Kramer v. Wasatch Co. Sheriff's Office, et al

Filing

[10152062] Affirmed, Reversed and Remanded. Terminated on the merits after oral hearing. Written, signed, published. Judges Briscoe, Seymour (authoring) and Bacharach. Mandate to issue. [12-4058]

Appellate Case: 12-4058

Document: 01019207565

FILED
United States Court of Appeals
Date Filed: 02/25/2014 Circuit 1
Tenth Page:

February 25, 2014

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

CAMILLE MAE KRAMER,
Plaintiff - Appellant,
v.
WASATCH COUNTY SHERIFF’S
OFFICE; WASATCH COUNTY;
KENNETH VAN WAGONER,
Wasatch County Sheriff,

No. 12-4058

Defendants - Appellees,
and
BRIAN GARDNER, Wasatch County
Detective; JOHN DOE I THROUGH
X,
Defendants.

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.

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

SEYMOUR, Circuit Judge.

Camille Kramer sued the Wasatch County Sheriff’s Department, her former
employer, for sexual harassment under Title 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
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promoted, and that female employees who complained were given undesirable
assignments and otherwise retaliated against. Ms. Kramer also experienced nonsexual 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

1

The district court said it was “not clear” whether Ms. Kramer’s complaint
to the Sheriff had to do with sexual or purely non-sexual harassment. Kramer v.
Wasatch Cnty., 857 F. Supp. 2d 1190, 1199 (D. Utah 2012). However, the Sheriff
testified that he gave a training session regarding sexual harassment in response
to the complaint. Moreover, we are required to accept Ms. Kramer’s version of
the facts for summary judgment purposes, so we assume that Ms. Kramer’s
complaint related to the sexual as well as non-sexual harassment to which she had
been subjected.
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standards (POST 2), 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, 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

2

POST stands for Peace Officer Standards and Training.
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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
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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 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.
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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,
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she always refused this request. These refusals started another campaign of
harassment. Sergeant Benson began telling co-workers that Ms. Kramer thought
she was “too good” to clean his house, even though she needed the money. Coworkers got into the act, saying “that’s good money. Why aren’t you [going to
clean Sergeant Benson’s house]?” Id. at 100. Ms. Kramer finally agreed to do so
when he promised that his daughter would be there, that she could bring her kids,
that she could have his daughter’s old clothes for her daughter, and that he would
give her money for gas. Unfortunately, not even this arrangement deterred
Sergeant Benson. While the children were playing outside and Ms. Kramer was
vacuuming his room, Sergeant Benson cornered her in the closet, pushed her
against the wall, and raped her. Immediately afterward he said, “This is wrong. I
can’t believe you made me do this.” Id. at 104-05. He then repeated his refrain:
“Don’t act weird.” This time, he added a more specific threat, stating “You better
be quiet about this and not say anything. This is a career ender.” Id. at 105.
After the rape, Sergeant Benson continued to act at work in ways that Ms.
Kramer found controlling and intimidating. He failed to relieve her on several
occasions even though he had promised to do so, causing her to miss important
family events. He prepared a bad performance evaluation of her and showed it to
her. She argued with him about it and he changed the marks to better ones,
saying “keep [your] mouth shut and not say anything, and [you will] be fine and
. . . taken care of.” Id. at 112.
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At some point after the rape, some money disappeared from the courthouse.
The Sheriff asked state detectives to investigate Ms. Kramer, Sergeant Benson,
and a few other County employees who worked in the area where the money had
disappeared. Id. During this time (ostensibly because she was being
investigated), Sergeant Benson assigned Ms. Kramer to work the magnetometer
full-time – an undesirable assignment that eliminated the possibility of road
training. Sergeant Benson also persistently accused Ms. Kramer of taking the
money, telling her that everyone thought she was the culprit. These accusations
and rumors distressed and embarrassed Ms. Kramer. She agreed to take a lie
detector test, and on the day of the test Sergeant Benson told her, “You better not
say anything about anything that happened. . . . It’s a career ender . . . [a]nd if I
go down, you go down.” Id. at 121. Ms. Kramer did not speak of Sergeant
Benson’s sexual assaults during the test, which she passed. Later that day,
Sergeant Benson called Ms. Kramer six times on her cell phone; she did not
answer his calls. Of all the suspected courthouse employees, Sergeant Benson
was the only one who refused to take a lie detector test.
During the money investigation, Ms. Kramer made other observations
reinforcing her belief that the Sheriff could not be relied upon to enforce County
policies against Sergeant Benson. First, knowing that the Sheriff had ordered
Sergeant Benson to stay out of the justice of the peace courtroom because he had
been intimidating the female clerks there, she saw him deliberately disregard this
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order by entering the courtroom in question. She noticed that the Sheriff imposed
no discipline on Sergeant Benson for disobeying the order. Second, the Sheriff
denied her administrative leave under circumstances in which it appeared to be
authorized. Being investigated by the County and accused of theft by Sergeant
Benson caused Ms. Kramer so much distress that she decided to request
administrative leave. The policy manual she consulted stated that an employee
being investigated could be put on administrative leave, so Ms. Kramer went to
Sheriff Van Wagoner and asked to be given paid or unpaid leave, whichever he
preferred. The Sheriff refused, telling Ms. Kramer, “we’re too small a
department” to follow that policy. Id. at 58-59.
The final sexual assault occurred while Sergeant Benson was on leave after
a surgery. He would call the court frequently from his house, usually asking to
speak to Ms. Kramer. He would give her job-related instructions (such as telling
her which inmates to transport), and would end the calls by instructing her to
come to his house and bring him a Coke. Ms. Kramer always refused the last
instruction, so Sergeant Benson asked Deputy Brad Hulse to assist him in
bothering Ms. Kramer about it. Mr. Hulse started badgering Ms. Kramer to
“bring your laid-up sergeant a Coke.” Id. at 124. Finally, she capitulated and
went to Sergeant Benson’s house with a Coke. She thought she would be safe
from sexual assaults because he was confined to bed, but she made sure to stay in
the doorway just in case. She placed the Coke down near the door and then tried
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to leave. But Sergeant Benson had other plans. He repeatedly asked her to sit on
the bed, saying “Kramer, can we just talk about work?” Id. at 125. When she
came near where he was lying, he grabbed her, exposed his penis, pulled her on
top of him, and groped her.
Shortly after this incident, Ms. Kramer was in a serious car accident and
took sick leave. When some of the court clerks came to visit her, she told them
about Sergeant Benson’s sexual assaults, including the rape. She also confided in
them that she was having a consensual affair with another man and was pregnant
as a result, but she refused to disclose his name. The clerks urged her to report
Sergeant Benson’s sexual assaults to someone. They suggested that she talk
about it with Detective Todd Hull, who was investigating the missing money.
Ms. Kramer did not want to speak to Detective Hull about the issue but agreed to
allow Mindy Probst, one of the clerks, to tell Detective Hull about Sergeant
Benson’s harassment and assaults.
Sheriff Van Wagoner subsequently found out from one of the court clerks
or secretaries (he can’t remember whom) that Ms. Kramer was pregnant and that,
in the Sheriff’s words, “Rick Benson had sexually assaulted her or . . . some sex,
or . . . sexual misconduct had taken place, leading me to believe that maybe Rick
was the father. And if that was in fact the case, that’s a definite violation of our
policy and procedure . . . especially if it’s on-duty.” Aple. Supp. App. at 166.
The Sheriff testified that he started an internal investigation into possible “sexual
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misconduct” between Sergeant Benson and Ms. Kramer, which he assigned to
Detective Brian Gardner because he was “the unfortunate guy that was on-duty on
that particular day.” Id. at 167. Detective Gardner was not a human resources
specialist and was “probably” not trained in conducting sexual harassment
investigations. Id. at 168. The Sheriff did not provide Detective Gardner with
any “policy or procedures on how to conduct the investigation” because,
according to the Sheriff, “We don’t have any real hard-set investigative standards
policy that, other than what the state has and the federal government has put out,
as far as sexual harassment.” Id. at 171-72. This ad hoc process reflected the fact
that “[the Department doesn’t] have many complaints.” Id. at 168.
It is undisputed that Detective Gardner’s investigation focused almost
entirely on discovering who was the father of Ms. Kramer’s baby. It is also
undisputed that the investigation culminated in Ms. Kramer being disciplined for
having consensual sex with her paramour, a County firefighter named Layne
Clyde, while he (but not she) was on duty. Ms. Kramer had no intention of
disclosing the identity of Mr. Clyde until Detective Gardner told her during his
interview that no one would believe her claim that Sergeant Benson had raped her
unless she disclosed who her baby’s father was. When she grudgingly confessed
to her affair, Detective Gardner asked her how many times she and Mr. Clyde had
sex and in which locations. Ms. Kramer “felt like it became an interrogation and
an investigation on me and my sex life with Layne [Clyde], which had nothing to
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do with the investigation with Rick [Benson].” Aplt. App. at 130. Indeed, Ms.
Kramer does not remember Detective Gardner asking her about Sergeant Benson
at all, other than warning her that her rape allegations would not be believed
unless she admitted to, and gave intimate details about, her consensual affair with
the other man. “[T]he purpose of the meeting,” Ms. Kramer believed, “[w]as to
find out who the father of my baby was . . . . [It felt like] I was being investigated
for having sex and being pregnant.” Id. at 131-32.
After hearing from Detective Gardner about the allegations of rape, the
Sheriff transferred the “sexual misconduct” investigation from Brian Gardner to
Todd Hull, the state detective handling the missing money investigation.
Detective Hull and others interviewed Ms. Kramer about Sergeant Benson’s
sexual assaults. According to the Sheriff, this is where his Department’s sexual
harassment investigation ended.
The Sheriff’s only internal response, other than turning over the
investigation to state detectives, was to report to POST that Ms. Kramer had an
affair with Layne Clyde. Because she and Mr. Clyde had been intimate while he
(but not she) was on duty, POST suspended Ms. Kramer’s certification for six
months for actions unbecoming an officer. The Sheriff decided that it would be
best if Ms. Kramer resigned – to save face for her, the Sheriff’s Department, and
Layne Clyde, who was married and had children. Ms. Kramer overheard the
Sheriff telling Detective Gardner that she should resign. Detective Gardner, on a
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follow-up visit, told her numerous times that she should resign. Ms. Kramer
believed the Sheriff had reported her affair to POST to get her decertified because
“they clearly didn’t want me to come back because I had told on Rick.” Id. at
136. Although the Sheriff had decided to terminate Sergeant Benson, Sergeant
Benson resigned before that could happen.
After Ms. Kramer told Detective Hull what Sergeant Benson had done to
her, Detective Hull sent his report to the County Attorney’s office. The County
Attorney excused himself from prosecuting Sergeant Benson “due to a friendly
relationship with Benson.” Id. at 171. There is no evidence Sergeant Benson was
ever prosecuted. Ms. Kramer never returned to work for the Sheriff’s
Department.
Ms. Kramer sued the County, alleging that the sexual harassment she
experienced at the hands of Sergeant Benson constituted sex discrimination
prohibited by both Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1),
and the Constitution, 42 U.S.C. § 1983. The district court granted summary
judgment to Wasatch County. The court held that Sergeant Benson was not Ms.
Kramer’s supervisor for Title VII purposes because he did not have the actual
authority to unilaterally fire her. It further held that supervisor status could not
be premised on apparent authority because no reasonable juror could find Ms.
Kramer reasonable in believing Sergeant Benson had the power to fire her. Even
assuming Sergeant Benson was Ms. Kramer’s supervisor, the court concluded that
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Wasatch County was not vicariously liable for his conduct because Ms. Kramer
suffered no tangible employment action and, alternatively, because Wasatch
County was entitled to prevail on its Faragher/Ellerth affirmative defense as a
matter of law. Finally, the court held that Wasatch County was not negligent and
thus could not be liable for Sergeant Benson’s harassment under co-worker
harassment standards. As to Ms. Kramer’s § 1983 claims, the court determined
that Sheriff Van Wagoner was entitled to qualified immunity, and that the County
was not liable because it had no pattern, practice, or custom of illegal sex
discrimination.
Ms. Kramer appeals on all grounds.

