V v. Kratz

Filing 17

BRIEF in Opposition filed by S V re 14 MOTION to Dismiss or alternatively for Summary Judgment. (Attachments: # 1 Supplement Unreported decisions cited by Plaintiff)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
_____________________________________________________________________________
S.V.
Plaintiff,
-vs-

Case No. 10-cv-919

KENNETH KRATZ
Defendant.
_____________________________________________________________________________
PLAINTIFF’S BRIEF IN RESPONSE TO DEFENDANT’S
MOTION TO DISMISS AND FOR SUMMARY JUDGMENT
____________________________________________________________________________
INTRODUCTION
After being beaten and strangled by the man she was living with, plaintiff S.V.—in fear
for her own safety and their child’s as well—overcame years of reluctance to report similar
abuse and went to the police. In response to this act of courage and trust, defendant Kratz
ignored S.V.’s extraordinary vulnerability and dependence as the victim and complaining
witness in a crime of serious domestic abuse, and proceeded instead to pressure her—in a string
of 30 leering and overbearing text messages packed into a three-day period—to agree to a sexual
relationship with him that he plainly found exciting not just because she would play the “tall,
young, hot nymph” to his “older married elected DA,” but because their liaison was to be
“secret,” “the riskier the better” and, as defendant bluntly told her, “wrong.” After three days of
this, plaintiff found these insistent advances not only so unwelcome, offensive, and harmful but
also so threatening that she felt compelled to report defendant himself to a police department
entirely outside his jurisdiction, and she then refused, out of sheer revulsion, to participate in any
further prosecution in that jurisdiction.

Defendant now seeks to evade his clear liability for this conduct under § 1983 by
claiming that it somehow does not constitute sex discrimination for which he is liable under the
Equal Protection Clause, as a matter of law, and by insisting that he deserves immunity from
such liability in any event, both as a prosecutor carrying out “a function intimately associated
with the judicial phase of the criminal process” and as a “reasonable” public official who could
not have known from the clearly established law that he was violating plaintiff’s equal protection
rights. None of these arguments supports dismissal of plaintiff’s equal protection claim. 1
Defendant’s motion to dismiss must be denied because the factual allegations in her
complaint are more than sufficient to state a wholly “plausible” claim of discriminatory sexual
harassment under the Equal Protection Clause, which requires no proof of actual or threatened
denial of tangible public benefits, as defendant claims, and looks to the true content and impact
of the harassment—not the harasser’s self-serving account of it—to determine whether it is an
actionable denial of the victim’s rights, as defendant’s conduct plainly was here. Defendant’s
“summary judgment” motion for immunity is also both procedurally deficient—failing to meet
even the minimal requirements for such motions—and substantively invalid. Defendant cannot
prove the kind of “intimate” link between his conduct and legitimate prosecutorial functions or
the risk of vexatious litigation and availability of adequate alternative remedies that must be
shown to justify absolute immunity for all such conduct, regardless of its severity.

And

defendant also ignores the fact that Seventh Circuit case law—if any such authority is even
necessary to confirm so obvious a violation—has in fact clearly established that intentional, sexlinked harassment of exactly the kind he indulged in here does indeed violate the longstanding
prohibition of sex discrimination by official actors under the Equal Protection Clause.
1

Plaintiff has elected not to pursue her additional § 1983 claim for violation of her right to due
Process of Law.

2

Plaintiff therefore respectfully urges the court to deny defendant’s motions and allow her
equal protection claim to proceed to discovery and trial.
ARGUMENT
I.

DEFENDANT HAS FAILED TO ESTABLISH ANY PROPER BASIS FOR
GRANTING HIS MOTION TO DISMISS PLAINTIFF’S EQUAL
PROTECTION CLAIM
Under the Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombley, 550 U.S.

544, 556, 570 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), in order to survive a
motion to dismiss of the kind defendant brings here, the complaint must “state a claim to relief
that is plausible on its face,” by “plead[ing] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” This “plausibility”
standard does not require any showing that liability was “probable” (Iqbal, at 1949) or any
determination by the court of “whose version to believe” (Swanson v. Citibank, N.A., 614 F.3d
400, 404 (7th Cir. 2010)), but the facts pleaded must at least suggest a right to relief beyond “the
speculative level” (Twombley, at 555; Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir.
2011)) or “more than a sheer possibility” of unlawful conduct. Iqbal, at 1949; Atkins, at 831.
The Supreme Court’s decisions did not alter the fundamental rules that the complaint “need only
give the defendant fair notice of what the . . . claim is and the grounds upon which it rests”
(Swanson, at 404) and that the reviewing court must assume all well-pleaded allegations in the
complaint to be true (Iqbal, at 1950; Atkins, at 831-32), and “nothing in Iqbal or Twombley
precludes the plaintiff from later suggesting to the court a set of facts, consistent with the wellpleaded complaint, that shows that the complaint should not be dismissed.” Reynolds v. CB
Sports Bar, Inc., 623 F.3d 1143, 1147 (7th Cir. 2010).
Liability under 42 U.S.C. § 1983 requires proof that the defendant was acting under color
of state law and that his conduct violated the plaintiff's rights, privileges, or immunities secured

3

by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988); Lanigan
v. Village of East Hazel Crest, 110 F.3d 467, 471 (7th Cir. 1997). Defendant does not dispute
that he acted here “under color of state law” (Def. Brf., 6), and he has failed entirely to establish
that plaintiff’s complaint does not properly state a claim for violation of her right to equal
protection under the Fourteenth Amendment.
A.

Under the applicable law, the facts plaintiff has alleged regarding
defendant’s conduct state a wholly plausible claim of sexual
harassment in violation of the Equal Protection Clause

Although defendant has labored hard to avoid acknowledging the fact, by the time
plaintiff encountered him in late 2009 it had long since been well established within the Seventh
Circuit that intentional sexual harassment by government actors—including unwelcome and
oppressive sexual conduct that did not condition tangible benefits on sexual compliance—
constituted unlawful sex discrimination that violated the constitutional right to equal protection
under the Fourteenth (and, for federal actors, the Fifth) Amendments. In the Seventh Circuit’s
seminal 1986 decision in Bohen v. City of East Chicago, 799 F.2d 1180 (7th Cir. 1986), the court
held that the prohibition of so-called “environmental” or non-“quid pro quo” sexual
harassment—which had developed in the employment context under Title VII and had recently
been confirmed by the Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)—
barred “sexual harassment of female employees by a state employer” under the Equal Protection
Clause as well, as part of the “federal constitutional right to be free from gender discrimination.”
799 F.2d at 1186. Relying heavily on Meritor—in which the Supreme Court had stated that
“[t]he gravamen of any sexual harassment claim is that the alleged sexual advances were
unwelcome” (477 U.S. at 68)—the Bohen court held that “[c]reating abusive conditions for
female employees and not for male employees is discrimination.” 799 F.2d at 1185.

