of the officer “ma[de] it more difficult for [the employee] to do her job, to take pride in her work, and to desire to stay in her position,” said the court, observing that the decision to publicly support an employee accused of raping another employee was “humiliating” and potentially “physically threatening” to her, not “a mere offensive utterance.”

Other evidence. Other evidence also supported the conclusion that a reasonable woman could perceive a hostile work environment at IDOC, including the DC’s denial of her request for paid administrative leave to recover from her rapes, in an email he copied to an HR rep who had a previous romantic relationship with the officer. There also was evidence the employee was “forced to return to work against” her therapist’s and doctor’s recommendations, while her alleged rapist was granted paid administrative leave. She expressed concern about her coworkers’ hostility toward her for missing work, blaming the DM’s email, which failed to divulge why the officer was on leave.

Noting that a finder of fact might ultimately determine that IDOC acted reasonably when confronted with a difficult situation, the court concluded “only that, viewing the evidence in the light most favorable to [the employee], a reasonable trier of fact could also find that the IDOC’s actions were sufficiently severe or pervasive to create a hostile work environment.” Because IDOC did not dispute that the DM and DC were supervisors or that their actions were within the scope of their employment, the court observed that if a jury were to find the supervisors created a HWE, IDOC would also be liable.

Dissent. In dissent, Judge Ikuta argued that “the threshold flaw in the majority’s analysis is its misapprehension of the summary judgment standard.” Taking the record as a whole and drawing all reasonable inferences in favor of the employee, no reasonable jury could conclude that IDOC engaged in “discriminat[ion] . . . because of . . . sex,” the dissent argued, asserting that the majority focused only on those circumstances favoring the employee. With respect to the summary judgment standard, he judge explained that “we must credit [the employee’s] evidence where a conflict exists (there are no such conflicts in this case), and we must draw all reasonable inferences in her favor, but we cannot ignore undisputed evidence simply because it is unhelpful to her case or make inferences that are unreasonable.”

Because of sex. Further, the dissent argued, “the majority has lost sight of the key elements of Title VII liability and effectively holds that an employer can be found liable even in the absence of evidence that any workplace conduct is ‘discriminat[ion] . . . because of . . . sex.’” Although the DM’s statements that he hoped the officer could return and that employees should feel free to speak to him, his comment that the officer had been previously accused of sexual harassment, and the DC’s refusal to disclose the employee’s confidential civil protection order were offensive to the employee, there was no evidence to support a claim that IDOC took these measures because she was a woman.

Further noting that the employee’s rapes, which occurred outside of the workplace, were unrelated to her employment, the dissent explained that “as IDOC correctly argues, if the rapes do not qualify as workplace conduct, then there was no sexual harassment in the workplace. Because no other evidence suggests hostility towards women or disparate treatment of women, it follows that [the employee] was not harassed ‘because of . . . sex.’”

The dissent believed the record here indisputably showed that IDOC took immediate remedial steps in response to the employee’s complaints, even though they were not based on workplace conduct. It not only diligently investigated her allegations, it believed them, and ultimately used them as the basis of its decision to terminate the officer. As to the conduct the majority deemed abusive—IDOC’s refusal to denigrate the officer merely because he was accused of wrongdoing—the dissent found this was proper and perhaps legally necessary, as public employees can have a constitutionally protected interest in their employment and are entitled to fair procedures before that interest is terminated. Public employees also have a protected liberty interest at stake and may sue where stigmatizing information is publicly disclosed in connection with an employee’s termination. Finding no evidence of discrimination because of sex, the judge would have affirmed summary judgment in favor of IDOC.

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