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Date: 10-07-2018

Case Style:

Jane Doe v. Vigo County, Indiana

Case Number: 17-3155

Judge: Wood

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Southern District of Indiana (Marion County)

Plaintiff's Attorney: Scott Barnhart, Brooke Smith and Gregory Bowes

Defendant's Attorney: Caren L. Pollack

Description: Jane Doe seeks to hold Vigo County,
Indiana, liable for the sexual misconduct of its employee, David
Gray. Gray allegedly confined and sexually assaulted Doe
while she volunteered at the park where he worked. The district
court granted summary judgment in favor of Vigo
County, finding that it was neither vicariously liable for
Gray’s wrongs nor directly liable for permitting them to
occur. We too conclude that the law does not permit Doe to
pursue this action against the County.



Gregory Aregood, Jr. v. Givaudan Flavors Corporation





Southern District of Indiana Federal Courthouse - Indianapolis, Indiana



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I
Gray worked as a maintenance specialist for the Vigo
County Parks and Recreation Department. That job required
him to perform various maintenance and groundskeeping
duties at one of the county’s parks. Notably for the present
case, his tasks included cleaning restrooms and directing volunteers.
At least some of those volunteers were completing
court‐mandated community service, and Gray was responsible
for signing off on their time‐logs. Gray performed his job
with a high degree of autonomy, especially in the off‐season
when supervisors might visit the park only once every two to
three weeks. Gray also worked independently of the other
maintenance specialist assigned to his park.
Doe volunteered at the park where Gray worked to complete
her court‐ordered community service. She alleges that
Gray brought her to the park’s restroom area and told her that
the facility required cleaning. After locking the door behind
them, Gray allegedly forced Doe to perform oral sex and digitally
penetrated her vagina. Gray ultimately was charged
with rape, criminal confinement, and official misconduct; he
pleaded guilty to the latter two offenses.
The record lists a handful of prior incidents of misconduct
by employees of Vigo County over the past two decades.
Some of these episodes involved sexual misconduct; as far as
we can tell, however, none of them resulted in coerced sexual
activity, nor does the record suggest that employee misconduct
met with impunity. We detail them below when we discuss
Doe’s direct claim against the County. The record also
No. 17‐3155 3
reflects two prior incidents involving Gray himself. The first
was a vague comment made by a park visitor, perhaps motivated
by a belief that Gray had attempted to pick up his wife;
Vigo County was unable to substantiate the allegation. The
second involved inappropriate comments that Gray had
made to a coworker. That time Gray received a written reprimand,
which caused him to correct his behavior (at least at
that time).
Doe sued both Gray and Vigo County for damages under
42 U.S.C. § 1983 and various state‐law theories that fell within
the court’s supplemental jurisdiction, 28 U.S.C. § 1367. Her
complaint accused Gray of violating her rights under the
Fourth and Eighth Amendments to the Constitution (made
applicable to the states through the Fourteenth Amendment),
and it asserted that Vigo County had a custom or policy that
violated her constitutional rights. She also contended that
Gray committed a number of state torts, and that Vigo County
was both directly liable under state law for its own negligent
retention and supervision of Gray and vicariously liable for
Gray’s torts as his employer.
Gray failed to appear, and the clerk of the district court
entered a default against him. See FED. R. CIV. P. 55(a). The
court, apparently awaiting the outcome of this appeal, has not
yet granted a default judgment. It granted summary judgment
in favor of Vigo County with respect to all claims against
it. “[F]inding no just reason for delay,” the court entered “partial
final judgment in favor of” the county. See FED. R. CIV. P.
54(b). Doe appealed the judgment in favor of the County.
4 No. 17‐3155
II
Before reaching the merits of Doe’s case, we consider the
propriety of considering her appeal at this time. In most circumstances,
courts of appeals have jurisdiction only over appeals
from final judgments of the district court. A final judgment
is defined as one that resolves “all claims against all parties.”
Chessie Logistics Co. v. Krinos Holdings, Inc., 867 F.3d 852,
856 (7th Cir. 2017) (quoting Dale v. Lappin, 376 F.3d 652, 654
(7th Cir. 2004)); see also 28 U.S.C. § 1291. Rule 54(b) of the
Federal Rules of Civil Procedure recognizes a partial exception
to the completeness rule, however, authorizing the district
court to enter final judgment with respect to fewer than
all claims or parties “if the court expressly determines that
there is no just reason for delay.”
