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 & Kingston, L.C., Kansas City, Missouri, for 

Plaintiff-Appellant. 

Teresa L. Watson (David R. Cooper and Terelle A. Mock with her on the brief), Fisher, 

Patterson, Sayler & Smith, L.L.P., Topeka, Kansas, for Defendant-Appellee. 

 

Before KELLY, EBEL, and GORSUCH, Circuit Judges. 

EBEL, Circuit Judge. 

 

 Plaintiff-Appellant Christie Helm appeals 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 Court
2 

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. Helm 

sued the State after she was allegedly sexually harassed over a period of almost ten years 

by Judge Frederick Stewart, a state district judge for whom Helm served as an 

administrative assistant. The district court determined that the 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 protections afforded by 

the statute. See id. § 2000e(f). Alternatively, the court ruled that summary judgment for 

the State was proper on the basis of the Faragher/Ellerth affirmative defense to employer 

liability for a supervisor’s sexual harassment of a subordinate. See Faragher v. City of 

Boca Raton, 524 U.S. 775, 807–08 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 

742, 764–65 (1998). Exercising 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 parties’ motions to seal certain 

volumes of their respective appendices. 

I. BACKGROUND 

A. Judge Stewart’s Alleged Sexual Harassment of Helm1

 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 Stewart 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 harassment 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 Stewart started touching her inappropriately 

again. During the spring of 2007, the harassment began to escalate. 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 May or early June 2007, Judge 

Stewart put his hands up Helm’s skirt and penetrated 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 Stewart unbuttoned Helm’s blouse on two different 

occasions and fondled her breasts. 

______________________________________ 

Cont. 

2

 Helm also assisted a part-time judge, Patrick 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 sexual 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. Under the policy, the court administrator is 

responsible for receiving complaints of sexual 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 involve a judge, the OJA works with the Kansas Commission on 

Judicial Qualifications (the “KCJQ”) 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 she has been subjected to unlawful 

harassment should bring the concern to the immediate supervisor, 

appointing authority, or the 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 employees receive a copy of the Handbook and are 

required to submit an acknowledgment form indicating that they have read and 
5 

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 sexual 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 coworker, Karen Connor, about 

Judge Stewart on approximately ten different occasions. She never mentioned specifics, 

stating only that Judge Stewart made her uncomfortable. In late June or early July 2007, 

Helm approached the chief judge of the First Judicial District, David King, and told him 

that Judge Stewart had done something inappropriate and made her feel uncomfortable. 

She did not disclose any details. Chief Judge King told Helm 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 wished to make a complaint, 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 affidavit, Helm nevertheless avers that she did not 

know about the First Judicial District’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 don’t do anything, I’m going to have to do 

something since you’ve conveyed this to me.” (Id.) In addition, Chief Judge King 

commented that the “matter would take on a life 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 same day and said that she had resolved 

the matter with Judge Stewart and did not wish to pursue it further.4

 Chief Judge King 

relayed his conversation with Helm to Steven 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 decision not to pursue her complaint 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 complaint 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 leave so that she could seek treatment for 

alcohol and drug abuse. She was given permission to take unpaid leave under the Family 

 4

 Helm claims in the background section 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 cites 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 return to work, she reported to 

Judge Bednar that Judge Stewart had sexually harassed her. This was the first time that 

she had made any mention of the issue to Judge Bednar. Helm told Judge Bednar that the 

harassment was “basically verbal, but it had gotten to touching 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 Bednar also told Judge Stewart about the complaint. According 

to Judge Stewart, Judge Bednar opined that Helm was making the claim simply because 

she was after money. Crossland notified the OJA of the complaint later that same day. 

At that time, Crossland believed that Helm would return to work on August 13, 2007, and 

he planned to talk to her and Chief Judge King on that day about changing her duties so 

that she would not have to work for Judge Stewart anymore. 

Helm did not return to work on August 13. On August 21, 2007, Mike Helm, 

Christie Helm’s husband, contacted Crossland about his wife’s job status. The Helms 

were concerned because Christie had received smaller paychecks 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 Christie Helm’s exhaustion of sick leave, not 

because her job was in jeopardy. Crossland also raised the issue of Helm’s sexual 
8 

harassment complaint against Judge Stewart, stating that sexual harassment would not be 

tolerated and that the complaint would be investigated regardless of whether she 

submitted a formal written complaint. Crossland testified that he then assured Helm that 

they would discuss changing her duties upon her return to work, although Helm testified 

that she does not remember that 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 investigation into Helm’s 

allegations against Judge Stewart. Helm testified before the KCJQ on September 17, 

2007. 

