By Rick Gautschi
In Duncan v. Dakota County, No. 11-2467, August 3, 2012 (8th Cir. 2012), Toni Duncan worked as a correctional officer for Duncan County, NE, under the supervision of Chief Deputy Sheriff Rodney Herron. After leaving the job, she sued the County and Mr. Herron officials pursuant to 42 U.S.C. §1983. She claimed that through the actions of Mr. Herron, the county had, in the forms of sexually harassing and constructively discharging her, denied her equal protection in violation of the Fourteenth Amendment. Specifically, Ms. Duncan alleged that Mr. Herron had created a sexually charged work environment by fostering widespread sexual favoritism in the form of engaging in sexual relationships with subordinates and rewarding his favorites. Ms. Duncan produced no evidence that Mr. Herron had ever threatened or humiliated her. Further, she admitted that she was not promoted to an open position only because she chose not to apply for the position. Mr. Herron argued that the trial court should have determined that the doctrine of qualified immunity precluded Ms. Duncan from proceeding against him.
In assessing Mr. Herron’s contention, the Court of Appeals noted that as an initial matter, it was necessary for Ms. Duncan to establish that Mr. Herron had violated her constitutional or statutory rights. Accepting the evidence regarding Mr. Herron’s sexual relationships with subordinates, other than Ms. Duncan, the Court of Appeals labeled that conduct “vile and inappropriate.” Regardless, the court noted that Ms. Duncan could point to no evidence that Mr. Herron had humiliated or threatened her or denied her any benefit or opportunity. That fact combined with Ms. Duncan’s decision not to apply for a promotion to an open position meant that Mr. Herron’s conduct did not rise to the level of sexual harassment as to her. Consequently, the Court of Appeals ruled that the trial court should have applied the doctrine of qualified immunity to Ms. Duncan’s claims against Mr. Herron.
