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Fired DOC counselor’s sex-discrimination claim revived by 7th Circuit

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The 7th Circuit Court of Appeals reinstated a former Department of Correction substance abuse counselor’s lawsuit alleging sex-discrimination and hostile work environment, finding she was treated differently as compared to the employee she had an affair with while working at a maximum-security prison.

Connie J. Orton-Bell, who worked at Pendleton Correctional Facility for two years, began an affair with Major Joe Ditmer, a 25-year veteran of the DOC who was in charge of custody at the facility. They had sexual intercourse in Ditmer’s office and off-site. Officials suspected the two were having an affair and began an investigation. At this time, officials also were investigating Orton-Bell’s claim that she and another young female employee’s desks appeared to have been used at night. The investigation revealed that night staff would have sex on their desks. DOC officials told Orton-Bell that they didn’t care as long as staff wasn’t having sex with inmates and that she should wash down the desk every morning.

After Orton-Bell and Ditmer admitted to having an affair, they were both terminated, but Ditmer was allowed to resign, keep his benefits and be hired as a contractor and continue working at the facility. Orton-Bell was not given the same type of agreement and had difficulty obtaining unemployment benefits.

She sued, alleging sex-discrimination, hostile work environment and a retaliation claim based on her complaint about staff using her desk for sex. Her hostile work environment claim was based on explicit sexual comments male staffers directed toward her, and that she and other female employees would be patted down for longer periods of time in front of male staffers as they ogled and made sexual comments.

The state moved for summary judgment on her claims, which the District Court granted. But the 7th Circuit reversed on her sex-discrimination and hostile work environment claims. The judges found that the unending barrage of sexual comments made toward her supported her hostile work claim, but there is no evidence that staff used her desk at night because she was a woman.

“The conduct was disgusting, but that night-shift employees were using a conveniently private, secure yet accessible office for sex does not indicate that they were doing so because the office’s daytime occupant was a woman,” Judge Daniel Manion wrote.

The 7th Circuit affirmed regarding her retaliation claim for the same reason, noting she failed to establish that she had engaged in a protected activity.

The judges found that Ditmer could be considered a similarly situated employee as Orton-Bell and that he received more favorable treatment after their affair was discovered by officials.

“Firing the Major in Charge of Custody for an affair which compromised his ability to lead (especially given his repeated past violations of the conduct code) makes sense,” Manion wrote. “But letting him resign and retain the ability to keep working (with all attendant benefits) while firing the female counselor with whom he had an affair is suspect.”

The case, Connie J. Orton-Bell v. State of Indiana, 13-1235, is remanded for further proceedings.

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  1. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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