Appeals court revives sexual harassment suit against Utah judge
Appeal • Former court administrator leveled sexual harassment charges.
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The 10th Circuit Court of Appeals has revived some claims in a case involving a former Weber County Justice Court administrator who alleged she was sexually harassed by a judge.

In a ruling issued Tuesday, the court said U.S. District Court Judge Dee Benson erred when he ruled against former Weber County court administrator Marcia Eisenhour by dismissing equal protection, First Amendment and, in part, Whistleblower Act claims in her lawsuit against Justice Court Judge Craig Storey and Weber County.

The court said Benson must hear the equal protection violation claim against Storey, whom it said was not entitled to qualified immunity regarding whether he inappropriately touched Eisenhour.

It also said Benson erred in dismissing First Amendment and one basis for Whistleblower Act claims against Weber County, whom Eisenhour alleged closed its justice court in April 2010, resulting in the loss of her job, because she filed a sexual harassment lawsuit involving Storey and spoke to media about it.

"We hold that her comments to the media involved protected speech and that she presented sufficient evidence for a reasonable fact-finder to infer that her comments were a motivating factor in the county's decision to close the court," the 10th Circuit Court said.

The timing of the closure of the court and evidence showing the court was profitable at the time undermine the county's assertions, the 10th Circuit Court said.

The court upheld Benson's dismissal of several other claims.

Eisenhour, a court administrator, alleged Storey began acting inappropriately toward her in 2008. The judge wrote a sexually explicit poem about her, told Eisenhour he loved her, rubbed his groin against her and shared details of a dream he'd had in which she was naked.

Eisenhour said when she rejected Storey's advances, the judge retaliated by changing her flexible work schedule and requiring prior approval before she missed work, including an explanation of what she was doing and who she was with.

She complained to the county in 2008, but the county took no action against Storey. Eisenhour also filed a complaint about Storey with the Judicial Conduct Commission, but it dismissed the allegations after declining to hear from eight witnesses Eisenhour had lined up.

Eisenhour, who had worked for the court for nearly 25 years, sued Weber County, three county commissioners and Storey in 2010. The county closed the justice court shortly after she filed the lawsuit and spoke to media about it, a move the county said was aimed at reducing expenses but Eisenhour asserted was a result of the complaint.

Eisenhour tried unsuccessfully to land another job with the county, leaving her three months short of being eligible for retirement benefits.

Benson ruled in October 2012 that a jury would not conclude that Storey's behavior violated Eisenhour's constitutional rights since, in his opinion, there was "very little, if any, specific evidence" to back her allegations. Benson said Storey, for example, did not intend for Eisenhour to see the poem, which was tucked in a stack of papers left on the judge's desk to be filed.

Benson dismissed the case against all defendants. Eisenhour then appealed.

The 10th Circuit, which heard the case in September, came to a different conclusion.

The court said Eisenhour's comments to media involved not only her employment dispute but complaints about the response from the state's Judicial Conduct Commission. The comments highlighted potential wrongdoing or a breach of public trust and thus fell within First Amendment protection, the court said.

"A mixed motive is not fatal to her claim," the court said. And the timing of her comments — which came after the commission's hearing and its failure to "carry out its investigatory obligation" — also supports the existence of a public interest in the matter.

Eisenhour's statements to the media "addressed not only sexual harassment, but also the failure of a governmental entity to properly carry out its public responsibilities," the court said.

It also said a jury could conclude Storey discriminated against Eisenhour because of her sex and violated her right to equal protection.

On that point, Benson "reached a contrary conclusion based on inapplicable Supreme Court decisions and inappropriate reliance on the county's evidence that Ms. Eisenhour had not complained about Judge Storey," the appellate court said, and he failed to explain why Storey's acts cannot be characterized as deliberate.

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