D. Helm’s Arrest and Termination

 On September 18, 2007, Helm was arrested following an altercation with her 

husband. She was charged with aggravated battery, a felony, and domestic battery and 

disorderly conduct, both misdemeanors. Helm ultimately entered into a diversion 

agreement that included her stipulation to facts 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 diversion on a felony charge disqualified her 

from accessing defendants’ criminal histories under 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 removed 
9 

himself from any employment decisions concerning 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 Helm the opportunity 

to respond. 

Helm responded in a letter dated December 7, 2007. She provided a number of 

reasons why she should be allowed to continue working for the First Judicial District, 

including the fact that Ron Chance, the court administrator who preceded Crossland, had 

entered into a diversion on a DUI charge and had not been fired. Helm suggested that her 

criminal prosecution and the proposed termination represented retaliation for her 

complaining about Judge Stewart’s sexual harassment. 

One week later, Chief Judge King wrote Helm back and informed her that she was 

terminated effective immediately. He rejected Helm’s attempt to compare her situation 

to Chance’s, explaining that Helm was the 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 completely without merit. The district 

court administration, and not you, submitted 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 consequences for you doing so, and our 

assurances that you would be supported through the process by the district 

court administration. . . . 

. . . . 
10 

 Simply put, the decision to propose termination of your employment 

was based exclusively on your admitted criminal misconduct and nothing 

else. Absent such misconduct, termination of your employment would not 

have been proposed. 

(Aplt. App., vol. III at 397.)5

E. KCJQ Disciplinary Proceedings Against Judge Stewart

On June 3, 2008, the KCJQ filed a Notice of Formal Proceedings against Judge 

Stewart. In October 2008, however, Judge Stewart retired from the bench and moved to 

Alabama. Consequently, the KCJQ 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 Opportunity Commission (the “EEOC”). She 

alleged sexual harassment and retaliatory discharge in violation of Title VII. On June 27, 

2008, the EEOC dismissed the charge with the comment, “No jurisdiction, no employer – 

employee relationship.” (Aple. Supp. App., vol. II at 1564.) 

Helm then filed her claims in federal district 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 “employee” under Title VII, while the State sought 

summary judgment on both of Helm’s claims. In an order dated March 17, 2010, the 

district court denied Helm’s motion for partial summary judgment and granted the State’s 

 5

 In his deposition, Crossland similarly represented that Helm would have been 

allowed to continue her employment with a different judge or in a different office if not 

for her arrest and diversion. 
11 

motion for summary judgment. The court first ruled that Helm 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 determined that even if Helm did qualify as an 

“employee” for Title VII purposes, the State was entitled to summary judgment on 

Helm’s sexual harassment claim on the basis of the Faragher/Ellerth affirmative defense. 

Helm now appeals the district court’s grant 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 judgment 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 must then demonstrate with specificity the 

 6

 Helm does not appeal the district court’s denial of her motion for partial 

summary judgment or the district court’s grant 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 employer “to discriminate against any 

individual with respect to [her] compensation, terms, conditions, or privileges of 

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). It is well 

established that a supervisor’s sexual harassment of a subordinate may constitute 

prohibited sex discrimination under Title VII. See generally Meritor Sav. Bank, FSB v. 

Vinson, 477 U.S. 57, 64–67 (1986). Furthermore, actionable sexual harassment includes 

not only “economic or tangible discrimination” but also “discriminatory intimidation, 

ridicule, and insult that is sufficiently severe or pervasive to alter 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 internal quotation marks omitted). In this 

case, the State concedes for purposes of summary 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. See
13 

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 identified in Ellerth).7

 

Helm relies on two of those theories in this case: (1) the alter-ego theory and (2) the 

misuse-of-delegated-authority theory. Accordingly, we pause here briefly to outline 

those theories, beginning with the alter-ego theory. We then proceed to address Helm’s 

arguments. 

