The Volokh Conspiracy
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Hospital Fired Employee for On-the-Job Sex: She Claimed It Was Rape but Other Person Said It Was BDSM
The employee sued, claiming the firing was retaliation; the jury found for the hospital, and the Sixth Circuit upheld the verdict (among other things upholding the admission of evidence of the employee's interest in BDSM).
In Graf v. Morristown-Hamblen Hospital Ass'n, decided Wednesday by Sixth Circuit Judge Karen Nelson Moore, joined by Judges Richard Griffin and John Nalbandian, Graf—a nursing assistant technician—said that Ogle, a security guard, "had raped her" "during a lunch break and on hospital grounds." The hospital "determined that the sexual interaction between Graf and Ogle had been consensual," and fired "Graf on the grounds that she had violated hospital policy by having intercourse while on the clock and in an unauthorized area." (Ogle was also fired.)
Graf sued, claiming she was retaliated against for having brought the complaint, but the jury "returned a verdict in favor of MHHA on all counts." The court affirmed; here is an excerpt of the facts:
Records obtained during the discovery process indicate that Graf and Ogle began texting on June 19, 2021. The two exchanged hundreds of texts over the course of the next several months. According to Graf, the two were "work friends, and that was it."
But according to Ogle, although the relationship started off friendly, the two began discussing that they "were both part of the BDSM world" and having intimate, sexual conversations. Graf admitted to having discussions with Ogle about various topics, including her past abusive relationships and intimate sexual matters, but stated that Ogle always initiated sexual conversations and that they never discussed having relations with each other. The two also met "on a regular basis" during their breaks, meeting in a "numerous amount of spots" including stairwells around the hospital.
One day in June 2021, Ogle texted Graf and asked her to meet him for lunch. Graf agreed to meet, and Ogle guided her to the security office—a location that was on the hospital's campus but where Graf was not authorized to be—via text messages. Graf did not clock out, because she was not required to do so during breaks, and she had a coworker cover her during the break.
Once in the security office, Graf and Ogle began talking about work and their days. What occurred next is heavily contested, but Graf alleges that Ogle trapped her legs with his, handcuffed her, raped her, and forced her to perform oral sex on him. Ogle, by contrast, contends that the encounter was a consensual sexual encounter involving role-play that the two had discussed ahead of time. Graf contends, and Ogle did not deny, that she said "no" and "stop" several times during the encounter. But Ogle stated that the two had discussed safe words prior to the encounter, that that their agreed-upon safe word was not "no" or "stop."
According to Graf, following the encounter, she immediately went to the bathroom and cried, after which she returned to her shift. She did not, on that day, tell anyone about the encounter, including family and friends, the hospital's HR department, or law enforcement.
In the weeks following the encounter, Graf and Ogle continued to text each other frequently. Per Graf's telling, Ogle initiated all of the contact and was "very demanding," asking for explicit pictures and videos of her. Graf complied, contending that she "did not want to" but "was scared" and wanted "to appease [Ogle] and keep calm and save [her] job and not be assaulted again." For his part, Ogle contends that the two sent explicit pictures and videos "back and forth as playful banter to each other as either teasing or showing something off." And Ogle alleges that he and Graf continued to meet in person after the alleged rape.
On October 29, 2021, Graf was having a conversation with Sutton—Ogle's supervisor and her work friend—when Sutton informed her that the hospital was investigating Ogle following a complaint of sexual harassment by another MHHA employee. Graf then told Sutton that Ogle had raped her. Although Graf initially wanted her complaint to be anonymous, she ultimately agreed to tell Sutton's supervisors, Lieutenant Ray Lacy and Captain Jeff Ingram, about the assault. The next day, after meeting with Lacy and Ingram, Graf submitted a written statement detailing her recollection of the events and emphasized that the encounter was nonconsensual.
That same day, Lacy and Ingram met with Ogle about the complaints against him. Ogle admitted to having sex with Graf, as well as having sexual encounters with other nursing staff. Lacy and Ingram immediately collected Ogle's duty gear, relieved him from his shift, and terminated him that day.
Following Ogle's termination, SBSI [the security guard company that employed the security guards, and that contracted with the hospital] authored a report detailing its investigation of Graf's complaint. That report included findings of fact that Graf had entered the security office "through the side door in the boiler room to prevent being seen by any cameras"; that, although Graf had stated that Ogle raped her, Ogle "admitted to having consensual sex with Graf inside the Security Office and assured [his supervisors] the sex was not forced"; and that Ogle had informed Ingram and Lacy "that he was in possession of videos and pictures of him and Graf exposing themselves," which "were sent between both Graf and Officer Ogle." SBSI concluded, based upon their investigation, that "[t]here were no laws violated in this case," i.e., that Ogle did not sexually assault Graf.
The hospital appears to have agreed with SBSI's investigation, and fired Graf as a result. There's a lot going on in the opinion, but here are some excerpts from the legal analysis:
To establish a prima facie retaliation claim under Title VII, a plaintiff "must demonstrate that: '(1) he engaged in activity protected by Title VII; (2) his exercise of such protected activity was known by the defendant; (3) thereafter, the defendant took an action that was 'materially adverse' to the plaintiff; and (4) a causal connection existed between the protected activity and the materially adverse action.'" … Graf's retaliation claim is premised upon her claim that she engaged in Title VII-protected activity when she complained to Ogle's supervisors that Ogle had raped her….
