Eisenhour v. Weber County, 2014 U.S. App. LEXIS 4913

Background

Eisenhour, a 24‑year Weber County employee and Justice Court administrator, alleged Judge Craig Storey sexually harassed her (inappropriate touching, sexual comments, a poem) beginning in 2008 and imposed intrusive work‑attendance rules. She complained to the County Attorney and was placed on administrative leave; the County investigated and referred her complaint to the Utah Judicial Conduct Commission, which dismissed the allegations.
After the Commission dismissed complaints, Eisenhour spoke to the press about the investigation. Within months the County Commissioners decided to close the Justice Court (resulting in Eisenhour’s job loss).
Eisenhour sued Judge Storey, Weber County, and three County Commissioners asserting Title VII, 42 U.S.C. § 1983 claims (First and Fourteenth Amendments), and Utah’s Whistleblower Act; district court granted summary judgment to defendants.
The district court excluded Eisenhour’s deposition from the Judicial Conduct Commission proceeding under Utah Code § 78A‑11‑112. The Tenth Circuit affirmed that evidentiary exclusion.
On appeal the Tenth Circuit affirmed summary judgment as to: Title VII (failure to exhaust), Whistleblower Act claim for failure to rehire (time‑barred), and § 1983 due process and municipal equal‑protection claims (Judge Storey not a final policymaker; no property interest).
The court reversed summary judgment and remanded as to: (1) § 1983 First Amendment retaliation claims against the County and Commissioners (closing of court), (2) Whistleblower Act claim based on closing the Court, and (3) § 1983 equal‑protection claim against Judge Storey for sexual harassment (qualified immunity and factual issues precluded summary judgment).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of JCC deposition testimony	Testimony from the Judicial Conduct Commission investigation is relevant and should be considered on summary judgment	Utah statute bars introduction of complaints/papers/testimony from Commission proceedings in a civil action	Exclusion affirmed: Utah Code § 78A‑11‑112(1) prohibits introducing that testimony
Title VII retaliation (federal)	Eisenhour alleges Title VII retaliation following harassment and press disclosures	Defendants argue Eisenhour failed to exhaust EEOC administrative remedies for the alleged retaliatory acts	Affirmed for defendants: Title VII claim unexhausted (each act must be separately exhausted per Morgan/Martinez)
First Amendment retaliation (§ 1983) — County & Commissioners	Eisenhour spoke to media about alleged Commission failures and judicial misconduct; closing the Justice Court was retaliatory	County and Commissioners say speech was not public concern and closing was for budgetary reasons	Reversed summary judgment: disputed fact issues on public‑concern and retaliatory motive preclude judgment (Pickering balancing applicable)
Whistleblower Act (Utah) — closing vs. refusal to rehire	Closing of court and later refusals to rehire were retaliatory for reporting misconduct	County argues claims untimely and non‑retaliatory; refusal to rehire occurred after limitations period and does not relate back	Mixed: refusal to rehire claim time‑barred; claim based on court closing survives summary‑judgment because of relation‑back and factual dispute about motive
Fourteenth Amendment due process (property interest)	Eisenhour claims deprivation of property interest in employment and benefits	County says she was at‑will employee; no contract or statutory right to continued employment or early retirement	Affirmed for defendants: no protected property interest (at‑will employment; no RIF right or early vesting)
Equal protection — municipal liability & individual judge	Eisenhour: sexual harassment by Judge Storey violated equal protection; County liable via official policymaker theory	County: Judge Storey not final policymaker for these actions; Judge Storey: qualified immunity and no discriminatory intent or comparator shown	Mixed: municipal equal‑protection claim against County affirmed (no policymaker); reversed as to Judge Storey — factual dispute on harassment, Starrett clearly established law, qualified immunity not appropriate at summary judgment

Key Cases Cited

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (U.S. 1968) (framework for balancing public‑employee speech and government efficiency)
Connick v. Myers, 461 U.S. 138 (U.S. 1983) (public‑concern inquiry for employee speech: content, form, context)
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (U.S. 2002) (each discrete retaliatory act must be separately exhausted)
Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003) (applying Morgan to exhaustion in Tenth Circuit)
Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989) (sexual harassment can constitute § 1983 equal‑protection violation)
City of Canton v. Harris, 489 U.S. 378 (U.S. 1989) (municipal liability/failure‑to‑train standards)
Daniels v. Williams, 474 U.S. 327 (U.S. 1986) (deliberate conduct required for certain § 1983 claims)
Pucci v. Nineteenth Dist. Court, 628 F.3d 752 (6th Cir. 2010) (speech to media about judicial conduct can be public concern)
Lankford v. City of Hobart, 27 F.3d 477 (10th Cir. 1994) (recognizing Starrett’s clear‑law status on harassment as equal‑protection violation)