By Erica Shelley Nelson and Brennen Johnson
In Raspardo v. Carlone, the U.S. Court of Appeals for the Second Circuit found that qualified immunity protected a Connecticut police chief from claims that his actions and supervision of the city police department created a hostile work environment for women. Three female police officers, two former and one current, sued their police chief, claiming that he failed to properly supervise or investigate the conduct of subordinate police officers who allegedly sexually harassed them. The Court held that qualified immunity protected the police chief from the claim because the female officers could not show that his own actions were sufficient to create a hostile work environment nor that he was grossly negligent in supervising his subordinate officers.
The female officers were all hired between early 2005, and late 2006. Just over a year later, starting in 2007, one particular sergeant began subjecting each of the three female officers to a series of actions that could qualify as sexual harassment. The same sergeant had been investigated earlier in 2006, after department management obtained evidence of inappropriate comments and behavior directed at a female officer. However, the female officers involved with those earlier incidents stated that they were not offended and that they did not believe that the sergeant had acted inappropriately. The police chief still disciplined the sergeant with verbal counseling, forfeiture of two days sick leave, and then suspended him for two days. None of the three female officers filed a complaint about the sergeant’s behavior. Although no complaint was filed by the female officers, the sergeant was put on administrative leave due to inappropriate racial comments and ultimately fired for using his position to engage in a demeaning pattern of conduct towards those under his command.
Apart from the sergeant’s behavior toward the three female officers, there were other incidents that exposed the women to sexually charged, inappropriate incidents. In fact, when one of the female officers who brought the lawsuit first interviewed with the police chief, he told her that “he was going to have sexual harassment problems with [her].” She was later nicknamed “J-Lo” in reference to her rear end. In one instance, sexual videos were shown during a training session, but management quickly reacted to ensure that such behavior would not be repeated.
The Court explained that because of his position as a public official, qualified immunity protected the police chief from legal claims unless he was personally involved with some constitutional violation. Personal involvement could include “direct participation in the alleged violation, gross negligence in the supervision of subordinates who committed wrongful acts, and failure to take action upon receiving information that constitutional violations are occurring.” The Court went on to state that the police chief could not be liable because he neither directly participated in harassing the female officers, nor was he grossly negligent in supervising his subordinates.
The Court explained:
There is no evidentiary basis to conclude that [the chief] knew that [the sergeant] was sexually harassing [the plaintiffs] and impermissibly allowed this harassment to continue. The plaintiffs did not report sexual harassment of them by [the sergeant] until after [the chief] had already placed [the sergeant] on administrative leave… Nor have they presented any evidence suggesting the [the chief] created or allowed to continue any policy of sexual harassment or otherwise witnessed or approved of sexual harassment of other female officers.
To support its decision, the Court cited instances of the chief using his authority to discipline the sergeant who sexually harassed the plaintiffs. Although the disciplinary action that ultimately lead to the sergeant’s termination did not arise from sexual misconduct, the chief recommended termination after those allegations came to light. The court concluded that “although [the sergeant’s] behavior toward [the female officers] is surely offensive and regrettable, to find [the chief] ineligible for immunity solely because [the sergeant] acted unlawfully seems patently unfair as well as illogical.” The police chief was therefore entitled to qualified immunity on both the direct and supervisory claims of sexual harassment.
This case is a close call with regard to the claims against the police chief. Even though the evidence was slightly thin, this case was decided at the summary judgment stage, and the plaintiff did raise disputed facts to show that the chief was aware of prior acts of sexual harassment involving other female employees and failed to take action. While ultimately the claim may not survive trial, the plaintiffs should have been permitted to try their case against the chief to a jury. When considering whether to pursue claims against individual federal or state actors, plaintiffs (and their attorneys) should not only consider the strengths of the underlying legal claims, but also whether a qualified immunity defense is likely and viable for purposes of case evaluation and preparation.