II
We review a grant of summary judgment de novo. Garrison v. Gambro,
Inc., 428 F.3d 933, 935 (10th Cir. 2005). “[W]e will affirm the district court’s
disposition only if our independent review of the record, viewing the facts in the
light most favorable to [the nonmoving party], reveals that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1207 (10th Cir.
2010) (citing F ED . R. C IV . P. 56).
Sexual harassment in the workplace is a form of sex discrimination
prohibited by Title VII. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th
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Cir. 1998); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72-73 (1986). In general,
“an employer is directly liable for an employee’s unlawful harassment if the
employer was negligent with respect to the offensive behavior.” Vance v. Ball
State Univ., 133 S. Ct. 2434, 2441 (2013). If the harasser is a supervisor rather
than merely a co-worker, however, the employer may be vicariously liable for the
conduct, depending on the circumstances. Id. If the supervisor’s harassment
culminates in a “tangible employment action,” the employer is strictly liable for
sex discrimination, with no defense. Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 762-63 (1998). If no tangible employment action occurs, the employer may
still be vicariously liable for the supervisor’s harassment if the plaintiff proves
the harassment was severe or pervasive, Morris, 666 F.3d at 663, and the
employer is unable to establish the affirmative defense announced in Faragher v.
City of Boca Raton, 524 U.S. 775, 807 (1998), and Ellerth, 524 U.S. at 765. 3 See
also Vance, 133 S. Ct. at 2439. For these reasons, whether the harasser was a
“supervisor” within the meaning of Title VII is a critical threshold question in
determining whether the employer can be held vicariously liable for the
harassment.
A. Supervisory control under Title VII
In Ellerth, the Supreme Court explained that a harasser may be considered

3

Whether the harassment was sufficiently severe or pervasive is not
disputed on appeal.
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a supervisor if he or she possesses some amount of actual or apparent authority
over the employee. 524 U.S. at 759, 761. But the Court did not specify exactly
how much authority a harasser had to have (or appear to have) to qualify as a
supervisor, and the circuits were split in answering that question. 4 While Ms.
Kramer’s appeal was pending before this court, the Supreme Court resolved that
circuit split in Vance, 133 S. Ct. at 2443. The Court held that a “supervisor”
under Title VII is an employee whom “the employer has empowered . . . to take
tangible employment actions against the victim, i.e., to effect a ‘significant
change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a

4

The Second, Fourth, and Ninth Circuits held that a supervisor for Title
VII purposes is one who has the power to direct the plaintiff’s daily work
activities. See Mack v. Otis Elevator Corp., 326 F.3d 116, 125 (2d Cir. 2003);
Whitten v. Fred’s, Inc., 601 F.3d 231, 245 (4th Cir. 2010); Dawson v. Entek Int’l,
630 F.3d 928, 940 (9th Cir. 2011). The First, Seventh, and Eighth Circuits, by
contrast, defined supervisor more narrowly to refer only to someone with the
power to take tangible employment actions – such as hiring, firing, demoting,
promoting, transferring, or disciplining the victim. See Noviello v. City of Bos.,
398 F.3d, 76, 95-96 (1st Cir. 2005); Parkins v. Civil Constructors of Ill., 163 F.3d
1027, 1034-1035 (7th Cir. 1998); Weyers v. Lear Operations Corp., 359 F.3d
1049, 1057 (8th Cir. 2004). We appear to have taken a hybrid approach finding
supervisor status in a harasser who was “in charge of delegating duties and
assigning work to plaintiff,” but who was also “involved in the disciplinary
process.” Harrison v. Eddy Potash Inc., 248 F.3d 1014, 1016 (10th Cir. 2001);
see also Rubidoux v. Colo. Mental Health Inst., 173 F.3d 1291, 1292-93 (10th
Cir. 1999) (“[Supervisor] could not alone make hiring and firing decisions, [but]
interviewed both plaintiffs, and his recommendation was ‘quite possibly’ the sole
basis for their hiring . . . . [He] set schedules, granted leave, conducted
performance reviews, and could initiate hearings to formally consider employee
performance.”).
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significant change in benefits.’” Id. (quoting Ellerth, 524 U.S. at 761).
Importantly, however, the Court explained that an employee need not be
empowered to take such tangible employment actions directly to qualify as a
supervisor. A manager who works closely with his or her subordinates and who
has the power to recommend or otherwise substantially influence tangible
employment actions, and who can thus indirectly effectuate them, also qualifies as
a “supervisor” under Title VII. Id. at 2452.
The holding in Vance is consistent with the Court’s decision in Staub v.
Proctor Hospital, 131 S. Ct. 1186 (2011). There the Court held that employers
could be liable for tangible employment actions influenced by a biased
subordinate, even though the final decisionmaker was unbiased. Staub reasoned
that to hold otherwise would defeat the purpose of employment discrimination
laws.
An employer’s authority to reward, punish, or dismiss is often allocated
among multiple agents. The one who makes the ultimate decision does so
on the basis of performance assessments by other supervisors.
[Defendant’s] view would have the improbable consequence that if an
employer isolates a personnel official from an employee’s supervisors,
vests the decision to take adverse employment actions in that official, and
asks that official to review the employee’s personnel file before taking the
adverse action, then the employer will be effectively shielded from
discriminatory acts and recommendations of supervisors that were designed
and intended to produce the adverse action.
Id. at 1192-93 (emphasis in original).
The Court applied the same logic in Vance when it defined supervisor for

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Title VII purposes, explaining that an employer who “concentrates all
decisionmaking authority in a few individuals[] . . . likely will not isolate itself
from heightened liability under Faragher and Ellerth.” 133 S. Ct. at 2452. This
is so, the Court explained, because when the individuals vested with actual
decisionmaking power do not interact regularly with the employee, they will
“have a limited ability to exercise independent discretion when making decisions
and will likely rely on other workers who actually interact with the affected
employee. Under those circumstances, the employer may be held to have
effectively delegated the power to take tangible employment actions to the
employees on whose recommendations it relies.” Id. We recently emphasized
that the decisionmaker’s reliance on a subordinate’s biased recommendation must
be an “uncritical” reliance, with no independent verification of the asserted reason
for the proposed employment action. Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283,
1294 (10th Cir. 2013).
The definition of “supervisor” handed down in Vance relies on another
Title VII term of art: “tangible employment action.” Whoever can take or
substantially influence tangible employment actions is a “supervisor.” Vance,
133 S. Ct. at 2448, 2452. While economic injury is almost always sufficient to
create a tangible employment action, it is not always necessary. Ellerth, 524 U.S.
at 762 (“A tangible employment action in most cases inflicts direct economic
harm.” (emphasis added)). For that reason, a tangible employment action can
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include not just the obvious firing or demoting, but also giving an employee “a
less distinguished title [or actions resulting in] a material loss of benefits,
significantly diminished material responsibilities, or other indices that might be
unique to a particular situation.” Id. at 761 (quoting Crady v. Liberty Nat’l Bank
& Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993)) (internal quotation marks
omitted). However, neither “a bruised ego” nor a demotion without a concurring
change in pay, benefits, duties, or prestige is enough. Id. (internal quotation
marks omitted).
In addition, a tangible employment action requires some sort of “official
act of the enterprise, a company act.” Id. at 762. “Often, the supervisor will use
the company’s internal processes and thereby obtain the imprimatur of the
enterprise. Ordinarily, the tangible employment decision is documented in
official company records, and may be subject to review by higher level
supervisors.” Pa. State Police v. Suders, 542 U.S. 129, 144-45 (2004) (internal
quotation marks, brackets, and citations omitted).
One common sense test that can illuminate whether a given harm is a
tangible employment action is to ask whether a co-worker could have inflicted the
same harm as easily. If the answer is yes, then the harm is not a tangible
employment action. See Ellerth, 524 U.S. at 762 (explaining that “[a] co-worker
can break a co-worker’s arm as easily as a supervisor, and anyone who has
regular contact with an employee can inflict psychological injuries by his or her
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offensive conduct . . . ,” but a co-worker can only cause his victim to be fired or
demoted by means of an “elaborate scheme . . .”); see also Rubidoux, 173 F.3d at
1296 (tangible employment actions are things “an harassing co-worker cannot
do”).
In sum, if Sergeant Benson had or appeared to have the power to take or
substantially influence tangible employment actions and used the threat of taking
such actions to subject Ms. Kramer to a hostile work environment, then the
County is vicariously liable for his severe or pervasive sexual harassment, subject
to the Faragher/Ellerth affirmative defense. See Vance, 133 S. Ct. at 2448.
Viewing the record evidence in the light most favorable to Ms. Kramer, we have
determined there are fact questions as to whether Sergeant Benson had the power
to recommend and influence tangible employment actions against Ms. Kramer,
and whether under apparent authority principles Ms. Kramer was reasonable in
believing Sergeant Benson had such powers even if he in fact did not. In the
following subsections, we do not consider whether Sergeant Benson actually took
such actions but only whether he may have had the power to do so.
1. As Ms. Kramer’s direct supervisor, Sergeant Benson completed her
performance evaluations and made recommendations regarding her
employment status.
It is undisputed that Sergeant Benson was Ms. Kramer’s direct manager,
that he was the sole person responsible for writing her performance evaluations,

