State denied summary judgment on former DOC officer’s sexual harassment, retaliation claims

The state of Indiana must face sexual harassment and retaliation claims filed by a female former correctional officer, though the woman’s sex discrimination claim has been dismissed with prejudice.

Judge James Sweeney of the U.S. District Court for the Southern District of Indiana denied summary judgment to the state on the sexual harassment and discrimination claims brought by Amber McCracken, who was terminated from the Indiana Department of Correction in July 2019. McCracken alleged she was subjected to a hostile work environment for nearly the entirety of her employment at the Putnamville Correctional Facility, which began in November 2017.

Sweeney’s 49-page order outlined 16 incidents of alleged sexual harassment, discrimination and/or retaliation at the hands of McCracken’s co-workers and supervisor.

The lengthy narrative began in December 2017, when McCracken alleged that Officer J.D. Robertson order her to “put [her] a– against the wall” because he “couldn’t concentrate on what was going on around him.”

Then in February 2018, Officer David Harris sat on the desk where McCracken was working and slid his hand from her inner thigh to her knee. When she tried to walk away, Harris wrapped his arm around her neck and “breathed heavily into her ear.”

McCracken filed an incident report with human resources generalist Kathy Goss, who said the allegations were unfounded because there were no third-party witnesses and because there were no previous complaints against Harris. Instead, Goss gave Harris a “stern talking to.”

Another officer relieved McCracken from her post so she could discuss the Harris incident with supervisors. The next day, two offenders told her that the relieving officer had released personal information about McCracken to the offenders and had made sexually explicit comments about her.

As McCracken was reporting that incident, then-Lt. Donanld Pinkston, her supervisor, walked by. Pinkston had previously told McCracken that she did not want to be known as the “kind of person to make reports like this all the time.” Upon seeing her reporting another incident, Pinkston said she was not allowed to be left alone with a male officer because they “did not need another” sexual harassment report from her.

McCracken reported Pinkston’s comment, which he denied. Goss told him not to make such comments, but McCracken claimed no action was taken against the lieutenant or against the officer who allegedly released information about her.

About two weeks later, McCracken tried to enter a checkpoint gate that Harris was manning. She claimed Harris saw her standing in front of him but would not let her inside. He did, however, let a male officer inside, and McCracken walked in with him.

As she passed through, Harris began to slam the door. McCracken reported the incident to Pinkston, who “laughed it off” and told her to be professional.

That same day, Harris called McCracken after work and accused her of leading him on.

Several months later, Officer Tanner Wright put his hand on McCracken’s thigh and suggested that they “sneak off” to have sex. McCracken declined but did not report the incident. Instead, she asked, and was permitted, to relocate away from Wright, though she did not explain her reason for her request.

The next incident also involved Wright. This time, McCracken claimed, he grabbed hold of her buttocks as she walked by. Again, she did not report the incident, believing it would be “futile.”

However, when she submitted a letter of resignation in November 2018, she recounted both incidents involving Wright. She also included them in a charge filed with the Equal Employment Opportunity Commission.

Also in November 2018, Officer Jason Coons told McCracken that the offenders would be “happy to see” her, because “all day yesterday all [Coons] heard about was [McCracken’s] a–.” McCracken filed an incident report, and Coons was told his comment was unacceptable. However, Pinkston also said Coons didn’t “mean anything by it.”

While she was awaiting resolution of the incident with Coons, McCracken learned that her request for time off for her wedding and her daughter’s pageant had been denied. Her then-fiance, another DOC officer, had been approved for the same request, but McCracken’s was “lost.”

At the same time, McCracken asked Pinkston and Cpt. Olan Wheeler if she could receive additional training to expand her career opportunities. Wheeler said no due to her disciplinary issues, which McCracken took to mean her occasional absences from mandatory roll call.

Pinkston later confirmed that the roll call issue was keeping McCracken from the training. But he added that “if it were up to me personally, I will never train you or any other female in [the segregated housing units].”  If McCracken complained about that comment, Pinkston added, he would claim that she was mad because he refused her request for oral sex.

McCracken submitted her resignation letter the following day, referencing Pinkston’s comments and Wright’s conduct.  She later asked for a leave absence, which was never formally granted, but she rescinded her resignation and returned to work after two weeks.

