Helm v. State

• Decision Date: 07 September 2011
• Docket Number: No. 10–3092.,10–3092.
• Citation: 94 Empl. Prac. Dec. P 44264,113 Fair Empl.Prac.Cas. (BNA) 225,656 F.3d 1277
• Parties: Christie HELM, Plaintiff–Appellant,v.State of KANSAS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

656 F.3d 1277

113 Fair Empl.Prac.Cas. (BNA) 225

94 Empl. Prac. Dec. P 44,264

Christie HELM, Plaintiff–Appellant,

v.State of KANSAS, Defendant–Appellee.

No. 10–3092.

United States Court of Appeals, Tenth Circuit.

Sept. 7, 2011.

Lynne Jaben Bratcher, Bratcher Gockel & Kingston, L.C., Kansas City, MO, for Plaintiff–Appellant.Teresa L. Watson (David R. Cooper and Terelle A. Mock with her on the brief), Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, KS, for Defendant–Appellee.Before KELLY, EBEL, and GORSUCH, Circuit Judges.EBEL, Circuit Judge.

Plaintiff–Appellant Christie Helm appeals from the district court's order granting summary judgment in favor of the State of Kansas on her claim for sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–17. Helm sued the State after she was allegedly sexually harassed over a period of almost ten years by Judge Frederick Stewart, a state district judge for whom Helm served as an administrative assistant. The district court determined that the State was entitled to summary judgment because Helm fell within the “personal staff” exemption to Title VII's definition of “employee” and thus did not qualify for the protections afforded by the statute. See id. § 2000e(f). Alternatively, the court ruled that summary judgment for the State was proper on the basis of the Faragher/ Ellerth affirmative defense to employer liability for a supervisor's sexual harassment of a subordinate. See Faragher v. City of Boca Raton, 524 U.S. 775, 807–08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764–65, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the Faragher/Ellerth defense precludes vicarious liability against the State of Kansas for Judge Stewart's alleged actions. Accordingly, we AFFIRM the judgment of the district court without reaching the question whether the “personal staff” exemption removes Helm from the purview of Title VII. We also DENY both parties' motions to seal certain volumes of their respective appendices.

I. BACKGROUND

A. Judge Stewart's Alleged Sexual Harassment of Helm¹

In September 1998, Christie Helm was hired to fill an administrative-assistant position shared between Judge Frederick Stewart and Judge Robert Bednar in the First Judicial District of Kansas (the “First Judicial District”).² At that time, Judge Stewart had served as a district judge for more than twenty years, while Judge Bednar was beginning his first year on the bench. Judge Stewart began sexually harassing Helm shortly after she was hired. For several years, the harassment primarily involved touching Helm's rear end, thighs, and legs. Additionally, in 1999, Judge Stewart forced a kiss on Helm in front of the courthouse.

Helm took a medical leave of absence during the spring and early summer of 2006. After Helm returned to work, Judge Stewart started touching her inappropriately again. During the spring of 2007, the harassment began to escalate. Throughout March and April, Judge Stewart would regularly close the door of his office and kiss Helm. In addition, he once put his hands up Helm's skirt. In late May or early June 2007, Judge Stewart put his hands up Helm's skirt and penetrated her vagina with his finger. He also told her that he wanted to have sex with her on the couch in his chambers and make her have an orgasm. In June 2007, Judge Stewart unbuttoned Helm's blouse on two different occasions and fondled her breasts.

B. The First Judicial District's Sexual Harassment Policy

The First Judicial District has adopted the sexual harassment and discrimination policy formally promulgated by the Kansas Judicial Branch in the Kansas Court Personnel Rules (the “Rules”). The sexual harassment policy prohibits sexual harassment, defines the proscribed conduct, details how and to whom employees should make a sexual harassment complaint, explains the complaint investigation process, and includes an anti-retaliation provision. Under the policy, the court administrator is responsible for receiving complaints of sexual harassment (either from the victimized employee or from the supervisor to whom the employee complained), notifying the Office of Judicial Administration (the “OJA”), and coordinating a response with the OJA. When the allegations involve a judge, the OJA works with the Kansas Commission on Judicial Qualifications (the “KCJQ”) to conduct an investigation.