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and that those evaluations could cause her to be promoted, demoted, or fired. 5
Moreover, the County characterized Sergeant Benson as Ms. Kramer’s
supervisor. 6 It is further undisputed that while the Sheriff was officially the only
person who could fire employees, Sergeant Benson could recommend to the
Sheriff that any of his supervisees be fired. Sergeant Benson’s responsibility to
“document noteworthy . . . behaviors of employees” was explicitly defined by the
County as potentially affecting his subordinates’ “job advancement, rewards,
discipline and discharge.” 7 Aple. Supp. App. at 229. Sergeant Benson could also
create a “corrective action” plan for a supervisee such as Ms. Kramer, if he
determined her performance was “substandard,” which might include
“reassignment[,] . . . transfer, . . . or separation.” Id. at 122-23. We accept
arguendo the County’s argument that the Sheriff, not Sergeant Benson, was the

5

“Q: Who was in charge of Camille Kramer’s evaluation? A: It would
have been Rick Benson.” Aple. App. at 163 (Van Wagoner Dep.); Aplt. App. at
176 (performance evaluation of Kramer signed by Benson).
6

The Sheriff’s Office Policies and Procedures Manual stated that the
position of sergeant is “generally supervisory.” Aplt. App. at 83. When asked
whether Sergeant Benson was considered a supervisor, Undersheriff Todd Bonner
replied “[y]es.” Id. at 160. When asked who Sergeant Benson supervised,
Undersheriff Bonner replied: “Camille.” Id.
7

The Wasatch County Personnel Policy stated that “[i]t is the responsibility
of elected officials, department heads and immediate supervisors to properly, and
in a timely manner, document noteworthy or critical incident behaviors of
employees. Such records may be used to support decisions which affect employee
status related to job advancement, rewards, discipline and discharge.” Aple. Supp.
App. at 229 (emphasis added).
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“department head,” but it is undisputed that Sergeant Benson was considered a
“supervisor” in the rank hierarchy. 8 These designations are relevant because
while the County policy manual refers to some forms of discipline as being done
by the “department head,” see, e.g., Aple. Supp. App. at 122 (“Suspension: The
department head/elected official may suspend . . . .”), 9 department heads or
“supervisors” are referred to with regard to other types of discipline, see, e.g., id.
(“Corrective Action: . . . 1. The department head/elected official/supervisor shall
discuss the substandard performance with the employee in an attempt to discover
the reasons for such performance and to plan an appropriate solution.” (emphasis
added)). In the latter category, the listed “[a]ppropriate corrective actions”
include “closer supervision, training, referral for personal counseling,
reassignment or transfer, use of appropriate level career counseling, or
separation.” Id. (emphasis added). The manual also says that “[d]uring the
implementation of corrective action, the department head/elected
8

See Aple. Supp. App. at 15, referring to sergeants: “[t]his position is
generally supervisory.”
9

In her deposition, Ms. Kramer argued with defense counsel as to whether
“department head” meant Sheriff or Sergeant Benson. Aple. Supp. App. at 13 (Q:
Who was the department head? A: “The department head was Rick Benson. He
was in charge of our department. That’s how I would read that . . . . Q: You don’t
believe that department head refers to the sheriff’s department, so that would be
the sheriff? A: No.”) Even if the County is correct that “department head”
referred to the Sheriff, whether Ms. Kramer was reasonable in thinking
“department head” referred to Sergeant Benson in the context of bailiffs – or
whether the term and the policy are ambiguous–are questions properly considered
under our apparent authority analysis, infra.
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official/supervisor shall frequently evaluate and document the employee’s
progress.” Id. at 122-23. This entry reinforces the likelihood that Sergeant
Benson had the power to influence or recommend tangible employment actions –
he could “plan an appropriate solution” including “reassignment or transfer” or
“separation,” and he could likely influence other tangible employment actions by
means of “frequent[] evaluat[ion] and document[ation]” of an employee’s
compliance with a corrective plan – all this after having first decided that an
employee’s performance was “substandard.” Id.
In addition, the Sheriff’s Department’s own policy manual included a
section called “Disciplinary Measures.” Id. at 14. One type of disciplinary
measure referred to is “Relief of Duty,” which occurs “in cases where a
supervisor finds it necessary . . . .” Id. at 14-15 (emphasis added). That section
indicates that the Sheriff would determine whether relief of duty was with or
without pay, but apparently the “supervisor” could decide in the first instance
whether one of his subordinates would be relieved from duty.
In addition, bailiffs worked at the justice court instead of the Sheriff’s
office and the record is unclear as to when, if ever, the Sheriff personally worked
with Ms. Kramer or directly supervised her work as a bailiff. Where an harasser
is empowered to effect significant changes in employment status indirectly
through recommendations, performance evaluations, and the like, and where the
person with final decision-making power does not work directly with the plaintiff,
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the harasser may be a “supervisor” under Title VII. See Vance, 133 S. Ct. at
2452; see also Ellerth, 524 U.S. at 762 (approvingly citing Shager v. Upjohn Co.,
913 F.2d 398, 405 (7th Cir. 1990), in which “supervisor did not fire plaintiff;
rather, the Career Path Committee did, but the employer was still liable because
the committee functioned as the supervisor’s ‘cat’s-paw’”). In contrast to a coworker who can only cause a demotion or a pay cut through “some elaborate
scheme,” Ellerth, 524 U.S. at 762, a supervisor who lacks the direct power to
impose tangible employment consequences can accomplish the same easily,
without scheming, if the employer has “effectively delegated” the power to make
those decisions to him by empowering him to evaluate his supervisees and then
relying on his recommendations. Vance, 133 S. Ct. at 2452; see also id. at 2434
n.8 (explaining that the harasser in Faragher would be considered a supervisor
because his recommendations were highly influential); see also Lobato, 733 F.3d
at 1294-95 (employer is liable if the employer relied on facts from biased
subordinate in deciding to take tangible employment action).
On the record before us, Ms. Kramer has raised a genuine issue of fact as to
whether the Wasatch County Sheriff’s Department effectively delegated to
Sergeant Benson the power to cause tangible employment actions regarding Ms.
Kramer by providing for reliance on recommendations from sergeants such as
Benson when making decisions regarding firing, promotion, demotion, and
reassignment. Vance, 133 S. Ct. at 2452. Ms. Kramer is not required to establish
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that the Sheriff would follow Sergeant Benson’s recommendations blindly. Even
if the Sheriff undertook some independent analysis when considering employment
decisions recommended by Sergeant Benson, Sergeant Benson would qualify as a
supervisor so long as his recommendations were among the proximate causes of
the Sheriff’s decision-making. See Lobato, 733 F.3d at 1294-95; Staub, 131
S. Ct. at 1193.
2. Apparent authority principles
Even if it is determined that Sergeant Benson lacked the actual supervisory
authority described above, he could still qualify as a supervisor under apparent
authority principles. “In the usual case, a supervisor’s harassment involves
misuse of actual power, not the false impression of its existence.” Ellerth, 524
U.S. at 759. But “in the unusual case,” apparent authority can suffice to make the
harasser a supervisor for Title VII purposes, so long as the “the victim’s mistaken
conclusion [is] a reasonable one.” Id. The district court held that no apparent
authority existed because Ms. Kramer was unreasonable as a matter of law in
believing that Sergeant Benson had the power to fire her. As we have explained,
however, firing is not the only kind of tangible employment action that can make
one a supervisor.
Apparent authority exists where an entity “has created such an appearance
of things that it causes a third party reasonably and prudently to believe that a
second party has the power to act on behalf of the first [party].” Bridgeport
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Firemen’s Sick & Death Ben. Ass’n v. Deseret Fed. Sav. & Loan Ass’n, 735 F.2d
383, 388 (10th Cir. 1984). We have recognized that “the question of apparent
authority is usually considered a question of fact.” Id.
One relevant fact question is how much power the principal has actually
given to the agent. R ESTATEMENT (T HIRD ) OF A GENCY § 3.03, cmt. c (2006).
Thus, where the principal (Wasatch County) has given the agent (Sergeant
Benson) some amount of power, it might be reasonable for the third party (Ms.
Kramer) to believe that the agent has other types of related powers even if the
agent actually does not. Id.
Comparing Sergeant Benson with the harassers in Parkins, 163 F.3d at
1034-35, illustrates this principle. The plaintiff in Parkins was a dump-truck
driver whose job was to haul materials and debris to and from construction sites.
Id. at 1031. Her harassers were two foremen who were sometimes present at
some of the sites. Id. at 1032-33. The plaintiff “did not work exclusively at the
same sites at which [the harassers] worked. Rather, she worked with
approximately ten foremen at various sites.” Id. at 1034. Nor did she work sideby-side with the harassers because she was usually driving a truck. Id. The
powers wielded by the harassers, “[a]t most, [consisted of] . . . tell[ing] [plaintiff]
where to dump or pick up a load.” Id. The harassers’ “authority was so limited
that they did not assign employees to particular sites and could not require
Parkins’ presence on a job site.” Id. They certainly did not have the power to
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evaluate the plaintiff. Nor did the employer in Parkins consider the harassers to
be the plaintiff’s supervisors in any sense. 10 Because the harassers enjoyed no
“more than minimal authority, and exercised almost no control over truck drivers
[such as the plaintiff],” the Seventh Circuit held that no reasonable person would
have believed they had sufficient authority to qualify as supervisors and thus no
apparent authority existed. Id. at 1035.
Every relevant fact missing in Parkins is present here. The Sheriff
considered Sergeant Benson to be Ms. Kramer’s supervisor. The Sergeant worked
at the same site with Ms. Kramer every day, where he was Ms. Kramer’s only
immediate manager. The County assigned to Sergeant Benson the tasks of telling
Ms. Kramer what to do every day, evaluating her performance, and reporting on
her performance to higher management. Because of the authority given to him by
the County, Sergeant Benson could assign Ms. Kramer to distinctly different tasks
in different locations: he could assign her to the magnetometer, give her road
training, assign her to courtrooms, or order her to transfer prisoners. Sergeant
Benson could also decide what days she worked and whether and when she got
vacation or sick leave. The harassers in Parkins had no input into the plaintiff’s

