I remember going to Carmike Cinemas while attending college in Charlottesville and law school in Williamsburg. And the memories are not fond. Dimmed movie projector light bulbs. Sticky floors. Terrible sound. Cramped seating. Now, according to a plaintiff, a Carmike theater in Utah not only was a bad place to watch a movie, but also a horrible place to work.
In Chapman v. Carmike Cinemas, 2009 WL 57504 (10th Cir. 2009), Walter McFashion, the assistant manager at a Utah Carmike Cinemas theater, sexually assaulted Shannon Chapman, a projectionist at the theater. Carmike’s city manager thereafter fired McFashion, but Chapman continued to work at the theater for almost a year after the assault.
Chapman alleged that during this time, “the atmosphere at Carmike was hostile due to constant sexually-oriented conversations, comments, and jokes by managers and employees.” Eventually, she quit, claiming that it was her only option “because she could not overcome her fears for her safety and ultimately she could not bear returning to work.” She subsequently sued Carmike, setting forth three claims: “(1) a sexually hostile work environment due to Mr. McFashion’s assault; (2) a sexually hostile work environment due to pervasive sexual comments, jokes, and conversations; and (3) constructive discharge.”
The district court granted summary judgment to Carmike on all three claims, but the Tenth Circuit reversed in part, but not with regard to Chapman’s second claim, with the problem being that “Chapman failed to present evidence of Carmike’s actual or constructive knowledge” of the conversations, jokes, and comments. Because of this problem, the Tenth Circuit’s consideration of an important evidentiary issue was relegated to dicta, but I think that the court reached the correct conclusion.
You see, at the district court level, the judge did not even need to reach this knowledge issue because he credited evidence that Chapman “participated in sexual conversations and banter while at work” and thus found that Chapman could “not establish the subjective hostility of the environment.” (this seems like a troubling decision in and of itself) But on appeal, the Tenth Circuit assumed without deciding that Chapman adequately established the existence of a hostile work environment and affirmed based upon the knowledge issue. This decision meant that the court did not have to address the hotly contested issue of whether the Rape Shield Rule, Federal Rule of Evidence 412, applies in summary judgment hearings, which would have possibly meant that evidence of Chapman’s alleged participation in the banter was inadmissible.
In support of its argument that the Rule is inapplicable at the summary judgment stage, Carmike cited to 23 Charles A. Wright and Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence, § 5391.1 (1998 Supp.), for the proposition “that Rule 412 applies only at trial, not in summary judgment proceedings.” The Tenth Circuit, however, rejected this argument, noting that “Wright and Graham cites no authority for this proposition.”
The court was correct on this front, but what it missed was that Wright and Graham actually does not even stand for the proposition that Carmike attributed to it. Wright and Graham actually stated that “Rule 412(c)(2) is not applicable to discovery or the use of sexual behavior to prove preliminary facts or other uses that do not involve admission in evidence, such as a motion for summary judgment.” But Rule 412(c)(2) does not contain the general Rape Shield. That Shield is contained in Rule 412(a). Rule 412(c)(2) deals with the procedure for determining the admissibility of evidence in a criminal case where it is claimed that the evidence meets an exception to the Rape Shield Rule. Thus, in a confusing way, Wright and Graham are correct that Rule 412(c)(2) does not (indeed, could not) apply at the summary judgment stage in a civil case, but their treatise says nothing about the applicability of Rule 412(a) at summary judgment hearings.
But, as the Tenth Circuit noted, a couple of courts have found this Rule just as applicable at the summary judgment stage as it is at trial. For instance, in Dunegan v. City of Council Grove, KS, 189 F.R.D. 649, 652 (D. Kan. 1999), the court powerfully concluded that:
In considering the arguments of the parties, we are of the belief that the foremost consideration must be the purpose of the rule. Rule 412 was designed to protect the privacy interests of victims of sexual misconduct. An interpretation of the rule that would allow the parties to expose this evidence in a summary judgment motion without the safeguards of Rule 412 would circumvent the purpose of the rule. The court can consider only admissible evidence in deciding a motion for summary judgment….Rule 412, unlike most of the other rules of evidence, requires some affirmative action by the court prior to the introduction of evidence that falls within its limits. Contrary to the suggestion of the defendants, discovery orders may not provide the protection necessary since discovery can obviously include matters that may ultimately be found to be inadmissible. Accordingly, we do believe that the requirements of Rule 412 must be applied to summary judgment proceedings.
I agree with this conclusion for the same reasons that I have previously argued that Rape Shield rulings should be immediately appealable notwithstanding the final judgment rule and can only hope that courts continue to find the same.