4

Since Bohen, Seventh Circuit courts have repeatedly affirmed and applied this basic
holding (e.g., Volk v. Coler, 845 F.2d 1422, 1430-31 (7th Cir. 1988); King v. Bd. of Regents of the
University of Wisconsin System, 898 F.2d 533, 537-38 (7th Cir. 1990); Owens v. Ragland, 313
F.Supp.2d 939, 944 (W.D. Wis. 2004) (citing cases)), as have the courts in other circuits. See,
e.g., Southard v. Texas Bd. Of Criminal Justice, 114 F.3d 539, 550 (5th Cir. 1997) (citing cases).
And the Seventh Circuit decisions have also confirmed that, to prove intentional sexual
harassment under the Equal Protection Clause, it is not necessary to show harassment of other
female employees by the same defendant (although that fact may be “strong evidence”
supporting the plaintiff’s claim). Bohen, 799 F.2d at 1187. It is sufficient, instead, to prove
“harassment of the plaintiff alone because of her sex” (Bohen, at 1187; King, at 538; Owens, at
945-46), and even a single harassing act against her can be enough to establish such
discrimination. Bohen, at 1186; King, at 537.
Relying heavily on Bohen, the Seventh Circuit and district courts within that circuit have
also applied its coverage of unwelcome and oppressive sexual conduct under the Equal
Protection Clause in numerous contexts other than employment. In Nabozny v. Podlesny, 92
F.3d 446, 455-56 (7th Cir. 1996), the court held that the well-established general prohibition of
“arbitrary, gender-based discrimination” under the Supreme court’s Equal Protection precedents
prohibited school officials from denying female students protection from harassment equivalent
to that accorded to males. And it has been repeatedly held that the Equal Protection Clause bars
sexual abuse and harassment of students by teachers and other school personnel, including—as
in the employment context—the making of unwelcome and offensive sexual advances that are
not linked to any real or explicitly threatened denial of tangible benefits. E.g., Doe v. Smith, 470
F.3d 331, 340-41 (7th Cir. 2006) (sexual abuse of student by school dean); T.E. v. Grindle, 599
F.3d 583, 587-88 (7th Cir. 2010) (sexual abuse of students by music teacher); Delgado v. Stegall,

5

367 F.3d 668, 672-73 (7th Cir. 2004) (sexual advances and touching of student by voice teacher);
Chivers v. Central Noble Community Schools, 423 F.Supp.2d 835, 850-53 (N.D. Ind. 2006)
(sexual innuendos, advances, and comments in instant messages from teacher/coach to student).
Similarly, the Seventh Circuit in Markham v. White, 172 F.3d 486, 488, 491-93 (7th Cir.
1999) relied on Bohen and Nabozny to hold that the rule “that sexual harassment constitutes sex
discrimination in violation of the equal protection clause” is applicable to a Bivens action by
female Madison police officers alleging that male Drug Enforcement Administration officers had
subjected them to a “hostile atmosphere” by making repeated sexually suggestive and sexist
remarks during a DEA training seminar in Chicago. And district courts in the Seventh Circuit
have, in much the same way, found that the right to be free of intentional sex-based
discrimination under the Equal Protection Clause applied to unwelcome and threatening sexlinked behavior by male police officers, including sexual innuendo and comments and sexist
remarks, directed at a woman during a traffic stop (Antia v. Thurman, 914 F.Supp. 256, 257-58
(N.D. Ill. 1996)) and at a female confidential informant. Twyman v. Burton, 757 F.Supp.2d 804,
2010 WL 4978904, *5 (S.D. Ind.).
The facts plaintiff has alleged in her complaint here state a wholly “plausible” claim
against defendant Kratz that falls squarely within this extensive body of equal protection
precedent. Her complaint alleges that, after enduring years of violent domestic abuse by her
boyfriend and child’s father, S.K., during which she was reluctant to involve law enforcement, a
final incident of beating and strangulation left her so afraid for her life and her child’s safety that
she reported this assault to the police, and S.K. was charged with Felony Strangulation and
Suffocation.

(Complaint, ¶¶ 5-8, 21.)

In the ensuing prosecution, the complaint alleges,

defendant Kratz, as the Calumet County District Attorney, answered only to himself (id., ¶¶ 4,
19-20), and plaintiff understood that she would be heavily dependent upon him, as the DA

6

personally responsible for handling the prosecution of S.K., to assist her in performing her
central role as the complaining witness against S.K., to control the conditions of his release on
bond and eventual sentencing and otherwise protect her from harm and threats of harm for
cooperating with law enforcement against him, and to keep her identity and location confidential
and protect her privacy. (Id., ¶¶ 8-12.)
Despite his awareness of his ethical and statutory obligations to protect plaintiff in this
manner, the complaint alleges, and his awareness that her long history of domestic violence left
her particularly vulnerable to unwelcome sexual requests from an official in this position of
power, defendant Kratz proceeded to exploit that position, as he had with a previous crime
victim in similar circumstances, to pressure plaintiff to engage in a sexual relationship with
him—“the riskier the better.” He sent her a barrage of 30 text messages over a three-day period,
in which he demeaned and described her in explicitly sexual terms, reminded her pointedly of his
money and power as District Attorney, and implied a direct link between his prosecution of S.K.
and the sexual relationship he was demanding from plaintiff. (Id., ¶¶ 13-18, 22-24, 33-35, 3839.) This misconduct, plaintiff alleges, was both “harmful and threatening” to her, causing her
“a high degree of humiliation, anxiety and distress.” As a result of defendant’s behavior, she
became so anguished and fearful of any further contact not just with defendant himself but with
Calumet County in any guise that she reported his messages to the City of Kaukauna Police, in
Outagamie County, and insisted thereafter that she not be required even to attend any proceeding
in Calumet County related to the prosecution of S.K., which was taken over by the Wisconsin
Department of Justice. (Id. ¶¶ 14, 25, 28, 36-37, 45.)
These well-pleaded factual allegations—which the court, again, must accept as true on
defendant’s motion to dismiss—leave no “speculation” or mere “possibility” but instead squarely
and fully support plaintiff’s claim that defendant violated her rights under the Equal Protection

7

Clause. Acting—as defendant concedes—under color of state law as a public official, defendant
abused his authority and position by inflicting on plaintiff exactly the kind of unwelcome,
offensive, and coercive sexual conduct that has been held to constitute sexual harassment and
discrimination under the Equal Protection Clause. And the severity of the harm and injury this
harassing conduct caused to plaintiff, and—particularly—her need to report it to a wholly
separate police agency and her absolute refusal to have any further contact with defendant or his
office, make clear that his abusive behavior had exactly the kind of severe, pervasive, and
destructive adverse effect on plaintiff’s right and ability to participate normally in the
prosecution of S.K. that has been repeatedly found sufficient to establish a sexual harassment
violation under the Equal Protection Clause. The only “reasonable inference” (Iqbal, 129 S.Ct.
1949) to be drawn from plaintiff’s allegations, therefore, is that she has, in fact, stated a viable
claim for relief on this ground.
B.