10

Compare Parkins, 163 F.3d at 1034-35 (“Civil Constructors President
and EEO Officer Bruce Helm also testified about the limited authority of
foremen: Q. Is the foreman ever considered the immediate supervisor? A. No.”),
with Aplt. App. at 160 (Deposition of Undersheriff Todd Bonner: “Q: Was
[Sergeant Benson] considered a supervisor? A: Yes. Who did he supervise? A:
Camille [Kramer].”).
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performance evaluations, assignments, or leave days and, unlike Sergeant Benson,
were not specifically assigned to evaluate and make recommendations about the
plaintiff. Under the circumstances here, given the County’s and the Sheriff’s
manuals, there is a genuine issue of fact as to whether Ms. Kramer was reasonable
in believing that Sergeant Benson had additional powers – such as the power to
transfer, discipline, demote, or fire her. Cf. id.
A jury is especially likely to conclude such beliefs were reasonable because
Sergeant Benson repeatedly told Ms. Kramer he did in fact possess such powers:
Q: Could he have fired you? A: Yes. Q: What makes you think he could
have fired you? A: He told me. He reminded me of that on a daily basis. Q:
Are you aware that in the sheriff’s policies and procedures manual that the
only person that could do the terminations is the sheriff? A: I’m not aware
of that. Q: What about promotions? Could he give you a promotion? A:
Yes. Q: What about a demotion, do you feel he could give you a demotion?
A: Yes. Q: You’re not aware of the policies and procedures manual, I take
it, that only the sheriff can have control over that? A: I’m not aware of that,
no.
Aplt. App. at 62-63 (emphasis added) (Kramer Dep.).
For all of these reasons, whether Sergeant Benson qualifies as a
“supervisor” under apparent authority principles is a fact issue that precludes
summary judgment on Sergeant Benson’s “supervisor” status.
B. Tangible employment actions
If Sergeant Benson was a supervisor within the meaning of Vance, Wasatch
County would be strictly liable for his harassment of Ms. Kramer if it culminated
in a tangible employment action. Ellerth, 524 U.S. at 761-62. Ms. Kramer argues
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that the following constitute tangible employment actions: (1) the rape; (2) the
bad performance evaluation that was never submitted; (3) Sergeant Benson
denying her vacation days; and (4) Sergeant Benson refusing to give her road
training and assigning her to the magnetometer full-time. None of these amount
to a tangible employment action on the facts here.
1. The rape
While rape is inarguably a severe form of sexual harassment, on the facts
here it is not a “tangible employment action” in the sense meant by Ellerth, 524
U.S. at 761, and Vance, 133 S. Ct. at 2447 n.9. In support of her argument that
rape constitutes a tangible employment action, Ms. Kramer cites to cases such as
Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1243-44 (10th Cir. 2001), and
Little v. Windermere Relocation, Inc., 301 F.3d 958 (9th Cir. 2002), which held
that sexual assault such as rape changes the “terms and conditions” of one’s
employment and is thus actionable sex discrimination under Title VII. See Little,
301 F.3d at 967. This argument conflates the concept of “tangible employment
action” with the broader Title VII concept of “altered . . . term[s] [or]
condition[s]” of employment. Harsco Corp. v. Renner, 475 F.3d 1179, 1186
(10th Cir. 2007). While all Title VII violations, including sexual assault, alter the
“terms, conditions or privileges” of employment, 42 U.S.C. § 2000e-2(a)(1), the
universe of sexual harassment Title VII claims consists of two realms: one in
which the terms and conditions of employment are altered by a “hostile work
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environment,” see, e.g., Bertsch v. Overstock.com, 684 F.3d 1023, 1028 (10th Cir.
2012), and another in which the terms and conditions are altered by a “tangible
employment action.” Ellerth, 524 U.S. at 753-54. Thus, Ms. Kramer’s argument
that rape changes the terms or conditions of employment proves nothing about
whether the cause of the change was a “hostile work environment” or a “tangible
employment action,” which is the critical question with respect to the
Faragher/Ellerth defense.
In Suders, the Court considered Reed v. MBNA Marketing Systems, Inc.,
333 F.3d 27 (1st Cir. 2003), a case in which a supervisor sexually assaulted his
subordinate after coercing her to come to his house. The First Circuit held in
Reed that the situation presented a hostile workplace, not a tangible employment
action, and the Court in Suders essentially agreed. The Court explained that the
harasser’s sexual assault “did not preclude the employer from asserting the
Ellerth/Faragher affirmative defense, . . . [because] the supervisor’s behavior
involved no official actions.” Suders, 542 U.S. at 150.
Ms. Kramer provides no reason why the same logic would not apply here.
Unlike a tangible employment action, the rape did not involve the “presence . . .
of an official act” of the employer. Id. Without some kind of relationship
between the rape and an official company action, Sergeant Benson’s conduct was
“exceedingly unofficial and involved no direct exercise of company authority,”
and is therefore “exactly the kind of wholly unauthorized conduct for which the
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affirmative defense was designed.” Id. (quoting Reed, 333 F.3d at 33) (internal
quotation marks omitted).
2. The bad performance evaluation
The unflattering performance evaluation that Sergeant Benson prepared was
not a tangible employment action because he revised it to a better evaluation
before submitting it. This kind of behavior may have contributed to the hostile
work environment, and it may be relevant to Ms. Kramer’s reasonableness in not
reporting Sergeant Benson. But where threats are made but unfulfilled, the claim
“should be categorized as a hostile work environment claim” not a tangible
employment action claim. Ellerth, 524 U.S. at 754.
3. The denial of leave time
Ms. Kramer also contends that Sergeant Benson’s denial of her previouslyapproved leave time should be considered a tangible employment action. The
record contains evidence of three occasions on which such conduct took place.
On the second and third occasions, Sergeant Benson himself failed to relieve Ms.
Kramer as he had promised to do. If he had used his formal control over her
schedule to officially deny her the leave, it would more likely have been
“documented in official company records,” or “subject to review by higher level
supervisors.” Ellerth, 524 U.S. at 762. Failing to relieve Ms. Kramer per an
informal, oral agreement is the same kind of injury that a co-worker could have
inflicted. Accordingly, the second two denials of leave cannot rise to the level of
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tangible employment actions. See id.; see also Vance, 133 S. Ct. at 2448. While
the first incident was more formal because Sergeant Benson retracted an
officially-approved leave, there is no evidence to support an inference that the
loss of one day’s leave time constituted a “significant” change in Ms. Kramer’s
benefits, eligibility for promotion, or employment status. See Ellerth, 542 U.S. at
762. On the record here, none of the denials of leave constituted a tangible
employment action.
4. Assigning Ms. Kramer to the magnetometer and denying her road
training
Finally, Ms. Kramer posits that Sergeant Benson’s denying her road
experience and placing her on the magnetometer all day (which precluded road
training) constituted a tangible employment action because, she claims, road
experience was “necessary for promotion.” Aplt. Br. at 27. The County argues
that being placed on the magnetometer cannot be a tangible employment action
because “requiring [plaintiff] to perform an essential function of her job cannot be
a reassignment with significantly different responsibilities.” Aple. Br. at 29. But
Vance explained that requiring an employee to perform full time what may be a
peripheral part of her job description, if it reduced the possibilities for
advancement or otherwise had economic consequences, “might constitute a
tangible employment action.” Vance, 133 S. Ct. at 2447 n.9; see also EEOC,
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by

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Supervisors No. 915.002(IV)(B) (1999) (citing Durham Life Ins. Co. v. Evans,
166 F.3d 139, 152-53 (3d Cir. 1999)). Being placed on the magnetometer full
time could not be a tangible employment action merely because it was unpleasant,
however. See Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.
1994).
We consider together Ms. Kramer’s contentions regarding Sergeant
Benson’s unfair magnetometer assignment and his failure to train her on the road
because each could only be a tangible employment action if it had deleterious
economic consequences or reduced her opportunities for advancement. Ellerth,
524 U.S. at 761-62; Vance, 133 S. Ct. at 2447 n.9. Unfortunately for Ms. Kramer,
there is simply no evidence in the record to support that theory. Her brief asserts
that road training was necessary for promotions. Yet in her deposition, Ms.
Kramer stated that she was offered a “road officer” position before she even
began working as a bailiff, but did not take it because she did not live in Wasatch
County at the time, which was required. She also testified that promotions
occurred on the basis of “the order you were hired.” Aple. App. at 4. No
testimony or evidence supports Ms. Kramer’s claim that road training was
necessary or even helpful for a promotion.
To survive summary judgment, Ms. Kramer cannot rest upon the allegations
in her brief but “must set forth specific facts showing that there is a genuine issue
for trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (internal
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quotation marks omitted). “[S]he easily could have avoided [this problem] simply
by testifying, if she was able to do so,” that road training was in fact somehow
related to promotions. See Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079,
1087-88 (10th Cir. 2007). Without such evidence, there is no genuine issue for
trial. Anderson, 477 U.S. at 248.
For the foregoing reasons, we affirm the district court’s conclusion that no
tangible employment action occurred.
C. The Faragher/Ellerth defense
Even absent a tangible employment action, if Sergeant Benson qualifies as
a “supervisor” the County is vicariously liable for his severe or pervasive sexual
harassment unless it can establish the affirmative defense announced in Faragher,
524 U.S. at 807, and Ellerth, 524 U.S. at 765. This defense has “two necessary
elements: (a) that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Pinkerton v.
Colo. Dep’t of Trans., 563 F.3d 1052, 1061 (10th Cir. 2009) (internal citation
omitted).
The defendant bears the burden to prove both prongs of the defense by a
preponderance of the evidence. Mallinson-Montague v. Pocrnick, 224 F.3d 1224,
1228 (10th Cir. 2000) (citing Faragher, 524 U.S. at 807-08). Thus, the employer
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“must prove both that it acted reasonably in preventing and correcting harassment
and that the victimized employee unreasonably failed to act by not utilizing
complaint opportunities. The employer will lose this defense if it fails either
prong.” Clark v. United Parcel Servs., 400 F.3d 341, 349 (6th Cir. 2005).
To win summary judgment on the Faragher/Ellerth defense, an employer
must “support its motion with credible evidence . . . that would entitle it to a
directed verdict if not controverted at trial.” Anderson v. Dep’t of Health &
Human Servs., 907 F.2d 936, 947 (10th Cir. 1990) (internal quotation marks and
citation omitted). “The defendant must demonstrate that no disputed material fact
exists regarding the affirmative defense asserted” when the evidence is viewed in
the light most favorable to the plaintiff. Helm v. Kansas, 656 F.3d 1277, 1284
(10th Cir. 2011) (internal quotation marks, omission, and alteration omitted). 11
Even on undisputed facts, however, “the judgment call as to reasonableness is
itself a jury issue unless no reasonable jury could decide it in the plaintiff’s
favor.” Reed, 333 F.3d at 34. Wasatch County has not supported its summary
judgment motion with evidence that entitles it to judgment as a matter of law
under either of the affirmative defense’s two prongs.

