CONNIE J. ORTON-BELL, Plaintiff-Appellant,
STATE OF INDIANA, Defendant-Appellee
Argued December 10, 2013
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 11-CV-805 -- William T. Lawrence, Judge.
For Connie J. Orton-Bell, Plaintiff - Appellant: Richard L. Darst, Attorney, Cohen, Garelick & Glazier, Indianapolis, IN.
For Indianapolis, IN, Defendant - Appellee: Frances Barrow, Attorney, Office of The Attorney General, Indianapolis, IN.
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
Manion, Circuit Judge.
Connie J. Orton-Bell was employed as a substance
abuse counselor at a maximum security prison in Indiana. An investigator, who
had been looking for security breaches, discovered that night-shift employees
were having sex on Orton-Bell's desk and informed her. That investigator told
her that he was not concerned about night-shift staff having sex but suggested
she should probably wash off her desk every morning. When the situation was
brought to the superintendent's attention, he agreed and said that, as long as
inmates were not involved, he was not concerned either. Immediately thereafter,
the superintendent discovered that Orton-Bell was having an affair with the
Major in charge of custody (which, ironically enough, allegedly involved sex on
his desk) and both were terminated. Both separately appealed their terminations
to the State Employees' Appeals Commission. The prison settled the Major's
appeal and then called him to testify against Orton-Bell at her appeal. This
tactic enabled the Major to keep all of his benefits, including his pension, to
quickly get unemployment benefits, and to subsequently begin working at the
prison as a contractor. Orton-Bell was not afforded
similar benefits and opportunities, so she filed this suit alleging Title VII claims of sex discrimination, retaliation, and hostile work environment. The district court granted summary judgment to the state, concluding that Orton-Bell was not similarly situated to the Major, that she failed to prove retaliation under either the " direct" or " indirect" methods, and that the sexual tenor of the prison's work environment was not severe or pervasive enough to qualify as hostile. We reverse with regard to Orton-Bell's discrimination and hostile environment claims, but affirm with regard to her retaliation claims.
I. Factual Background
After earning her bachelor's degree in psychology from Ball State University in 2006, Connie J. Orton-Bell began working as a behavioral clinician with at-risk children. In 2007, she was hired as a Substance Abuse Counselor (" counselor" ) for a contractor at the Pendleton Correctional Facility, a maximum security prison in Pendleton, Indiana. In 2008, she was hired by the Indiana Department of Corrections (" DOC" ) and continued working as a counselor at Pendleton.
The official in charge of Pendleton at the time Orton-Bell was hired was Superintendent Brett Mize. According to Orton-Bell, he told her to come to department-head meetings, though it was not necessary, so that he could " look down the table at her." She claims she was not the sole object of his interest because " a good share of attractive women were there," though there was no apparent reason for them to be. Mize also said that, though other employees could wear jeans on Friday, she could not " because her ass looked so good that she would cause a riot." Without further specifics, Orton-Bell asserts that such sexual statements by Mize were commonplace. Mize was fired before the events that precipitated this suit took place.
However, according to Orton-Bell, the pervasive sexual comments that permeated the prison workplace extended beyond Superintendent Mize's admittedly outrageous behavior. Orton-Bell testified that similar sorts of comments were made by nearly all male employees and almost all the time. The workplace was " saturated" with sexual comments that constantly " bombarded" Orton-Bell and other female prison employees. " From the second you walk into that building, that is all you are hearing until the second you leave. And if you meet somebody on the parking lot, you are going to still hear it. So it's 100 percent of the time." For example, male employees would congregate around the pat-down area to watch female employees receive pat-downs on their way into the facility. Orton-Bell Dep. at 96. Pat-downs took place in full view of this crowd of onlookers; when Orton-Bell asked to be patted down in a private room, her request was denied. Id. at 94. Male employees would make sexual comments about female employees as they were patted down. Id. at 96-97. Women were patted down more thoroughly than men so that the male employees could watch. Id. at 92-93. Male employees frequently commented that they needed a cigarette after watching Orton-Bell get patted down because it was almost like having sex for them. Id. at 96. Orton-Bell described the experience of working in the prison as " an onslaught." Id. at 97.
Orton-Bell also describes an instance where she was asked to remove a sweater, which revealed her camisole. After she
complained, staff were directed not to order the removal of similar sweaters, and Orton-Bell does not say that particular problem reoccurred.
But inappropriate conduct at the facility was not limited to verbal banter. Orton-Bell became involved in an affair with Major Joe Ditmer, a 25-year veteran of the DOC who was in charge of custody at Pendleton. Both of them were married to other people, but both were separated from their spouses at the time. Orton-Bell and Ditmer would have sex at her home, which was nearby, on their lunch breaks. They used their work email accounts to schedule their rendezvous (in addition to participating in extensive sexually explicit conversations about sexual positions, preferences, and games). The superintendent at the time, Alan Finnan, began to have suspicions about Orton-Bell and Ditmer having a relationship (Superintendent Mize had already been fired for having an affair with a staffer from the hospital infirmary). Finnan believed Orton-Bell and Ditmer's affair was a violation of the State Code of Ethics and the DOC's Standards of Conduct.
On Thursday, March 4, 2010, Finnan contacted Investigator Todd Tappy with Internal Affairs to open an investigation into Ditmer and Orton-Bell. Finnan also asked Captain Karl Downey about Orton-Bell and Ditmer, and he informed Finnan that Ditmer had admitted to having sexual intercourse and oral sex in his office. On Saturday, March 6, 2010, Tappy and another investigator, Michael Rains, ...