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Appeal from the United States District Court for the District of Utah. (D.C. No. 1:10-CV-00022-DB).
April Hollingsworth of Hollingsworth Law Office, LLC, Salt Lake City, Utah, for Plaintiff-Appellant.
Susan Black Dunn (Kathleen Liuzzi, on the briefs), of Dunn & Dunn, P.C., Salt Lake City, Utah, for Defendants-Appellees Weber County, Craig Deardon, Kenneth Bischoff, and Jan Zogmaister.
Linette B. Hutton of Winder & Counsel, PC, Salt Lake City, Utah, for Defendant-Appellee Craig D. Storey.
Before GORSUCH, BALDOCK, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
Marcia Eisenhour sued Weber County, three of its county commissioners, and a state judge. According to Ms. Eisenhour, the judge (Craig Storey) sexually harassed her and the County retaliated against her for reporting the harassment. She claimed violations of Utah's Whistleblower Act, the First Amendment, the Fourteenth Amendment's Due Process and Equal Protection Clauses, and Title VII. The district court granted summary judgment to the defendants on all claims.
Ms. Eisenhour challenges this ruling and the district court's exclusion of her
testimony on disciplinary proceedings involving the judge. We affirm: (1) the exclusion of Ms. Eisenhour's testimony during the disciplinary proceedings involving Judge Storey, and (2) the award of summary judgment on the claims against the County for violation of the Fourteenth Amendment's Equal Protection and Due Process Clauses, liability under Title VII, and violation of the Whistleblower Act relating to the refusal to rehire her. But, we conclude that genuine issues of material fact existed on: (1) the claims against the County under the Whistleblower Act and the First Amendment based on closing of the Justice Court, (2) the First Amendment claim against the County Commissioners, and (3) the claim against Judge Storey based on the Fourteenth Amendment's Equal Protection Clause. Accordingly, on these claims, we reverse the award of summary judgment.
I. Ms. Eisenhour's Evidence
The facts, presented in the light most favorable to Ms. Eisenhour as the party opposing summary judgment, are as follows:
A. Ms. Eisenhour's Evidence of Sexual Harassment
Ms. Eisenhour worked for Weber County for 24 years, serving as the Court Administrator for the Weber County Justice Court under the direct supervision of Judge Storey. According to Ms. Eisenhour, she was subjected to offensive touching and unreasonable questions about her activities away from work.
Judge Storey began acting inappropriately toward Ms. Eisenhour in early 2008. He became " touchy" and would often stand so close to her that his groin rubbed against her. In addition to the touching, Judge Storey once called Ms. Eisenhour into his office and told her that he had a dream about her in which she was naked. Ms. Eisenhour also found a poem by Judge Storey, which revealed his romantic feelings for her.
According to Ms. Eisenhour, she was also subjected to unreasonable demands about her activities. Before 2008, she was allowed to work flexible hours and to miss work without obtaining prior approval. In 2008, however, Judge Storey told Ms. Eisenhour that her frequent absences and unpredictable work patterns had become a problem and that, in the future, she could not miss work without his approval. To obtain approval, she would need to tell him where she was going, what she was doing, and whom she would be with. Perceiving the new policy as " possessive" and an attempt to control her, Ms. Eisenhour went to the County Attorney's Office and complained of sexual harassment by Judge Storey. Ms. Eisenhour was immediately placed on paid administrative leave pending an investigation.
B. Evidence of an Investigation into Ms. Eisenhour's Allegations
The County launched an investigation into Ms. Eisenhour's allegations. Ms. Eisenhour told investigators about the poem, Judge Storey's dream about her, the inappropriate touching, and the new restrictions on missing work. The investigators also interviewed witnesses, including Judge Storey. But, Ms. Eisenhour testified that the investigators had never asked Judge Storey whether the allegations were true. Instead, she stated that the investigation focused on her work ethic and the quality of her work. Ms. Eisenhour eventually returned to work. When she did, she became part of the Clerk/Auditor's Department and was no longer supervised by Judge Storey. To minimize contact between Judge Storey and Ms. Eisenhour, the County moved Judge Storey's office to a different floor and designated a deputy
court clerk as a liaison between Judge Storey and Ms. Eisenhour.