In the current case, the district court did not invoke
Rule 54(b) by number, but it did state that there was “no just
reason for delay” in entering “partial final judgment” for Vigo
County. That satisfies the express determination requirement
of Rule 54(b). United States v. Ettrick Wood Prods., 916 F.2d
1211, 1217 (7th Cir. 1990). Moreover, while we strongly prefer
the district court to explain its decision to enter judgment under
Rule 54(b), its failure to do so here does not require a remand,
because the record reveals that the court properly exercised
its discretion. Id. at 1218. Granting summary judgment
for Vigo County unambiguously disposed of all claims
against it, and that judgment was final. Nat’l Metalcrafters v.
McNeil, 784 F.2d 817, 821 (7th Cir. 1986). Any benefit from delaying
Doe’s appeal, either with respect to judicial economy
or any other factor, is difficult to imagine. Gray has defaulted.
Vigo County has defended this suit on legal grounds that do
not depend on the veracity of Doe’s accusations or the extent
No. 17‐3155 5
of her still‐to‐be‐determined damages. Therefore, this appeal
will not “create needless duplication of effort[s] to resolve the
parties’ entire dispute.” VDF FutureCeuticals, Inc. v. Steifel
Labs., Inc., 792 F.3d 842, 845 (7th Cir. 2015). In fact, to forbid
appeal until the district court assesses damages and enters final
judgment against Gray would simply serve to invite Doe
and Vigo County to duplicate their present efforts at a later
date. Id. Therefore, Doe’s appeal is properly before us.
III
We first address the question whether Doe may hold Vigo
County vicariously liable for Gray’s sexual misconduct. A defendant
such as Vigo County is entitled to summary judgment
if it shows that the material facts, construed most favorably to
the plaintiff, could not establish its liability as a matter of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). We assess
the propriety of granting summary judgment de novo.
Bunch v. United States, 880 F.3d 938, 941 (7th Cir. 2018).
To the extent that Doe is relying on the County’s liability
pursuant to Monell v. New York City Department of Social Services,
436 U.S. 658 (1978), she is not using a theory of vicarious
liability. We address her Monell claim in Part IV, below. To the
extent that she is pursuing state‐law claims against the
County, it is Indiana’s law that determines the County’s responsibility
for the acts of its employee. She cannot hold the
County vicariously liable under section 1983, see Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009), and so we do not pursue that
possibility further.
Indiana law generally holds an employer vicariously liable
for an employee’s wrongs only where the latter “has inflicted
harm while acting ‘within the scope of employment.’”
6 No. 17‐3155
Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008) (quoting Sword
v. NKC Hosps., Inc., 714 N.E.2d 142, 148 (Ind. 1999), and Warner
Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105
(Ind. 1997)). That requirement is met if the employee’s torts
were “incidental to the conduct authorized” or furthered the
business of the employer “to an appreciable extent.” Id.; see
also id. at 286 (suggesting the wrong might either “further
[the] employer’s business” or be “motivated … by his employer’s
interests”); Stropes ex rel. Taylor v. Heritage House Childrens
Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989)
(“[A]n employee’s wrongful act may still fall within the scope
of his employment if his purpose was, to an appreciable extent,
to further his employer’s business, even if the act was
predominantly motivated by an intention to benefit the employee
himself.”). The employer need not order or desire the
employee to commit the wrongful act; it may even forbid such
conduct expressly. Warner Trucking, Inc., 686 N.E.2d at 105.
The Supreme Court of Indiana has explained how these
general principles of respondeat superior map onto sexual misconduct
by employees. In doing so, it has stressed the physical,
indeed intimate, contact that a job must require before vicarious
liability will attach. See Barnett, 889 N.E.2d at 286. Barnett
gives four examples, the first of which comes from
Stropes. Stropes held that a residential institution for physically
and intellectually disabled youth might be liable for an
employee’s sexual assault of a boy committed to its care.
547 N.E.2d at 250. As Barnett stressed, the employee in Stropes
was charged with bathing, dressing, feeding and changing the
linens of the boy, and the employee was authorized, when
performing these duties, to touch the boy’s genitals, give him
a comforting pat, and physically restrain him. Barnett,
889 N.E.2d at 284–85 (discussing Stropes, 547 N.E.2d 244).
No. 17‐3155 7
Thus, the employee’s wrongful actions were “sufficiently associated
with [the employee’s] authorized duties” to preclude
summary judgment for the employer. Id. (quoting Stropes,
547 N.E.2d at 250). Barnett likewise explained that a Little
