Cynthia Fuller v. Idaho Dept. of Corrections

865 F.3d 1154, 2017 U.S. App. LEXIS 13818, 101 Empl. Prac. Dec. (CCH) 45,853, 130 Fair Empl. Prac. Cas. (BNA) 539
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 31, 2017
Docket14-36110
StatusPublished
Cited by66 cases

This text of 865 F.3d 1154 (Cynthia Fuller v. Idaho Dept. of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cynthia Fuller v. Idaho Dept. of Corrections, 865 F.3d 1154, 2017 U.S. App. LEXIS 13818, 101 Empl. Prac. Dec. (CCH) 45,853, 130 Fair Empl. Prac. Cas. (BNA) 539 (9th Cir. 2017).

Opinions

Dissent by Judge IKUTA

OPINION

HURWITZ, Circuit Judge:

Cynthia Fuller was raped by an Idaho Department of Corrections (“IDOC”) coworker. Before that sexual assault, the IDOC had placed the co-worker, whose [1158]*1158conduct had been the subject of several complaints by female employees, on administrative leave because he was under criminal investigation for another rape. Shortly before Fuller was raped, a supervisor told employees (including Fuller) that the agency “looked forward” to the co-worker’s prompt return from leave. One day after Fuller reported the rape, a supervisor told her that the rapist “had a history of this kind of behavior.” Nonetheless, the supervisor sent an e-mail to all agency employees the very next day, telling them to “feel free” to contact the rapist and “give him some encouragement.” When Fuller asked for paid administrative leave to deal with problems caused by the rape, she was told that her case was not “unusual” enough to warrant that treatment; the rapist, however, was provided paid leave.

The district court granted summary judgment to the IDOC on Fuller’s hostile work environment claim. We hold that Fuller proffered sufficient admissible evidence to avoid summary judgment, and we remand for a trial on her hostile work environment claim.1

FACTUAL BACKGROUND2

A. Rape Allegations and Cruz Investigation.

In January 2011, Cynthia Fuller began working as a probation and parole officer in the IDOC District 3 office in Caldwell, Idaho. During her first week on the job, Fuller met Herbt Cruz, a senior probation officer. Months later, they began an intimate relationship. Although IDOC policy required reporting the relationship, they kept it secret.

In late July 2011, Idaho State Police notified the IDOC that the Canyon County Sheriffs Office was investigating Cruz for the rape of “J.W.,” a civilian. On August 15, the IDOC placed Cruz on administrative leave with pay. District Manager Kim Harvey called a District 3 staff meeting, advising the employees that Cruz was on administrative leave because of a confidential, ongoing investigation and “was not authorized to be on the premises.” But, Harvey also stated that the IDOC looked forward to Cruz’s prompt return to work.

The next day, Fuller disclosed her relationship with Cruz to her supervisors, who did not reveal the nature of the ongoing investigation to her. Eventually, Fuller learned that Cruz had been accused of rape, but nonetheless continued her relationship with him.

On August 22, Cruz raped Fuller at his home. A second rape took place on August 30 or 31, and a third on September 3, both also outside the workplace.

On September 6, after the IDOC received photos of her injuries, Fuller confirmed to Harvey that Cruz had raped her. Harvey took Fuller to the Canyon County Sheriffs Office and sat in on part of her interview with detectives. Afterwards, Harvey told Fuller “that Cruz had a history of this kind of behavior and that he knew of several instances.”3 The next day, [1159]*1159Fuller obtained a civil protection order prohibiting Cruz from coming within 1000 feet of her.

Henry Atencio, Deputy Chief of the IDOC Probation & Parole Division, directed Harvey to maintain contact with Cruz while he was on leave, to keep him informed of the investigation’s status and “make sure he’s doing okay in terms of still being our employee.” Fuller knew about Cruz’s continued contacts with supervisors while on leave. On September 7, the day Fuller obtained the civil protection order, Harvey sent this e-mail to District 3 staff, including Fuller:

Just an update on Cruz. I talked to him. He sounds rather down, as to be expected.... Just as a reminder—and this is always one thing I hate about these things—he cannot come to the office until the investigation is complete. Nor can he talk to anyone in the Department about the investigation. So, if you want to talk to him, give him some encouragement etc., please feel free. Just don’t talk about the investigation. At this point, I honestly don’t know the status of it.

The IDOC began an internal investigation of Cruz on September 12, and on September 14 expanded the investigation to include Fuller’s allegations. IDOC investigators met with Cruz twice in September, and also interviewed Fuller. The investigation concluded in late October, with the IDOC deciding to terminate Cruz’s employment. But, waiting to see if Cruz would be criminally charged, the IDOC did not issue a Notice of Contemplated Action until December 27, nor did it apprise Fuller whether Cruz had been cleared. Cruz promptly resigned after being notified that the IDOC intended to terminate his employment.

B. The ÍDOC’s Responses to Fuller’s Report.

After Fuller reported the rapes to the Canyon County Sheriffs Office, Harvey told Atencio and Fuller’s direct supervisors about the allegations. He told the supervisors that she was taking leave and that, if other employees inquired about her absence, the agency should say that it was related to her known illness. Harvey told Fuller that he would determine whether she was eligible for paid administrative leave. On September 19, Atencio formally denied Fuller’s leave request in an e-mail, explaining that only employees under investigation are eligible for administrative leave, and advising her to use accrued vacation and sick time instead. He copied Roberta Hartz, a Human Resources (“HR”) representative, on the e-mail, despite knowing she had previously lived with Cruz.

IDOC Standard Operating Procedure (“SOP”) 206 permitted the Director to grant paid administrative leave “[w]hen a manager (or designee) deems it necessary due to an unusual situation, emergency, or critical incident that could jeopardize IDOC operations, the safety of others, or could create a liability situation for the IDOC.”4 But, IDOC Director Brent Reinke granted paid leave under this policy only for “acts of God, nature,” because state officials had instructed him to restrict paid leave.

[1160]*1160Fuller later received intermittent Family & Medical Leave Act leave. After her doctor certified that she was “unable to concentrate, and perform,” had “severe anxiety,” and was “unsafe to carry [a] weapon,” the IDOC placed Fuller on modified duty doing data entry.

Fuller again requested paid leave, noting that (1) Cruz was being paid during his administrative leave; (2) she had “received no guidance from the IDOC regarding any assistance ... as a victim, including” filing a sexual harassment claim; and (3) the IDOC had put other “potential victim[s]” at risk by failing to disclose to staff why Cruz was on leave and by stating that it “hopes he returns soon.” The IDOC did not respond to her letter.

Fuller met with Atencio, Harvey, and Hartz5 on November 10, 2011, asking for reinstatement of her vacation and sick time and for paid administrative leave for the work she missed, and would continue to miss, because of the rapes. Atencio said she did not meet the SOP 206 criteria, because her situation was not “unusual.”

Fuller also described her “uncomfortable work environment” to the supervisors.

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865 F.3d 1154, 2017 U.S. App. LEXIS 13818, 101 Empl. Prac. Dec. (CCH) 45,853, 130 Fair Empl. Prac. Cas. (BNA) 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cynthia-fuller-v-idaho-dept-of-corrections-ca9-2017.