Reed v. Shepard, 90-2340
| Decision Date | 08 August 1991 |
| Docket Number | No. 90-2340,90-2340 |
| Citation | 939 F.2d 484 |
| Parties | 56 Fair Empl.Prac.Cas. 997, 57 Empl. Prac. Dec. P 40,927 JoAnn REED, Plaintiff-Appellant, v. Clarence C. SHEPARD, in his official capacity as Sheriff of Vanderburgh County, Indiana, Otto Schnakenburg, Sr. and Jim Embry, in their official capacities as Members of Vanderburgh Merit Board, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
F. Stephen Sheets (argued), Evansville, Ind., for plaintiff-appellant.
David V. Miller, Arthur D. Rutkowski, James P. Casey (argued), and Mary R. Gidcumb, Bowers, Harrison, Kent & Miller, Evansville, Ind., for defendants-appellees.
Before WOOD, Jr., POSNER and MANION, Circuit Judges.
In 1984 JoAnn Reed was terminated from her job with the Vanderburgh County Sheriff's Department. Consequently, she brought a two-count lawsuit against the Sheriff (in his official capacity), the Sheriff's Department, and other assorted defendants who were ultimately dropped from the case. Count I of her complaint alleged under 42 U.S.C. Sec. 1983 that her termination from the department took place without the statutorily required notice and hearing, violating her right to due process under the Fourteenth Amendment. In Count II she brought separate charges of sexual discrimination, harassment and retaliation under 42 U.S.C. Sec. 2000e et seq. (Title VII). By joint motion of the parties the trial was bifurcated, so that Reed's due process allegations were heard separately by a jury and her allegations of sexual discrimination, sexual harassment, and retaliation were heard in a bench trial. During the trial on the Sec. 1983 claim, the judge directed a verdict against Reed after the presentation of her evidence, finding no due process violation. After a bench trial on the Title VII count, the judge ruled in favor of the Sheriff and Sheriff's Department. Reed appeals both decisions. We affirm the district court.
JoAnn Reed is a white female who worked as a "civilian jailer" for the Vanderburgh County Sheriff's Department. She began working in the Vanderburgh County Jail on May 5, 1979, and her main duties included guarding, feeding, processing, and transporting prisoners who were detained in the jail. Reed was fired from the department in 1984 by the Sheriff for alleged misconduct. Due to her ancillary status in the department, she was dismissed without a hearing or an opportunity to have the termination decision examined by the established Merit Review Board.
The civilian jailer position was created by the Sheriff for cost-saving purposes in 1976. The idea was to create a specialized class of jail employee which would not require the level of training, and thus, not have the variety of duties associated with deputy sheriffs. Reflective of their diminished training and duties, the civilian jailers would also have a lower and more economical pay scale. Reed carried a Sheriff's Department photographic identification card which designated her position with the Sheriff's Department as a "civilian jailer."
Deputy Sheriffs in Vanderburgh County are statutorily entitled to have recommended disciplinary measures imposed by the Sheriff (i.e., suspension, termination, reduction in rank, reprimands, etc.) reviewed and dispensed by the Vanderburgh County Sheriff's Merit Board (see Ind.Code Secs. 36-8-10-3 and 36-8-10-11). The civilian jailer position, as testified to by numerous witnesses, did not provide or include Merit Board review of termination or other disciplinary matters. Civilian jailers were considered to be "at-will" employees serving at the pleasure of the Sheriff. The occupational distinction between deputy sheriffs and civilian jailers is an important one to make because Reed's Sec. 1983 due process claim is rooted in her belief that she was a deputy sheriff and was therefore entitled to Merit Board review of her termination. Since the Merit Board declined to review or rule on the propriety of her termination, Reed believes she was denied due process. Significantly, on two occasions during her tenure as a civilian jailer, Reed attempted to complete the application to become a deputy sheriff. On the application Reed acknowledged that she had "been employed as a civilian employee of Vanderburgh County." In both instances Reed failed to complete the application form and did not submit to the physical fitness test, the Sheriff's interview, or the Merit Board interviews as required by the application process for a deputy sheriff. She did not complete any of the requisites to go to the Indiana Law Enforcement Academy for the ten-week training course as required for deputy sheriffs by Indiana state law.