League could be held liable for an equipment manager who
molested and viewed the genitals of players, often while outfitting
them, because the misconduct was “sufficiently associated
with conduct by the manager that the defendant league
had authorized, including fitting the boys with uniforms.” Id.
at 285 (discussing Southport Little League v. Vaughan,
734 N.E.2d 261 (Ind. Ct. App. 2000)).
Barnett contrasted these cases with both Konkle v. Henson,
672 N.E.2d 450 (Ind. Ct. App. 1996), and its own fact pattern.
In Konkle, a minister’s molestation of children did not create
vicarious liability for his church. Id. at 457. As Barnett explained,
mere access to children in the congregation was not
enough where his acts were “not similar to his duties as a minister.”
Barnett, 889 N.E.2d at 285 (quoting Konkle, 672 N.E.2d
at 457). Finally, in Barnett itself, the Supreme Court of Indiana
refused to extend liability to the trustee of a township (i.e., its
executive) for sexual misconduct committed by a deputy trustee.
In express contrast to Stropes, the duties of the deputy
trustee meant that “[o]ther than perhaps a greeting handshake,
[he] was not explicitly or impliedly authorized to touch
or confine applicants for assistance.” Id. at 286. Therefore,
“[h]is alleged acts of confining, sexually touching, and raping
the plaintiff” could not be framed as “an extension of authorized
physical contact.” Id. Because the acts “were not incidental
to nor sufficiently associated with the deputy trustee’s
authorized duties,” “did not further his employer’s business,”
and “were not motivated to any extent by his employer’s interests,”
the doctrine of respondeat superior did not apply. Id.
8 No. 17‐3155
Like the employees in Barnett and Konkle, and unlike those
in Stropes and Southport Little League, touching others intimately
was neither directly authorized by the County nor incidental
to Gray’s duties. Nothing in the record suggests that
Gray’s job involved physical contact with visitors or other
staff members, let alone their confinement. Cleaning facilities,
clearing fallen trees, and keeping trails in a state of good repair
may not even have required interacting with others. Gray
completed many of his tasks without assistance from a
coworker. Gray may have directed the work of park volunteers
and signed their logs; nonetheless, as in Konkle, his employer
is not liable for Doe’s abuse merely because Gray’s job
gave him access to his victim. Finally, we do not see how
Gray’s treatment of Doe could possibly have furthered the interests
of Vigo County, nor does even a scrap of evidence suggest
that Gray intended his conduct to do so. Therefore, according
to the ordinary principles of respondeat superior, Vigo
County need not answer for the wrong of its employee.
Even if ordinary vicarious liability does not apply, however,
Doe urges that Vigo County is liable for the harm caused
by Gray because the County, like a common carrier, owed her
a non‐delegable duty of protection. Because Doe failed to
raise this argument in district court, she has waived it. Puffer
v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012). Moreover,
even if we were to treat this as a forfeiture and reach the issue,
the extension of common‐carrier responsibility to an entity in
the County’s position would represent enough of an expansion
of Indiana law that we would not find obvious error. As
a federal court, we must take Indiana law as it is, not as it may
become.
No. 17‐3155 9
The record, as Doe has presented it to us, does not suggest
that Vigo County served her in a manner analogous to a common
carrier by offering a venue where she could complete
community service. (We do not understand Doe to take the
still‐less supportable position that Vigo County owes a nondelegable
duty to any user of its parks. Ordinary park users
come and go as they please, use its facilities as they choose,
and may be no more vulnerable to harm than the population
at large.) In Indiana, the common‐carrier doctrine is “premised
on the control and autonomy surrendered by the passenger
to the carrier.” Stropes, 547 N.E.2d at 252. Based on this
premise, Indiana has extended the doctrine to residential
homes for the disabled, id. at 253–54, jailors, Robins v. Harris,
740 N.E.2d 914, 917–18 (Ind. Ct. App. 2000), summarily aff’d in
relevant part, 769 N.E.2d 586, 586 (Ind. 2002), police escorting
an intoxicated victim to her residence, Cox v. Evansville Police
Dep’t, 84 N.E.3d 678, 689–90 (Ind. Ct. App. 2017), and police
holding arrestees in custody, id. at 690, among other contexts.
While Doe may have felt pressured to submit to Gray’s directives
because she was completing her mandated community
service there, we do not have evidence indicating that
Doe was compelled to volunteer at this particular park, nor
anything suggesting that she was not free to leave its grounds.
Her autonomy and her ability to control her own environment
were no more diminished by her community‐service obligation
than was that of the drug user who sought outpatient
