PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

CHRISTIE HELM, Plaintiff - Appellant,

v. STATE OF KANSAS, Defendant - Appellee. No. 10-3092

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:08-CV-02459-JAR)

Lynne Jaben Bratcher, Bratcher Gockel & Ki ngston, L.C., Kansas City, Missouri, for Plaintiff-Appellant. Teresa L. Watson (David R. Cooper and Tere lle A. Mock with he r on the brief), Fisher, Patterson, Sayler & Smith, L.L.P., Tope ka, Kansas, for De fendant-Appellee.

Before KELLY , EBEL , and GORSUCH , Circuit Judges.

EBEL , Circuit Judge.

Plaintiff-Appellant Christie Helm appeal s from the district court’s order granting summary judgment in favor of the State of Kansas on her claim for sexual harassment FILED United States Court of Appeals Tenth Circuit 

### September 7, 2011
Elisabeth A. Shumaker Clerk of Court2 under Title VII of the Civil Rights Act of 19 64, 42 U.S.C. §§ 2000e to 2000e-17. Helm sued the State after she was allegedly sexua lly harassed over a period of almost ten years by Judge Frederick Stewart, a state distri ct judge for whom Helm served as an administrative assistant. The district c ourt determined that th e State was entitled to summary judgment because Helm fell within the “personal staff” exemption to Title VII’s definition of “employee” and thus did not qualify for the pr otections afforded by the statute. See id. § 2000e(f). Alternatively, the c ourt ruled that summary judgment for the State was proper on the basis of the Faragher/Ellerth affirmative defe nse to employer liability for a supervisor’s sexual ha rassment of a subordinate. See Faragher v. City of
Boca Raton , 524 U.S. 775, 807–08 (1998); Bur lington Indus., Inc. v. Ellerth , 524 U.S. 742, 764–65 (1998). Exercisi ng jurisdiction under 28 U.S.C. § 1291, we hold that the Faragher/Ellerth defense precludes vicarious liability against the State of Kansas for Judge Stewart’s alleged actions. Accordingly, we AFFIRM the judgment of the district court without reaching the question whether the “personal staff” exemption removes Helm from the purview of Title VII. We also DENY both partie s’ motions to seal certain volumes of their respective appendices.

I. BACKGROUND A. Judge Stewart’s Alleged Sexual Harassment of Helm 1

1 For purposes of summary judgment, we take as true Helm’s account of Judge Stewart’s conduct. Continued . . .3 In September 1998, Christie Helm was hired to fill an administrative-assistant position shared between Judge Frederick Stewar t and Judge Robert Bednar in the First Judicial District of Kansas (the “First Judicial District”). 2 At that time, Judge Stewart had served as a district judge for more than twenty years, while Judge Bednar was beginning his first year on the bench. Judge Stewart began sexually harassing Helm shortly after she was hired. For several years, the harassm ent primarily involved touching Helm’s rear end, thighs, and legs. Additionally, in 1999, Judge Stewart forced a kiss on Helm in front of the courthouse. Helm took a medical leave of absence during the spring and early summer of 2006. After Helm returned to work, Judge Stew art started touching her inappropriately again. During the spring of 2007, the hara ssment began to escalat e. Throughout March and April, Judge Stewart would regularly close the door of his office and kiss Helm. In addition, he once put his hands up Helm’s skirt. In late Ma y or early June 2007, Judge Stewart put his hands up Helm’s skirt and penetr ated her vagina with his finger. He also told her that he wanted to have sex with her on the couch in his chambers and make her have an orgasm. In June 2007, Judge Stew art unbuttoned Helm’s blouse on two different occasions and fondled her breasts.

______________________________________ Cont.

2 Helm also assisted a part-time judge, Pa trick Reardon, after he was appointed in 2002.4 B. The First Judicial District’s Sexual Harassment Policy The First Judicial District has adopted the sexual harassment and discrimination policy formally promulgated by the Kansas Judicial Branch in the Kansas Court Personnel Rules (the “Rules”). The se xual harassment policy prohibits sexual harassment, defines the proscribed conduct, details how and to whom employees should make a sexual harassment complaint, explains the complaint investigation process, and includes an anti-retaliation provision. Unde r the policy, the court administrator is responsible for receiving complaints of sexu al harassment (either from the victimized employee or from the supervisor to whom the employee complained), notifying the Office of Judicial Administration (the “OJA” ), and coordinating a response with the OJA. When the allegations involv e a judge, the OJA works with the Kansas Commission on Judicial Qualifications (the “KCJ Q”) to conduct an investigation. The Kansas Judicial Branch Employee Handbook (the “Handbook”) contains a section regarding the First Judicial District ’s sexual harassment policy. That section provides, in part, as follows: An employee who believes he or sh e has been subjected to unlawful harassment should bring the concer n to the immediate supervisor, appointing authority, or th e Director of Personnel. Employees will not be retaliated against for making a sexual harassment complaint. All complaints are taken seriously and a confidential investigation will be conducted promptly. (Aplt. App., vol. II at 248.) All court employ ees receive a copy of the Handbook and are required to submit an acknowledgment form indicating that they have read and5 understand the policies contained therein. Helm received a copy of the Handbook, read through it, and signed the acknowledgment form. 3 She kept a copy of the Handbook in her desk drawer at work. The First Judicial District provides se xual harassment training to managementlevel employees but does not provide such training to non-management employees like Helm. It disseminates the sexual harassment policy to non-management employees only via the Handbook and the Rules. C. Helm’s Complaints About Sexual Harassment and the First Judicial District’s Response Between 2003 and 2007 , Helm complained to a co worker, Karen Connor, about Judge Stewart on approximately ten different occasions. She never mentioned specifics, stating only that Judge Stewart made her uncomfor table. In late June or early July 2007, Helm approached the ch ief judge of the First Judicial District, David King, and told him that Judge Stewart had done so mething inappropriate and made her feel uncomfortable. She did not disclose any deta ils. Chief Judge King told He lm that no one should work under those circumstances and advised her of the procedure for making a complaint. He also told her that if she wish ed to make a compla int, the First Judicial District “would stand beside and support her fully and that there would be no consequence to her as a result of making the complaint. ” (Aplt. App., vol. VI at 1150.) Helm said that she