Defendant’s arguments fail completely to establish any basis for
dismissal of plaintiff’s equal protection claim

In an effort to evade this wholly “plausible” inference of a viable cause of action under
the Equal Protection Clause, defendant for the most part ignores or misstates the actual content—
and, frequently, even the existence—of the decisions described above, and relies instead on a
miscellaneous group of decisions (cited at Def. Brf. 20-21) that are said to demonstrate two
purported flaws in plaintiff’s equal protection claim. (Def. Brf., 18-23.) Two of these decisions,
however—Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 62-63 (1992) and R.S. v.
Bd. Of School Directors, 2006 WL 757816, *7 (E.D. Wis.)—do not involve sexual harassment
claims under the Equal Protection Clause at all. Of those that do, only Bohen itself and Doe v.
Smith—discussed above—are from the Seventh Circuit, and one—Lewis v. McDade, 250 F.3d
1320 (11th Cir. 2001) is barely a “decision” at all but rather a brief concurrence with an “order”

8

denying a rehearing en banc. There are no grounds to conclude, therefore—and defendant has
offered none—that this hodge-podge of decisions somehow constitutes a comprehensive
representation of the governing law on sexual harassment under the Equal Protection Clause,
either generally or, more to the point, within the Seventh Circuit. Moreover, when properly
considered in light of the actual allegations of plaintiff’s complaint, both the decisions defendant
cites—particularly the Tenth Circuit opinions on which he so heavily relies—and the Seventh
Circuit decisions set forth above in fact make clear that neither of defendant’s challenges to
plaintiff’s equal protection claim has any substantive merit.
1.

Plaintiff’s claim does not fail for any purported lack of
“authority over” her by defendant Kratz

Defendant first asserts that the cases it cites somehow stand for a rule that, at least in
contexts other than employment, there can be no equal protection violation unless the defendant
possessed “authority over” the plaintiff—in the sense of power either to inflict some tangible
harm or to deny some tangible public benefit—and also “threatened to use, or did use” that
authority to coerce the plaintiff into “engaging in a sexual relationship.” Since he did neither of
these things, defendant argues, plaintiff’s equal protection claim must fail. (Def. Brf. 19-21, 22.)
This argument rests on a willful misreading of the both the applicable law and plaintiff’s actual
allegations, in multiple respects.
Neither the decisions defendant cites nor the applicable Seventh Circuit precedents
actually state—or even imply—any such limitations on the kinds of conduct that can constitute
unlawful sexual harassment under the Equal Protection Clause, regardless of what the particular
facts in defendant’s odd lot of cases might themselves have involved in this respect. Instead,
defendant attempts to extract his purported rule from Tenth Circuit discussions of public
officials’ “authority” that do not figure at all in the Seventh Circuit’s decisions and that are, in

9

any event, very plainly based—as defendant’s quote from Johnson v. Martin, 195 F.3d 1208,
1217 (10th Cir. 1999) (Def. Brf., 19) itself makes clear—on the standard that must be met to
satisfy § 1983’s separate requirement that the defendant public official have acted “under color
of state law.” But defendant has already conceded here that he did act “under color of state law”
(Def. Brf., 6) and he has therefore effectively confirmed—under the standard for that issue
applicable in both the Tenth and Seventh Circuits—that in acting as he did toward plaintiff he
”exercised power possessed by virtue of state law” and “abused the position given to him by the
state” (Johnson, at 1216-18; Whitney v. State of New Mexico, 113 F.3d 1170, 1174 (10th Cir.
1997); Walker v. Taylorville Correctional Center, 129 F.3d 410, 413 (7th Cir. 1997); Chivers,
423 F.Supp.2d at 853), and thus that he exercised governmental “authority over” plaintiff in
precisely the manner that the Tenth Circuit itself contemplates. Johnson, at 1218; Whitney, at
1174-75. Moreover, consistent with this concession, plaintiff has also explicitly alleged—and
defendant must accept as true, for purposes of this motion—the fact that defendant “used the
power and position he held as District Attorney to gain access to S.V. and to pressure her to have
a sexual relationship with him.” (Complaint, ¶ 24.)
Defendant’s insistence on proof of actual threats of tangible harm also ignores the true
scope and nature of the harassing conduct that can constitute an equal protection violation under
the Seventh Circuit’s most relevant precedents. Such harassment need not necessarily involve
(even though it often does) the possession of some custodial power of control—as with students
or prison inmates—or the ability to deny some discrete and tangible public benefit—such as a
permit or license, a promotion, or a school grade. In Markham for example, there was no
discussion or concern at all in the Seventh Circuit’s opinion about whether the male DEA agents
possessed any such “authority over” the female police officers attending their training seminar.
172 F.2d at 488, 491-93.

10

Even more fundamental, there is nothing in Meritor or Bohen and the subsequent
decisions applying their “environmental harassment” doctrine in non-employment contexts that
requires proof of any actual threat of denial or actual denial of some tangible benefit in order to
coerce compliance with demands for sexual performance. Indeed, it is precisely the infliction of
unwelcome, offensive, and detrimental sexual conduct without such “quid pro quo” behavior that
defines this form of “environmental” sexual harassment (Meritor, 477 U.S. at 63-67), and while
the harassment victim’s perception of an implicit threat of potential retaliation by the harasser
will often make her reluctant to squarely confront the harasser and thus heighten her sense of
vulnerability and distress—as it surely did here—it is clearly the unwelcome sexual advances
and other offensive conduct in themselves that constitute the unlawful harassment. Thus, in
Markham (172 F.2d at 488, 491-93), Delgado (367 F.3d at 670, 672-73), and Chivers (423
F.Supp.2d at 841-48, 851), there were no coercive threats of the kind defendant claims must be
present in such non-employment contexts, and these courts nevertheless found that the harasser’s
sexual advances and other offensive sexual conduct did constitute sexual harassment under the
Equal Protection Clause. The same result is plainly warranted here.
2.

The adverse impact of the harassment plaintiff has alleged was
so severe as to clearly state an equal protection violation

Defendant also asserts that the misconduct plaintiff alleges was inherently too innocuous
to have had the kind of “severe or pervasive” adverse effect necessary to establish actionable
sexual harassment. (Id., 22-23.) This argument, too, has numerous fatal defects.
Defendant’s attempts to minimize the extent of his conduct—by spinning it as merely
“several” or “some” text messages“ (Def. Brf., 1, 12, 22), by claiming that none of the messages
was “explicitly sexual in nature” (id., 12), and by likening them to “a single, innocent, romantic
solicitation which inadvertently cause[d] offense” (id., 23)—violate the basic requirement to

11

accept the truth of the plaintiff’s allegations on a motion to dismiss. Plaintiff alleged here that
defendant sent “thirty (30) text messages” in the space of three days, all of which were “urging
[her] to have a sexual relationship with him,” the “riskier the better” (Complaint, ¶ 14), and that
defendant explicitly referred to her as a “young, hot nymph” (id., ¶ 18). The whole of this
conduct, therefore, was manifestly sexual in nature, and defendant’s suggestion that it was
nevertheless brief in duration (Def. Brf. 21) also ignores the fact that the very concentration of
these 30 messages within a period of only three days in fact reinforces the intensity and adverse
effect of the pressure they exerted, which would plainly have been far less had those messages
been sent only intermittently over many weeks, months, or years.
Defendant’s arguments that his harassment spanned just three days and involved no overt
threats or touching, and that it thus compares favorably with “more egregious” cases involving
much longer time periods (Def. Brf. 21-22), also misrepresent the cases he cites and misapply
both the “subjective” and “objective” elements (Harris v. Forklift Systems, Inc., 510 U.S. 17, 2123 (1993); King, 898 F.2d at 537) of the determination whether his conduct had a sufficiently
adverse effect on plaintiff’s circumstances, as the victim and complaining witness in defendant’s
prosecution of S.K., to constitute unlawful harassment.

