Archdiocese Can't Duck Up-Skirt Lawsuit

By Mike Heuer
Courthouse News Service
September 29, 2015

http://www.courthousenews.com/2015/09/29/archdiocese-cant-duck-up-skirt-lawsuit.htm

SAN FRANCISCO (CN) - The Archdiocese of San Francisco cannot dismiss accusations that it failed to stop students at a boys school from sharing up-skirt photos of a teacher, a federal judge ruled.
     A "triable issue exists" on claims the archdiocese contributed to the civil rights violations that caused the teacher's emotional distress, U.S. District Judge William H. Orrick found on Friday.
     Orrick did dismiss claims of Federal Employment and Housing Act violations against Junipero High School, but denied the archdiocese's motion in all other respects.
     "The archdiocese's actions in response to each successive act of harassment fell short in many ways," Orrick wrote. "The school (and the Archbishop's office) did not appear to learn from, or respond to, each instance of harassing conduct or to prevent similar occurrences in the future."
     Biology teacher Kimberly Bohnert sued the archdiocese and Junipero Serra High School last year, claiming they did nothing for more than two years as students humiliated her with an online image they shared, sent sexually explicit social media posts, graphic graffiti and other acts.
     Orrick found that "the students believed that they could get away with disrespectful behavior; indeed, many perpetrators were not caught."
     Junipero Serra is known for its sports teams. Its alumni include baseball star Barry Bonds and football heroes Tom Brady and Lynn Swann. The Contra Costa Times and others reported that Bohnert told it the fact that her harassers included athletes contributed to the school's and archdiocese's inaction - in fact, that the athletes competed to get up-skirt photos.
     The archdiocese claimed that California workers compensation law bars Bohnert's emotional distress claims and that the high school is not an employer as defined by FEHA, so it can't violate the act.
     Orrick found "(t)here is no evidence that Serra is legally independent of the Archdiocese," but is "wholly governed by the Archdiocese," so he granted summary judgment to the school on that claim.
     There are, however, "numerous material issues of fact" in dispute, "substantial questions" regarding existence of a hostile work environment, and questions about whether the archdiocese acted reasonably to investigate and remediate the problem, Orrick said.
     "Bohnert established a triable issue of fact that the Archdiocese's response to the harassment was unreasonable," did not "occur within the course of normal employment" and the Workers' Compensation Act does not bar her claims, Orrick wrote.
     "The school repeatedly failed to follow its own internal investigatory procedures, minimized actions related to sexual harassment, and even condoned its employee's decisions to direct students to delete any incriminating photos on their phones."
     The archdiocese claimed that failing to investigate or remediate the problem does not amount to an "'outrageous'" action triggering Bohnert's emotional distress claim, nor could it have foreseen that its actions caused emotional distress.
     Orrick wrote that he was "not persuaded that the archdiocese could not have foreseen the risk to Bohnert. Multiple other up-skirt photos and attempts had occurred at Serra and other archdiocesan schools. Bohnert herself was the victim of prior sexual harassment."
     To prove emotional distress, Bohnert must establish "extreme and outrageous conduct" intending to cause or recklessly disregard the likelihood of causing emotional distress; demonstrate she suffered emotional distress; and show how the archdiocese caused it.
     Orrick found the archdiocese's conduct "did not occur within the normal course of employment and was not preempted by the CWA," and that Bohnert supported her emotional distress claims "with facts from which a jury could conclude that Serra acted in an outrageous manner."
     Ironically, Orrick's ruling on Junipero Serra High School came two days after the 18th century missionary was elevated to a saint.