Reed claims to have been continually harassed and discriminated against by members of the Vanderburgh County Sheriff's Department during her four and one-half years as a civilian jailer. To substantiate her claim, Reed specified incidents of discriminatory conduct practiced by the Sheriff's Department. Reed contends that she did not have locker facilities available like the male deputies, that she did not have a proper ladies' lavatory available at the jail, and that she was required to perform onerous duties in addition to those tasks relating to the management of the jail. She also alleged the customary complaints concerning discrimination in pay, promotion, and benefits. The Sheriff responds by saying that the differential treatment catalogued by Reed is a function of occupational differences and not sex discrimination. Deputies received locker assignments but not civilian jailers due to resource limitations. Pay, promotion, and benefit variances between deputies and jailers were consistent with differences in occupational status; all jailers, male and female, were treated similarly in compensation and in other respects. The department also contends that any tasks Reed did on the department's behalf in addition to her jail duties were strictly voluntary.
On the surface the most disturbing part of her complaint and of the trial record relate to the sex-based harassment Reed encountered at her workplace. According to the testimony, the Vanderburgh County Jail resembled a combination of a modern version of TV's Barney Miller, with the typically raunchy language and activities of an R-rated movie, and the antics imagined in a high-school locker room. The trial was replete with grim stories concerning how the deputies and jailers liked to entertain themselves during slow periods at the jail. The district court's summary more than adequately sets the tone for the unprofessional atmosphere that prevailed during "slow time" at the jail.
Plaintiff contends that she was handcuffed to the drunk tank and sally port doors, that she was subjected to suggestive remarks ..., that conversations often centered around oral sex, that she was physically hit and punched in the kidneys, that her head was grabbed and forcefully placed in members laps, and that she was the subject of lewd jokes and remarks. She testified that she had chairs pulled out from under her, a cattle prod with an electrical shock was placed between her legs, and that they frequently tickled her. She was placed in a laundry basket, handcuffed inside an elevator, handcuffed to the toilet and her face pushed into the water, and maced. Perhaps others. 1
The record confirms these and a number of other bizarre activities in the jail office. By any objective standard, the behavior of the male deputies and jailers toward Reed revealed at trial was, to say the least, repulsive. But apparently not to Reed.
Reed not only experienced this depravity with amazing resilience, but she also relished reciprocating in kind. At one point during her job tenure Reed was actually put on probation for her use of offensive language at the jail. At the same time she was instructed to suspend the exhibitionistic habit she had of not wearing a bra on days she wore only a T-shirt to work. She also participated in suggestive giftgiving by presenting a softball warmer to a male co-worker designed to resemble a scrotum and by giving another a G-string. Reed enjoyed exhibiting to the male officers the abdominal scars she received from her hysterectomy which necessarily involved showing her private area. Many witnesses testified that Reed reveled in the sexual horseplay, instigated a lot of it, and had "one of the foulest mouths" in the department. In other words, the trial revealed that there was plenty of degrading humor and behavior to go around.
The trial court further observed:
... several of the deputies and the Sheriff ... testified her propensity to use foul language is well known, and that she told many dirty jokes, often with sexual innuendos. No doubt some of the allegations on both sides are true, however the conclusion from the testimony must be that plaintiff participated freely in many of these antics and in fact instigated some of them.
* * * * * *
The Court heard testimony from three (3) females who were employed by the Vanderburgh County Sheriff's Department during plaintiff's tenure in both Civilian Jailer and Deputy Sheriff positions. Jackie Trail, Sandy Schuler and Paula Buickel all testified that they had not been discriminated against in the terms and conditions of employment nor had they been physically or verbally harassed. At least one female deputy testified that she heard both the plaintiff and deputies tell dirty jokes. She said she didn't appreciate it and told the officers if they wanted to tell the jokes do it somewhere else. They did. Plaintiff admits she never told the deputies that she was offended by the language and actions. 2
But her activities were apparently not limited merely to crude behavior. In April of 1984, a Vanderburgh County Deputy Sheriff made a report to the Vanderburgh County Sheriff's Department which stated that information coming from some prisoners indicated that Reed...