None of the decisions cited by

defendant—or plaintiff—holds that the particular facts before the court in each of those cases
somehow define the general threshold or outer limit for the circumstances that may constitute
unlawful sexual harassment. While those specific—and quite distinct—fact patterns may (or
may not) have established a violation in the particular circumstances of each specific case,
therefore, they do not in any way dictate that defendant’s particular conduct here failed to do so.
Moreover, if defendant means to argue that the duration and purportedly innocuous
content of his behavior make it inherently implausible that plaintiff was herself—subjectively—
not adversely enough affected to state a violation, defendant is improperly presenting the kind of

12

competing “version” of the inferences to be drawn from the facts alleged that courts are
prohibited from considering, under Iqbal, on a motion to dismiss. Swanson, 614 F.3d at 404.
The proper inquiry, instead, is whether plaintiff’s allegations support a plausible, reasonable
inference that the actual impact she suffered was sufficiently severe, and she has plainly done so
here. As set forth above, she has explicitly alleged her own extraordinary vulnerability to abusive
sexual advances (Complaint, ¶¶ 5-7, 22-23) and the inherent threat and harm defendant’s
misconduct actually caused her (id., ¶¶ 14, 36-37, 45). And as the courts have recognized (e.g.,
Chivers, 423 F.Supp.2d at 848-49; Collins v. Village of Woodridge, 96 F.Supp.2d 744, 749 (N.D.
Ill. 2000)), her allegations that she reported defendant’s abuse to a separate police agency and
that she felt compelled to remove herself entirely from any further contact with him or his office
also constitute strong further proof that she did, in fact, find his flood of messages deeply
unwelcome, offensive, and threatening and that they made her continued participation in the S.K.
prosecution completely untenable.
And if defendant is implying, instead, that this reaction on plaintiff’s part was
“objectively” unreasonable—that is, that a “reasonable person” (King, 898 F.2d at 537) would
not have had this severe a reaction to defendant’s conduct, even if plaintiff herself did—
defendant again mistakes the proper inquiry. The question is not whether some “reasonable
person” in the abstract might have found defendant’s conduct, as he implies, merely “rude” or
mildly “offensive” or even “romantic”—a point plaintiff in no way concedes. Rather, the proper
inquiry is whether a reasonable person in plaintiff’s circumstances would have reacted as she
did. Chivers, 423 F.Supp.2d at 848-49. And on that point there is no room for debate.
A victim of years of violent domestic abuse would not only be unusually vulnerable
psychologically to conduct like defendant’s, as plaintiff has alleged. By bringing about her
abuser’s arrest and prosecution, she would also have placed herself in an extraordinarily

13

dangerous situation—as defendant’s own DeShaney cases illustrate (Def. Brf. 11)—in which she
is forced to place enormous trust in the police and prosecutors to put a stop to the abuse and to
protect her and her child from retaliation. In those inherently tenuous and frightening
circumstances, plaintiff submits, a “reasonable woman” would be wholly justified in seeing any
behavior by the prosecutor in her case suggesting a willingness to exploit his position and her
vulnerability for his own sexual advantage as profoundly threatening and harmful conduct by yet
another man who had turned out to be more predator than protector, destroying her trust in him
and his subordinates and precluding completely her continued participation in the prosecution.
Plaintiff has therefore properly alleged her claim that defendant’s misconduct violated
her constitutional right to equal protection under the applicable law, and defendant’s motion to
dismiss that claim must be denied.
II.

DEFENDANT HAS FAILED TO ESTABLISH ANY PROPER BASIS FOR
EITHER ABSOLUTE OR QUALIFIED IMMUNITY
Defendant also moves for “summary judgment” dismissing plaintiff’s complaint on the

grounds of absolute prosecutorial immunity or qualified immunity. (Def. Mot., 1-2; Def. Brf. 2,
5-6, 24.) This motion is deficient in both form and substance and must be denied on one or both
of these grounds.
A.

Defendant’s immunity motion is wholly inadequate to carry his initial
burden on summary judgment and must be dismissed on that ground
alone

While defendant has labeled his “Motion” as one, in part, for summary judgment, he is
plainly uncertain himself whether it qualifies as such. His brief states that he is offering the
required “proposed material facts” only “[t]o the extent [his] Motion is treated as a Motion for
Summary Judgment” (Def. Brf., 2 (emph. added))—suggesting that it is up to the court whether
to elect such treatment under Federal Rule of Civil Procedure 12(d)—but defendant has failed

14

entirely to submit the kind of “matters outside the pleadings” that are the necessary predicate for
“treating” a motion to dismiss as one for summary judgment under that rule. 2 Defendant’s
“proposed material facts” are nothing more than paraphrases—with a few bits of self-serving
spin—of a partial set of selected allegations from plaintiff’s own Complaint, which defendant
purports to support not by submitting any actual evidence “outside the pleadings” but rather by
citing only the Complaint itself—an omission that is hardly surprising in light of the fact that
there has as yet been no discovery of any kind in this case. And defendant’s actual arguments
for its immunity “Motion” are not based on his partial set of “proposed material facts” at all, but
instead refer back to “Plaintiff’s allegations”—that is, to all of the allegations in plaintiff’s
Complaint—and to defendant’s own earlier arguments, based solely on those allegations, in his
motion to dismiss. (Def. Brf., 25-26.) 3
Defendant’s immunity “Motion” is thus both premature and entirely inadequate to carry
even his initial burden on summary judgment, and it appears instead to be little more than a
thinly disguised (and substantively invalid) motion to dismiss. Defendant’s submission does not
even address the central question, on summary judgment, whether there is an absence of
evidence to support the existence of genuine issues of material fact on plaintiff’s claims, much

2

Rule 12(d) provides that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.”
3

