### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3155

J ANE D OE

, Plaintiff

‐ Appellant

,

v.

V IGO C OUNTY

, I NDIANA

, et al

., Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 16 C 124

— William T. Lawrence

, Judge

.

____________________

A RGUED A PRIL 4, 2018

— D ECIDED O CTOBER 3, 2018

____________________

Before W OOD

, Chief Judge

, and B AUER and S YKES

, Circuit

Judges

.

W OOD

, Chief Judge

. Jane Doe seeks to hold Vigo County,

Indiana, liable for the sexual misconduct of its employee, Da

‐

vid Gray. Gray allegedly confined and sexually assaulted Doe

while she volunteered at the park where he worked. The dis

‐

trict 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 to2 No. 17

‐ 3155

occur. We too conclude that the law does not permit Doe to

pursue this action against the County.

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 vol

‐

unteers. At least some of those volunteers were completing

court

‐ mandated community service, and Gray was responsi

‐

ble 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 com

‐ plete 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 dig

‐ itally 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 miscon

‐

duct met with impunity. We detail them below when we dis

‐

cuss Doe’s direct claim against the County. The record alsoNo. 17

‐ 3155 3

reflects two prior incidents involving Gray himself. The first

was a vague comment made by a park visitor, perhaps moti

‐

vated 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 repri

‐

mand, 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 F ED

. R. C IV

. P. 55(a). The

court, apparently awaiting the outcome of this appeal, has not

yet granted a default judgment. It granted summary judg

‐

ment in favor of Vigo County with respect to all claims against

it. “[F]inding no just reason for delay,” the court entered “par

‐

tial final judgment in favor of” the county. See F ED

. R. C IV

. 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 cir

‐

cumstances, courts of appeals have jurisdiction only over ap

‐ peals from final judgments of the district court. A final judg

‐

ment is defined as one that resolves “all claims against all par

‐

ties.” 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 excep

‐

tion to the completeness rule, however, authorizing the dis

‐

trict 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 un

‐

der Rule 54(b), its failure to do so here does not require a re

‐

mand, because the record reveals that the court properly ex

‐

ercised 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 de

‐ laying 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 extentNo. 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 fi

‐

nal 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 de

‐

fendant 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 as

‐

sess 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 Ser

‐

vices, 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 re

‐ sponsibility 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 lia

‐

ble for an employee’s wrongs only where the latter “has in

‐

flicted 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 em

‐ ployer’s interests”); Stropes ex rel. Taylor v. Heritage House Chil

‐

drens 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 ex

‐

tent, to further his employer’s business, even if the act was

predominantly motivated by an intention to benefit the em

‐ ployee 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 mis

‐

conduct by employees. In doing so, it has stressed the physi

‐

cal, indeed intimate, contact that a job must require before vi

‐

carious liability will attach. See Barnett

, 889 N.E.2d at 286. Bar

‐

nett gives four examples, the first of which comes from

Stropes

. Stropes held that a residential institution for physi

‐ cally 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 as

‐

sociated 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 out

‐ fitting them, because the misconduct was “sufficiently associ

‐

ated 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 ex

‐ plained, mere access to children in the congregation was not

enough where his acts were “not similar to his duties as a min

‐

ister.” 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 trus

‐

tee. In express contrast to Stropes

, the duties of the deputy

trustee meant that “[o]ther than perhaps a greeting hand

‐

shake, [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 author

‐

ized physical contact.” Id

. Because the acts “were not inci

‐

dental 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 in

‐

terests,” 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 inti

‐ mately was neither directly authorized by the County nor in

‐

cidental 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 re

‐ pair 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 volun

‐

teers and signed their logs; nonetheless, as in Konkle

, his em

‐ ployer 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 in

‐

terests of Vigo County, nor does even a scrap of evidence sug

‐

gest that Gray intended his conduct to do so. Therefore, ac

‐ cording 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, how

‐

ever, 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 expan

‐

sion 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 com

‐

mon 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 non

‐ delegable 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 “prem

‐

ised on the control and autonomy surrendered by the passen

‐

ger 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 di

‐

rectives because she was completing her mandated commu

‐ nity 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 environ

‐

ment were no more diminished by her community

‐ service ob

‐ ligation 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

‐ del

‐ egable duty). Nor was she any less autonomous than the pub

‐

lic

‐ 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 to10 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 evi

‐

dence 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 insouci

‐

ance toward employee misconduct.

Doe claims that Vigo County adopted a custom or practice

of failing to prevent or respond to employees’ sexual miscon

‐

duct, 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 constitu

‐

tional deprivations visited pursuant to governmental ‘cus

‐

tom’ even though such a custom has not received formal ap

‐ proval through the body’s official decisionmaking channels”;

nonetheless, “a municipality cannot be held liable solely be

‐

cause 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 re

‐

spect 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 co

‐

erced sexual activity, nor does the record suggest that em

‐ ployee 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 col

‐ leagues 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” com

‐

ment 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 de

‐

partment supervisor made an accusation of sexual harass

‐

ment in 2009 or 2010; and second, a civil complaint was filed

in 2014 by a highway department employee accusing her su

‐ pervisor of sexual harassment.

As we noted earlier, the record also reflects two prior inci

‐

dents 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 about12 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 in

‐

difference on the part of Vigo County officials. The record

contains no evidence of any county employee in the past hav

‐ ing forced another to engage in a sexual act or having con

‐

fined 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 consump

‐

tion 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 sex

‐

ual 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 com

‐ plaint 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 resigna

‐

tions in lieu of firings reflected the County’s deliberate indif

‐

ference. We disagree. Were such resignations used to facilitate

a culture of impunity—perhaps by permitting otherNo. 17

‐ 3155 13

departments to rehire the sexual aggressors—the situation

might be different. But the record shows only that resigna

‐

tions were used as a means of punishment. We also reject out

of hand Doe’s suggestion that permitting male park employ

‐

ees to work alone with women evidences deliberate indiffer

‐

ence 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 require

‐

ments are satisfied, a “master is under a duty to exercise rea

‐

sonable 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 mas

‐

ter 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 ac

‐

tion 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 “some14 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 ev

‐

idence 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 com

‐ munity service. Doe has not pointed to evidence indicating

that Vigo County, or local governments generally, had a his

‐

tory 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 possi

‐ bility 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 pro

‐

tect 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 sexu

‐

alized comments to a coworker. That reprimand appeared toNo. 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 har

‐

assment 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 super

‐

vision 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 vio

‐

lence. Finally, we reject Doe’s suggestion that “allowing male

workers to supervise female volunteers” fosters an unac

‐ ceptable 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 demon

‐

strate 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. We therefore A FFIRM the district

court’s grant of summary judgment for Vigo County.