(CN) - A female prison counselor may sue Indiana for discrimination after it fired her for having an affair with another employee, but allowed her male partner to continue working, the 7th Circuit ruled.
Connie Orton-Bell was a substance abuse counselor at a maximum security prison, when an investigator discovered that night-shift employees were having sex on Orton-Bell's desk.
Outraged, she asked the investigator what they ought to do next, and he advised her to wash off her desk in the morning.
She soon learned that many other prison employees knew her office was used for sex, and thought it was a great joke.
When she complained to Superintendent Alan Finnan, he said he was not concerned about night shift employees having sex with one another as long as no inmates were involved.
But shortly thereafter, Finnan discovered that Orton-Bell was having an affair with Major Joe Ditmer who was in charge of custody - and having sex on Ditmer's desk.
Both Orton-Bell and Ditmer were fired, and both appealed.
Ditmer's appeal was quickly settled, and he testified against Orton-Bell at her appeal. The deal allowed him to retire, keep his pension benefits, and subsequently begin working for the prison as a contractor.
But Orton-Bell was not given the same opportunity, and sued the State of Indiana for sex discrimination, hostile work environment, and retaliation.
A federal judge dismissed her case, but the 7th Circuit reinstated her first two claims on Monday.
"Orton-Bell has shown that night-shift staff having sex on her desk was subjectively offensive, and we agree entirely that it is objectively offensive and severe. It was also pervasive because it was revealed to her that, for some time, she had been working at a desk un-sanitized after being used as a platform for sex by night-shift employees. And her supervisors' admitted deliberate indifference is enough for a jury to find the fourth element satisfied," Judge Daniel Manion said, writing for the three-judge panel.
In addition the court found Ditmer similarly situated for purposes of Orton-Bell's discrimination claim - both were fired by the same supervisor, for the same conduct, that violated the same rules.
"Orton-Bell and Ditmer are primarily differentiated by the fact that she was a counselor of two years and he was a twenty-five-year veteran of the DOC's Custody branch. But this cuts both ways. Maybe the DOC was generous with Ditmer because of his long career. But that also put him in a position to know better. Thus his offense was also worse," the 21-page opinion found.
Firing Ditmer made sense given that the affair compromised his ability to lead, and it was not the first such violation.
"But letting him resign and retain the ability to keep working (with all attendant benefits) while firing the female counselor with whom he had an affair is suspect," Judge Manion said.
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