To the extent that defendant’s “summary judgment” motion for immunity was actually intended
to be a covert motion to dismiss, of course, it is still wholly inadequate to establish any basis for
immunizing defendant’s misconduct—as will be noted below—particularly with regard to his
assertion of qualified immunity. “[A] complaint is generally not dismissed under Rule 12(b)(6)
on qualified immunity grounds.” Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001); Gray
v. Taylor, 714 F.Supp.2d 903, 910 (N.D. Ill. 2010). Because, as here, “an immunity defense
usually depends on the facts of the case, dismissal at the pleading stage is inappropriate: The
plaintiff is not required initially to plead factual allegations that anticipate and overcome a
defense of qualified immunity.” Alvarado, at 651; Tamayo v. Blagojevich, 526 F.3d 1074, 1090
(7th Cir. 2008).
15

less bear his initial burden of actually demonstrating that any such absence of evidence and
disputed issues exists. See McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 795 (7th Cir.
1997), citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Rex v. City of Milwaukee, 321
F.Supp.2d 1008, 1011 (E.D. Wis. 2004); Davidson v. Wisconsin Natural Gas Co., 986 F.Supp.
539, 543 (E.D. Wis. 1997). And even if defendant had at least addressed this central question,
his mere ”conclusory assertion” of an absence of evidence showing disputes of fact on plaintiff’s
claims would not have sufficed to carry his initial burden (Mombourquette ex rel.
Mombourquette v. Amundson, 469 F.Supp.2d 624, 654 (W.D. Wis. 2007)), and his “proposed
material facts” fail completely to discharge his obligation of “identifying those portions of [the
record] which [he] believes demonstrate the absence of a genuine issue of fact.” McClendon,
108 F.3d at 795. The proposed facts required from a summary judgment movant by section
56(b)(1)(C)(i) of this Court’s Local Rules—and similar provisions in other courts—may not be
supported solely by citation to the complaint itself (Markham, 172 F.3d at 489-90; Najieb v.
William Chrysler-Plymouth, 2002 WL 31906466, *1 (N.D. Ill.)), and where a movant has merely
cherry-picked a few facts from the non-movant’s complaint and supported them only with
citations back to that complaint itself—as defendant has done here—that failure to comply with
the local rules and to properly demonstrate an evidentiary basis for summary judgment is, in
itself, reason enough to deny a motion for summary judgment. Markham, 172 F.3d at 489-90.
The Court therefore can and should deny defendant’s “summary judgment” motion
without further consideration. Should the court for any reason be disinclined to do so, however,
plaintiff is also submitting with this Brief her own Declaration and Statement of Additional
Material Facts (cited here as “PPFF”) which will demonstrate, as set forth below, that issues of
disputed material fact remain that preclude any finding of absolute or qualified immunity for
defendant’s violation of her constitutional rights.

16

B.

Defendant has failed to carry his burden of proving his entitlement to
absolute prosecutorial immunity

Because absolute immunity of the kind defendant Kratz claims here is a complete defense
to liability for monetary damages, it “is of a rare and exceptional character” (Auriemma v.
Montgomery, 860 F.2d 273, 275 (7th Cir. 1988); Graffree v. Shelton, 2011 WL 839530, *4 (E.D.
Wis.)), and the federal courts have been “quite sparing” in recognizing it.

Buckley v.

Fitzsimmons, 509 U.S. 259, 269 (1993); Walrath v. U.S., 35 F.3d 277, 281 (7th Cir. 1994).
There is a presumption against granting absolute rather than qualified immunity (Burns v. Reed,
500 U.S. 478, 486-87 (1991); Houston v. Partee, 978 F.2d 362, 365 (7th Cir. 1992); Graffree,
2011 WL 839530 at *4), and the burden of proving entitlement to absolute immunity is borne by
the defendant official who claims such immunity. Buckley, 509 U.S. at 269; Burns, 500 U.S. at
487; Davis v. Zirkelbach, 149 F.3d 614, 617 (7th Cir. 1998); Auriemma, 860 F.2d at 275.
In his perfunctory attempt to meet this demanding burden of proof, defendant contends
that he is entitled to absolute immunity simply because his flood of offensive and threatening
text messages was sent to plaintiff in the course of his carrying out the “inherently prosecutorial
function” of “contacting” her as the complaining witness regarding his prosecution of the felony
charges against S.K. (Def. Brf. 24-25.)

The actual standard for prosecutorial immunity,

however, is not nearly so simplistic or categorical as this. The courts have made abundantly
clear that merely because the conduct challenged by a plaintiff in subsequent civil litigation falls
within the scope of a prosecutor’s official duties does not automatically mean that such conduct
is entitled to absolute immunity. See, e.g., Auriemma, 860 F.3d at 277-78 (no “blanket grant” of
absolute immunity for government attorneys); Odd v. Malone, 538 F.3d 202, 213 (3d. Cir. 2008)
(“[t]he prosecutorial nature of an act does not spread backwards like an inkblot, immunizing
everything it touches”). Instead, the court must look to the particular circumstances of each case

17

and “narrowly define” the conduct at issue (Odd, 538 F.3d at 213), and must apply far more
stringent standards for entitlement to absolute immunity, in a least two critical respects.
First, the courts have consistently held that, even where the challenged conduct occurred
while “initiating a prosecution”—a time when the prosecutor’s official functions might
otherwise warrant absolute immunity—that conduct will nevertheless be entitled to such
immunity only if it is shown to have been “intimately associated” with the “judicial phase of the
criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Burns, 500 U.S. at 487;
Smith v. Power, 346 F.3d 740, 742 (7th Cir. 2003); Houston, 978 F.2d at 365; Auriemma, 860
F.2d at 278. 4 Under this exacting standard, the courts have had no difficulty in denying absolute
immunity to various forms of conduct that, despite having occurred in the course of the initiation
or conduct of a prosecution or other comparable litigation, were found not to have been so
closely related to those “advocacy” functions as to satisfy the “intimately associated” test. E.g.,
Auriemma, 860 F.3d at 277-78 (obtaining credit reports on opposing parties in violation of the
Fair Credit Reporting Act); Odd, 538 F.3d at 211-14 (leaving a material witness incarcerated
during a lengthy continuance in the criminal trial at which he was to testify); Gagan v. Norton,
35 F.3d 1473, 1475-76 (10th Cir. 1994) (countermanding the court-ordered preparation of
transcripts from previous criminal proceedings for a pro se petitioner applying for habeas
corpus). See also Chrissy by Medley v. Mississippi Dept. of Public Welfare, 925 F.2d 844, 850-

4

As Smith and Auriemma illustrate, this same standard for absolute immunity applies where
prosecutors or other government attorneys claim that their conduct was “intimately associated”
with civil enforcement proceedings that are comparable to criminal prosecutions or with the
defense of civil lawsuits against the government. Smith, 346 F.3d at 742; Auriemma, 860 F.2d at
276-77.