3 In her summary-judgment a ffidavit, Helm neverthele ss avers that she did not know about the First Judicial Di strict’s sexual harassment policy.6 wanted to think about whether to make a complaint, and Chief Judge King responded, “Well, don’t take too long, because if you do n’t do anything, I’m going to have to do something since you’ve conv eyed this to me.” (Id. ) In addition, Chief Judge King commented that the “matter would take on a lif e of its own that [Helm] wouldn’t be able to control” once an investigation began. (Id. At 1157) Helm came back to Chief Judge King the sa me day and said that she had resolved the matter with Judge Stewart and di d not wish to pursue it further. 4 Chief Judge King relayed his conversation with Helm to Stev en Crossland, the court administrator, but neither King nor Crossland made a report to the OJA. In his deposition, Chief Judge King explained that Helm’s de cision not to pursue her comp laint after he explained the process to her led him to believe that maybe there was not really a problem. He also stated, “[I]f I had given credit to her complain t and if I had assumed that she had been the victim of sexual harassment, it would not have been a matter of her choice of reporting it. But she didn’t give any details.” (Id. ) In July 2007, Helm requested medical le ave so that she coul d seek treatment for alcohol and drug abuse. She was given permi ssion to take unpaid leave under the Family

4 Helm claims in the background secti on of her opening brief that Chief Judge King’s statement about the matter taking on a life of its own discouraged her from making a complaint, but she cite s no portion of the record to support that assertion. Nor does she raise that argument in the section of her brief addressing the reasonableness of the State’s efforts to prevent and correct sexual harassment. Consequently, we give no weight to that assertion in Helm’s brief.7 Medical Leave Act after she exhausted her sick leave and vacation. During the month of July, Helm received inpatient treatment at an alcohol and drug rehabilitation facility. On August 8, 2007, before Helm was scheduled to re turn to work, she reported to Judge Bednar that Judge Stewart had sexually ha rassed her. This was the first time that she had made any mention of the issue to Judg e Bednar. Helm told Judge Bednar that the harassment was “basically verbal, but it had gotten to touchi ng or had involved touching.” (Id. vol. II at 120.) She also informed Judge Bednar about her previous conversations with Chief Judge King. Judge Bednar immediately reported Helm’s complaint to Chief Judge King and Steven Crossland. Judge Bedn ar also told Judge Stewart a bout the complaint. According to Judge Stewart, Judge Bedna r opined that Helm was maki ng the claim simply because she was after money. Crossland notified the OJ A of the complaint later that same day. At that time, Crossland believed that Helm w ould return to work on August 13, 2007, and he planned to talk to her and Chief Judge Ki ng on that day about changing her duties so that she would not have to work for Judge Stewart anymore. Helm did not return to wo rk on August 13. On August 21, 2007, Mike Helm, Christie Helm’s husband, contacted Crosslan d about his wife’s job status. The Helms were concerned because Chris tie had received smaller payc hecks and then no paychecks during her leave of absence. Later that day, Crossland met with the Helms and explained that the change in pay was because of Chri stie Helm’s exhaustion of sick leave, not because her job was in jeopardy. Crossland also raised the issue of Helm’s sexual8 harassment complaint against Ju dge Stewart, stating that se xual harassment would not be tolerated and that the complaint would be investigated regardless of whether she submitted a formal written complaint. Crossla nd testified that he then assured Helm that they would discuss changing he r duties upon her return to wo rk, although Helm testified that she does not remember th at part of the conversation. At some point after Crossland relayed Helm’s complaint to the OJA—the record is unclear as to the exact date—the KCJQ initiated an inves tigation into Helm’s allegations against Judge Stewart. Helm te stified before the KCJQ on September 17,
2007. D. Helm’s Arrest and Termination On September 18, 2007, Helm was arrest ed following an a ltercation with her husband. She was charged with aggravated battery, a felony, and domestic battery and disorderly conduct, both mi sdemeanors. Helm ultimatel y entered into a diversion agreement that included her stipulation to fa cts that satisfied the elements of the three charged offenses. On December 3, 2007, Chief Judge King sent Helm a letter informing her that the conduct to which she admitted violated three provisions of the Rules. He further explained that her decision to enter into a di version on a felony charge disqualified her from accessing defendants’ criminal histories un der the rules established for the Kansas Criminal Justice Information System. This precluded her from carrying out her duties as an administrative assistant. Chief Judge King also wrote that Judge Stewart had removed9 himself from any employment decisions conc erning Helm and that Judge Bednar had delegated the authority to make such decisions to Chief Judge King. Accordingly, Chief Judge King proposed termination of Helm’s employment and gave He lm the opportunity to respond. Helm responded in a letter dated December 7, 2007. She provided a number of reasons why she should be allo wed to continue working for the First Judicial District, including the fact that Ron Ch ance, the court administrator who preceded Crossland, had entered into a diversion on a DUI charge and had not been fire d. Helm suggested that her criminal prosecution and the proposed te rmination represented retaliation for her complaining about Judge St ewart’s sexual harassment. One week later, Chief Judge King wrote Helm back and informed her that she was terminated effective immediately. He reject ed Helm’s attempt to compare her situation to Chance’s, explaining that Helm was th e only employee that he knew of who had admitted to facts constituting a felony offense against another person. He also addressed Helm’s retaliation argument: Your contention that your termination is in retaliation for your assertion of a claim of sexual harassment is comple tely without merit. The district court administration, and not you, subm itted your complaint to the [KCJQ] through the [OJA]. It was you who were reluctant to pursue a complaint against Judge Stewart, notwithstanding our assurances to you that there would be no adverse employment cons equences for you doing so, and our assurances that you would be supporte d through the process by the district court administration. . . .