The County ultimately decided not to discipline Judge Storey and referred Ms. Eisenhour's complaints to Utah's Judicial Conduct Commission. The Commission investigated the incident, found no misconduct on Judge Storey's part, and dismissed the allegations. Ms. Eisenhour reacted by going to the press. Two newspapers printed articles about the allegations, stating that no action was being taken against Judge Storey.
C. Evidence Involving the County's Decision to Close the Justice Court
Between August and December 2009, the County Commissioners decided to close the Justice Court, which meant the loss of Ms. Eisenhour's job. The County maintains that the Commissioners made the decision because of increasing revenue losses rather than Ms. Eisenhour's allegations or her decision to go to the media. After the court closed, Ms. Eisenhour applied to the County for three vacant positions. Unsuccessful, Ms. Eisenhour lost not only her job but also the potential for retirement benefits. Because Judge Storey had more years of service, however, he was able to retire with benefits.
II. Ms. Eisenhour's Claims and the District Court's Ruling on Summary Judgment
On March 13, 2009, Ms. Eisenhour filed claims with Utah's Antidiscrimination and Labor Division and the Equal Employment Opportunity Commission, alleging sexual harassment and retaliation. Still dissatisfied, she sued Judge Storey, Weber County, and the County Commissioners, invoking Title VII, 42 U.S.C. § 1983, and the Utah Whistleblower Act.
The district court granted summary judgment to the defendants on all claims. The court reasoned that Judge Storey had qualified immunity and did not act with the intent to violate Ms. Eisenhour's equal-protection rights. On the claims against the County, the district court held that it lacked jurisdiction over the Title VII claim, that the equal-protection claim failed because Judge Storey was not an official policymaker, that the First Amendment claim failed because Ms. Eisenhour had not engaged in protected speech, and that her due-process claim failed because she had not established a property interest in her employment.
III. Exclusion of Ms. Eisenhour's Deposition Testimony
In deciding whether to grant summary judgment, the district court declined to consider Ms. Eisenhour's deposition testimony taken during the Judicial Conduct Commission's investigation. The parties agree that the issue is governed by Utah Code Ann. § 78A-11-112. Appellant's App. vol. 1, at 318, 321-22, 366-69, 373-75. This statute provides in pertinent part that
" [t]he transmission, production, or disclosure of any complaints, papers, or testimony in the course of proceedings before the commission... may not be introduced in any civil action." Utah Code Ann. § 78A-11-112(1). Ms. Eisenhour disagrees with the ruling, but we conclude that the court did not err.
Our review is de novo. Cent. Kan. Credit Union v. Mut. Guar. Corp., 102 F.3d 1097, 1104 (10th Cir. 1996). Under a plain reading of section 78A-11-112(1), testimony taken during the course of proceedings before the Judicial Conduct Commission cannot be introduced in a civil action. The statute elsewhere authorizes disclosure under limited circumstances, but the issue here is whether the deposition transcript can be introduced, not whether it can be disclosed. See Utah Code Ann. § 78A-11-112(3). Thus, the district court had an obligation to exclude the testimony taken during the Judicial Conduct Commission's investigation.
IV. Summary Judgment
Because Ms. Eisenhour's deposition testimony was properly excluded, we do not consider it in our review of the summary-judgment ruling. In this review, we agree with the district court that the statute of limitations barred Ms. Eisenhour's Whistleblower Act claim based on the County's refusal to rehire her, that the Title VII claim was unexhausted, that Ms. Eisenhour lacked a property interest for her due-process claim, and that the County did not incur liability for an equal-protection violation because Judge Storey was not a " policymaker" regarding the alleged acts. But we also conclude that the district court erred in granting summary judgment: (1) to Judge Storey on the § 1983 claim for an equal-protection violation, (2) to the County and County Commissioners on the § 1983 claim for violation ...