Orton-Bell v. State

• Decision Date: 21 July 2014
• Docket Number: No. 13–1235.,13–1235.
• Citation: 759 F.3d 768
• Parties: Connie J. ORTON–BELL, Plaintiff–Appellant, v. State of INDIANA, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

759 F.3d 768

Connie J. ORTON–BELL, Plaintiff–Appellant,

v.State of INDIANA, Defendant–Appellee.

No. 13–1235.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 2013.

Decided July 21, 2014.

Richard L. Darst, Cohen, Garelick & Glazier, Indianapolis, IN, for Plaintiff–Appellant.

Frances Barrow, Indianapolis, IN, for Defendant–Appellee.

Before MANION, ROVNER, and HAMILTON, Circuit Judges.

MANION, Circuit Judge.

Connie J. Orton–Bell was employed as a substance abuse counselor at a maximum security prison in Indiana. An investigator, who had been looking for security breaches, discovered that night-shift employees were having sex on Orton–Bell's desk and informed her. That investigator told her that he was not concerned about night-shift staff having sex but suggested she should probably wash off her desk every morning. When the situation was brought to the superintendent's attention, he agreed and said that, as long as inmates were not involved, he was not concerned either. Immediately thereafter, the superintendent discovered that Orton–Bell was having an affair with the Major in charge of custody (which, ironically enough, allegedly involved sex on his desk) and both were terminated. Both separately appealed their terminations to the State Employees' Appeals Commission. The prison settled the Major's appeal and then called him to testify against Orton–Bell at her appeal. This tactic enabled the Major to keep all of his benefits, including his pension, to quickly get unemployment benefits, and to subsequently begin working at the prison as a contractor. Orton–Bell was not affordedsimilar benefits and opportunities, so she filed this suit alleging Title VII claims of sex discrimination, retaliation, and hostile work environment. The district court granted summary judgment to the state, concluding that Orton–Bell was not similarly situated to the Major, that she failed to prove retaliation under either the “direct” or “indirect” methods, and that the sexual tenor of the prison's work environment was not severe or pervasive enough to qualify as hostile. We reverse with regard to Orton–Bell's discrimination and hostile environment claims, but affirm with regard to her retaliation claims.

I. Factual Background

After earning her bachelor's degree in psychology from Ball State University in 2006, Connie J. Orton–Bell began working as a behavioral clinician with at-risk children. In 2007, she was hired as a Substance Abuse Counselor (“counselor”) for a contractor at the Pendleton Correctional Facility, a maximum security prison in Pendleton, Indiana. In 2008, she was hired by the Indiana Department of Corrections (“DOC”) and continued working as a counselor at Pendleton.

The official in charge of Pendleton at the time Orton–Bell was hired was Superintendent Brett Mize. According to Orton–Bell, he told her to come to department-head meetings, though it was not necessary, so that he could “look down the table at her.” She claims she was not the sole object of his interest because “a good share of attractive women were there,” though there was no apparent reason for them to be. Mize also said that, though other employees could wear jeans on Friday, she could not “because her ass looked so good that she would cause a riot.” Without further specifics, Orton–Bell asserts that such sexual statements by Mize were commonplace. Mize was fired before the events that precipitated this suit took place.

However, according to Orton–Bell, the pervasive sexual comments that permeated the prison workplace extended beyond Superintendent Mize's admittedly outrageous behavior. Orton–Bell testified that similar sorts of comments were made by nearly all male employees and almost all the time. The workplace was “saturated” with sexual comments that constantly “bombarded” Orton–Bell and other female prison employees. “From the second you walk into that building, that is all you are hearing until the second you leave. And if you meet somebody on the parking lot, you are going to still hear it. So it's 100 percent of the time.” For example, male employees would congregate around the pat-down area to watch female employees receive pat-downs on their way into the facility. Orton–Bell Dep. at 96. Pat-downs took place in full view of this crowd of onlookers; when Orton–Bell asked to be patted down in a private room, her request was denied. Id. at 94. Male employees would make sexual comments about female employees as they were patted down. Id. at 96–97. Women were patted down more thoroughly than men so that the male employees could watch. Id. at 92–93. Male employees frequently commented that they needed a cigarette after watching Orton–Bell get patted down because it was almost like having sex for them. Id. at 96. Orton–Bell described the experience of working in the prison as “an onslaught.” Id. at 97.