. . . .10 Simply put, the decision to pro pose termination of your employment was based exclusively on your admitte d criminal misconduct and nothing else. Absent such misconduct, term ination of your employment would not have been proposed. (Aplt. App., vol. III at 397.) 5 E. KCJQ Disciplinary Proceed ings Against Judge Stewart On June 3, 2008, the KCJQ filed a Noti ce of Formal Proceedings against Judge Stewart. In October 2008, however, Judge Stewart retired from the bench and moved to Alabama. Consequently, the KC JQ closed the investigation. F. Procedural History On January 22, 2008, Helm filed a Charge of Discrimination against the State of Kansas with the Equal Employment Op portunity Commission (the “EEOC”). She alleged sexual harassment and retaliatory discharg e in violation of Title VII. On June 27, 2008, the EEOC dismissed the charge with the comment, “N o jurisdiction, no employer – employee relationship.” (Aple. Supp. App., vol. II at 1564.) Helm then filed her claims in federal distri ct court. Early in 2009, the parties filed cross-motions for summary judgment. Helm sought partial summary judgment on the issue of whether she qualified as an “emplo yee” under Title VII, while the State sought summary judgment on bo th of Helm’s claims. In an order dated March 17, 2010, the district court denied Helm’s motion for par tial summary judgment a nd granted the State’s

5 In his deposition, Crossland similarly re presented that Helm would have been allowed to continue her employment with a diffe rent judge or in a different office if not for her arrest and diversion.11 motion for summary judgment. The court first ruled that He lm was not an “employee” protected by Title VII because she served on the “personal staff” of both Judge Stewart and Judge Bednar. Furthermore, the court dete rmined that even if Helm did qualify as an “employee” for Title VII purposes, the Stat e was entitled to su mmary judgment on Helm’s sexual harassment claim on the basis of the Faragher/Ellerth affirmative defense. Helm now appeals the district court’s gran t of summary judgment in favor of the State on her sexual harassment claim. 6
II. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo, applying the same standard as the district court. Duvall v. Ga.-Pac. Consumer Prods., L.P. , 607 F.3d 1255, 1259 (10th Cir. 2010). Summary judgmen t is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Where, as here, a defendant moves for summary judgment to test an affirmative defense, “[ t]he defendant . . . must demonstrate that no disputed material fact exists regarding the affirmative defense asserted.” Hutchinson v. Pfeil , 105 F.3d 562, 564 (10th Cir. 1997). Once the defendant makes this initial showing, “the plaintiff mu st then demonstrate with specificity the

6 Helm does not appeal the district c ourt’s denial of her motion for partial summary judgment or the district court’s gran t of summary judgment in favor of the State on her retaliation claim. Accordingly, the only issue before us is whether the district court properly granted summary judgment to the State on Helm’s claim for sexual harassment.12 existence of a disputed material fact.” Id. If the plaintiff cannot meet this burden, “the affirmative defense bars [her] claim, and the defendant is then entitled to summary judgment as a matter of law.” Id. In determining whether summary judgment is proper, we view the evidence in the light most favorable to the non-moving party. Duvall , 607 F.3d at 1259. III. DISCUSSION Title VII makes it unlawful for an em ployer “to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . se x.” 42 U.S.C. § 2000e-2(a)(1). It is well established that a supervisor’s sexual ha rassment of a subordinate may constitute prohibited sex discrimination u nder Title VII. See generally Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 64–67 (1986). Furthermore, actionable se xual harassment includes not only “economic or tangible discrimination” but also “d iscriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alte r the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993) (citation and intern al quotation marks omitted). In this case, the State concedes for purposes of summ ary judgment that Judge Stewart’s alleged harassment of Helm was actionable. Therefore, the dispositive question in this appeal is whether the State may be held liable for that harassment. The Supreme Court has recognized four different theories under which an employer can be held vicariously liable for the harassing conduct of a supervisor. See13 Ellerth , 524 U.S. at 756–60; see also Harrison v. Eddy Potash, Inc. , 158 F.3d 1371, 1375 (10th Cir. 1998) (listing the four theories of vicarious liability id entified in Ellerth ). 7
Helm relies on two of those th eories in this case: (1) th e alter-ego theory and (2) the misuse-of-delegated-authority theory. Accordingly, we pa use here briefly to outline those theories, beginning with the alter-ego th eory. We then proceed to address Helm’s arguments. The Supreme Court has “acknowledged an em ployer can be held vicariously liable under Title VII if the harassing employee’s ‘h igh rank in the company makes him or her the employer’s alter ego.’” Harrison , 158 F.3d at 1376 (quoting Ellerth , 524 U.S. at 758); see also Faragher , 524 U.S. at 789 (recognizing that an employer can be held liable for sexual harassment by an individual “who [is] indisputably within that class of an employer organization’s officials who may be treated as the organization’s proxy”). But the Court has yet to examine the alter-ego th eory in any detail, and the theory has received little attention in our case law. See Mallison-Montague v. Pocrnick , 224 F.3d 1224, 1232 (10th Cir. 2000) (noting “the abso lute scarcity of case law development of this alternate avenue of em ployer liability”). Accordingly, the scope of the alter-ego theory remains relatively uncertain.