The Kansas Judicial Branch Employee Handbook (the “Handbook”) contains a section regarding the First Judicial District's sexual harassment policy. That section provides, in part, as follows:

An employee who believes he or she has been subjected to unlawful harassment should bring the concern to the immediate supervisor, appointing authority, or the Director of Personnel. Employees will not be retaliated against for making a sexual harassment complaint. All complaints are taken seriously and a confidential investigation will be conducted promptly.

(Aplt.App., vol. II at 248.) All court employees receive a copy of the Handbook and are required to submit an acknowledgment form indicating that they have read and understand the policies contained therein. Helm received a copy of the Handbook, read through it, and signed the acknowledgment form.³ She kept a copy of the Handbook in her desk drawer at work.

The First Judicial District provides sexual harassment training to management-level employees but does not provide such training to non-management employees like Helm. It disseminates the sexual harassment policy to non-management employees only via the Handbook and the Rules.

C. Helm's Complaints About Sexual Harassment and the First Judicial District's Response

Between 2003 and 2007, Helm complained to a coworker, Karen Connor, about Judge Stewart on approximately ten different occasions. She never mentioned specifics, stating only that Judge Stewart made her uncomfortable. In late June or early July 2007, Helm approached the chief judge of the First Judicial District, David King, and told him that Judge Stewart had done something inappropriate and made her feel uncomfortable. She did not disclose any details. Chief Judge King told Helm that no one should work under those circumstances and advised her of the procedure for making a complaint. He also told her that if she wished to make a complaint, the First Judicial District “would stand beside and support her fully and that there would be no consequence to her as a result of making the complaint.” (Aplt.App., vol. VI at 1150.) Helm said that she wanted to think about whether to make a complaint, and Chief Judge King responded, “Well, don't take too long, because if you don't do anything, I'm going to have to do something since you've conveyed this to me.” ( Id.) In addition, Chief Judge King commented that the “matter would take on a life of its own that [Helm] wouldn't be able to control” once an investigation began. ( Id. At 1157)

Helm came back to Chief Judge King the same day and said that she had resolved the matter with Judge Stewart and did not wish to pursue it further. ⁴ Chief Judge King relayed his conversation with Helm to Steven Crossland, the court administrator, but neither King nor Crossland made a report to the OJA. In his deposition, Chief Judge King explained that Helm's decision not to pursue her complaint after he explained the process to her led him to believe that maybe there was not really a problem. He also stated, “[I]f I had given credit to her complaint and if I had assumed that she had been the victim of sexual harassment, it would not have been a matter of her choice of reporting it. But she didn't give any details.” ( Id.)

In July 2007, Helm requested medical leave so that she could seek treatment for alcohol and drug abuse. She was given permission to take unpaid leave under the Family Medical Leave Act after she exhausted her sick leave and vacation. During the month of July, Helm received inpatient treatment at an alcohol and drug rehabilitation facility.

On August 8, 2007, before Helm was scheduled to return to work, she reported to Judge Bednar that Judge Stewart had sexually harassed her. This was the first time that she had made any mention of the issue to Judge Bednar. Helm told Judge Bednar that the harassment was “basically verbal, but it had gotten to touching or had involved touching.” ( Id. vol. II at 120.) She also informed Judge Bednar about her previous conversations with Chief Judge King.

Judge Bednar immediately reported Helm's complaint to Chief Judge King and Steven Crossland. Judge Bednar also told Judge Stewart about the complaint. According to Judge Stewart, Judge Bednar opined that Helm was making the claim simply because she was after money. Crossland notified the OJA of the complaint later that same day. At that time, Crossland believed that Helm would return to work on August 13, 2007, and he planned to talk to her and Chief Judge King on that day about changing her duties so that she would not have to work for Judge Stewart anymore.

Helm did not return to work on August 13. On August 21, 2007, Mike Helm, Christie Helm's husband, contacted Crossland about his wife's job status. The Helms were concerned because Christie had received smaller paychecks and then no paychecks during her leave of absence. Later that day, Crossland met with the Helms and explained that the change in pay was because of Christie Helm's exhaustion of sick leave, not because her job was in jeopardy. Crossland also raised the issue of Helm's sexual harassment complaint against Judge Stewart, stating that sexual harassment would not be tolerated and that the complaint would be investigated regardless of whether she submitted a formal written complaint. Crossland testified that he then assured Helm that they would discuss changing her duties upon her return to work, although Helm testified that she does not...