Orton–Bell also describes an instance where she was asked to remove a sweater, which revealed her camisole.¹ After she complained, staff were directed not to order the removal of similar sweaters, and Orton–Bell does not say that particular problem reoccurred.

But inappropriate conduct at the facility was not limited to verbal banter. Orton–Bell became involved in an affair with Major Joe Ditmer, a 25–year veteran of the DOC who was in charge of custody at Pendleton. Both of them were married to other people, but both were separated from their spouses at the time. Orton–Bell and Ditmer would have sex at her home, which was nearby, on their lunch breaks. They used their work email accounts to schedule their rendezvous (in addition to participating in extensive sexually explicit conversations about sexual positions, preferences, and games). The superintendent at the time, Alan Finnan, began to have suspicions about Orton–Bell and Ditmer having a relationship (Superintendent Mize had already been fired for having an affair with a staffer from the hospital infirmary). Finnan believed Orton–Bell and Ditmer's affair was a violation of the State Code of Ethics and the DOC's Standards of Conduct.²

On Thursday, March 4, 2010, Finnan contacted Investigator Todd Tappy with Internal Affairs to open an investigation into Ditmer and Orton–Bell. Finnan also asked Captain Karl Downey about Orton–Bell and Ditmer, and he informed Finnan that Ditmer had admitted to having sexual intercourse and oral sex in his office. On Saturday, March 6, 2010, Tappy and another investigator, Michael Rains, reviewed Orton–Bell and Dinner's work email accounts and discovered numerous sexually explicit emails.

But this was not the only ongoing investigation. Earlier (we have not been told the exact date), Orton–Bell and a counselor she supervised, Diane Ripberger, complained that it appeared people had been using their desks at night. Terry Silvers, yet another Internal Affairs Investigator, looked into those complaints, and into whether there had been any unauthorized access to their computers. His investigation revealed no unauthorized access to their computers, but he was able to determine that their desks were being used by night-shift employees for sexual liaisons. Orton–Bell recollected that she had cleaned mysterious stains off her desk in the past. Orton–Bell Dep. at 166. Understandably outraged, Orton–Bell asked Silvers what they ought to do next, to which he replied, “I suggest you wash off your desk every day.” Orton–Bell Dep. at 125. Unsurprisingly not satisfied by that solution, Orton–Bell protested, but Silvers stated, “This is a max[imum] security prison, staff having sex is no concern to us. As long as it is not staff and offender we don't care.” Id. After that, on Thursday, March 4, 2010, Orton–Bell discovered at a meeting that many other employees knew her office was used for sex, and that everyone thought it was quite funny. After learning that people at the facility were treating this disturbing use of her workspace as a joke, she complained to Superintendent Finnan and Investigator Silvers the next day. Silvers acknowledged that he knew it was a huge joke that her office was being used for sex all the time, and Superintendent Finnan said he did not care as long as offenders were not involved.³

Returning to the investigation of Orton–Bell and Ditmer's affair, Orton–Bell and Ditmer were interviewed on Monday, March 8, 2010. Both Orton–Bell and Ditmer admitted to having a sexual relationship, that it had involved conversations using their work email accounts, and that they had engaged in sexual intercourse in Dinner's office. Orton–Bell insists that she only admitted to this after she was told that hugging and kissing constituted sexual intercourse, and that was all she meant. (And because we are reviewing a grant of summary judgment to the state, we accept her statement as true.) Ditmer had no such qualifications, and admitted to actual sexual intercourse and oral sex in his office. The administration at Pendleton believed that this was “conduct that would interfere with the staff member's ability or fitness to effectively perform require[d] duties” in violation of the DOC Standards of Conduct. R. 32, Exs. A, M. The next day, Orton–Bell and Ditmer both received notice that they were suspended until April 7, 2010, and terminated effective April 8, 2010.

Both Ditmer and Orton–Bell appealed their terminations to the State Employees' Appeals Commission (“SEAC”). Ditmer's appeal ended with a “Final Order of Settlement and Dismissal.” This enabled Ditmer to resign in good standing, keep all the benefits he had earned, including his pension, and to continue working at the prison as a contractor. Orton–Bell's appeal was not successful. It went to a hearing, where Ditmer testified against her, and the presiding officer determined that her termination was correct. She took the process “all the way to the end,” but did not obtain a favorable resolution and ended up with nothing. Orton–Bell Dep. at 110, 133. As a result of the different...