By Brandi O. Brown, J.D.
In a case that had wound its way up to the Tenth Circuit at least once before, the appeals court again visited issues related to a lawsuit by a court administrator who alleged that she was sexually harassed by a judge for whom she worked and subsequently fired for complaining. A jury had rendered verdicts for the employee on her equal-protection harassment claim against the judge, individually, but the court had dismissed her punitive-damages claim against him. In agreeing that the employee’s punitive damages claim against the judge should not have been dismissed, the appeals court noted that the jury could reasonably infer that he knew the conduct described by the employee constituted unlawful harassment (Eisenhour v. Weber County, June 27, 2018, Hartz, H.).
Court closed after complaint. The court administrator had worked for the county for 24 years when, in 2009, three county commissioners voted to close the court where she worked and merge it with a court in another county, leaving her without a job. According to the employee, this decision was made only a short time after she went public with unresolved complaints about her sexual harassment by the judge for whom she worked. According to the employee, prior to going to the press she had complained to the county attorney and the matter had been referred to the state’s Judicial Conduct Commission, which found no misconduct had occurred. Within a week of the first news article that followed that dead-end, however, the county began its discussions to close the court.
Jury ruled against judge. After an appeal to the Tenth Circuit overturned the district court’s grant of summary judgment against her on all claims, several of the employee’s claims were heard by a jury, including a claim under Section 1983 against the judge individually for sexually harassing her in violation of her equal protection rights and her claim against the county and the county commissioners under the same law for retaliating against her under the First Amendment. At trial, the jury heard evidence that the judge had written an erotic poem about the employee, which he had handed to her, that he had told her he dreamed of her coming to work topless, and that his conduct has escalated to physical contact that included pressing his groin against her while she was working. He also was possessive of her, asking other employees about her activities and restricting her leave time based on where she was going, what she was planning to do, and with whom she was going. The jury rendered a verdict in the employee’s favor on the equal-protection harassment claim against the judge.
At a second trial on the claims against the commissioners and the county, the district court granted the commissioners judgment as a matter of law on the retaliation claim against them and the jury found for the county on the claims against it. Both the employee and the judge appealed.
Jury verdict upheld. On appeal the judge argued that the court below should have granted his motion for judgment as a matter of law on the sexual harassment equal protecting claim the employee had pursued against him. He argued that there had been insufficient evidence that his conduct was sufficiently severe or pervasive. However, the appeals court explained, to adopt the judge’s argument would mean it would have to disregard the employee’s testimony, including her testimony about the erotic poem, physical contact, and him telling her about his erotic dream about her.
It also rejected the judge’s argument that it was the employee, and not him, who created a hostile or abusive environment because of her behavior in the office, which he argued was supported by a coworker’s testimony about the office atmosphere. However, the appeals court responded, that evidence supported the employee, rather than the judge, considering that the difficult working atmosphere about which the coworker had complained post-dated the judge’s sexual harassment of the employee and her complaint about it. The jury could reasonably have found, as it did, that the judge’s actions created a hostile working environment for the employee.
The appeals court also rejected the judge’s argument that admission of the erotic poem into the evidence had been erroneous. The poem was relevant and there was no unfair prejudice to its admission.
Punitive damages. With regard to the employee’s appeals, the court agreed with the employee that her punitive damages claim against the judge should not have been dismissed. Under Kolstad v. American Dental Ass’n, the court explained, eligibility for punitive damages focuses on the defendant’s mental state, rather than the scope of harm, and the defendant must “have acted ‘in the face of a perceived risk that its actions will violate federal law.’” Thus, in order for the judge to be liable for punitive damages it was necessary for there to be evidence that he perceived he was violating the employee’s federal rights against sexual discrimination. There was evidence of such knowledge. Not only was he a lawyer, but he was also a judge and the law of sexual harassment had long been well established by the U.S. Supreme Court. Moreover, he received repeated special training on the subject by his employer. The jury could reasonably infer that he knew the conduct described by the employee, especially the physical assaults, constituted unlawful harassment.
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