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County, state can be liable for harassment

A judge’s sexual harassment of his clerk can give rise to a constructive discharge claim against the State or county in which he presides, the Seventh Circuit held on Dec. 9.

Melissa Robinson was hired as a judicial clerk for Judge Warren Sappington in Macon County, Illinois. Her duties entailed performing secretarial duties, as well as attending court with the judge, handling docket entries and setting dates for cases.

Between July and November 1996, Judge Sappington allegedly engaged in sexual harassment of Robinson on a consistent basis. On one occasion, he urged her not to be sexually promiscuous and offered to buy her a vibrator; called her a “blonde Demi Moore” and a “golden goddess.” Sappington also did not like attorneys talking to her, and said they only talked to her because her nipples were showing.

On another occasion, he said he wanted to kiss her in front of the courthouse staff. Once, he told her he would kill her if he ever found out she was “shacking up with anybody.” Twice, he asked her to sit on his face.

On another occasion, when Robinson was scheduling a court date with an attorney, with whom Sappington suspected she was romantically involved, Sappington pounded his gavel so hard that a piece broke off and hit a witness.

Sappington also monitored her activities outside of work, watching from his window when she would leave, and complaining if she ate lunch with anyone other than him.

Ultimately, Robinson reported the conduct to the chief judge, John Greanias. Greanias gave her an administrative leave for a week, and assigned her to another judge.

However, the other judge’s clerk complained about working for Sappington, and after a week, Robinson was transferred back to Sappington.

After that, Sappington was cold and non-communicative. Greanias then decided to transfer Robinson to yet another judge. However, neither that judge nor the other employees involved were pleased with the decision, and the judge said he would make Robinson’s life “hell” for six months if she transferred.

At that point, Judge Greanias indicated it was in Robinson’s best interest to resign. Finally, in November 1996, Robinson did so.

After exhausting administrative remedies, Robinson brought suit in Illinois federal court against Judge Sappington, Judge John P. Shonkwiler (the new chief judge for the district, in his official capacity), and Macon County, alleging sexual harassment and a hostile work environment.

The parties consented to proceed before a magistrate judge, who found that Robinson did not suffer a hostile work environment, and entered summary judgment in favor of all the defendants. Robinson appealed, and in a decision by Judge Kenneth F. Ripple, the Seventh Circuit reversed, except for the judgment dismissing Shonkwiler.

Hostile Environment

The court first held that the allegations against Judge Sappington were sufficient to constitute sexual harassment, and summary judgment was improper.

The court concluded, “Viewing the evidence in the light most favorable to Ms. Robinson, we believe that a jury could conclude that Judge Sappington’s conduct towards Ms. Robinson was objectively hostile. Sexually suggestive and intimidating incidents occurred on almost a weekly basis from the end of July until the middle of October. This was combined with daily evidence that Judge Sappington had a more-than-professional interest in Ms. Robinson and closely observed everything she did. As well, several actions and remarks of Judge Sappington were threatening, either overtly or in a more suggestive manner.”

The court added, “these actions must be placed in the context of the close working relationship that Judge Sappington, indeed any judge, has with the staff in his or her chambers. Ms. Robinson worked exclusively for Judge Sappington and, in the course of her duties, had little contact with other courthouse personnel. She regularly was required to be in Judge Sappington’s office or his courtroom for the purpose of carrying out her duties. She could not avoid frequent personal contact with Judge Sappington and still do her job.”

Employer Liability

What the court held

Case: Robinson v. Sappington, No. 02-3316

Issue: Is constructive discharge as a result of sexual harassment a tangible employment action that can be imputed to t
he employer?

Is an Illinois county a necessary party to a sexual harassment against a judge, even though the judge is a state employee?

Holding: Yes. If the offending party is a supervisor, rather than a co-worker.

Yes. Whether the county or state is an “employer” under Title VII is a factual question, and the county is thus a necessary party.

The court next held that there is a basis for employer liability, as well as liability on Judge Sappington’s part.

The standard for employer liability is set forth in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998) as follows: “An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. … No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.”

The court first held that constructive discharge can constitute a “tangible employment action,” for which an employer can be held liable for harassment.

Because the Seventh Circuit has not previously considered the issue, the court reviewed the approaches of the other circuits, and adopted a standard that draws a distinction based on whether the constructive discharge was caused by the actions of a co-employee or a supervisor.

The court reasoned, “The common thread in [Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999)] and [Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27 (1st Cir. 2003)] is a concern that equating constructive discharge with other types of tangible employment actions will impose liability on employers when the offending employee has not been empowered by the employer to take the actions at issue. However, there can be, as noted by the Second Circuit, a striking difference between actions taken by coworkers and actions taken by supervisors; unlike a coworker, a ‘supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control.’ Caridad, 191 F.3d at 294 (internal citations omitted). Additionally, economic sanctions imposed by a supervisor typically are ‘ratified or approved by the employer.’ Id. For these reasons, we believe that it is appropriate to draw a distinction between a constructive discharge caused by co-employees and a constructive discharge caused by supervisors. Specifically, in circumstances where ‘official actions by the supervisor … make[s] employment intolerable,’ Reed, 333 F.3d at 33, we believe a constructive discharge may be considered a tangible employment action.”

Applying that standard, the court concluded that the constructive discharge alleged by Robinson is a “tangible employment action” for which there can be employer liability.

The court concluded, “This was not simply a situation in which a supervisor was inflicting harassment on a subordinate. In this case, Judge Greanias, in his capacity as presiding judge, took the official action of transferring Ms. Robinson to Judge Francis and made the suggestion that she resign. The transfer was only possible because Judge Greanias ‘ha[d] been empowered by the [employer] … to make economic decisions affecting other employees under his or her control.’ Caridad, 191 F.3d at 294 (internal quotation marks and citations omitted). Furthermore, the suggestion that Ms. Robinson resign was given added effect because Judge Greanias was speaking in his official, supervisory capacity when the suggestion was made. Consequently, because a jury could determine that Ms. Robinson’s decision to resign resulted, at least in part, from Judge Greanias’ official actions in transferring Ms. Robinson to Judge Francis and in suggesting that she resign, we believe that it would be appropriate to hold the State of Illinois liable for Ms. Robinson’s resulting resignation.”

County Liability

The court then held that Macon County was a necessary party, even if it may not be liable as an employer.

Macon County argued that, because of its lack of control over the parties involved, it cannot be considered Robinson’s employer. Robinson argued that it is a factual question whether Macon County was her joint employer, with the State of Illinois, and consequently, can be held liable for the harassment. The court agreed with Robinson that the question of joint liability is fact-bound.

Links

7th Circuit Court of Appeals

Related Article

Case Analysis

Relying on Illinois law, however, the court determined that, regardless of the joint employer issue, a county is “a necessary party in any suit seeking damages from an independently elected county officer (sheriff, assessor, clerk of court, and so on) in an official capacity.”

Because a judge is an independently elected county officer, the court held that Macon County is a necessary party.

Chief Judge

The court affirmed the dismissal of the claim against Judge Shonkwiler, however. Robinson acknowledged that Shonkwiler, the chief judge of the judicial district, was named in his official capacity, only to impose liability on the State of Illinois. Because the allegations against Judge Sappington are sufficient to do that, and Judge Shonkwiler did not commit any independent acts of discrimination, the court held the claim redundant, and dismissed the claim.

The remainder of the lower court decision was reversed and the case was remanded for trial.

Click here for Case Analysis.

David Ziemer can be reached by email.

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