treatment in L.N.K. ex rel. Kavanaugh v. St. Mary’s Med. Ctr.,
785 N.E.2d 303, 308 (Ind. Ct. App. 2003) (finding no non‐delegable
duty). Nor was she any less autonomous than the public‐
school students in Hansen v. Bd. of Trs. of Se. Sch. Corp.,
551 F.3d 599, 615 (7th Cir. 2008) (applying Indiana law and
finding no non‐delegable duty). Were Doe required to
10 No. 17‐3155
complete her community service at a Vigo County park and
to comply with Gray’s directives, her case might approximate
Robins or Cox; the record before us, however, does not permit
that inference.
IV
Each of Doe’s remaining theories of liability requires evidence
that Vigo County failed to take seriously or to address
a risk of sexual violence posed by employees, including Gray.
Our de novo look at the record satisfies us that no trier of fact
could find either the risk Doe asserts or the County’s insouciance
toward employee misconduct.
Doe claims that Vigo County adopted a custom or practice
of failing to prevent or respond to employees’ sexual misconduct,
and that the custom or practice it adopted was the cause
of the violation of her civil rights. Under 42 U.S.C. § 1983, a
plaintiff can recover against a local government “for constitutional
deprivations visited pursuant to governmental ‘custom’
even though such a custom has not received formal approval
through the body’s official decisionmaking channels”;
nonetheless, “a municipality cannot be held liable solely because
it employs a tortfeasor.” Monell, 436 U.S. at 690–91. The
offending custom must be “widespread and well settled,”
Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir.
2010), and the plaintiff must show that the local policymakers
were, at a minimum, “deliberately indifferent as to [the]
known or obvious consequences” of their inaction with respect
to the custom, id. (quoting Gable v. City of Chicago,
296 F.3d 531, 537 (7th Cir. 2002)). Doe needs to establish both
officials’ “aware[ness] of the risk created by the custom” and
their “fail[ure] to take appropriate steps to protect” her from
it. Id.
No. 17‐3155 11
The record refers to a handful of incidents of misconduct
by employees of Vigo County over the past two decades.
Some involved sexual misconduct, but none resulted in coerced
sexual activity, nor does the record suggest that employee
misconduct occasioned impunity. In 1996 a jail guard
was prosecuted for having sexual contact with an inmate at
the county jail. In 2008 the county recorder resigned and
pleaded guilty to battery for groping an employee. Sometime
before May 2013, a parks department mechanic was accused
of inappropriately cornering one coworker, telling another
that he wanted to have sex with her, and placing his hands on
the latter’s breast and down her pants. That same mechanic
was also suspected of misusing park resources. The County
permitted him to resign, along with two colleagues, rather
than face termination and the formal documentation of his
malfeasance. (The record does not specify whether the colleagues
resigned because of accusations of sexual harassment,
misuse of resources, or both.) A different parks department
employee was fired, probably in early 2015, for allegedly
treating coworkers poorly and making an “off‐color” comment
to another employee. Finally, there are two incidents
mentioned in passing without any information about their
resolution: first, Gray stated in his deposition that a parks department
supervisor made an accusation of sexual harassment
in 2009 or 2010; and second, a civil complaint was filed
in 2014 by a highway department employee accusing her supervisor
of sexual harassment.
As we noted earlier, the record also reflects two prior incidents
involving Gray himself: the vague complaint from a
park visitor about Gray attempting to pick up the visitor’s
wife; and alleged inappropriate comments that Gray had
made to a coworker. Gray received a written reprimand about
12 No. 17‐3155
the latter, which caused him to correct his behavior at that
time.
This is not enough to establish a custom or practice that
gave rise to Doe’s injuries, nor can it support a finding of indifference
on the part of Vigo County officials. 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. Even were we to pretend that they did, Doe would
still need to prove that such a custom caused her injuries. Id.
The earlier behavior Doe recounts, though sometimes vile, is
different in kind from the trauma Doe experienced. Likewise,
Doe has not established a sufficient causal nexus between her
allegation that the county condoned illicit alcohol consumption
by park visitors and the proposition that park employees
felt free to commit sexual assault.
Perhaps most significantly, the record affirmatively shows
that Vigo County was not deliberately indifferent toward sexual
misconduct by employees. Vigo County addressed these
incidents. The employees concerned were fired, reprimanded,
forced to resign, and even prosecuted. When complaints arose
