Okonowsky v. Garland

109 F.4th 1166

Lindsay OKONOWSKY, Plaintiff-Appellant, v. Merrick B. GARLAND, Attorney General, United States Attorney General, Defendant-Appellee.

No. 23-55404

United States Court of Appeals, Ninth Circuit

Argued and Submitted May 8, 2024 Pasadena, California

Filed July 25, 2024

Appeal from the United States District Court for the Central District of California Virginia, A. Phillips, District Judge, Presiding, D.C. No. 2:21-cv-07581-VAP-AS

Andrew S. Pletcher (argued), Pletcher Law APC, Westlake Village, CA; Cory H. Hurwitz and Lindsay L. Bowden, Brock & Gonzales LLP, Los Angeles, California; for Plaintiff-Appellant.

Zakariya K. Varshovi (argued), Assistant United States Attorney; David M. Harris, Assistant United States Attorney, Chief, Civil Division; E. Martin Estrada, United States Attorney; United States Department of Justice, Los Angeles, California; for Defendant-Appellee.

Before: Kim McLane Wardlaw, Morgan Christen, and Mark J. Bennett, Circuit Judges.

OPINION

WARDLAW, Circuit Judge:

Lindsay Okonowsky, a staff psychologist in a federal prison, discovered that a corrections Lieutenant with whom she worked, and who was responsible for overseeing the safety of guards, prison staff, and inmates in the unit where she worked, operated an Instagram account, which was followed by more than one hundred prison employees. She learned that the Lieutenant had posted sexually offensive content about work, and that she was a personal target. When Okonowsky complained about the page to prison leadership, management told her the page was "funny"; the investigator whom the prison appointed to investigate Okonowsky's complaint told her the page's content was not "a problem"; and the Lieutenant began to increasingly target her with his posts in what Okonowsky reasonably perceived to be an effort to intimidate her and discourage her from making further complaints. Two months after Okonowsky first reported the Lieutenant's behavior, the prison directed the Lieutenant to cease acting in violation of the prison's Anti-Harassment Policy. The Lieutenant continued posting sexually hostile conduct for another month with no action by the prison. The Lieutenant's conduct and the prison's lack of a curative response to it ultimately drove Okonowsky to leave the prison in search of a different job.

Okonowsky sued the Bureau of Prisons under Title VII of the Civil Rights Act of 1964, claiming that the Bureau failed to take adequate measures to address a hostile work environment at the prison. The district court granted the government's motion for summary judgment, and Okonowsky appealed.

We reverse and remand. The district court erred by considering only some of the evidence, and by applying incorrect legal standards that circumscribed the law concerning hostile work environment claims. We take this occasion to reaffirm that the totality of the circumstances in a Title VII sexually hostile work environment claim includes evidence of sexually harassing conduct, even if it does not expressly target the plaintiff, as well as evidence of non-sexual conduct directed at the plaintiff that a jury could find retaliatory or intimidating. We also reject the notion that only conduct that occurs inside the physical workplace can be actionable, especially in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace.

I. BACKGROUND

A. Factual Background

We begin by describing the events leading to this lawsuit, assuming the version of the facts most favorable to the non-moving party, here Okonowsky. See Little v. Windermere Relocation, Inc., 301 F.3d 958, 964 (9th Cir. 2002).

Okonowsky began working as a psychologist at the Bureau of Prison's ("Bureau" or "BOP") Federal Correctional Complex Lompoc ("Lompoc" or "prison") in Lompoc, California in September 2018. When she arrived at Lompoc, Okonowsky was assigned as the psychologist for the Special Housing Unit ("SHU"), meaning she was responsible for all of the duties of the prison's psychology department in the SHU.

As the SHU psychologist, Okonowsky worked with custody staff to determine where inmates would be housed within the SHU so as to avoid conflict and violence among the inmates in the Unit. Okonowsky relied on SHU custody officers to take incarcerated individuals from their cells and transport them to their clinical appointments with her. She also conducted suicide risk assessments of incarcerated persons. If Okonowsky determined that a SHU inmate was at risk of self-harm, she could direct that the inmate be placed on suicide watch. Suicide watch requires continuous, around-the-clock observation of the individual by custody staff, and can only be terminated upon an assessment and recommendation of the clinical team. See generally 28 C.F.R. §§ 552.40-552.42; Fed. Bureau of Prisons, Program Statement: Suicide Prevention Program, U.S. Dep't of Just. 1, 9 (Apr. 5, 2007) (last visited May 27, 2024), https://perma.cc/A8UK-VDAZ; Fed. R. Evid. 201(b)(2), (c)(1), (d).