7 The Court has also indicated that an em ployer can be held directly liable for a supervisor’s sexual harassment under certain circumstances. Ellerth , 524 U.S. at 758–59; see also Harrison , 158 F.3d at 1374–75. Helm doe s not contend that any of those circumstances exist in this case, so we need not delve into th e different theories of direct liability.14 The misuse-of-delegated-autho rity theory has been treat ed in much greater depth and is the theory under which most cases of supervisor sexual harassment are analyzed. The Supreme Court expounded this theory in the land mark cases of Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton . In those cases, the Court determined that an employer should be he ld vicariously liable for a supervisor’s harassment if the harassment was made possible by abuse of supervisory power. Faragher , 524 U.S. at 802–04; Ellerth , 524 U.S. at 759–60. The Court recognized, however, that virtually all sexual harassme nt by a supervisor involves misuse of supervisory authority, at least to some degree. Faragher , 524 U.S. at 802–04; see Ellerth , 524 U.S. at 763. Consequently, if interp reted too broadly, the misuse-of-delegatedauthority theory could lead to automatic employer liability, a notion that the Court found problematic in light of its precedent and ot her considerations counseling in favor of limited liability for employers. See Faragher , 524 U.S. at 804, 806–07; Ellerth , 524 U.S. at 763–64. Thus, the Court adopted a liab ility scheme designed “to accommodate the principle of vicarious liability for harm cau sed by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecti ng employees.” Faragher , 524 U.S. at 807; Ellerth , 524 U.S. at
764. Under the Faragher/Ellerth framework, an employer is s ubject to vicarious liability for actionable sexual harassment perpetrate d by a supervisor with immediate (or successively higher) authority over the victimi zed employee in two situations. First,15 “when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassi gnment,” the employer is strictly liable and “[n]o affirmative defense is available.” Faragher , 524 U.S. at 808; Ellerth , 524 U.S. at 765. Second, in the absence of a tangibl e employment action, the employer is liable unless it can prove an affirmative defense by a preponderance of th e evidence. Faragher , 524 U.S. at 807; Ellerth , 524 U.S. at 765. “The de fense comprises two necessary elements: (a) that the employer exercised reas onable care to prevent and correct promptly any sexually harassing behavior, and (b) th at the plaintiff employee unreasonably failed to take advantage of any pr eventive or corrective opportun ities provided by the employer or to avoid harm otherwise.” Faragher , 524 U.S. at 807; Ellerth , 524 U.S. at 765. In this case, the district court granted summary judgment in favor of the State on Helm’s sexual harassment claim based on the Faragher/Ellerth affirmative defense. Helm contends that this was error for three reasons : (1) Judge Stewart was the State’s alter ego; (2) a reasonable jury could conclude that Judge Stewart’s harassment “culminated” in Helm’s termination, which w ould prevent the State from asserting the Faragher/Ellerth defense; and (3) genuine factual disputes exist with respect to both prongs of the defense. We consider these arguments in turn.

