Wednesday, August 2, 2017

Fuller v. Idaho Dept. of Corrections: When does an employer cross the line by condoning sexual harassment?

The Ninth Circuit's decision in Fuller v. Idaho Department of Corrections, No. 14-36110 (July 31, 2017), is an atypical case in which the court held that a sexually hostile work environment may have been created not by the alleged sexually harassing conduct itself but instead by the employer's response to the conduct. Here, in the court's view, a jury could find that the defendant created a hostile work environment by "condoning" or "ratifying" a male employee's multiple rapes of the plaintiff.

Cynthia Fuller, a probation and parole officer, began a consensual romantic relationship with a male coworker, Herbt Cruz, around the beginning of 2011. On August 15, 2011, the defendant placed Cruz on paid administrative leave and barred him from the premises because he was being investigated for an alleged rape of a woman other than Fuller. Fuller learned about the investigation, but apparently did not learn the reason for it. Between August 22 and September 3, Cruz allegedly raped Fuller three times, each time outside the workplace. On September 8th, Fuller notified the district manager about the rapes, and on September 9th, she obtained a confidential protective order against Cruz. On September 9th, the district manager also sent an email to district staff, including Fuller, updating them on Cruz's situation. The email stated that Cruz "sound[ed] rather down" and advised employees that, while they could not discuss the pending investigation with Cruz, they were "free" to "talk to him, give him some encouragement etc." The defendant subsequently denied Fuller's request for paid administrative leave, but it allowed her to use sick leave and vacation leave. In mid-October, after her leave ran out, Fuller returned to work. In mid-November, she asked the defendant to notify all employees about the protective order. The defendant declined this request but reminded employees that Cruz continued to be barred from the workplace and told them to notify a supervisor if they saw him. Fuller resigned the same day. At the time Fuller resigned, the defendant had already decided to terminate Cruz, but for reasons that are not made clear in the court's decision had not informed Fuller of the status of the investigation.

Fuller alleged, among other things, that Cruz's conduct created a hostile work environment, that the denial of paid administrative leave was based on her sex, and that the failure to notify employees about the protective order led to her constructive discharge. The court rejected each of these claims. The court concluded that the alleged rapes did not create a hostile work environment, because they occurred outside the workplace while Cruz was barred from the workplace and he never returned to the workplace following the rapes. The court concluded that the denial of paid leave was not sex-based, because there was no dispute that, given budgetary constraints, the defendant had consistently denied paid leave, despite having a rule that allowed paid leave for "unusual" situations. Finally, the court concluded that Fuller was not constructively discharged by the defendant's refusal to notify staff of the confidential protective order, given that the defendant had already removed Cruz from the workplace and it responded to Fuller's request by directing employees to notify a supervisor if Cruz were to show up.

Despite rejecting these claims, the court held that a reasonable jury could conclude that "an objective, reasonable woman would find 'her work environment had been altered' because the employer 'condoned' the rape 'and its effects.'" The court noted:
When Fuller reported her rapes, [the district manager] told her "that Cruz had a history of this kind of behavior" and "he knew of several instances" of misconduct by Cruz. But, nonetheless, [the district manager] almost immediately thereafter told District 3 staff to "feel free" to "give [Cruz] some encouragement" and that he "hate[d]" that Cruz "cannot come to the office until the investigation is complete." This e-mail came on the heels of [the district manager's] previous statement to staff that he looked forward to Cruz returning quickly. Fuller was privy to both of those announcements, in which her supervisor publicly supported an employee whom he knew was accused of raping two women and sexually harassing several others.
The court further noted that, when Fuller raised concerns that she would be unsafe if Cruz returned to the workplace, the district manager and the deputy chief of Fuller's division responded that Cruz was "still our employee," and that they did not want a "stigma hanging over" him if "the allegations were proven untrue." In the court's view, "[a] reasonable woman in Fuller's circumstances could perceive the repeated statements of concern for Cruz's well-being by supervisors as evincing their belief that Fuller was lying or, perhaps worse, as valuing Cruz's reputation and job over her safety."

In allowing Fuller's case to proceed, the court acknowledged that it was providing little guidance as to when an employer's conduct might be reasonably regarded as "condoning or ratifying" alleged rape. As you would expect, guided by an I-know-it-when-I-see-it standard, it's easy for judges to disagree. Thus, in dissent, Judge Sandra Ikuta reached the opposite conclusion:
[T]he record here indisputably shows that the IDOC took immediate remedial steps in response to Fuller's complaints, even though her complaints were not based on workplace conduct. When Fuller reported her allegations to the IDOC, Cruz was already separated from the workplace, the IDOC warned employees that he could not be on premises, and at no point did anyone with the authority to speak on the IDOC's behalf tell Fuller (or any IDOC employee) that Cruz had been exonerated or would return. Instead, the IDOC diligently investigated Fuller's allegations, believed them, and ultimately used them as the basis of the decision to terminate Cruz's employment. . . .
So what's the takeaway?

As recognized by the court, an employer faced with an accusation that an employee has been sexually harassed by a coworker has to be mindful of both the interests of the accuser and the accused.
Rather than placing a thumb on one side of the scale, the employer must be neutral and balance both employees' interests appropriately. In this case, the court determined that the balance was sufficiently tipped in favor of the accused, allowing a reasonable woman to conclude that the defendant condoned or ratified Cruz's alleged rapes of Fuller.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.