The Supreme Court has “acknowledged an employer can be held vicariously liable 

under Title VII if the harassing employee’s ‘high 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 theory 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 absolute scarcity of case law development of 

this alternate avenue of employer liability”). Accordingly, the scope of the alter-ego 

theory remains relatively uncertain. 

 7

 The Court has also indicated that an employer 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 does not contend that any of those 

circumstances exist in this case, so we need not delve into the different theories of direct 

liability. 
14 

The misuse-of-delegated-authority theory has been treated 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 landmark 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 held 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 harassment 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 interpreted 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 other 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 liability scheme designed “to accommodate the 

principle of vicarious liability for harm caused by misuse of supervisory authority, as 

well as Title VII’s equally basic policies of encouraging forethought by employers and 

saving action by objecting employees.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 

764. 

Under the Faragher/Ellerth framework, an employer is subject to vicarious liability 

for actionable sexual harassment perpetrated by a supervisor with immediate (or 

successively higher) authority over the victimized employee in two situations. First, 
15 

“when the supervisor’s harassment culminates in a tangible employment action, such as 

discharge, demotion, or undesirable reassignment,” 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 tangible employment action, the employer is liable 

unless it can prove an affirmative defense by a preponderance of the evidence. Faragher, 

524 U.S. at 807; Ellerth, 524 U.S. at 765. “The defense comprises two necessary 

elements: (a) that the employer exercised reasonable care to prevent and correct promptly 

any sexually harassing behavior, 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. 

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 would 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 Stewart, was the State’s alter ego. We have not squarely 
16 

addressed whether an employer may 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 authority. We need not decide that issue to 

resolve this case, however, as we conclude that 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 are 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, corporate officers, and supervisors with a high 

position in the management hierarchy are the types 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 control 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 president (1) “had the authority 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”; and (6) served on “committees exercising policy-
17 

making functions.” Id.

These cases indicate that an official must 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 relevant to the determination of whether [the former president 

and general manager] was a proxy 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 Stewart was not such an 

individual. 

As an initial matter, we are aware of no cases 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 issue has arisen in the corporate context. Of 

course, this does not necessarily mean that a public official can never qualify as the alter 

ego of a government entity. But few public officials are vested with the same degree of 

power over a government entity as, for example, a corporate president has over a 

corporation. In this case, we need not meticulously define the narrow class of public 

officials who hold that kind of power, as it is clear that state district judges do not qualify. 
18 

State district judges do not exercise a sufficient degree of control over the myriad 

operations of the state. Rather, they operate in a limited sphere (the judicial branch) and 

perform a limited role (interpreting and applying the law that is enacted by other state 

officials). Furthermore, their decisions are subject to review and reversal by “higher 

ranking” state judges. For these reasons, state district judges, although they have 

considerable authority, do not occupy positions in the top echelons of the state’s 

management. Nor does any state district judge speak for and represent the state. Indeed, 

the essential task of all judges is to be independent of the state, even to the extent of 

occasionally being asked to review the constitutionality or other legality of state actions. 

Therefore, the district court correctly determined 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 evidence that would allow a reasonable 

jury to conclude that Judge Stewart’s harassment “culminated” in a tangible employment 

action—namely, her termination. Helm claims that the following evidence demonstrates 

that the decision to terminate her resulted from Judge Stewart’s sexual harassment: (1) 

Chief Judge King’s failure to report Helm’s first mention of Judge Stewart’s sexual 

harassment; (2) Judge Bednar’s comment to Judge Stewart that 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 Chance entered into a diversion agreement for a 
19 

DUI and was allowed to keep his job. Because Helm’s evidence does not support an 

inference of a causal connection between Judge Stewart’s harassment and Chief Judge 

King’s subsequent termination decision, we reject Helm’s argument. 

There is no question that Helm’s discharge 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 supervisor’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, Helm’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 supported a separate and distinct claim that 

Chief Judge King retaliated against her because she complained about 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, genuine issues of material fact preclude summary 

judgment. As set forth above, to take advantage of the defense, the employer must 

factually demonstrate “(a) that [it] exercised reasonable care to prevent and correct 

promptly any sexually harassing behavior, 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 Reasonable Care to Prevent 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 harassment that occurred. See Pinkerton, 563 F.3d at 1062. 

Helm contends that the State (acting through the First Judicial District) was unreasonable 

in both its prevention and correction efforts. We disagree. 