11

Only after the defendant makes such a showing does the burden shift
back to the plaintiff, who must then “produce evidentiary materials that
demonstrate the existence of a ‘genuine fact’ for trial.” Anderson, 907 F.2d at
947 (internal quotation marks and citation omitted).
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1. Prong One: Wasatch County’s evidence does not establish as a matter
of law that the County took reasonable means to prevent and promptly
correct sexual harassment.
The first prong of the affirmative defense requires the employer to establish
that it took reasonable care to both “prevent and correct promptly” sexual
harassment. Helm, 656 F.3d at 1288. The County had a policy prohibiting sexual
harassment and Ms. Kramer was aware of it. Rather than arguing that the policy
was a substantively deficient form of prevention, Ms. Kramer’s appeal centers on
whether the County took reasonable care to “promptly correct” sexual harassment.
With respect to this prong, the district court concluded:
[T]he Sheriff exercised reasonable care to promptly correct any
sexual harassment of which he became aware. The record shows that
whenever the Sheriff was actually informed about such type of
behavior, he took immediate action.
. . . Ms. Kramer points to the Sheriff’s re-enactment of
harassment during the 2006 staff meeting as an example of
unreasonable action that simply perpetuated the hostile work
environment. Although that meeting was inartfully conducted by
Sheriff Van Wagoner, it nevertheless was an attempt to promptly
remediate the reported sexual harassment. It does not establish that
the County failed to exercise reasonable care to remedy sexual
harassment in the workplace.
Kramer, 857 F. Supp. 2d at 1208-09. In requiring Ms. Kramer to “establish” that
the County failed to exercise reasonable care, the district court applied the wrong
standard.
Requiring the plaintiff to establish the employer’s unreasonableness is the
standard for analyzing Wasatch County’s liability under a negligence theory.

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Adler, 144 F.3d at 677. But the Faragher/Ellerth framework functions by
obviating the need for the plaintiff to plead or prove negligence where the
harasser is a supervisor. Ellerth, 524 U.S. at 747 (question presented, and
answered in the affirmative, is whether an employee “can recover against the
employer without showing the employer is negligent or otherwise at fault for the
supervisor’s actions” (emphasis added)). Because the burden to prove the defense
is the employer’s, summary judgment on the affirmative defense cannot be
entered on the basis of anything the plaintiff failed to do until the defendant has
supported its motion with evidence “that would entitle it to a directed verdict if
not controverted at trial.” Anderson, 907 F.2d at 947 (internal quotation marks
omitted). Wasatch County’s evidence that it took reasonable measures to
promptly correct sexual harassment falls short of this standard.
The County’s evidence that the Sheriff responded to sexual harassment “of
which he became aware,” Kramer, 857 F. Supp. 2d at 1208-09, does not
automatically entitle the County to judgment as a matter of law. Not just any
response to sexual harassment establishes reasonable efforts to comply with Title
VII. Employer responses must also meet minimal standards of quality that reflect
the preventive purpose of Title VII and the Faragher/Ellerth defense. A showing
that an employer made “an attempt to promptly remediate the reported sexual
harassment,” id. at 1208, without any showing that such attempts were
“reasonably calculated to end the harassment” and deter future harassers, does not
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entitle the County to judgment as a matter of law. See Adler, 144 F.3d at 676.
The County did not provide any evidence that the Sheriff Department’s
interventions were reasonably calculated to end the harassment, deter future
harassers, or protect Ms. Kramer. The parties hotly dispute what happened at the
meeting called by the Sheriff in response to Ms. Kramer’s initial complaint about
harassment in the jail, and Ms. Kramer testified that the harassment did not stop
after that meeting. While her perceptions regarding that meeting are relevant to
her own reasonableness under Faragher’s second prong, as we discuss infra, we
need not decide what that meeting does or does not say about the County’s efforts
to comply with Title VII because the undisputed facts about the County’s
response to Ms. Kramer’s subsequent allegations against Sergeant Benson are
enough to preclude judgment as a matter of law for the County on Faragher’s
first prong.
When the Sheriff first learned of the allegations, he initiated an
investigation into what he referred to as “some sex” or “sexual misconduct”
between Ms. Kramer and Sergeant Benson which, he explained, is “a violation of
our policy and procedure, . . . especially if it’s on-duty.” Aple. Supp. App. at
166. It is unclear if he perceived the putative policy violation as sexual
harassment or simply as a prohibited intra-office relationship between a

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supervisor and his subordinate. 12 See id. at 171 (the Sheriff explained that
because Sergeant Benson was Ms. Kramer’s “supervisor . . . POST does not
condone that kind of relationship”). The Sheriff did not consult the County’s
human resources professional about the allegations or ask him for advice as to
what to do. 13 Instead, the Sheriff assigned the investigation to Detective Brian
Gardner, not because Detective Gardner had any specific qualifications for this
task but because he “was the unfortunate guy that was on-duty on that particular
day.” Id. at 167.
Moreover, Detective Gardner had been friends with Sergeant Benson for
over ten years and considered him a mentor. In addition, the fact that Detective
Gardner was never trained to investigate a complaint of sexual harassment is
relevant to whether the County’s efforts were deficient. See Baty v. Willamette
Indus., Inc., 172 F.3d 1232, 1239 (10th Cir. 1999), overruled on other grounds by
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Nor did the Sheriff give Detective Gardner any “policy or procedures on
how to conduct the investigation.” Aple. Supp. App. at 171. The Sheriff
12

The Sheriff’s testimony suggests his view was that sex with “no consent”
by a supervisor might only violate Department policy if it occurred while the
employees were on the clock, and that sex while on the clock was his real
concern. The Sheriff explained: “consent” or “no consent,” “the fact that . . .
some of these happened on lunch hours that I am paying for on my time. That’s a
direct violation . . . .” Aple. Supp. App. at 173.
13

The Sheriff explained that he did not use a human resources employee to
investigate because the human resources department “consists of one person. We
have never used him for any of our investigations.” Aple. Supp. App. at 168.
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explained that he gave Detective Gardner no such instructions because “[w]e
don’t have any real hard-set investigative standards policy . . . other than what the
state has and the federal government has put out, as far as sexual harassment.”
Id. at 172. That statement is contrary to the evidence the County argues proves
its reasonable efforts to prevent harassment: the Wasatch County Personnel
Policy, which does in fact contain an “Investigation Procedure” for sexual
harassment. Id. at 250. The investigative procedure provides that the investigator
should “obtain[] a written statement from complainant . . . [,] discuss[] the matter
with the alleged offender . . . [,] [and] obtain[] statements from possible
witness(es) from both sides of the issue. Upon completion, an investigation
report shall be submitted to the personnel officer or Board of County
Commissioners as appropriate.” Id. Perhaps unsurprisingly, given the Sheriff’s
ignorance of the County’s policy, Detective Gardner’s “investigation” did not
follow these steps. He did not obtain a written statement from Ms. Kramer, nor
did he submit a report to the personnel officer or to anyone other than the Sheriff.
The record does not contain any evidence that he “obtained statements from
possible witnesses from both sides of the issue.”
Instead of seeking to discover whether Title VII had been violated – in
other words, whether Ms. Kramer had been sexually harassed in a way that
affected her ability to do her job – which he admits he did not do, Detective
Gardner focused on finding out who was the father of Ms. Kramer’s baby and
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then on uncovering the extent of Ms. Kramer’s consensual affair with that man.
Ms. Kramer testified that Detective Gardner repeatedly told her no one would
believe her allegations about Sergeant Benson unless she confessed to having a
consensual affair with her baby’s father. Upon learning that Ms. Kramer’s
paramour was a County firefighter, Detective Gardner reported this information to
the Sheriff. Detective Gardner then returned to Ms. Kramer’s house for a second
interview, during which he repeatedly suggested that, due to her relationship with
a firefighter, she should resign. 14
The Sheriff told POST about Ms. Kramer’s affair with the firefighter, and
POST suspended Ms. Kramer’s certification. The Sheriff admitted he told
Detective Gardner that he wanted Ms. Kramer to resign in order to protect the
reputation of the fireman and of the Sheriff’s Department. Ms. Kramer never
returned to work for the County. In her view, the County’s response just

14

Transcript of interview: Gardner: “. . . a resignation is going to look
better for you as far as getting another job, as far as looking good on a resume.
Um, and as far as keeping your POST certification. No, I’m not going to tell you
which way to go. I know um, just from me to you, a resignation would look a lot
better. . . . Well, do you want to give me a resignation, today? . . . I’m not trying
to persuade you either way, . . . but I know your hands hurt and you can’t write[,]
but I would write a resignation right up for you today if you would like me to.
Do you want to do that?” Aple. Supp. App. at 361-62. We note also that Ms.
Kramer was on narcotic pain relievers and tranquilizers at the time of this
interaction, having just been in a car crash. Gardner: “What kind of medications
are you on today?” Kramer: “Um, Valium and Lortab and I think one else, but I
don’t remember.” Id. at 366.
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confirmed her suspicion that complaining was a bad idea. 15 Responses to
complaints that encourage the plaintiff to drop the complaint or otherwise
penalize the plaintiff certainly do not prove an employer’s reasonableness as a
matter of law. See Cadena v. Pacesetter Corp., 224 F.3d 1203, 1209 (10th Cir.
2000); EEOC Compl. Man. (CCH) § 615.4(a)(9)(iii), 3103, 3213 (1988)
(“appropriate corrective action . . . fully remedie[s] the conduct without adversely
affecting the terms or conditions of the charging party’s employment in some
manner . . . .”).
More specifically, investigations targeting the victim for unrelated
misconduct are especially contraindicative of reasonably calculated efforts to
promptly correct sexual harassment. 16 See McInnis v. Fairfield Communities,
Inc., 458 F.3d 1129, 1135 (10th Cir. 2006) (finding employer unreasonable when
in response to plaintiff’s complaints, employer focused on plaintiff’s past
misconduct); see also Williams, 497 F.3d at 1090 n.7 (“[T]he ‘prospect’ of an
investigation [into the plaintiff] . . . could dissuade a reasonable employee from
15

After Detective Gardner’s investigation began, Ms. Kramer said: “that’s
when I determined that I was in trouble and that nobody had an interest in the
rape and I wasn’t believed and I needed to get myself an attorney.” Aplt. App. at
132.
16

