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Refusing to move a youth offender to max security but offering to transfer the officer he harassed was reasonable response

By Lorene D. Park, J.D.

Because a youth correctional facility acted reasonably and promptly in offering to transfer an officer once she made known she was being harassed by a sex offender, the Montana Supreme Court affirmed the dismissal of her sexual harassment, HWE, and retaliation claims (Puskas v Pine Hills Youth Correctional Facility, August 13, 2013, Morris, B). Although she claimed the facility should have sent the inmate to a maximum security unit, the facility had to balance its interest in protecting her against the inmate’s need for sex offender treatment not available on the other unit. Also, given the workplace involved sex offenders, the court declined to disturb the lower court’s ruling that the inmate’s earlier write-up for masturbation was not notice of a hostile work environment.

The correctional officer (CO) worked on the youth correctional facility’s sex offender unit and was considered a “quality” employee. However, she had problems with one inmate who suffered from manic depression. By most accounts, he was a “very unpleasant young man” who often clashed with COs and occasionally spit blood or threw urine and feces at them. He often masturbated and had been in trouble for threatening and sexually assaulting staff and other youths. At some point he targeted the employee and followed her around, sat by her, brushed up against her, and tried to make sure she did his pat-downs. At one point, she saw him masturbating by his door window and ordered him back. In response he said “I will f*cking kill you bitch.”

The next day, the employee met with the director to express her concerns. The director offered to transfer her to another unit but she insisted that he transfer the inmate to the maximum security unit. The inmate had been put on the max security unit briefly before, but that unit was reserved for the most violent inmates who chronically assaulted others. The director believed he would not be a good candidate for permanent placement there because he likely would be assaulted by other inmates (due to his sex offender status); in addition, he was still receiving group treatment that was not available on the max security unit. After meeting with the director and hearing his decision, the employee quit.

The employee filed suit for sexual harassment, HWE and retaliation, claiming she was afraid to go to work and her anxiety caused nightmares, vomiting, and diarrhea. The court held a bench trial and entered judgment in favor of the facility on all claims.

Option to transfer. On appeal, the employee argued that there was not substantial credible evidence to support the lower court’s determination that, from June 2009 until she quit in 2010, she could have transferred units. However, the director testified that he told her she could transfer, and others testified that the facility transferred COs from one unit to another as a primary method to “disengage” an officer from a youth. COs also testified that they frequently transferred between units. Finding this sufficient to support the lower court’s conclusion, the state high court noted that the mere existence of contradictory evidence did not change the analysis.

Solution to harassment. With respect to the employee’s sexual harassment and HWE claims, the court affirmed the facility should not be held liable for the actions of the inmate because its “corrective measures were reasonably calculated to end the harassment and were undertaken promptly.” The lower court concluded the facility had only two potential responses to the harassment: It could place the inmate permanently in the maximum security unit, or it could transfer the employee to another unit. In its view, several factors indicated the inmate was not a proper candidate for the other unit because he was not a generally violent youth.

In addition, a youth court had ordered the inmate to complete sex offender treatment, which included group therapy not available on the maximum security unit. Thus, had he been placed on that unit, he could not complete his treatment requirements. There was also a concern that, as a sex offender, he would have been targeted for violence on the max security unit. To the court, this constituted substantial credible evidence supporting the conclusion that the facility’s offer to transfer the employee to a different unit was the only reasonable option available to remedy the inmate’s harassing behavior toward her.

Notice. There was also substantial credible evidence  that the facility acted promptly to address the harassment once it became aware of it. The employee claimed the facility learned that the inmate’s conduct had become severe or pervasive when she wrote him up for masturbation in January 2009, but the court viewed things differently. Normally, notice that a third party masturbated in front of an employee would be notice of unwanted sexual conduct, but the circumstances were different here.

The employee was working on a sex offender unit and, as repeatedly noted by the lower court, one would expect to see masturbation there. Indeed, this fairly common practice presented some confusion under the facility’s discipline policy as to what was acceptable. Some COs deemed masturbation in front of the door window while watching staff to be a “major rules” violation (MRV) but others ignored it; most CO’s deemed it acceptable at night under the bed covers. In any event, it was fairly common.

Consequently, the state high court declined to disturb the lower court’s ruling that by writing-up the inmate for an MRV, the employee did not put the facility on notice that she had begun to perceive the conditions of employment as having changed. To the contrary, the facility acted reasonably and promptly by offering her a transfer as soon as she reported her concerns to her supervisor.

Retaliation. Likewise, the state high court agreed that the facility had not retaliated against her by trying to force her to transfer units after she engaged in protected activity. The facility had a legitimate, nondiscriminatory reason to transfer the employee; it had to balance the need to protect her from the inmate against his need for access to sex offender treatment as required by the youth court’s commitment order. Further, he likely would have been targeted for harm in maximum security. For these reasons, dismissal was appropriate.