A. Helm’s Alter-Ego Theory Helm first argues that the Faragher/Ellerth defense is not available to the State because the harasser, Judge Stew art, was the State’s alter ego. We have not squarely16 addressed whether an employer ma y rely on the Faragher/Ellerth defense when a victimized employee seeks to impose liability on the employer under the alter-ego theory as opposed to the misuse of delegated author ity. We need not decide that issue to resolve this case, however, as we conclude th at Helm’s argument fails for the reason that Judge Stewart did not operate as the alter ego of the State. The contours of the alter-ego theory ar e not well defined. Nevertheless, the Supreme Court’s decision in Faragher and our decisions in Harrison and MallinsonMontague provide some guidance. In Faragher , the Supreme Court suggested that presidents, owners, proprietors, partners, cor porate officers, and supervisors with a high position in the management hierarchy are the t ypes of officials who can be considered an organization’s alter ego. See 524 U.S. at 789–90. In Harrison , we stated that “a supervisory employee can[not] be considered an employer’s ‘alter ego’ simply because he or she possesses a high degree of contro l over a subordinate.” 158 F.3d at 1376. Thus, a “low-level supervisor” does not qualify. Id. at 1376 n.2. Finally, in MallinsonMontague , we concluded that a bank’s senior vice president of consumer lending held a sufficiently “high managerial rank” to qualify as the bank’s alter ego. 224 F.3d at 1233. We relied on the following factors: the vice pr esident (1) “had the au thority to hire and fire employees in the consumer lending department”; (2) “was the ultimate supervisor of all employees in the department”; (3) “had the ultimate authority to disapprove all consumer loans”; (4) answered only to the bank’s president; (5) held a “senior level title” that was regarded as “very important”; a nd (6) served on “committees exercising policy-17 making functions.” Id. These cases indicate that an official mu st be high enough in the management hierarchy that his actions “speak” for the employer before he may be considered the employer’s alter ego. Accord Ackel v. Nat’l Commc’ns, Inc. , 339 F.3d 376, 384 (5th Cir. 2003) (“[T]he only factor rele vant to the determination of whether [the former president and general manager] was a prox y for [the corporation] is whether he held a ‘sufficiently high position in the management hierarchy’ so as to speak for the corporate employer.” (quoting Faragher , 524 U.S. at 789); Johnson v. West , 218 F.3d 725, 730 (7th Cir. 2000) (holding that the chief of police at a Veterans Affairs (VA) hospital was not the VA’s alter ego because “he was not a high-level manager whose actions ‘spoke’ for the VA” (citing Harrison , 158 F.3d at 1376)). Only individuals with exceptional authority and control within an organization can meet that standard. Judge Stew art was not such an individual. As an initial matter, we are aware of no cas es in which a state district judge (or, for that matter, any state official) was deemed to be the alter ego of the state. Indeed, virtually every case addressing the alter-ego issu e has arisen in the corporate context. Of course, this does not necessarily mean that a pu blic official can never qualify as the alter ego of a government entity. But few public o fficials are vested with the same degree of power over a government entity as, for ex ample, a corporate president has over a corporation. In this case, we need not me ticulously define the narrow class of public officials who hold that kind of pow er, as it is clear that state dist rict judges do not qualify.18 State district judges do not exercise a suffi cient degree of cont rol over the myriad operations of the state. Rather, they operate in a limited sphere (the judicial branch) and perform a limited role (interpreting and appl ying the law that is enacted by other state officials). Furthermore, thei r decisions are subject to review and reversal by “higher ranking” state judges. For these reasons, st ate district judges, although they have considerable authority, do not occupy positions in the to p echelons of the state’s management . Nor does any state district judge spea k for and represent the state. Indeed, the essential task of a ll judges is to be independent of the state, even to the extent of occasionally being asked to review the constitu tionality or other legality of state actions. Therefore, the district court correctly determ ined that Judge Stewart was not the alter ego of the State of Kansas. B. Whether Judge Stewart’s Harassment “Culminated” in Helm’s Termination We next address Helm’s contention that the State may not assert the Faragher/Ellerth defense because she produced evid ence that would allow a reasonable jury to conclude that Judge Stewart’s harassment “culminated” in a tangible employment action—namely, her termination. Helm clai ms that the following evidence demonstrates that the decision to terminat e her resulted from Judge Stewart’s sexual harassment: (1) Chief Judge King’s failure to report Helm’s first mention of Ju dge Stewart’s sexual harassment; (2) Judge Bednar’s comment to Judge Stewart th at Helm was complaining so that she could get money; (3) the fact that Helm was fired before she returned from medical leave; and (4) the fact that Ron Chan ce entered into a diversion agreement for a19 DUI and was allowed to keep his job. Be cause Helm’s evidence does not support an inference of a causal connection between Ju dge Stewart’s harassment and Chief Judge King’s subsequent termination deci sion, we reject Helm’s argument. There is no question that Helm’s disc harge constitutes a tangible employment action. Pinkerton v. Colo. Dep’t of Transp. , 563 F.3d 1052, 1059 (10th Cir. 2009) (citing Ellerth , 524 U.S. at 761). But a plaintiff cannot show that a supervisor’s harassment “culminated” in a tangible employment action merely by demonstrating that the tangible employment action followed the harassment. See id. Rather, the plaintiff must establish a strong causal nexus between the superviso r’s harassment and the tangible employment action. See id. at 1059–61 (discussing two ways in which a plaintiff might show the requisite causal relationship); Johnson , 218 F.3d at 731. Here, Helm has offered no evidence that connects Judge Stewart’s harassment to Chief Judge King’s termination decision . Indeed, it is undisputed that Judge Stewart removed himself from all employment decisions concerning Helm and played no role in the decision to fire her. Accordingly, He lm’s “termination did not result from [Judge Stewart’s] harassment in the way Ellerth and Faragher contemplate.” 8 Johnson , 218 F.3d at 731. The district court was thus correct in its conclusion that the State could rely on the Faragher/Ellerth defense.