Ms. Kramer’s consensual sex life with another person, County employee
or not, was unrelated to her allegations regarding Sergeant Benson. “A person’s
private and consensual sexual activities do not constitute a waiver of his or her
legal protections against unwelcome and unsolicited sexual harassment.” Windsor
v. Hinckley Dodge, Inc., 79 F.3d 996, 1001 (10th Cir. 1996) (internal quotation
marks, alteration, and citation omitted).
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making or supporting a charge of discrimination.” (internal citation omitted)).
Using a sexual harassment complaint as an opportunity to investigate the
complainant herself for unrelated misconduct does not communicate to other
employees that complaining about sexual harassment can be done “without undue
risk or expense.” Faragher, 524 U.S. at 806.
Not only did the investigation here fail to demonstrate that the County
employed reasonable means to discharge its Title VII obligations, the Sheriff’s
response to Ms. Kramer’s allegations suggests that he did not understand he had a
Title VII compliance matter on his hands. Under Title VII, “[e]mployers have a
duty to express strong disapproval of sexual harassment, and to develop
appropriate sanctions.” Adler, 144 F.3d at 684 (Briscoe, J., concurring in part and
dissenting in part) (citing 29 C.F.R. § 1604.11(f)). In response to learning that
Sergeant Benson was not the father of Ms. Kramer’s baby and that “it was
possibly a rape,” the Sheriff decided instead that the Department need not
continue to investigate. He reported Ms. Kramer to POST for having relations
with the County firefighter and he asked Todd Hull, the person investigating Ms.
Kramer for the missing money, to “please handle” the rape investigation. Aple.
Supp. App. 166-67. The Sheriff said: “basically my end of [the investigation]
was completed within a couple of days.” Id. at 167.
The evidence shows that Todd Hull handled the investigation as a purely
criminal matter. There is no evidence the Department sought to improve its
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sexual harassment prevention program or otherwise reduce the “risk of future
harassment.” Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1529 (9th Cir. 1995).
“An employer’s failure to fully investigate a complaint supports a finding that its
response was inadequate . . . . Moreover, an employer’s decision to do nothing on
the basis of an inadequate investigation likewise supports a finding that the
employer did not take prompt and effective remedial action.” Wilson v. Tulsa
Junior Coll., 164 F.3d 534, 543 n.7 (10th Cir. 1998). Sergeant Benson did
ultimately resign, but that alone is not sufficient to avoid vicarious liability.
Harrison, 248 F.3d at 1026 (the fact that the harassment ends is not “sufficient by
itself to avoid vicarious liability under Title VII for sexual harassment committed
by a supervisory employee”).
On this record, there remains a genuine issue of fact as to whether the
County’s response to Ms. Kramer’s sexual harassment complaint fell short of
demonstrating that the County took reasonable efforts to discharge its duty under
Title VII, as required to establish the affirmative defense. Faragher, 524 U.S. at
806.
2. Prong Two: Wasatch County’s evidence does not compel the
conclusion that Ms. Kramer was unreasonable.
The second prong of the affirmative defense requires the employer to
“prove that the plaintiff unreasonably failed to avoid or reduce harm.” Suders,
542 U.S. at 146. The County contended it was entitled to summary judgment on

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this prong because Ms. Kramer did not “take advantage of preventive or
corrective opportunities provided by [Defendants]” in a timely manner. Aple. Br.
at 8. It argued that Ms. Kramer’s excuse for failing to timely complain to the
Sheriff – that she was scared Sergeant Benson would retaliate – was “not
sufficient to explain a delay in reporting,” id. at 34, and that Ms. Kramer
voluntarily put herself in situations in which she should have known she would be
sexually harassed by Sergeant Benson. The district court agreed. Once again, our
review of the record convinces us that fact questions remain on this issue.
a. Ms. Kramer’s failure to lodge a formal complaint does not
itself demonstrate unreasonableness as a matter of law.
The County emphasizes that “Sheriff Van Wagoner never received a
complaint from the plaintiff with regard to Benson’s actions.” Aple. Br. at 32
n.10. The district court agreed that this was inexcusable because Ms. Kramer
“had followed” the procedures for reporting harassment “in the past.” Kramer,
857 F. Supp. 2d at 1209. But the fact that Ms. Kramer had used County grievance
procedures in the past to report other things done by co-workers does not by itself
establish she was unreasonable as a matter of law in failing to use them to report
severe sexual abuse at the hands of her supervisor. Her failure to complain
formally to the Sheriff is simply not dispositive of the affirmative defense’s
second prong. Faragher, 524 U.S. at 782 (plaintiff never complained, but
employer not relieved of liability); Ellerth, 524 U.S. at 748 (same); see also

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Meritor, 477 U.S. at 73 (same); Reed, 333 F.3d at 36 (“the Supreme Court’s
premise” is that “sometimes inaction is reasonable”). In Faragher itself, the
Court held that the defendant’s efforts to prevent sexual harassment were so
deficient that it could not assert the affirmative defense at all, even though the
plaintiff had never complained to any management personnel. 524 U.S. at 808.
The only duty placed upon plaintiffs is to act reasonably. And what is
“reasonable” must be analyzed given the totality of the circumstances. Gorzynski
v. JetBlue Airways Corp., 596 F.3d 93, 105 (2d Cir. 2010). It is not enough for
the County to simply show that Ms. Kramer did not complain; it must also show
that her failure to do so was unreasonable under the circumstances. Suders, 542
U.S. at 152.
b. Ms. Kramer’s fears of retaliation
A failure to use internal grievance procedures can be unreasonable where
the record reveals no reason for it other than a “generalized” fear of retaliation.
Pinkerton, 563 F.3d at 1063. But where the fear of complaining is not “general”
or “nebulous” but is based on “concrete reason[s] to apprehend that complaint
would be useless or result in affirmative harm to the complainant,” whether the
plaintiff was reasonable and whether her fears are credible are questions of fact.
Reed, 333 F.3d at 35-36.
As previously detailed, Ms. Kramer testified that on numerous occasions
Sergeant Benson sexually assaulted her and subsequently told her to “be quiet”
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and “not say anything” or it would be “a career ender.” See, e.g., Aplt. App. at
105; id. at 121 (“[I]f I go down, you go down. I’m not going down alone. . . . You
better keep your mouth shut . . . not one word to anyone.”). Sergeant Benson also
threatened Ms. Kramer with a poor evaluation unless she would “keep [her]
mouth shut and not say anything.” Id. at 112. These are not unlike the facts in
Wilson, where the harasser “instructed [the plaintiff] not to file a complaint with
either [the college] or the police and to keep her mouth shut, threatening [her]
with, among other things, a poor recommendation to prevent her from getting a
job in the future.” 164 F.3d at 539 (emphasis added).
Sergeant Benson’s threats were arguably made more intimidating by his
actions. In addition to the constant harassment at work, he called and texted Ms.
Kramer six times after her lie detector test and followed her home from work
regularly. During the same time period, he allegedly threatened to break the
taillights of court clerk Collette Ryan’s car and court clerk Mindy Probst
suspected him of having vandalized her car.
The district court characterized Ms. Kramer’s fears as unreasonably based
upon “speculation and a patchwork of unrelated and exaggerated events.”
Kramer, 857 F. Supp. 2d at 1209. Crediting Ms. Kramer’s version of events, as
we must, the events are neither a “patchwork” nor “unrelated.” They instead
demonstrate a persistent theme: Sergeant Benson was an intimidating person with
job-related power over Ms. Kramer who would sexually harass her and then
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threaten that she would lose her job if she complained.
Ms. Kramer’s fear that Sergeant Benson would make good on his threats
was not per se unreasonable given that he did in fact take adverse job actions
against her at work – denying her leave time, threatening her with a bad
performance evaluation, and giving her long shifts on the magnetometer. Even if
these actions did not rise to the level of a tangible employment action, “a
reasonable employee could well find . . . a combination of threats and actions
taken with the design of imposing both economic and psychological harm
sufficient to dissuade him or her from making or supporting a charge of
discrimination.” Williams, 497 F.3d at 1090. This evidence raises a genuine
issue of fact as to whether Ms. Kramer’s fears of Sergeant Benson were credible
and reasonable because they were grounded in “concrete reason[s] to apprehend
that complaint would . . . result in affirmative harm to the complainant.” Reed,
333 F.3d at 35-36.
c. Ms. Kramer’s failure to complain for lack of confidence in the
County’s remediation efforts
Ms. Kramer also contends she reasonably believed that the County would
not adequately respond to complaints of sexual harassment. Fear that an
employer’s sexual harassment remediation program is inadequate, if credible, can
rebut an employer’s argument that the plaintiff was unreasonable. Id. at 36; Mota
v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 525-26 (5th Cir. 2001)

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(plaintiff’s delay in reporting harassment not unreasonable when he had grounds
for believing remediation process would be ineffectual due in part to harasser’s
influence).
Ms. Kramer argues that her failure to complain was reasonable because the
workplace culture was one in which women who spoke out about inappropriate
conduct were “ostracized” and given undesirable assignments, while men who had
engaged in misconduct were promoted or unaffected. See Aplt. App. at 70, 101.
She testified that women in the Sheriff’s department were expected to tolerate
sexual conduct and language and were penalized for complaining about it.
Ms. Kramer offered specific evidence that lends credence to her
perceptions. She testified that male jail employees used workplace computers to
display sexually explicit “Girl of the Day” screensavers and to watch
pornography, a fact corroborated by the Sheriff. See Aple. Supp. App. at 161.
Ms. Kramer testified in her deposition that when a jail co-worker named Shylah
Richins decided to complain about the offensive screensaver images, another
female coworker, Tammy Thacker, told Ms. Kramer “[w]e’re all going to suffer
because she can’t just handle it.” Aplt. App. 70. The County is incorrect that Ms.
Thacker’s statement to Ms. Kramer is inadmissible hearsay. It is not offered for
the truth of what was said – that Ms. Kramer and Ms. Thacker were “going to
suffer” – but for the fact that it was said, that Ms. Kramer heard it, and that it
contributed to her perception of the workplace culture. Because Ms. Thacker’s
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statement was not offered for its truth, it is nonhearsay. See F ED . R. E VID .
801(c)(2). Ms. Kramer testified that after Shylah Richins complained, the man
responsible for the screensaver was promoted to a road officer position while Ms.
Richins was (in Ms. Kramer’s opinion) given undesirable assignments and
ultimately quit. The Sheriff’s testimony corroborates Ms. Kramer’s chronology
of events: he confirmed that the “female employee” who had complained about
the offensive screensaver “quit and went to work for Summit County.” Aple.
Supp. App. at 161. 17
Ms. Kramer also testified that after she complained about harassment in the
jail, the Sheriff held an inadequate and humiliating staff meeting which did not
cause the harassment to stop. When she complained that the harassment had not
stopped, Sergeant Benson told her “under the direction of the sheriff . . . just to
stay out of the jail.” Id. at 7. 18
As further evidence of the County’s lax approach to discipline, Ms. Kramer
describes a judge’s banishment of Sergeant Benson from his courtroom. It is
undisputed that the judge did so because Sergeant Benson had been glaring
intimidatingly at the female court clerks there. The judge characterized the

17

Ms. Kramer offered this sequence of events to support her perception of
the Department as inhospitable to complainants, not to prove that the Department
was actually inhospitable to complainants.
18