About a month after returning to work, McCracken met with Warden Brian Smith, who asked for copies of the incident reports. He added that it seemed like all the incidents had been handled appropriately, and it would be McCracken’s word against the male officers’ word, which “seemed better” than hers.

Around the same time, McCracken was approved for the training she had requested, but she first had to pass an evaluation with the firearms review board. According to McCracken, Pinkston sat on the board, accused her of not taking the review seriously and shattered her confidence. She did not pass the initial evaluation but did pass a later evaluation that was conducted without Pinkston.

The day before the training, however, McCracken was told Pinkston had removed her from the list of attendees. She asked Wheeler about this, and he indicated that she was still expected to participate in the training, which she did. But on the same day she spoke with Wheeler, McCracken claimed Pinkston stared at her for 30 to 45 minutes while she worked.

In the summer of 2019, McCracken filed another incident report. This time, she alleged her officers were repeatedly calling her to ask about her relationship problems with her husband, another DOC employee.

Also that summer, McCracken wore her hair down at work one day. On that day, McCracken claims, Pinkston walked up behind her and pulled her hair, saying, “What is this?”

She filed an incident report, and Pinkston claimed he told her that her hairstyle was not in compliance with DOC policy. Sweeney’s order indicates her hair was in compliance. Goss told Pinkston not to touch people’s hair.

Finally, McCracken claimed she could not find officers to cover her when she needed to use the restroom. In one incident, she said, she bled through her clothes on her menstrual cycle because she was only given one restroom break between 5:45 a.m. and 6 p.m.

According to McCracken, other officers were able to secure relief. DOC leadership eventually advised female staffers to work through their sergeants to find restroom relief rather than going through other officers directly.

In July 2019, McCracken was terminated for two reasons.

First, she had an inappropriate relationship with Erik Boaz, an offender whom she had known in school. McCracken said she first spoke with Boaz after having a panic attack at work, but she asked for a transfer to keep the relationship from progressing.

McCracken was transferred, but Boaz was later transferred to her new drom. She claimed Pinkston had done this intentionally to set her up.

The second issue that led to McCracken’s termination was her admission to trafficking suboxone into the correctional facility. McCracken later said she gave a false confession so that she could leave a meeting with an investigator, whom she said would not let her leave to pick up her children without a confession.

In October 2019, after McCracken had been terminated, another female officer reported a sexual harassment incident to Pinkston. The lieutenant told her “not to take it upstairs” and later told human resources that he did not know about the incident at all.

Later, however, Pinkston admitted that he knew about the female staffer’s report. He was subsequently demoted from lieutenant to officer.

“All told, the incidents began just weeks after McCracken started with IDOC and continued until her termination almost two years later, albeit with occasional incident-free periods in between,” Sweeney wrote. “Incidents varied in severity from offensive utterances to nonconsensual physical contact, and the perpetrators ranged from fellow officers to the warden.”

In denying the state’s motion for summary judgment on McCracken’s sexual harassment claim, Sweeney found “sufficient evidence to raise a genuine issue as to whether she was subjected to sufficiently severe or pervasive harassment as to alter the conditions of employment and create a hostile work environment.” He added, however, that some of the incidents — such as the discipline-related delay in her training — could not be considered sexual harassment.

The court also found the state was not entitled to judgment on the issue of employer liability as it related to Pinkston and Warden Smith, nor on the issue of co-worker liability.

Likewise as to McCracken’s retaliation claim, “(a) reasonable employee might stop filing complaints if she knew her supervisor would blab to other employees that she had complained, warn her male counterparts that they could not be alone with her, and stare at her from across the room for the better part of an hour,” Sweeney wrote. “… When considering all the retaliation McCracken experienced, a reasonable jury could find it reached a level that would dissuade a reasonable employee from making or supporting a charge of discrimination.”

But the state did secure judgment on the sex discrimination claim, with the court finding that “McCracken cannot show she suffered an adverse action and was meeting IDOC’s legitimate employment expectations … .” The judge specifically declined to find discrimination in McCracken’s transfer to another dorm, the denial of leave, initial denial of training, constructive discharge and her eventual termination.

Sweeney ordered the parties to meet with Magistrate Judge Mario Garcia to schedule a settlement conference prior to trial. Online court records show that a final pretrial conference is set for Nov. 18.

The jury trial in the case of Amber McCracken v. State of Indiana, 1:19-cv-02290, is scheduled for Dec. 6.

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