743 F.3d 726 (10th Cir. 2014), 12-4058, Kramer v. Wasatch County Sheriff's office

Docket Nº:12-4058
Citation:743 F.3d 726
Opinion Judge:SEYMOUR, Circuit Judge.
Party Name:CAMILLE MAE KRAMER, Plaintiff - Appellant, v. WASATCH COUNTY SHERIFF'S OFFICE; WASATCH COUNTY; KENNETH VAN WAGONER, Wasatch County Sheriff, Defendants - Appellees, and BRIAN GARDNER, Wasatch County Detective; JOHN DOE I THROUGH X, Defendants
Attorney:Kathleen McDonald (Lynn C. Harris with her on the briefs) of Jones Waldo Holbrook & McDonough PC, Salt Lake City, Utah, for Plaintiff-Appellant. Kristin A. VanOrman (Jeremy G. Knight with her on the brief) of Strong and Hanni, Salt Lake City, Utah, for Defendants-Appellees.
Judge Panel:Before BRISCOE, Chief Judge, SEYMOUR, and BACHARACH, Circuit Judges.
Case Date:February 25, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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743 F.3d 726 (10th Cir. 2014)

CAMILLE MAE KRAMER, Plaintiff - Appellant,

v.

WASATCH COUNTY SHERIFF'S OFFICE; WASATCH COUNTY; KENNETH VAN WAGONER, Wasatch County Sheriff, Defendants - Appellees, and BRIAN GARDNER, Wasatch County Detective; JOHN DOE I THROUGH X, Defendants

No. 12-4058

United States Court of Appeals, Tenth Circuit

February 25, 2014

Page 727

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Utah. (D.C. No. 2:08-CV-00475-TC).

Kathleen McDonald (Lynn C. Harris with her on the briefs) of Jones Waldo Holbrook & McDonough PC, Salt Lake City, Utah, for Plaintiff-Appellant.

Kristin A. VanOrman (Jeremy G. Knight with her on the brief) of Strong and Hanni, Salt Lake City, Utah, for Defendants-Appellees.

Before BRISCOE, Chief Judge, SEYMOUR, and BACHARACH, Circuit Judges.

OPINION

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SEYMOUR, Circuit Judge.

Camille Kramer sued the Wasatch County Sheriff's Department, her former employer, for sexual harassment under Title

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VII of the Civil Rights Act and 42 U.S.C. § 1983. She appeals from the district court's grant of summary judgment to Wasatch County on all claims. We affirm summary judgment as to the § 1983 claim but reverse on the Title VII claim, which we remand for trial for the reasons explained below.

I

On review of summary judgment, we recite the facts in the light most favorable to Ms. Kramer, the nonmovant. Morris v. City of Colo. Springs, 666 F.3d 654, 660 (10th Cir. 2012). Viewed in that light, the facts are as follows.

Camille Kramer worked for the Wasatch County Sheriff's Department from 2005 to 2007, first as a jailor and later as a bailiff. In 2005, while working in the jail, Ms. Kramer was subjected to offensive comments about her breasts, saw sexually offensive material on workplace computers, and frequently heard graphic sexual conversations. Ms. Kramer's perception was that the male employees who engaged in this kind of conduct were not punished but instead were ultimately promoted, and that female employees who complained were given undesirable assignments and otherwise retaliated against. Ms. Kramer also experienced non-sexual harassment from her jail co-workers.

In 2006, Ms. Kramer complained about the sexual and non-sexual harassment to Sheriff Kenneth Van Wagoner, the head of the Sheriff's Department.1 Sheriff Van Wagoner told Ms. Kramer he'd " take care of it." Aplt. App. at 55. His response was to convene a staff meeting at which he asked for a volunteer. When Ms. Kramer volunteered, the Sheriff acted out the exact harassing scenarios she had described to him, using her in the role of the victim. The Sheriff told the group: " [t]hat's harassment. Don't do it." Id. at 56. Ms. Kramer found the Sheriff's method humiliating and ultimately ineffective. She testified that the harassment got worse after the meeting. When she complained to the Sheriff that the jail harassment had not stopped, he told her " [y]ou might want to avoid that area." Aple. Supp. App. at 170.

Later in 2006, Ms. Kramer was assigned to the courthouse to work as a bailiff. Ms. Kramer was certified under Utah's law enforcement officer training standards (POST2), and her goal was to be promoted to a " road officer" position. She believed the bailiff position would provide her with the opportunity to obtain the road experience she needed to help her secure that promotion because it involved transporting prisoners. There were three bailiffs: Sergeant Rick Benson, who supervised the bailiffs, Ms. Kramer, and Brad Hulse, an employee who had some seniority over Ms. Kramer but was below Sergeant Benson. The district court described their roles in the hierarchy as follows:

The bailiffs, under Sergeant Benson's direction, were in charge of security at the courthouse, including maintaining a security presence in the courtrooms.... Sergeant Benson's job duties included managing the other two bailiffs, scheduling,

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delegating tasks such as monitoring the magnetometer, transporting and managing prisoners in court, and serving warrants.... He also wrote [Ms. Kramer's] performance evaluations, which were submitted to Captain Rogers and then to Sheriff Van Wagoner for review.... Only Sheriff Van Wagoner had the authority to hire, fire, promote, and demote employees. Sergeant Benson, however, had authority to make a recommendation to the Sheriff about demoting, promoting, or firing Ms. Kramer.