Steven Hellman, a corrections Lieutenant who also worked in the SHU at Lompoc, supervised custody staff in the SHU. He was also a member of the Bureau's Special Investigative Services, responsible for investigating suspected violations of law and prison policy by both inmates and staff. Hellman was not Okonowsky's direct supervisor, as Hellman was a corrections Lieutenant and Okonowsky a staff psychologist. But as a corrections Lieutenant, Hellman was responsible for the safety of inmates and staff, including staff members like Okonowsky, and he oversaw the corrections officers who worked in the SHU with Okonowsky. Hellman and Okonowsky's jobs occasionally required them to collaborate or, at a minimum, to work side-by-side in the SHU.

Around January 2020, Hellman and Okonowsky had apparent disagreements over how to manage "difficult inmates" in the SHU. Hellman also became frustrated when Okonowsky was granted access to an office in the SHU. Hellman believed that Okonowsky's use of the office made it "impossible" for him and other corrections officers "to do their job" in the SHU.

During this time, on January 6, 2020, Hellman created an Instagram page titled "8_and_hitthe_gate."¹ The page did not name or identify its creator. On February 16, 2020, Okonowsky became aware of the "8_and_hitthe_gate" page when Instagram "suggested" that Okonowsky view and follow the page from her personal Instagram account. Despite the page's relatively recent creation, the page contained hundreds of posts, many of which were overtly sexist, racist, anti-Semitic, homophobic, and transphobic memes that explicitly or impliedly referred to the Bureau of Prisons, Lompoc staff, and Lompoc inmates. The page was followed by more than one hundred Lompoc employees, including the Human Resources Manager, the Union President, and a member of the prison's Special Investigative Services.² Approximately half or more of the followers of the page were Lompoc employees.

Posts or comments on Hellman's page occasionally referred to interactions between the SHU custody team, the SHU psychologist, and/or SHU inmates or inmates on suicide watch, strongly suggesting that the person who ran the page worked in the SHU at Lompoc. As the SHU psychologist, Okonowsky understood that certain Instagram posts referring to the psychology department or "the psychologist," including some posts that referred to previous conversations Okonowsky had with staff in the SHU and/or posts containing derogatory images resembling her likeness, referred to Okonowsky specifically.

Some of the posts Okonowsky witnessed on the page displayed or suggested violence against and/or sexual contacts with women co-workers, or violence against women generally. These posts were graphic, suggestive of rape and physical harassment, and depicted scenes of violence against women in general, but also against "the SHU psychologist" in particular. Posts ridiculed the "Psychologist" in a coarse and degrading manner simply for doing her job, such as one crude joke depicting a cowboy figure holding two guns pointing in opposite directions, with text suggesting he would shoot both the SHU psychologist and a particular inmate.

Most of the posts are too graphic and disturbing to republish here, but we will recount one that particularly disturbed Okonowsky. Prior to discovering the Instagram page, Okonowsky had invited members of the SHU custody staff to an end-of-the-quarter celebration at her home. When Okonowsky found Hellman's Instagram page, she discovered that he had made a post joking that the all-male custody officers would "gang bang" Okonowsky at her home during the party. That a supervisor openly joked about his law enforcement subordinates "gang banging" Okonowsky at her home on a platform followed by more than one hundred co-workers including upper-level prison management—and that the post was openly "liked" and thereby endorsed by staff members—upset Okonowsky to such an extent that she cancelled the gathering.

After discovering the page, Okonowsky forwarded images from the page to her supervisor, Chief Psychologist Carl Clegg, the very next day—February 17, 2020. Okonowsky also messaged the prison's Acting Safety Manager, Robert Grice, on Instagram to express her concern that he was following the page, "liking" posts, and commenting on posts. Manager Grice responded to her on Instagram, telling Okonowsky that the posts were funny, that he was "Sorry, not sorry," and that Okonowsky needed to toughen up or get a sense of humor.

The following day, on February 18, 2020, Okonowsky met with Supervisor Clegg to discuss the page. Recognizing that the operator of the Instagram page was likely a corrections officer in the SHU, Clegg suggested that Okonowsky transfer to a different facility within Lompoc. After the meeting, Clegg, with Okonowsky's assent, reassigned Okonowsky from Lompoc's medium security facility, where the SHU is located, to Lompoc's...