Sergeant’s Romantic Intentions Were Not “Unwelcome”

Jennifer Diepenhorse was employed as a forensic evidence technician by the City of Battle Creek, Michigan Police Department through June 2004. Diepenhorse began attending the police academy in 2002 to become a police officer, and graduated in 2003. Under local rules, Diepenhorse was only eligible to be certified as an officer for one year following her graduation from the police academy.

Based on a background investigation, the City did not offer Diepenhorse the job, and she eventually accepted an offer from the Calhoun County Sheriff’s Department. Diepenhorse gave notice of her resignation from her forensic tech position on June 1, 2004. She then claimed that Sergeant Bruce Penning had raped her during an off-duty sexual relationship, and filed a federal court lawsuit against the City.

A judge dismissed Diepenhorse’s lawsuit. The Court started by stating the legal standard applicable to such cases: “To establish a claim of quid pro quo harassment, a plaintiff must show: (1) That she was subject to any of the types of unwelcome sexual conduct or communication described in the statute, and (2) that her employer or the employer’s agent used her submission to or a rejection of the proscribed conduct as a factor in a decision affecting her employment.”

The Court found that Diepenhorse could not meet the first prong of this test – that her sexual relations with Penning were unwelcome. As the Court recounted, “Diepenhorse participated in two separate periods of sexual relations with Penning. During the interval between these relations, Diepenhorse dated another individual, but ended that relationship when she resumed having sexual relations with Penning. Diepenhorse explained the concept of ‘friends with benefits’ or ‘fuck buddies’ to Penning.

“Diepenhorse admitted to often answering the door in the nude when Penning came over. Although she stated that her subjective intent was to get the encounter over with more quickly, when viewed objectively, the act of answering the door in the nude contradicts her contention that sexual relations were unwanted. Diepenhorse would go to Penning’s house, let herself in, and climb into bed with him. Diepenhorse participated in phone sex with Penning and initiated it on at least one occasion. Diepenhorse also accepted gifts from Penning and told him that she loved him, at least as a friend. Finally, Diepenhorse occasionally went to dinner with Penning.”

The Court concluded that based on the totality of the circumstances, Diepenhorse never indicated by her conduct that Penning’s sexual advances and the sexual relationship were unwelcome. Thus, the Court dismissed Diepenhorse’s lawsuit based upon her failure to prove an essential component of a quid pro quo sexual harassment claim.

Diepenhorse v. City of Battle Creek, 2007 WL 1141492 (W.D.Mich. 2007).

This article appears in the August 2007 issue