8 Helm has abandoned her retaliation claim in this appeal, so we do not address whether any of her evidence might have supp orted a separate and distinct claim that Chief Judge King retaliated against her because she complained abou t sexual harassment.20 C. Application of the Faragher/Ellerth Defense Having concluded that legally the Faragher/Ellerth defense is available to the State, we now turn to Helm’s final argument, which is that even if the Faragher/Ellerth defense is legally available to the State, genui ne issues of material fact preclude summary judgment. As set forth above, to take a dvantage of the defense, the employer must factually demonstrate “(a) that [it] exerci sed reasonable care to prevent and correct promptly any sexually harassing behavio r, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher , 524 U.S. at 807; Ellerth , 524 U.S. at 765. We address these two factual elements of the defense in turn. 1. Whether the State Exercised Reas onable Care to Pr event and Correct Promptly Any Sexually Harassing Behavior The first element of the Faragher/Ellerth defense actually imposes two distinct requirements on an employer: (1) the employer must have exercised reasonable care to prevent sexual harassment and (2) the employer must have exercised reasonable care to correct promptly any sexual hara ssment that occurred. See Pinkerton , 563 F.3d at 1062. Helm contends that the State (acting throu gh the First Judicial Di strict) was unreasonable in both its prevention and correc tion efforts. We disagree. Beginning with the prevention requireme nt, courts have recognized that the existence of a valid sexual harassment po licy is an important consideration in determining whether an employer acted reas onably to prevent sexual harassment. See21 id. ; see also, e.g. , Weger v. City of Ladue , 500 F.3d 710, 719–20 (8th Cir. 2007); Madray v. Publix Supermarkets, Inc. , 208 F.3d 1290, 1297–99 (1 1th Cir. 2000); Shaw v. AutoZone, Inc. , 180 F.3d 806, 811–12 (7th Cir. 1999). Here, the record reveals that the State implemented a sexual harassment policy th at prohibits sexual harassment, contains a complaint procedure and list of personnel to whom harassment may be reported, and includes an anti-retaliation provision. Helm do es not challenge the facial effectiveness of this policy. But mere promulgation of a sexual harassm ent policy that is reasonable on its face does not constitute an adequate preventa tive measure; the employer must also disseminate the policy. See Agusty-Reyes v. Dep’t of Educ. , 601 F.3d 45, 55 (1st Cir. 2010); Frederick v. Sp rint/United Mgmt. Co. , 246 F.3d 1305, 1314–15 (11th Cir. 2001); see also Faragher , 524 U.S. at 808 (holding that the employer failed to exercise reasonable care to prevent harassment where, among other things, it “entirely failed to disseminate its policy against sexual harassmen t among [its] employees”). In this case, the State distributed its policy to employees via the Handbook and required employees to sign a form affirming that they had read an d understood the policie s in the Handbook. The State also provided trai ning regarding the sexual harassment policy to managementlevel employees. According to Helm, thes e efforts to disseminate the policy were insufficient and rendered the State’s preventative measures unreasonable. Specifically, Helm complains that the State buried its sexua l harassment policy in the middle of a fiftypage employee handbook and di d not provide training on the policy to non-management22 employees. She also alleges that numer ous employees, including herself, were completely unaware of the policy. In our view, the State’s efforts to preven t sexual harassment, while perhaps not as comprehensive as Helm would have liked, were nonetheless reasonable. Numerous courts have held that employers acted reason ably as a matter of la w when they adopted valid sexual harassment policies, distributed those policies to employees via employee handbooks, and either provided no sexual ha rassment training or provided training only to managers. See, e.g. , Dearth v. Collins , 441 F.3d 931, 935 & 936 n.5 (11th Cir. 2006) (per curiam); Matvia v. Bald Head Island Mgmt., Inc. , 259 F.3d 261, 265, 268 (4th Cir. 2001); Kohler v. Inter-Tel Techs. , 244 F.3d 1167, 1180 (9th Cir. 2001); Shaw , 180 F.3d at 811–12; cf. Thornton v. Fed. Express Corp. , 530 F.3d 451, 456– 57 (6th Cir. 2008) (stating that an effective sexual harassment policy should, among other things, provide for training regarding the policy, but then observing that there was no dispute regarding the reasonableness of the employer’s preven tion efforts where the employer distributed its policy via an employee handbook and the plai ntiff received more than one copy of the handbook during her employment). The Seventh Circuit’s decision in Shaw v. AutoZone, Inc. is particularly instructive given the similarities between that case and this one. There, the employer adopted a facia lly valid sexual harassment policy that it distributed to all of its employees via an employee handbook. 180 F.3d at 811. Additionally, the employer provided training to management-level employees regarding the policy. Id. at 812. The Seventh Ci rcuit concluded that these facts established, as a23 matter of law, that the employer exercised r easonable care to prevent sexual harassment. Id. Notably, the court found “irrelevant” th e plaintiff’s testimony that she was unaware of the employer’s sexual harassment policy. Id. at 811. Like Helm, the plaintiff in Shaw signed an acknowledgement form stating that she understood that it was her responsibility to read and understand the polic ies contained in the employee handbook. Id. Accordingly, the court reasoned that “even if [the plaintiff] did not have actual knowledge of the policy, she had constructiv e knowledge of the an ti-harassment policy.” Id. We agree with Shaw and the other cases cited above. Therefore, we conclude that the State exercised reasonable care to prevent sexual harassment by promulgating an appropriate sexual harassment policy, distribu ting that policy to all employees via an employee handbook, requiring employees to acknowledge in writing their understanding of the policies contained in the handbook, and providing training to managers regarding the sexual harassment policy. 9 Although the State could ha ve made a stronger effort to