18

51 (5th Cir. 1991) (failing to report child abuse by a criminal defendant); McDonald v. Doe, 650
F.Supp. 858, 860 (S.D.N.Y. 1986) (orchestrating police beating of a criminal defendant). 5
Second, to carry the burden of establishing justification for absolute immunity, its
proponent “must show that overriding considerations of public policy require that [he] be exempt
from personal liability” for the challenged conduct (Auriemma, 860 F.2d at 275; Finnegan v.
Myers, 2011 WL 781582, *11 (N. D. Ind.)), and to apply this requirement, three considerations
have been found particularly important: 1) whether there is any historical or common law basis
for absolute immunity in such circumstances; 2) whether denying immunity for the challenged
conduct poses a substantial risk of “vexatious litigation” that would impair the prosecutor’s
independence and ability to function; and 3) whether other safeguards against the challenged
conduct would exist, particularly through the original judicial process, if actions for damages
were precluded. Burns, 500 U.S. at 489-96; Houston, 978 F.2d at 366-67; Lucien v. Preiner, 967
F.2d 1166, 1167 (7th Cir. 1992); Auriemma, 860 F.2d at 275; Odd, 538 F.3d at 216. Under this
standard, too, courts have denied absolute immunity for challenged conduct where the risk of
impeding true prosecutorial functions was not substantial and other safeguards against such
conduct were too ineffectual. E.g., Burns, 500 U.S. at 492-96; Houston, 978 F.2d at 367-68;
Auriemma, 860 F.2d at 278-80; Odd, 538 F.3d at 216-17.
Viewed properly under these standards, the facts alleged in plaintiff’s complaint and set
forth in her Declaration do not remotely suffice to carry defendant’s burden of proving
5

In a similar approach that focuses in much the same way on the linkage between the challenged
conduct and the “judicial process,” courts have also held that absolute immunity will only be
given where “the injury depends on the judicial decision”—that is, only where the “prosecuting”
attorney’s challenged conduct causes injury because of its adverse effect on the outcome in the
original criminal prosecution or other “judicial decision.” Where the alleged injury occurs by
other means unrelated to that judicial outcome, therefore, only qualified immunity is appropriate.
E.g., Houston, 978 F.2d at 368 n.4; Millspaugh v. Dept. of Public Welfare of Wabash County,
937 F.2d 1172, 1175 (7th Cir. 1991); Cooney v. Cassady, 652 F.Supp.2d 948, 956 n.5 (N.D. Ill.
2009).
19

entitlement to absolute immunity in this case. He has offered no legal authority of any kind or
any argument—nor could he possibly do so—establishing that pressing plaintiff for a sexual
relationship in the manner and under the circumstances she has proven (PPFF ¶¶ 2-46) was
somehow a form of conduct so “intimately associated” with his legitimate prosecutorial
functions—so closely related and vital to the effective performance of those functions—as to
require the blanket excuse of absolute immunity. Indeed, given the nature of domestic abuse
crimes and the well-documented relationship such crimes have to issues of sexual domination
and power within the context of co-dependent relationships, defendant’s conduct here could be
viewed by a reasonable jury as a repetition or extension of the underlying crime itself—no less
harmful to plaintiff than if he had himself delivered physical blows—that was motivated by her
sex and position of vulnerability. That is hardly the stuff contemplated by the immunity in
which a prosecutor can legitimately be clothed. While defendant himself may have believed that
his conduct was somehow at least in part helpful to a genuine prosecutorial function, therefore,
that wholly subjective belief in some such marginal link falls far short of establishing by any
sound, objective measure that conduct of the kind defendant engaged in here is somehow so
tightly linked and essential to the “judicial phase of the criminal process” as to be “intimately
associated” with it in the sense that absolute immunity requires.
The lack of any such close link between defendant’s conduct and legitimate prosecutorial
functions is also strongly reinforced by the fact that his conduct injured plaintiff directly
(PPFF ¶¶ 34-46) rather than through any “judicial decision” that resulted from the actual
prosecution of S.K. Plaintiff is not a former criminal defendant claiming wrongful conviction
through prosecutorial misconduct in a previous trial—as does the typical plaintiff in
prosecutorial immunity cases—nor is plaintiff here claiming, as a crime victim and complaining
witness, that she was in some way denied justice or other rights by some error in the actual

20

prosecution of S.K. The harm plaintiff suffered from defendant Kratz’s conduct thus occurred
not through but rather collateral to the actual prosecution in this case, and for that reason, too, no
absolute immunity is warranted.
That conclusion is still further reinforced by the complete absence of any policy
justification for conferring such immunity here. First, defendant has failed to identify any
historical or common law support for extending absolute immunity to the kind of coercive and
threatening sexual advances that defendant engaged in here (PPFF ¶¶ 23-39)—indeed, the very
notion of any such immunity is preposterous on its face.
Second, defendant has also failed to demonstrate that permitting damages actions for
misconduct of this kind will pose any risk of “vexatious litigation” that would chill prosecutors’
willingness to make independent decisions about the actual prosecution of their cases or
otherwise impair their exercise of legitimate prosecutorial functions “closely related to the
judicial process” (Burns, 500 U.S. at 494), including prosecutors’ interaction with crime victims
and witnesses.

Nor would prosecutors be left exposed to genuinely groundless sexual

harassment claims by the denial of absolute immunity.

As the courts have repeatedly

recognized, qualified immunity itself provides prosecutors with “ample protection” (id. at 495)
from such claims and with a “broad range of discretion” (Auriemma, 860 F.2d at 279) for
conduct so distant from their core functions, and where—as here—“an official could be expected
to know that his conduct would violate statutory or constitution rights, he should be made to
hesitate” by the knowledge that he will not have absolute, carte blanche immunity for such
conduct. Burns, 500 U.S. at 495 (orig. emphasis, internal quotations omitted).
Finally, if officials having no direct superior—as was true of defendant here (PPFF ¶¶ 1011)—were absolutely immune from damages liability for conduct of the kind involved in this
case, there would plainly be too few effective safeguards against such abuse. The primary

21

safeguard that the criminal trial and appeal process itself provides to criminal defendants
claiming prosecutorial misconduct offers no similar means through which crime victims or
witnesses can redress prosecutorial violations of their own civil rights. And since the statutory
scheme setting forth those persons’ “rights” in the criminal process itself offers only very limited
redress (see Wis. Stat. §§ 950.09, 950.10-11)—as defendant himself concedes (Def. Brf. 1618)—absolute immunity from civil damages liability would leave plaintiff and others like her
without any effective remedy or deterrent for the kind of abuse and resulting harm that defendant
felt free to inflict upon her here. Both law and sound policy, therefore—not to mention simple
justice—argue strongly against any award of absolute immunity for such misconduct.
C.

Defendant has failed to show any basis for qualified immunity on
plaintiff’s equal protection claim

Defendant has also proven no proper ground for “summary judgment” granting him
qualified immunity from liability for sex discrimination and harassment under the Equal
Protection Clause.
1.

Plaintiff has properly established the defendant’s conduct
deprived her of her constitutional right to equal protection

With regard to the “threshold inquiry” on a claim of qualified immunity—“whether
plaintiff’s allegations, if true, establish a constitutional violation” (Hope v. Pelzer, 536 U.S. 730,
736 (2002))—plaintiff has demonstrated above that the factual allegations in her complaint itself
are more than adequate to establish a “plausible” claim for relief under the Equal Protection
Clause, thus precluding any dismissal for failure to state a claim. And plaintiff’s Declaration
confirms those allegations and provides ample basis for any “reasonable jury” to find such a
violation (Boyd v. Wexler, 275 F.3d 642, 647 (7th Cir. 2001)) and thus bars any grant of summary
judgment on this claim as well.