To continue reading
Request your trial
-
Garcia-Cabrera v. Cohen
...on their future employment prospects or otherwise has a nexus to employment ..." may sue under section 704(a)); Reed v. Shepard, 939 F.2d 484, 493 (7th Cir.1991) (excluding "from the realm of actionable retaliation claims those post-termination acts which are unrelated to the plaintiff's em......
-
Graboski v. Guiliani
...Shell Oil Co., 70 F.3d 325, 331 (4th Cir. 1995), cert. granted, ___ U.S. ___, 116 S.Ct. 1541, 134 L.Ed.2d 645 (1996); Reed v. Shepard, 939 F.2d 484, 492-93 (7th Cir.1991). 11 The same result has been reached by courts interpreting the ADEA. EEOC v. Cosmair, Inc., 821 F.2d 1085, 1088-89 (5th......
-
Veprinsky v. Fluor Daniel, Inc.
...claims and denied Veprinsky leave to add another to his complaint, relying in part upon our perceived holding in Reed v. Shepard, 939 F.2d 484, 493 (7th Cir.1991), that posttermination incidents of retaliation are not actionable under Title VII. See Koelsch v. Beltone Elec. Corp., 46 F.3d 7......
-
Jamal v. Wilshire Management Leasing Corp.
...sex discrimination charges). Other cases have applied the rule to post-employment harassment by the employer (see, e.g., Reed v. Shepard, 939 F.2d 484 (7th Cir.1991) (retaliatory measures included assault, phone threats, and shooting at plaintiff's vehicle)), and suspension or termination o......
-
Cases Illustrate Creative Uses Of Social Media Evidence
...*12 (citing Romaniszak- Sanchez v. Intl. Union of Operating Eng'rs, Local 150, 121 Fed. App'x 140, 146 (7th Cir. 2005); Reed v. Shepard, 939 F.2d 484 (7th Cir. 1991); Balletti v. Sun-Sentinel, 909 F. Supp. 1539, 1546-47 (S.D. Fla. 1995) (quoting Henson v. City of Dundee, 682 F.2d 897, 903 (......
-
Sexual Harassment
...co-workers dirty names, she could not prove that the conduct of the defendant in calling her dirty names was unwelcome); Reed v. Shepard , 939 F.2d 484, 491-92 (7th Cir. 1991); see also FeD. r. eviD. 412. See generally §20:8.A. 4. Harassment Based Upon Sex or Gender In order to state a clai......
-
Table of cases
...333 F.3d 27 (C.A.1 2003), §20:3.H Reed v. Petroleum Helicopters, Inc. , 218 F.3d 477 (5th Cir. 2000), §§21:5.D, 25:10.B Reed v. Shepard , 939 F.2d 484 (7th Cir. 1991), §20:4.A.3 Reed Tool Co. v. Copelin , 689 S.W.2d 404 (Tex. 1985), §30:11.B.3 Reeves and Desert Palace, Inc. v. Costa , 539 U......
-
Sexual Harassment
...co-workers dirty names, she could not prove that the conduct of the defendant in calling her dirty names was unwelcome); Reed v. Shepard , 939 F.2d 484, 491-92 (7th Cir. 1991); see also Fൾൽ. R. Eඏංൽ. 412. See generally §20:8.A. 4. Harassment Based Upon Sex or Gender In order to state a clai......
-
The central mistake of sex discrimination law: the disaggregation of sex from gender.
...The Psychological and Legal Implications of Women's Responses to Sexual Harassment, 51 J. X. ISSUES 117,131 (1995). In Reed v. Shepard, 939 F.2d 484 (7th Cir. 1991), a case in which there was an undisputed showing that Reed, a female jail employee, had been handcuffed to the toilet, the dru......