9 Helm’s arguments regarding alleged widespread ignorance of the sexual harassment policy do not convince us otherwise. For starters , Helm is deemed to have had knowledge of the policy by virtue of her signing the acknowledgment form after she received and reviewed her Handbook. See Shaw , 180 F.3d at 811. Furthermore, we give no weight to Helm’s concluso ry allegations regarding the knowledge of several of her coworkers. In her opening brief, Helm clai ms that she “told several employees about Judge Stewart’s sexual harassment, includi ng Karen Connor, Este lla Sullivan, [and] Larry Thibault, yet none of them suggested she make a formal co mplaint, presumably because none of them had training about the availability and requirement of the complaint procedure.” (Aplt. B r. at 36.) This sort of naked speculation is insufficient to create a triable issue of fact. See Bones v. Honeywell Int’l, Inc. , 366 F.3d 869, 875 (10th Continued . . .24 disseminate its sexual harassment policy by providing training to non-management employees and/or by publishing the policy mo re prominently, the relevant question “is not whether any additional steps or measures would have been reasonable if employed, but whether the employer’s actions as a w hole establish a reasonable mechanism for prevention.” Holly D. v. Cal. Inst. of Tech. , 339 F.3d 1158, 1 177 (9th Cir. 2003). Turning to the correction requirement, it is clear that an employer’s mere promulgation and dissemination of an adequa te sexual harassment policy does not, by itself, establish that the employer acted reasonably to remedy any harassment that occurred despite the reasonable preventative measures. See Pinkerton , 563 F.3d at 1062; see also Cerros v. Steel Techs., Inc. , 398 F.3d 944, 953 (7th Cir. 2005); Spriggs v. Diamond Auto Glass , 242 F.3d 179, 188 (4th Cir. 20 01) (“[A] jury could rationally conclude that, although [the employer’s] institution of an anti-harassment policy represented a reasonable step toward preven ting the type of abuse suffered by [the