against Gray himself, the County took action. A vague complaint
resulted in an inquiry. Sexualized comments to a
coworker resulted in a written warning that appeared to have
corrected his behavior. Doe suggests that accepting resignations
in lieu of firings reflected the County’s deliberate indifference.
We disagree. Were such resignations used to facilitate
a culture of impunity—perhaps by permitting other
No. 17‐3155 13
departments to rehire the sexual aggressors—the situation
might be different. But the record shows only that resignations
were used as a means of punishment. We also reject out
of hand Doe’s suggestion that permitting male park employees
to work alone with women evidences deliberate indifference
toward sexual misconduct. Integrating workplaces is not
a green light for misconduct; rather, it is a positive feature of
modern society.
V
Doe’s negligent supervision and retention claims fare no
better. Indiana has adopted the Restatement (Second) of Torts
to govern such claims. Clark v. Aris, Inc., 890 N.E.2d 760, 763
(Ind. Ct. App. 2008); see also Sedam v. 2JR Pizza Enters., LLC,
84 N.E.3d 1174, 1179 (Ind. 2017). Thus, if additional requirements
are satisfied, a “master is under a duty to exercise reasonable
care so to control his servant … to prevent him from
intentionally harming others … if … the master … knows or
should know of the necessity and opportunity for exercising
such control.” Restatement (Second) of Torts § 317. If the master
can effectively exercise control over the servant only by
discharging him, “the master may subject himself to liability
… by retaining in his employment servants who, to his
knowledge, are in the habit of misconducting themselves in a
manner dangerous to others.” Id. at cmt. c. As in a general action
for negligence, the master’s duty arises only where the
harm is sufficiently foreseeable. Clark, 890 N.E.2d at 763. This
requirement is met if, looking to the “broad type of plaintiff
and harm involved, without regard to the facts of the actual
occurrence,” Goodwin v. Yeakle’s Sports Bar & Grill, Inc.,
62 N.E.3d 384, 391 (Ind. 2016) (quoting Goldsberry v. Grubbs,
672 N.E.2d 475, 479 (Ind. Ct. App. 1996)), there was “some
14 No. 17‐3155
probability or likelihood of harm … serious enough to induce
a reasonable person to take precautions to avoid it,” id. at 392
(quoting Satterfield v. Breeding Insulation Co., 266 S.W.3d 347,
367 (Tenn. 2008)).
The record does not establish enough of a likelihood of the
type of harm suffered by Doe to have obligated Vigo County
to prevent its occurrence. For example, Doe puts forth no evidence
that park‐goers, in either Vigo County or elsewhere,
face an appreciable risk of harm from the intentional acts of
public employees—let alone from battery or sexual assault.
The same goes for volunteers completing court‐ordered community
service. Doe has not pointed to evidence indicating
that Vigo County, or local governments generally, had a history
of employees attacking members of the public or had any
reason to expect that such attacks would occur. She has not
demonstrated that Gray’s conduct foreshadowed the threat
he would pose to Doe. A business is not alerted to the possibility
that an employee might rape a member of the public by
having faced the occasional, but unfortunate, predicament of
employee sexual harassment, including groping. 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.
Nor do we see how Vigo County could have breached a
duty to Doe had one been owed. As discussed above, the
County investigated but could not substantiate one vague
complaint against Gray, and it warned him for making sexualized
comments to a coworker. That reprimand appeared to
No. 17‐3155 15
have worked until the incident that triggered this case. We see
no warrant in Indiana law for the premise that an employer
acts negligently whenever it chooses a response to sexual harassment
short of termination. Allowing a groundskeeper or
volunteer coordinator to work independently also does not
strike us as evidence of breach, and Doe has not pointed to
any case law suggesting the contrary. Although the record
contains suggestions of past corruption by Gray in his supervision
of volunteers, the evidence suggests neither that Vigo
County learned of that misconduct nor that such corruption
should have alerted it to the possibility of Gray’s sexual violence.
Finally, we reject Doe’s suggestion that “allowing male
workers to supervise female volunteers” fosters an unacceptable
risk of sexual assault—or any other offense for that
matter. In fact, a rule barring sexes from working together
would raise significant concerns about discrimination. Vigo
County’s retention and supervision of Gray do not demonstrate
a lack of due care.
Doe’s allegations describe a horrific incident that no one
should have to endure. 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.

Outcome: We therefore AFFIRM the district
court’s grant of summary judgment for Vigo County.

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