22

In her Declaration, plaintiff attests to her history of domestic abuse, her overcoming of
her reluctance to report the abuser to the police, her fear of retaliation and further injury, and the
great trust she was necessarily placing in the law enforcement authorities by having him
prosecuted. (PPFF ¶¶ 2-9.)

Plaintiff also confirms that she knew clearly that she was heavily

dependent on defendant, as Calumet County’s District Attorney and the prosecutor of her abuser,
to guide her participation in the prosecution and to conduct that prosecution in a manner that
would protect her and her child, and that thwarting defendant would risk impairment of that help
and protection (PPFF ¶¶ 10-12, 18-22, 38-39, 43)—thus confirming, as well, her allegations and
defendant’s own concession that he did in fact possess, by virtue of his official position and these
circumstances, very real and powerful “authority over” plaintiff.
Plaintiff’s Declaration—and defendant’s messages themselves—prove that he exploited
that position of power and plaintiff’s resulting vulnerability and her difficult personal
circumstances to exert concentrated pressure on her over a three-day period to agree to a secret,
avowedly improper, and unquestionably sexual relationship with him. (PPFF ¶¶ 23-33.) And
plaintiff also clearly confirms that she saw these self-evidently sexual advances not just as
unwelcome and deeply offensive—and as directed at her because she was a vulnerable woman—
but also that she was injured, upset, and humiliated by them and that, because of her dependent
and potentially dangerous position and her fear of retaliation if she resisted defendant too
directly, she was also frightened, intimidated and threatened by his behavior. (PPFF ¶¶ 34-39,
43.) As a result, plaintiff states, her trust and ability to participate in a prosecution run by
defendant was destroyed, and she reported him to an outside law enforcement agency and was so
revolted by his conduct that she refused to participate in any further prosecution in Calumet
County. (PPFF ¶¶ 40-46.)

23

Even more clearly than her complaint, therefore, this credible evidence affirms the sexlinked abuse of power inherent in defendant’s conduct and its severe and pervasive adverse
effect on plaintiff’s well-being and ability to continue functioning in defendant’s prosecution,
and thus establishes that defendant did indeed violate plaintiff’s right to be free of such
discrimination under the Equal Protection Clause.
2.

Defendant’s sexually harassing conduct violated “clearly
established” constitutional rights

Defendant may be held immune from liability for this violation only if his conduct did
not violate “clearly established statutory or constitutional rights of which a reasonable person
would have known.” Hope, 536 U.S. at 739 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)); Narducci v. Moore, 572 F.3d 313, 318 (7th Cir. 2009) (same). For a constitutional right
to be “clearly established,” its contours “must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right. . . . [I]n the light of pre-existing law
the unlawfulness must be apparent.” Hope, 536 U.S. at 739 (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)); Narducci, 572 F.3d at 318 (same). This does not, however, require that
there be previous cases that are “fundamentally” or “materially similar” to the circumstances
here, and it is “clear that officials can still be on notice that their conduct violates established law
even in novel factual circumstances.” Hope, 536 U.S. at 741; Narducci, 572 F.3d at 318 (citing
Hope). Indeed, where the constitutional violation is “patently obvious,” a plaintiff “may not be
required to present the court with any analogous cases, as widespread compliance with a clearly
apparent law may have prevented the issue from previously being litigated.” Nanda v. Moss, 412
F.3d 836, 844 (7th Cir. 2005) (emph. added); Jacobs v. City of Chicago, 215 F.3d 758, 767 (7th
Cir. 2000) (same). See also Anderson v. Romero, 72 F.3d 518, 526-27 (7th Cir. 1995) (“a

24

constitutional violation that is so patent that no violator has even attempted to obtain an appellate
ruling on it can be regarded as clearly established even in the absence of precedent”).
Under these rules, defendant plainly has no right to qualified immunity. To begin with,
the very absence of any reported case in which a district attorney has even attempted to defend a
constitutional claim of sexual harassment by the victim in one of his own prosecutions strongly
suggests, in itself, that the validity of such claims was already well beyond question by the time
defendant acted here. That conclusion is also powerfully reinforced by the sheer notoriety this
same form of sexual harassment by public figures has achieved over the past several decades, by
the specific prohibition of sex-based harassment in Wisconsin’s rules of professional conduct for
attorneys (Wis. SCR ch. 20 § 8.4(i)), and by the Wisconsin District Attorneys Association’s
forceful statement to defendant that he was well aware that crime victims have “both statutory
and constitutional protections” against prosecutorial abuse and that the abuse he inflicted here—
particularly in light of his long advocacy of “victims rights”—was “neither unintentional nor
innocent.” (PPFF 49-50.) In light of all this, the unlawfulness of the misconduct plaintiff alleges
here was so “patently obvious” that no reasonable prosecutor in defendant’s circumstances could
conceivably have doubted that he was violating her fundamental constitutional right to be free of
intentional sex discrimination even in the absence of any relevant precedent.
Moreover, there was, in fact, more than enough plainly applicable precedent to have
“clearly established” that right here.

As plaintiff has shown above, well before defendant

inflicted his coercive sexual advances on plaintiff in late 2009—indeed, in the most important
respects, for more than a decade before that time—there was in fact an extensive body of case
law within the Seventh Circuit that would have made clear to any reasonable official in
defendant’s circumstances that his misconduct violated the Equal Protection Clause. Although
the specific holding of Bohen in 1986 was that the constitution was violated by non-quid pro quo

25

“sexual harassment” creating a “hostile or abusive working environment,” Bohen was repeatedly
characterized by the courts over the next 20 years as having established the far more general
principle that “sexual harassment constitutes sex discrimination in violation of the equal
protection clause,” without any stated or implicit limitation of this principle to the employment
context. (E.g., King, 898 F.2d at 537; Markham, 172 F.3d at 491; Owens, 313 F.Supp.2d at 944;
Nanda, 412 F.3d at 844; Chivers, 423 F.Supp.2d at 851.) And as plaintiff has also demonstrated
above, these and other courts have clearly held—before defendant acted here—that the kind of
non-quid pro quo “environmental” harassment addressed in Bohen is unconstitutional sex
discrimination not just in employment but in non-employment settings as well. 6 Thus, in its
1999 decision in Markham v. White, for example, the Seventh Circuit relied heavily on Bohen
(and Nabozny) to hold that hostile and unwelcome sexual commentary by male DEA agents
conducting a training session for non-employee female police officers violated those officers’
right to equal protection, and the court summarily rejected the agents’ claim for qualified
immunity as well, stating:
[T]he fact that neither this court nor any other has ever dealt with a situation
involving a short training seminar conducted by narcotics officers is of no
moment. Under the doctrine of qualified immunity, “liability is not predicated
upon the existence of a prior case that is directly on point.”
172 F.2d at 491-92 (quoting Nabozny, 92 F.3d at 456).
This Court must take the same approach here. Just as with the male DEA agents in
Markham, defendant cannot plausibly claim that, because no equal protection decision had yet

