7th Circuit: Woman can’t sue county over worker’s sex assault

A woman serving court-ordered community service who claimed she was sexually assaulted by a Vigo County park maintenance worker lost her appeal of a judgment in favor of the county in her civil liability lawsuit Wednesday, despite what judges noted was a “horrific incident”.

The 7th Circuit Court of Appeals affirmed summary judgment in favor of the county in Jane Doe v. Vigo County, Indiana, et al., 17-3155, on Wednesday. According to the record, Doe was ordered to perform community service by working in a county park. County park maintenance worker David Gray was responsible for directing volunteers when Doe said he told her to clean a restroom, after which she said he locked the door behind him and forced her to perform oral sex while he digitally penetrated her vagina.

Gray was charged with rape, criminal confinement and official misconduct. He pleaded guilty to the latter two counts, with the state dropping the rape charge. According to state court records, Gray was sentenced in April 2016 to three years in prison.

Doe sued Gray and Vigo County seeking damages for the assault. Gray defaulted, and the district court entered summary judgment in favor of Vigo County on Doe’s liability, vicarious liability, negligent supervision and retention and other state and federal claims. The 7th Circuit affirmed.

“Doe’s allegations describe a horrific incident that no one should have to endure,” Chief Judge Diane Wood wrote for the panel. “But Indiana law does not require the County to answer for Gray’s sexual misconduct, nor has Doe presented enough to support a Monell claim. Neither has she presented enough to move forward on her other state‐law theories against the County.”

Gray had previously been reprimanded for “sexualized” comments to a co-worker, and Doe argued that past instances of harassment or abusive behavior by employees gave rise to a Monell claim, suggesting the county was indifferent to such behavior by employees. The 7th Circuit disagreed, noting Gray and others had been disciplined for their behavior and the county was proactive in training workers.

“The record contains no evidence of any county employee in the past having forced another to engage in a sexual act or having confined an individual to harm her. While Doe has cited cases of sexual harassment by county employees and a few instances of inappropriate physical contact, a handful of incidents spread over twenty years hardly amounts to a widespread custom,” Wood wrote. “Even were we to pretend that they did, Doe would still need to prove that such a custom caused her injuries. … The earlier behavior Doe recounts, though sometimes vile, is different in kind from the trauma Doe experienced.”

The court also applied the liability foreseeability test of Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 391 (Ind. 2016), to find Vigo County could not have foreseen Gray’s assault.

“In short, nothing in the record would allow a trier of fact to find that Vigo County knew or should have known of the need to protect women in Doe’s position from employees such as Gray. Doe also points to no precedent suggesting that Indiana might impose such a duty on local governments or other employers as a general matter,” Wood wrote.

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