[T]o prove that they engaged in protected conduct, a retaliation claimant must demonstrate "that the opposition [was] based on 'a reasonable and good faith belief that the opposed practices were unlawful.'" … A retaliation claimant therefore "does not need to oppose actual violations of Title VII in order to be protected from retaliation." …
In alleging that MHHA retaliated against her for opposing sexual assault, Graf can succeed on her retaliation claim even if Ogle's conduct was not, as a legal or factual matter, sexual assault. But Graf must prove that she had a reasonable and good-faith belief that the conduct of which she complained was unlawful under Title VII. In other words, she must show that her belief that she was raped was reasonable and in good faith.
Our reasoning in [a recent case] is illustrative of the distinction between these two notions. There, we reviewed, on summary judgment, whether there was a genuine issue of material fact as to the plaintiff's alleged sexual harassment by his coworker while working on an oil rig. We concluded that the conduct of which the plaintiff had complained was not sexual harassment because he had failed to provide any evidence that he was harassed due to his gender. But we concluded that the plaintiff's claim nevertheless survived summary judgment because he had "suffered unwanted sexual touching and communication in the workplace on multiple occasions" and therefore "could have reasonably believed he was sexually harassed." …
Here, then, Graf did not need to prove to the jury that the conduct she reported to Ogle's supervisor, and eventually to an HR representative, was, as a legal matter, a rape. But Graf was required to demonstrate her reasonable and good-faith belief that Ogle's conduct violated Title VII. And MHHA was entitled to introduce evidence rebutting Graf's alleged good-faith belief in the purported violative conduct she had reported, including evidence that Graf had consented to the sexual encounter, because such evidence was directly relevant to the reasonableness of Graf's belief in whether Title VII prohibits that conduct.
Graf resists this conclusion by arguing that "there is no need to determine whether there was a good faith belief when a report of rape is so obviously a practice that is violative of Title VII." But our inquiry is not whether a rape violates Title VII (it does)—our inquiry is whether Graf had a good-faith belief that Ogle raped her at work. Therefore, although we need not determine whether Ogle raped Graf, we must consider whether Graf "held an objectively reasonable and good faith belief" that she reported a legitimate rape….
The district court thus did not err in concluding that, in proving her retaliation claim to a jury, Graf was required to demonstrate that she reasonably and in good faith believed that, when she made her complaint against Ogle, she was reporting a rape. "Whether she actually held such a belief, a question of credibility," was necessarily "left to [the] jury." …
The court also concluded that the district court did not "abuse[] its discretion in admitting evidence of her sexual history and predisposition":
Federal Rule of Evidence 412 prohibits the admission of two types of evidence in cases involving sexual misconduct: "(1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition." The second category, however, is subject to the exception, applicable only in civil cases, that "the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party." And "[t]he court may admit evidence of a victim's reputation only if the victim has placed it in controversy." The rationale behind this rule "is that evidence of a rape victim's prior sexual activity is of dubious probative value and relevance and is highly embarrassing and prejudicial." …
[Fed. R. Evid. 412] prohibits the admission of "evidence offered to prove that a victim engaged in other sexual behavior" in a proceeding "involving alleged sexual misconduct." Here, MHHA sought to introduce evidence of Graf's sexual communications with Ogle in order to demonstrate that she had consented to the sexual encounter. The contested evidence was not introduced to prove that Graf engaged in other sexual behavior; instead, MHHA sought to introduce that evidence for the limited purpose of demonstrating that Graf consented to the sexual encounter at the center of her retaliation claim, i.e., the alleged rape….
In addition, Graf argues that the district court erred in admitting evidence of her sexual behavior outside of her interactions with Ogle pursuant to the exception to Rule 412 for civil cases. See Fed. R. Evid. 412(b)(2) ("In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy."). According to Graf, the district court abused its discretion in allowing the introduction of evidence of her sexual behavior and predisposition outside of her interactions with Ogle because the probative value of such evidence did not substantially outweigh the risk of harm to Graf. And Graf argues that any evidence as to her reputation for sexual behavior was inadmissible because she did not place her reputation in controversy….
[But the] evidence related to Graf's discussion of the BDSM lifestyle and her general sexual preferences with Ogle … was not offered to show Graf's reputation for sexual behavior; instead, it was offered in the limited context of demonstrating Graf's consent to the encounter with Ogle. Because evidence of Graf's sexual preferences was introduced for the non-propensity purpose of demonstrating her consent to the alleged encounter, not her reputation for sexual behavior, Rule 412(b)(2) did not apply. {If this evidence had been introduced for the purpose of proving Graf's reputation for sexually promiscuous behavior or the like, however, it would have been inadmissible because Graf did not place her reputation in controversy.} …
[T]he district court allowed evidence of Graf's sexual behavior with only Ogle, barring any evidence of her discussions about her sexual behavior with others. Additionally, the evidence of Graf's sexual behavior that was admitted—evidence of her involvement in the BDSM lifestyle—was not offered to prove that she engaged in other sexual activity, but to show that she consented to the sexual assault of which she had complained. Once again, then, this evidence fell outside the ambit of Rule 412….
Jay W. Mader and Paul E. Wehmeier (Arnett, Baker, Draper & Hagood, LLP) represent the hospital.