6

Plaintiff also cited Twyman v. Burton and T.E. v. Grindle above, both of which are 2010
decisions. While neither decision predated defendant’s misconduct here, therefore, both
explicitly rely on pre-2009 law—including several of the principal decisions cited above—to
hold that unwelcome sexual harassment and abuse constitutes an equal protection violation in
both law enforcement and educational contexts. Twyman, 2010 WL 4978904, at *5 (sexual
harassment of female confidential informant); T.E., 599 F.3d at 587-88 (sexual abuse of
students).
26

addressed the situation in which a prosecutor sexually harasses a crime victim whose assailant he
is prosecuting, no reasonable official in defendant’s position could be expected to have known,
by late 2009, that sexual harassment inflicted on a victim like plaintiff in that setting would be
held to have violated her equal protection rights. The application of the broad principal Bohen
had first articulated in the employment context to those prosecutorial circumstances was plainly
no more “novel,” in 2009, than its application to the DEA training seminar in Markham had been
years earlier—indeed, far less so in view of the numerous similar decisions applying the
Meritor/Bohen paradigm outside the employment setting that were issued in the fifteen years
since the Markham defendants’ had acted, in 1994 (172 F.3d at 490). 7 And the very Tenth
Circuit decisions defendant himself relies on would have made this broad applicability outside of
employment, if anything, even more obvious to that reasonable official. In Johnson, issued in
1999, the Tenth Circuit categorically rejected a qualified immunity argument by the defendant—
a building inspection official accused of sexually harassing female building owners—that all
prior equal protection decisions had been confined to the employment setting, stating:
There is no indication in those decisions that a public official’s abuse of
governmental authority in furtherance of sexual harassment in the employment
setting is fundamentally different than when the abuse of authority occurs outside
the workplace. . . . We therefore conclude that . . . a public official’s reasonable
application of the prevailing law would lead him to conclude that to abuse any
one of a number of kinds of authority for the purpose of one’s own sexual
gratification . . . would violate the Equal Protection Clause.
Johnson, 195 F.3d at 1217-18 (emph. added).
Nor is there any merit in defendant’s insistence that pre-2009 case law established that
“sexual conduct must be significantly more egregious” than his—involving such things as
7

While Markham had likened the “short training seminar” in that case to the “educational
setting” to which non-Seventh Circuit courts had already transposed Meritor’s “environmental
harassment” paradigm (172 F.3d at 491-92), nothing in Markham limited such transpositions
only to “education,” and Markham itself was never cited in the later Seventh Circuit decisions
holding that paradigm applicable in the context of actual schools.
27

physical touching, overt threats to coerce sexual compliance, or “weeks or months” of “severe,
pervasive and abusive contact”—to constitute unlawful sexual harassment, and that he would
therefore “have had no way of knowing” that his purportedly “flirtatious” or merely “boorish”
text messages violated plaintiff’s equal protection rights.

(Def. Brf., 26-27.)

As with

defendant’s motion to dismiss, this argument—and the highly sanitized “proposed material facts”
defendant has extracted from plaintiff’s own allegations in her complaint—grossly understate the
scope, content, and intensity of his coercive sexual advances and their undeniably severe adverse
impact on her well-being and ability to function as the complaining witness in his prosecution of
S.K. As set forth above, plaintiff’s Declaration—which must be credited on summary judgment
and viewed in the light most favorable to her (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986))—only reinforces and amplifies the plausible inferences to be drawn from the allegations
in the complaint that defendant has carefully omitted from his proposed facts—that in plaintiff’s
vulnerable, and dependent state, defendant’s rash of overbearing and leering sexual advances so
harmed her well-being and threatened her trust in defendant’s willingness to help and protect her
as to utterly destroy her capacity to participate further in any prosecution he or his office might
conduct. (PPFF ¶¶ 34-45.) This severe and pervasive adverse impact is “egregious” by any
standard, and more than sufficient to meet any extant threshold for “environmental” sexual
harassment.
Defendant’s

argument

also

simply

ignores—again—the

pre-2009

Seventh

Circuit case law clearly establishing that “environmental” sexual harassment can violate the
equal protection clause where there has been no offensive sexual touching (Markham, 172 F.2d
at 488, 491-93; Chivers, 423 F.Supp.2d at 841-48, 851), where there have been no threats of
tangible harm to force compliance (id.; Delgado, 367 F.3d at 670, 672-73), and where the
harassment at issue has not continued for “weeks or months.” Markham, 172 F.2d at 488, 491-

28

93; Antia, 914 F.Supp. at 257-58. Indeed, Markham alone would have sufficed to make clear to
any reasonable official in defendant’s circumstances that the absence of these features from his
conduct did not insulate him from equal protection liability. The pattern of sexual and sexist
comments engaged in by the federal agent defendants in Markham involved no quid pro quo
threats or touching of any kind and occurred only in a “short training seminar” (172 F.3d at 488,
492), but the Seventh Circuit nevertheless flatly rejected the defendants’ qualified immunity
claim that this conduct was not “severe or pervasive” enough, as a matter of law, to violate the
Equal Protection Clause. Id., at 492-93. And the court’s explicitly stated willingness to make
this ruling without any need for “a prior case that is directly on point” (id., at 493) would also
have made clear to that reasonable official in defendant’s circumstances that he was not immune
simply because no court had yet addressed a pattern of unwelcome, coercive, and harmful sexual
advances directly comparable to his own.
In light of Markham, therefore, and the other clearly established law set forth above,
there is no question that the “contours” of the sexual harassment prohibition under the Equal
Protection Clause were sufficiently clear that the “unlawfulness” of defendant’s conduct would
have been “apparent” (Hope, 536 U.S. at 739) to any reasonable prosecutor—and to defendant
himself, had he bothered to consider the question. His motion for qualified immunity must
therefore be denied.
CONCLUSION
Defendant’s assertions that his conduct was too innocuous to be actionable and abused no
power or “authority” over plaintiff, and that it must in any event be excused in order to protect
the prosecutorial process, should be given no more credence by this court than they were given
by his peers. His conduct was “repugnant,” they told him, not merely because it violated
“constitutional protections” of which he was plainly aware but also because it had destroyed the

29

ability of plaintiff and other crime victims to trust in him and to participate in his prosecutions.
(PPFF 50 and Fox Aff., Exh. A.) It is thus the grant of immunity to such conduct, not its denial,
that would undermine the integrity of the prosecutorial process and of those constitutional
protections as well, and defendant’s requests to be excused and immunized from liability for his
egregious mistreatment of plaintiff must therefore be denied.
Dated this 1st day of June, 2011.
Respectfully submitted,
FOX & FOX, S.C.
s/ Michael R. Fox
Michael R. Fox
State Bar No. 01015173
124 West Broadway
Monona, WI 53716
[phone]
Attorney for Plaintiff

30