Tilghman v. Kirby
662 F. App'x 598
| 10th Cir. | 2016Background
- Tilghman was hired in Dec. 2008 as a secretary to County Commissioner Ron Kirby and alleges sexual harassment by Kirby from 2008 through Feb. 2012; Kirby resigned after investigation for pornography on county devices.
- County had a written personnel policy forbidding sexual harassment and requiring immediate reporting to a supervisor, any commissioner, the district attorney, or assistant D.A.; the recipient was required to promptly investigate and correct.
- Tilghman did not follow the written reporting procedures; she complained to a co-worker (Tubbs) who was not her supervisor and did not report to other commissioners or the D.A., though she trusted Commissioner Gail Turner.
- After Tilghman filed a tort-claim notice in Apr. 2012, her new supervisor (Turner) counseled her about tardiness and personal phone use; she later took medical leave and resigned.
- Tilghman sued Kirby (individually and officially) and the Comanche County Board under the OADA (hostile work environment and retaliation) and 42 U.S.C. § 1983; district court granted summary judgment for defendants, and this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Hostile work environment (OADA) | Kirby’s conduct created an abusive, sex-based hostile work environment; Board liable | Board implemented a harassment policy and Tilghman unreasonably failed to use complaint procedures (Ellerth/Faragher defense) | Affirmed for Board: Board proved prevention/correction measures and Tilghman unreasonably failed to report |
| § 1983 (Monell-type liability) | Board is liable for Kirby’s constitutional violation | Board lacked any policy or custom causing harassment; hiring a tortfeasor insufficient | Affirmed for Board: no official policy/custom or final policymaking authority shown |
| Retaliation (OADA) | Post-claim adverse actions (criticism by Turner) were materially adverse and causally linked to filing notice | Turner’s counseling about tardiness/personal use was not materially adverse | Affirmed for Board: no materially adverse employment action shown |
| Failure to post job (OADA) | Board’s failure to post position (awarded to Tubbs) was discriminatory | Failure-to-post not actionable under OADA as pled; claim not raised below as gender-based | Affirmed for Board: no actionable discriminatory evidence and argument forfeited on appeal |
Key Cases Cited
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (employer defense when reasonable prevention/correction and employee unreasonably failed to use them)
- Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) (same employer vicarious-liability framework for supervisory harassment)
- Sauers v. Salt Lake Cty., 1 F.3d 1122 (10th Cir. 1993) (Title VII relief is against employer, not individual employees)
- Kramer v. Wasatch Cnty. Sheriff’s Office, 743 F.3d 726 (10th Cir. 2014) (clarifies employer burden to prove Ellerth/Faragher defense at summary judgment)
- Lankford v. City of Hobart, 73 F.3d 283 (10th Cir. 1996) (municipal liability under § 1983 requires an official policy or custom)
- Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) (official policymaker concept for municipal liability)
- Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989) (mere employment of a tortfeasor does not establish § 1983 municipal liability)