Kramer, 857 F.Supp.2d at 1195. In addition to controlling Ms. Kramer's schedule and conducting her performance reviews, Sergeant Benson controlled whether she would get the road experience she wanted.

As soon as Ms. Kramer started working for Sergeant Benson, he began his campaign of sexual harassment. He repeatedly asked Ms. Kramer to give him a foot rub, which she consistently refused to do. After her efforts to diffuse the situation were fruitless, she jokingly told him she would give him a foot rub only if he brought in a doctor's note. Apparently not one to take a hint, Sergeant Benson brought in a purported doctor's note on prescription paper, which said " Camille is to rub Rick Benson's feet three times a day." Id. at 1202. Ms. Kramer posted this note on the wall.

Ms. Kramer testified in her deposition that at this point Sergeant Benson's foot-rub harassment became " intimidating and kind of scary." Aplt. App. at 88. Although she complained about it to Sheriff Van Wagoner's secretary, Rae Davis, saying " I can't believe he really expects me to give him a foot rub," id. at 89, Ms. Davis apparently did not convey anything about the foot-rub harassment to the Sheriff, who testified that he was never made aware of it and that he never saw the " doctor's note" posted on the wall. Ms. Kramer told Sergeant Benson that she thought the joke had gone too far, asked him to stop, and reiterated that she had no intention of rubbing his feet. She did not file a formal complaint with the Sheriff at the time because, based upon what she had seen in the jail, she believed that complaints about sexual harassment would prevent her from being promoted and might cause adverse action to be taken against her.

Because Ms. Kramer refused to rub his feet even after he had brought in the " doctor's note," Sergeant Benson started calling her a liar. His continued demands for a foot rub, augmented by accusations of lying, caused Ms. Kramer increasing distress. She finally capitulated: " If I give you a foot massage," she told Sergeant Benson, " will you just shut up about it?" Id. at 90. Sergeant Benson said he would stop harassing her if she came to his house and gave him a foot massage, so Ms. Kramer agreed to do this. While she was at his house rubbing his feet, Sergeant Benson promised Ms. Kramer that he would take her out for the road training she wanted as soon as he could. But after she finished with the foot massage, Sergeant Benson grabbed her, pulled her on top of him, and tried to kiss her. She resisted, asking, " [w]hat are you doing?" Id. at 91. She freed herself from Sergeant Benson and left his house.

Ms. Kramer decided not to report this sexual assault to the Sheriff because she believed Sergeant Benson had complete control over her job and feared she would be demoted if she said anything. She also assumed that complaining would be ineffective given what she had seen other women experience in the jail and what had occurred in response to her earlier complaint to the Sheriff.

Ms. Kramer still hoped that Sergeant Benson would take her out for road training

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as he had promised, but he did not. Instead, he took Brad Hulse (who had a lower POST certification than Ms. Kramer) for road training, which frustrated Ms. Kramer. She continued to ask Sergeant Benson for road training, and he finally agreed. Once in his patrol car, however, Sergeant Benson sexually assaulted Ms. Kramer -- twice. After each assault, he told her " don't act weird. Don't act weird on me." Id. at 98-99. She did not complain to the Sheriff after this incident for the reasons already noted.

Sergeant Benson's actions toward Ms. Kramer at work subsequently became more retaliatory and controlling. He started denying her requests for leave. On one occasion, she had to reschedule her son's surgery after Sergeant Benson approved and then denied the leave time. Ms. Kramer testified that Sergeant Benson would also " watch which way I went home." Id. at 107. If she deviated from the route she normally took, he would send her text messages or call her cell phone while she was driving, asking where she was going and why she was not going straight home.

In June 2007, Ms. Kramer posted a sign at her desk that said " Sexual harassment will not be tolerated, it will be graded." Id. at 152-53. Someone (it is unclear whom) reported this sign to the Sheriff, saying he or she found the sign offensive. The Sheriff did not ask Ms. Kramer why she had the sign or whether she had experienced additional sexual harassment. He did not mention that the County had a no-sexual harassment policy, tell her she had a right to a workplace free from sexual harassment, offer the County's support, or explain to her how she could complain about sexual harassment through appropriate channels. Instead, he admonished her to take the sign down and wrote a disciplinary note, which he placed in her file.

Ms. Kramer mentioned to her co-workers that as a single mother she sometimes supplemented her income by cleaning houses. Sergeant Benson frequently asked Ms. Kramer to clean his house for money; for obvious reasons, she always refused this request. These refusals started another campaign of harassment. Sergeant Benson began telling co-workers that Ms...

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