Prior to his employment with the City of Manchester, Sergeant Epps had been employed by the Northwoods police department and worked part-time as a security guard at a Schuncks Grocery Store. During that time, a female employee at Schnucks filed a sexual misconduct complaint against Epps with the St. Louis County police department. Although Manchester requested documentation of Epps’s employment, including his disciplinary record, from the Northwoods department when he applied to the Manchester department, the Northwoods department only provided Epps’s dates of employment and identifying information. After Epps became employed by the Manchester department, a citizen’s complaint was made against Epps by a husband who alleged Epps was inappropriately pursing his wife.
At the time Ms. Herndon filed her charge, the City of Manchester had a policy and procedure in place for dealing with allegations of sexual harassment. The policy forbade sexual harassment in the workplace and also contained a policy on how the police department was to deal with complaints lodged against officers by private citizens as well as other officers. With respect to complaints made by officers against fellow officers, the department’s policy provided that
Upon becoming aware of or receiving notification of potential rules violations by an officer under his command, a supervisor shall begin an immediate investigation of such allegations. The investigation must include questioning the officer, witnesses and complainants, and securing all relevant evidence. The supervisor must then forward a report of the alleged violations, all documents and evidence relating to the investigation, and recommendations for further investigation or other disposition of the matter through appropriate channels.
After learning of Epps's harassment, Epps's schedule was changed so that he would have no further contact with Ms. Herndon. After Ms. Herndon filed a formal complaint, the City of Manchester asked the Missouri State Highway Patrol to conduct an investigation of Sergeant Epps’s conduct. The City of Manchester police department also conducted an internal investigation. Upon completion of the investigation, Sergeant Epps was terminated from employment because of his conduct.
The City of Manchester filed a motion for summary judgment on Ms. Herndon’s claims arguing that it met the United States Supreme Court's requirements set forth in the Ellerth and Faragher cases for asserting an affirmative defense to vicarious liability which arises when an employee's supervisor sexually harasses the employee. The affirmative defense requires an employer to prove that (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. The City argued that it demonstrated that it met the Ellerth/Faragher criteria as a matter of law. The trial court agreed and granted the City’s motion for summary judgment.
The Appellate Court reversed and remanded finding that the City of Manchester was unable to establish the “prevention prong” of the defense by merely demonstrating the existence of a facially valid anti-harassment policy. The court was particularly troubled by the fact that Northwoods department had direct knowledge of Sergeant Epps’s misconduct that it could have passed on to Manchester if the Manchester department took additional steps to acquire the information. The court also found that Manchester did not act reasonably to prevent Sergeant Epps’s harassment in light of the citizen couple's prior complaint. The court noted that although the citizen was not a co-worker, Sergeant Epps either harassed her while on the job or used his position as a police officer to gain access to her for the purpose of harassment.
Lori Herndon v. The City of Manchester, No. ED91175 (Mo. Ct. App. 2009)
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