This sequence of events was corroborated by the Sheriff: “Q: Did you
ever tell Camille not to go back to the jail area because of the problems amongst
the jail staff? A: I probably did.” Aple. Supp. App. at 170.
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matter as quite serious, stating in a memo to the Sheriff: “[t]his court considers
this a very serious matter and will take what ever actions are deemed necessary to
insure that our court clerks are not intimidated or harassed in any way in the
future by this officer.” Aplt. App. at 158. Sergeant Benson disregarded the
judge’s order by entering the courtroom in question. The Sheriff’s response to
Sergeant Benson’s behavior was to call him into his office and simply tell him to
follow the judge’s order, not to impose any additional discipline. Ms. Kramer
observed this series of events and interpreted it as more evidence that the Sheriff
would not discipline Sergeant Benson for his misconduct if she were to complain
about it. See Tademy v. Union Pac. Corp., 614 F.3d 1132, 1148-49 (10th Cir.
2008) (finding employer’s failure to “discipline” an employee who engaged in
misconduct could communicate to other employees that the employer condoned or
tolerated the misconduct).
Taken together, this evidence is sufficient to raise a genuine issue of fact as
to whether Ms. Kramer was reasonable in believing it would be futile and
potentially detrimental to herself to complain.
d. Ms. Kramer’s “voluntary” acts in going to Sergeant Benson’s
house do not make her unreasonable as a matter of law.
The district court found Ms. Kramer unreasonable because she “voluntarily
went to Sergeant Benson’s house more than once, even after the harassment began
(including the time after the rape when she went to his house to deliver a Coke to

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him when he asked). There is no evidence that she was compelled to do so. She
could have avoided some of the encounters.” Kramer, 857 F. Supp. 2d at 1209.
It is well settled that “the fact that sex-related conduct was ‘voluntary,’ in
the sense that the complainant was not forced to participate against her will, is not
a defense to a sexual harassment suit brought under Title VII. The gravamen of
any sexual harassment claim is that the alleged sexual advances were
‘unwelcome.’” Meritor, 477 U.S. at 68 (emphasis added). Moreover, sexual
assaults that take place off-site and outside of work hours can still qualify as
actionable sex discrimination. See Deters v. Equifax Credit Info Servs., 202 F.3d
1262, 1267 (10th Cir. 2000). By assuming that Ms. Kramer reasonably could
have avoided going to Sergeant Benson’s house without repercussions, the district
court impermissibly weighed evidence in favor of defendant and drew inferences
against Ms. Kramer. See Tademy, 614 F.3d at 1141.
While it is debatable whether sex-related conduct with one’s supervisor is
truly “voluntary” or is a symptom of implicit pressure, see Meritor, 477 U.S. at
68, here there is evidence that Sergeant Benson explicitly pressured or coerced
Ms. Kramer into going to his house on each occasion. First, as to the “foot rub”
incident, Ms. Kramer agreed to go to Sergeant Benson’s house only after
constantly telling him “no” had zero effect, after she had complained to the
Sheriff’s secretary (who apparently did not tell the Sheriff), and after Sergeant
Benson’s harassment took a turn toward the “intimidating and kind of scary.”
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Aplt. App. at 88-90. She capitulated when he promised that he would stop
harassing her if she gave in. She went with Sergeant Benson in his car because
she was eager for road training and he was the only person authorized by the
County to provide it to her. He used that time to take her to his house, where he
sexually assaulted her. He thereafter stopped his car in a tunnel and assaulted her
again. On the third occasion, the house-cleaning incident, Ms. Kramer had
rejected Sergeant Benson’s request to clean several times, specifically to avoid
going to his house. After he started another barrage of harassment at work,
enlisting others to similarly pressure her, she finally gave in when he offered to
pay for her gas, to give his daughter’s used clothes to her daughter, and to permit
her children to come along. He then trapped her in his room and raped her.
Afterward, he continued with a campaign of more intimidation and manipulation.
Finally, with regard to the Coke incident, Sergeant Benson called Ms. Kramer at
work and ordered her to transport inmates and to “[b]ring me a Coke.” Id. at 124.
He then talked her into coming near him by saying “Kramer, can we just talk
about work,” id. at 125, and assaulted her again.
Accepting Ms. Kramer’s version of the facts, a picture emerges in which
Sergeant Benson used his job-related power over Ms. Kramer to compel, pressure,
or coerce her to do his bidding. While Ms. Kramer technically “could have
avoided” some of the encounters, the record does not establish that she could have
done so without incurring some form of adverse employment action.
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Where harassment becomes severe – as it did when Sergeant Benson first
assaulted Ms. Kramer – it would obviously be preferable for an employee to
complain to upper management immediately. It would also seem logical from an
employee’s point of view (blessed by 20/20 hindsight) to refuse to go to the
harasser’s house again after the first instance. But there is a long continuum
separating behavior that is less-than-perfect from behavior that is unreasonable as
a matter of law, see, e.g., Reed, 333 F.3d at 35; Gorzynski, 596 F.3d at 104-05.
Title VII does not require employees who are already “run[ning] a gauntlet of
sexual abuse” at work, Meritor, 477 U.S. at 68 (internal quotation marks and
citation omitted), to figure out how to effectively stop their harasser or forfeit any
legal remedy. See Gorzynski, 596 F.3d at 104-05.
Ultimately, whether the sexual conduct was “unwelcome” and whether Ms.
Kramer was unreasonable in participating in it “present[] difficult problems of
proof and turn[] largely on credibility determinations committed to the trier of
fact.” Meritor, 477 U.S. at 68; see also Reed, 333 F.3d at 35-36 (plaintiff who
was coerced by her supervisor to babysit at his house where he sexually assaulted
her was not unreasonable as a matter of law). The evidence here gives rise to
inferences that Ms. Kramer’s fears were credible and that her behavior may have
been reasonable given all the circumstances. The evidence of Sergeant Benson’s
specific threats and actions, the power asymmetry between him and Ms. Kramer,
the fact that Ms. Kramer was dealing with the trauma of having been sexually
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assaulted by her supervisor, and the County’s Title VII compliance efforts (or
lack thereof) are relevant to whether Ms. Kramer’s behavior was “objectively
unreasonable for one in her position.” Reed, 333 F.3d at 37. Accordingly, we
reverse summary judgment for Wasatch County on both prongs of the
Faragher/Ellerth defense.
D. The district court correctly held that County liability could not be
premised on negligence.
If Sergeant Benson does not qualify as a supervisor but is only a co-worker,
Ms. Kramer faces a greater burden: in order to establish a Title VII violation, she
must show that the County had actual or constructive notice of the harassment and
negligently failed to remedy or prevent it. Turnbull, 255 F.3d at 1244. The
record evidence viewed in the light most favorable to Ms. Kramer fails to support
an inference that the County had actual or constructive knowledge of Sergeant
Benson’s sexual harassment before Ms. Kramer’s car accident. Accordingly, the
County cannot be held liable for Sergeant Benson’s harassment on the basis of
negligence.
In assessing whether an employer was negligent in dealing with known
harassment, “[a]ctual knowledge will be demonstrable in most cases where the
plaintiff has reported harassment to management-level employees.” Adler, 144 at
673. Although the Sheriff had actual knowledge of Ms. Kramer’s jail harassment
by co-workers and the money-related harassment by Sergeant Benson, he did not
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have actual knowledge of the sexual harassment and sexual assaults by Sergeant
Benson that form the core of Ms. Kramer’s hostile work environment claim. 19
Ms. Kramer must therefore point to evidence that the County had constructive
notice of the risk to which she was exposed.
Ms. Kramer apparently seeks to premise constructive notice on the notion
that Sergeant Benson was a “dangerous employee” whose tendencies the County
should have known about, an approach to constructive notice we ratified in
Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 783-84 (10th Cir.
1995). To support her dangerous employee theory, Ms. Kramer contends the
County knew of Sergeant Benson’s “history of rule-breaking” before he became
her supervisor based on allegations that he had engaged in sexual misconduct with
female confidential informants (CIs) when he worked in the narcotics unit, 20 that
19

A “management-level employee,” for the purposes of imputing
knowledge of co-worker harassment to the employer, need only be someone who
has at least some authority over the plaintiff or at least some control over the
working environment. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1074 (10th
Cir. 1998). The parties do not dispute that the Sheriff would fit this definition.
Ms. Kramer does not argue that anyone other than the Sheriff had knowledge and
would qualify as a management-level employee for the purposes of imputing
notice to the County.
20

The evidence regarding Sergeant Benson’s alleged sexual conduct with
confidential informants comes from a police report written by one of the officers
investigating Ms. Kramer’s rape allegations. The report states: “On Thursday,
July 26, 2007, I met with Lt. Winterton, Brian Gardner . . . the sheriff, the chief
deputy . . . they said there was an allegation that Rick may have been sexually
active with two CIs when he worked narcotics.” Aplt. App. at 166-67. The
district court held that this report was inadmissible hearsay. The report would be
hearsay if offered to show that Benson had a history of sexual harassment, but it
(continued...)
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he had fixed a ticket for a friend, and that he had taken a County vehicle out of
the county. In addition to those incidents, which predate the events in this case,
Ms. Kramer points to specific complaints made during the relevant time period:
her complaint to the Sheriff that Sergeant Benson was harassing her about the
missing money, Judge McCotter’s telling the Sheriff that Sergeant Benson was
glaring intimidatingly at the female clerks, and the Sheriff’s awareness that a
female clerk suspected Sergeant Benson of having vandalized her car.
An employer’s knowledge that the harasser had harassed people other than
the plaintiff could be relevant to whether the employer had constructive notice of
the dangerousness of the employee, but the “extent and seriousness of the earlier
harassment and the similarity and nearness in time to the later harassment should
be factors in deciding whether to allow the evidence of harassment of others to
prove notice.” Hirase-Doi, 61 F.3d at 783-84. Applying these factors here, the
instances of Sergeant Benson’s misconduct of which the County had actual
knowledge did not impute constructive notice to the County of his sexually
assaulting Ms. Kramer.
Sexual assault is not the kind of harm that would fall “within the risk”
20