______________________________________ Cont. Cir. 2004) (“Unsubstantiated allegations carry no probative weight in summary judgment proceedings.”). Finally, Helm’s claim that Larry Thibault, a thirty -year employee of the First Judicial District and Judge Stewart’s former court reporter, was utterly ignorant of the sexual harassment policy until his deposi tion in this case is contradicted by the record. Thibault specifi cally testified that he knew that unwanted touching would violate the sexual harassment policy. Al though Thibault also testified that he was unaware of an affirmative obligation to report known instan ces of sexual harassment, evidence that one employee was not familiar w ith every detail of a sexua l harassment policy does not, without more, create a genuin e issue of fact regarding the reasonableness of an employer’s prevention efforts.25 employee], the company unreas onably failed to correct [t he supervisor’s] offending behavior by neglecting to enforce the policy.” ). Rather, in order “to establish that it took proper action to correct harassment, [the State] was required to show that it acted reasonably promptly on [Helm’s] complain t when it was given proper notice of her allegations as required under its co mplaint procedures.” Frederick , 246 F.3d at 1314. “The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.” Swenson v. Potter , 271 F.3d 1184, 1192 (9 th Cir. 2001); see also
Cerros , 398 F.3d at 954 (“Our cases recognize prompt investiga tion of the alleged misconduct as a hallmark of r easonable corrective action.”). Helm argues that the State failed to act reasonably to correct Judge Stewart’s sexual harassment because Chief Judge King did no t initiate an investigation into Helm’s first complaint about Judge Stew art. According to Helm, Ch ief Judge King neglected to follow the sexual harassment policy, which ex pressly provides that all sexual harassment complaints will be taken seri ously and promptly investigat ed. We find Helm’s argument unpersuasive. The record indicates that Helm first approa ched Chief Judge King in late June or early July 2007 and told hi m that Judge Stewart had done something inappropriate and made her feel uncomfortable. But Helm provided absolutely no details about Judge Stewart’s conduct, nor does the record sugg est that Helm even mentioned sexual harassment. As we recognized above, “the question of whether [the State] timely acted to26 correct harassment turns on when it had proper notice of [Helm’s] harassment complaint.” Frederick , 246 F.3d at 1315 (emphasis added); see also Swenson , 271 F.3d at 1192 (“Notice of the sexually harassing conduct trig gers an employer’s duty to take prompt corrective action that is reasonably calculated to end the harassment.” (emphasis added) (internal quotation ma rks omitted)). In our view, He lm’s vague complaint did not constitute adequate notice that would have triggered Chief Judge King’s duty to take corrective action. See Madray , 208 F.3d at 1300 (holding that an employee’s complaint to a manager that a supervisor’s behavior ma de her sick was too “informal” and “general” to put the manager on notice of th e need to take corrective action). Furthermore, even if Chief Judge King ha d some obligation to take action, which he did not, no reasonable jury could concl ude that Chief Judge Ki ng acted unreasonably in response to Helm’s amor phous complaint. Chief Judge King advised Helm of the procedure for making a formal complaint and assured Helm that she had the full support of the First Judicial District. He also info rmed Helm that he was required to report all incidents of sexual harassment. Nevertheless, when Helm returned to Chief Judge King later that same day and told him that she di d not wish to pursue her complaint because she had spoken with Judge St ewart and resolved the matte r, Chief Judge King respected her wishes. Although this decision may have been inconsistent with the letter of the State’s harassment policy, which indicates th at all sexual harassment complaints will be investigated, it was entirely reasonab le under the circumstances. Cf. Brown v. Perry , 184 F.3d 388, 396 (4th Ci r. 1999) (holding that supervisor s who violated the employer’s27 directive that all sexual harassment be repo rted nonetheless acted reasonably because they (1) “were confronted with a victim who has continuing to work effectively and . . . who reported a single incident of harassment perpetrated by a supervisory employee with whom she would have very limited futu re contact”; (2) “offer[ed] immediate unconditional support to the victim,” (3) sugge sted that the victim speak with an Equal Employment Opportunity officer; and (4) declined to report the victim’s sexual harassment complaint only after she request ed that they not pursue the matter). Importantly, when Helm made specific a llegations of sexual harassment to Judge Bednar in August 2 007, Judge Bednar immediately c ontacted Chief Judge King and Steven Crossland, who reported the compla int to the OJA the same day. The OJA coordinated with the KCJQ and quickly be gan an investigation that resulted in disciplinary proceedings against Judge Stewar t. Additionally, Crossland made plans to reassign Helm’s duties so that she would not have to work for Ju dge Stewart when she returned from medical leave. Crossland al so told Helm that her complaint would be investigated, that her job was safe, and that they would discuss changing her duties when she returned. These actions clearly constitute reasonable e fforts to correct promptly Judge Stewart’s harassing behavior. Because the undisputed facts demonstrat e that the State acted reasonably to prevent and correct promptly Judge Stewart’s sexually hara ssing behavior, the district court correctly determined that the State satisfied its summary- judgment burden with respect to the first prong of the Faragher/Ellerth defense. We now turn to the second28 prong of the defense. 2. Whether Helm Unreasonably Failed to Take Advantage of Preventive or Corrective Oppo rtunities or to Avoid Harm Otherwise An employer may satisfy the second element of the Faragher/Ellerth defense by showing that the victimized employee unreas onably delayed in reporting incidents of sexual harassment. See Pinkerton , 563 F.3d at 1063 (holding that an unexplained delay of two or two and a half months was unreasona ble). Here, the district court determined that Helm acted unreasonably by waiting until the middle of 2007 to report Judge Stewart’s sexual harassment, which had been ongoing for several years. On appeal, Helm’s offers only one excuse for the delay: her alleged lack of knowledge of the State’s sexual harassment policy. But as we expl ained above, because Helm signed a form acknowledging that she had re ad and understood the policie s contained in the Handbook, she had at least constructive knowledge of the sexual harassment policy. See Shaw , 180 F.3d at 811. Therefore, her ignorance argum ent is unavailing, and we have no basis on which to disturb the district court’s conclusi on that the State carried its burden on the second prong of th e Faragher/Ellerth defense. Because the State has shown th at no genuine issues of mate rial fact exist regarding the reasonableness of its preventive and corre ctive measures and the unreasonableness of Helm’s mitigation efforts, the district cour t properly granted summary judgment in favor of the State on Helm’s sexual harassment claim. D. Motions to Seal Port ions of the Appendices29 Finally, we turn to the parties’ moti ons to seal portions of their respective appendices. Helm seeks to seal five volume s of her six-volume appendix, while the State seeks to seal one volume of its two-vol ume appendix. The Clerk of this Court provisionally granted the parties’ motions, le aving the ultimate decisi on to this panel. We now deny both motions to seal. Although “[c]ourts have long recognized a common-law right of access to judicial records,” 10 this right “is not absolute.” Mann v. Boatright , 477 F.3d 1140, 1149 (10th Cir. 2007). Accordingly, this C ourt, “in its discretion, may se al documents if the public’s right of access is outweighed by competin g interests.” United States v. Hickey , 767 F.2d 705, 708 (10th Cir. 1985) (internal quota tion marks omitted). “In exercising this discretion, we weigh the interests of the public, which are presumptively paramount, against those advanced by the parties. ” Crystal Grower’s Corp. v. Dobbins , 616 F.2d 458, 461 (10th Cir. 1980). “The party seeki ng to overcome the presumption” of public access to the documents “bears the burden of showing some significant interest that outweighs the presumption.” Mann , 477 F.3d at 1149 (interna l quotation marks omitted). In support of their motions to seal, the pa rties allege only that the portions of the volumes of the appendices that they wish to seal contain confidential discovery materials

10 Although this common-law right has lo ng been recognized, “[t]he Supreme Court has not yet ruled on ‘whether there is [a lso] a constitutional right of access to court documents and, if so, the scope of such a right.’” United States v. Gonzales , 150 F.3d 1246, 1256 (10th Cir. 1998) (quot ing United States v. McVeigh , 119 F.3d 806, 812 (10th Cir. 1997) (per curiam)).30 that are subject to a stipulated protective orde r entered by the district court on January 14, 2009. Even assuming, however, that the district court’s prot ective order is valid and has continuing effect in that court, the order ca nnot limit our authority to decide whether the parties may file documents unde r seal in this Court. See Dobbins , 616 F.2d at 461 (“It is beyond question that this Court has discretionary power to control and seal, if necessary, records and files in its po ssession.”). Moreover, the parties cannot overcome the presumption against sealing judicial records simply by pointing out that the records are subject to a protective order in the district cour t. Rather, the parties must articulate a real and substantial interest that justifies deprivi ng the public of access to the records that inform our decision-making process. Because the parties have not come close to meeting that heavy burden, we de ny the motions to seal. IV. CONCLUSION For the foregoing reasons, we hold that the Faragher/Ellerth defense shields the State of Kansas from liability for Judge Stewart’s alleged sexual harassment of Helm. Accordingly, we AFFIRM the district court’ s grant of summary judgment in favor of the State. We also DENY both parties’ motions to seal certain volume s of their respective appendices.