(...continued)
is nonhearsay if offered only to show that the Sheriff, or other high-level County
personnel, had knowledge that there had been allegations of sexual misconduct
against Sergeant Benson in the past. See Crowley v. L.L. Bean, Inc., 303 F.3d 387,
408 (1st Cir. 2002) (out-of-court statement not hearsay because not offered to
prove actual past harassment, but employer’s knowledge of alleged past
harassment).
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created by an employee known to fix tickets or misuse work vehicles. See id. at
784 (quoting R ESTATEMENT (S ECOND ) OF A GENCY § 213, cmt. d (1958)). Sexual
misconduct with CIs comes closer to creating a relevant risk, but there is no
evidence to suggest that this sexual conduct was nonconsensual. Nor does the
record even suggest a time frame regarding when this alleged misconduct
occurred. Temporal proximity is crucial when considering whether knowledge of
past bad acts creates constructive notice of later acts. Compare id. at 780, 784
(knowledge that harasser was harassing other women during the same time period
as he was harassing plaintiff created constructive notice), with Ford v. West, 222
F.3d 767, 776-77 (10th Cir. 2000) (notice of similar events from more than ten
years prior did not create constructive notice). Because there is no evidence that
the CI misconduct was either similar in nature or close in time to Ms. Kramer’s
hostile work environment, it cannot support an inference that the CI affair gave
the County constructive notice of the risk that Sergeant Benson was likely to
sexually harass his subordinates.
Nor would the complaints that were made during the relevant time period
have given the County constructive notice of the risk posed by Sergeant Benson.
Although Sergeant Benson’s harassment of Ms. Kramer about stealing money put
the County on notice that he had a proclivity to harass subordinates about stealing
(as the type of harm “within the risk”), it did not give the Sheriff constructive
notice that Sergeant Benson also had a proclivity to sexually harass
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subordinates. 21 The same is true with respect to the Sheriff’s knowledge that
Sergeant Benson was glaring intimidatingly at female clerks in Judge McCotter’s
courtroom and that one of the court clerks suspected Sergeant Benson of
vandalizing her car. None of that information concerned the type of sexual
misconduct that Ms. Kramer argues created the illegal hostile work environment
here. While these latter examples pass the close-in-time test, they are too
substantively dissimilar to have put the employer on notice of the risk to which
Ms. Kramer was unfortunately exposed. Cf. Tademy, 614 F.3d at 1147
(employer’s knowledge of similar racist conduct against another employee
supports constructive notice regarding racial harassment of plaintiff).
Ms. Kramer alternatively seeks to impute constructive knowledge to the
County on the theory that sexual harassment in the workplace was so pervasive
21

Ms. Kramer contends her complaint to the Sheriff about Sergeant Benson
was general and cites Lockard, 162 F.3d at 1074, for the proposition that general
complaints can put an employer on notice of the risk of sexual assault. We
disagree. In Lockard, the plaintiff told her manager repeatedly that she felt
“uncomfortable” waiting on certain customers and asked him not to assign her to
those customers. The manager was aware that the customers in question had just
assaulted Ms. Lockard by pulling her hair. We held that the manager had
constructive notice of the risk that the customers would sexually assault the
plaintiff. Id. at 1075. Here, by contrast, Ms. Kramer’s complaint to the Sheriff
was not a general complaint that Sergeant Benson made her feel uncomfortable,
but was a specific complaint about a specific behavior – Sergeant Benson’s
accusing her of taking the money. Like notice about car misuse and ticket fixing,
notice of this kind of misbehavior is too substantively dissimilar to put an
employer on notice of the risk of sexual harassment. Moreover, we fail to see
how this kind of complaint, unlike the one in Lockard, would have placed upon
the Sheriff a duty to inquire about “why [Ms. Kramer] felt uncomfortable,” id. at
1074, when Ms. Kramer gave the Sheriff a specific reason for feeling
uncomfortable – the fact that Sergeant Benson was accusing her of being a thief.
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the County should have discovered it. See Turnbull, 255 F.3d at 1244. Pervasive
sexual harassment can suffice to create constructive notice, but it is only when the
incidents are “so egregious, numerous, and concentrated as to add up to a
campaign of harassment that the employer will be culpable for failure to discover
what is going on.” Baker v. Weyerhaeuser Co., 903 F.2d 1342, 1346 (10th Cir.
1990) (quoting Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1422 (7th Cir.
1986)). To impute constructive notice to the employer, the level of pervasiveness
must exceed that required to make out a prima facie hostile workplace case and
the plaintiff must point to specific facts to support such a finding of
pervasiveness-plus. Adler, 144 F.3d at 675. Ms. Kramer argues that the sexual
discussions in the jail, the sexual materials on jail computers, and the jail
harassment that she experienced – combined with Sergeant Benson’s “doctor’s
note” posted on the wall – put the County on notice under a pervasiveness-plus
theory. We cannot agree.
The facts of known harassment here are far less “egregious, numerous and
concentrated,” Baker, 903 F.2d at 1346, than the facts in cases where we have
identified a jury question on pervasiveness-plus. For instance, the plaintiff in
Turnbull was sexually assaulted by a mental patient at the hospital where she
worked. 255 F.3d at 1242. We held that constructive notice to the hospital could
be premised on pervasiveness-plus where hospital staff were aware that “sexual
acting out” by patients was an “issue that arose regularly,” a risk whose dangers
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were “highlighted when a female employee was murdered by a patient” a year
before the plaintiff joined the staff, and where the hospital made the plaintiff sign
a form acknowledging that her job description included “the risk of assault by
patients.” Id. at 1241-42, 1244. Similarly, we found a jury question on
pervasiveness-plus in Hirase-Doi, where the harasser was known to have harassed
“at least eight to ten different women during his three month tenure” with the
employer. 61 F.3d at 784.
In contrast to those cases, the facts proffered by Ms. Kramer for
pervasiveness-plus do not include allegations that Sergeant Benson was
previously accused of sexually harassing anyone, as were the facts in Hirase-Doi,
or that the risk of being sexually assaulted was obvious and known to the
employer, as were the facts in Turnbull. Nor is the conduct Ms. Kramer points to
as the basis for notice – offensive materials on computers, offensive discussions,
and the foot-rub note – substantively similar to the type of sexual harassment she
experienced. No reasonable jury could conclude that these incidents add up to
sexual harassment required to establish constructive notice. Baker, 903 F.2d at
1346. The record simply does not contain sufficient evidence from which a jury
could find that the County had constructive notice on a pervasiveness-plus theory.
Because there is insufficient evidence to create a fact question on
knowledge, we need not address the second element of the negligence inquiry,
which is whether the employer responded adequately to known or constructively
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known harassment. We affirm the district court’s conclusion that County liability
under Title VII cannot be premised on negligence.

III
Ms. Kramer also contends the County and Sheriff Van Wagoner violated
her constitutional equal protection rights. Sexual harassment under color of state
law violates the Fourteenth Amendment and is therefore actionable under 42
U.S.C. § 1983. Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir.1989). But we
agree with the district court that the Sheriff is entitled to qualified immunity on
this claim, and that the County is not liable under § 1983 for his conduct.
A. The district court properly granted qualified immunity to Sheriff
Van Wagoner.
The qualified immunity doctrine shields government officials from
individual liability “for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations
omitted). The right to be free from sexual harassment is clearly established under
the Equal Protection Clause of the Fourteenth Amendment. Starrett, 876 F.2d at
814.
In addition to showing the existence of a clearly established right, however,
Ms. Kramer must also provide “evidence of specific acts of sexual harassment . . .

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that the [Sheriff] knew about and tolerated” to defeat his motion for qualified
immunity. Woodward v. City of Worland, 977 F.2d 1392, 1398 (10th Cir. 1992).
Because there are no facts in this record giving rise to an inference that the
Sheriff knew about Sergeant Benson’s sexual harassment of Ms. Kramer, the
district court correctly granted the Sheriff’s motion for summary judgment based
on qualified immunity.
B. The County is not liable for sex discrimination under § 1983.
As to institutional liability under § 1983, the County can only be liable for
the actions of Sergeant Benson if it had a custom, practice, or policy that
encouraged or condoned the unconstitutional behavior – here, workplace sexual
harassment. See Monnell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658,
691-94 (1978). The County had a policy facially forbidding sexual harassment,
but Ms. Kramer contends that it nonetheless maintained “a custom or practice of
sexual harassment and that Sheriff Van Wagoner acquiesced in its continuance.”
Aplt. Br. at 56. Unwritten customs not “formally approved by an appropriate
decisionmaker” can suffice to create municipal liability if the “practice is so
widespread as to have the force of law.” Bd. of Cnty. Comm’rs v. Brown, 520
U.S. 397, 404 (1997).
Where the plaintiff does not contend that the municipality, directly inflicted
the injury through its legislature or a “final municipal decisionmaker,” but instead
that a custom or policy caused one of its subordinate employees to do so, the
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municipality is not automatically liable for that subordinate’s actions. Id. at 403,
406. Unlike the standard applied to a Title VII claim, which permits recovery
against the employer under vicarious liability principles if the harasser is a
supervisor, the County cannot be held liable under § 1983 “solely because it
employs a tortfeasor.” Brown, 520 U.S. at 403. Instead, we must apply “rigorous
standards of culpability and causation” to ensure that the municipality is held
liable only for its own illegal acts and not those of subordinate employees. Id. at
405.
In addition to proving the existence of an impermissible custom or policy,
the plaintiff must establish two additional elements: causation and state of mind.
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir.
2013). She must demonstrate “a direct causal link between the municipal action
and the deprivation of federal rights,” and she must show that the municipal
action was taken with “deliberate indifference” to its known or obvious
consequences. Id. at 769 (quoting Brown, 520 U.S. at 404).
As to causation, the municipality can only be found liable “where the
municipality itself causes the constitutional violation at issue.” City of Canton v.
Harris, 489 U.S. 378, 385 (1989). Ms. Kramer does not argue that any County
policymaker “expressly approved” Sergeant Benson’s behavior. See City of St.
Louis v. Praprotnik, 485 U.S. 112, 130 (1988). She appears to premise § 1983
causality on the same argument and the same facts underlying her negligence
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claim – that the Sheriff knew or should have known about Sergeant Benson’s
sexual harassment but did not adequately act to stop it. We accordingly interpret
Ms. Kramer’s § 1983 causality theory as one of liability by inaction.
Where a plaintiff seeks to create § 1983 municipal liability for failing to
prevent the bad acts of a subordinate, the plaintiff must show that the
municipality evidenced “deliberate indifference” to the impermissible conduct.
City of Canton, 489 U.S. at 389. It does not suffice that a prevention program has
merely been “negligently administered.” Id. at 391. Ms. Kramer must establish
that the County failed to prevent sexual harassment with “deliberate
indifference,” that the need for more or different action was “so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately
indifferent to the need.” Id. at 389-90.
On the record in this case, no reasonable jury could find that the risk of
sergeants sexually assaulting their subordinates was “so obvious” the County’s
policymakers should have known about it. Nor would the particular risks posed
by Sergeant Benson meet the obviousness threshold for the reasons we discussed
when we examined Ms. Kramer’s negligence claim. Because the record does not
support a determination that the County was negligent, it certainly does not
support a finding that the County was deliberately indifferent.
We therefore affirm summary judgment for the County on Ms. Kramer’s §
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1983 claims.
IV
We REVERSE the district court’s grant of summary judgment to the
County on Ms. Kramer’s Title VII claim with respect to Sergeant Benson’s
supervisor status and the County’s Faragher/Ellerth defense. We AFFIRM in all
other respects. We remand the case to the district court for further proceedings in
keeping with this opinion.

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