Beginning with the prevention requirement, courts have recognized that the 

existence of a valid sexual harassment policy is an important consideration in 

determining whether an employer acted reasonably to prevent sexual harassment. See
21 

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 (11th 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 that prohibits sexual harassment, contains 

a complaint procedure and list of personnel to whom harassment may be reported, and 

includes an anti-retaliation provision. Helm does not challenge the facial effectiveness of 

this policy. 

But mere promulgation of a sexual harassment policy that is reasonable on its face 

does not constitute an adequate preventative 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. Sprint/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 harassment 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 and understood the policies in the Handbook. 

The State also provided training regarding the sexual harassment policy to managementlevel employees. According to Helm, these efforts to disseminate the policy were 

insufficient and rendered the State’s preventative measures unreasonable. Specifically, 

Helm complains that the State buried its sexual harassment policy in the middle of a fiftypage employee handbook and did not provide training on the policy to non-management 
22 

employees. She also alleges that numerous employees, including herself, were 

completely unaware of the policy. 

In our view, the State’s efforts to prevent sexual harassment, while perhaps not as 

comprehensive as Helm would have liked, were nonetheless reasonable. Numerous 

courts have held that employers acted reasonably as a matter of law when they adopted 

valid sexual harassment policies, distributed those policies to employees via employee 

handbooks, and either provided no sexual harassment 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 prevention efforts where the employer distributed 

its policy via an employee handbook and the plaintiff 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 facially 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 Circuit concluded that these facts established, as a 
23 

matter of law, that the employer exercised reasonable care to prevent sexual harassment. 

Id. Notably, the court found “irrelevant” the 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 policies 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 constructive knowledge of the anti-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, distributing 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 have 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 conclusory allegations regarding the knowledge of several of her 

coworkers. In her opening brief, Helm claims that she “told several employees about 

Judge Stewart’s sexual harassment, including Karen Connor, Estella Sullivan, [and] 

Larry Thibault, yet none of them suggested she make a formal complaint, presumably 

because none of them had training about the availability and requirement of the 

complaint procedure.” (Aplt. Br. 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 more 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 whole establish a reasonable mechanism for 

prevention.” Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1177 (9th Cir. 2003). 

Turning to the correction requirement, it is clear that an employer’s mere 

promulgation and dissemination of an adequate 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. 2001) (“[A] jury could rationally 

conclude that, although [the employer’s] institution of an anti-harassment policy 

represented a reasonable step toward preventing 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 deposition in this case is contradicted by the 

record. Thibault specifically testified that he knew that unwanted touching would violate 

the sexual harassment policy. Although Thibault also testified that he was unaware of an 

affirmative obligation to report known instances of sexual harassment, evidence that one 

employee was not familiar with every detail of a sexual harassment policy does not, 

without more, create a genuine issue of fact regarding the reasonableness of an 

employer’s prevention efforts. 
25 

employee], the company unreasonably failed to correct [the 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] complaint when it was given proper notice of her 

allegations as required under its complaint 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 (9th Cir. 2001); see also

Cerros, 398 F.3d at 954 (“Our cases recognize prompt investigation of the alleged 

misconduct as a hallmark of reasonable corrective action.”). 

Helm argues that the State failed to act reasonably to correct Judge Stewart’s 

sexual harassment because Chief Judge King did not initiate an investigation into Helm’s 

first complaint about Judge Stewart. According to Helm, Chief Judge King neglected to 

follow the sexual harassment policy, which expressly provides that all sexual harassment 

complaints will be taken seriously and promptly investigated. We find Helm’s argument 

unpersuasive. 

The record indicates that Helm first approached Chief Judge King in late June or 

early July 2007 and told him 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 suggest that Helm even mentioned sexual 

harassment. As we recognized above, “the question of whether [the State] timely acted to 
26 

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 triggers an employer’s duty to take 

prompt corrective action that is reasonably calculated to end the harassment.” (emphasis 

added) (internal quotation marks omitted)). In our view, Helm’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 made her sick was too “informal” and “general” 

to put the manager on notice of the need to take corrective action). 

Furthermore, even if Chief Judge King had some obligation to take action, which 

he did not, no reasonable jury could conclude that Chief Judge King acted unreasonably 

in response to Helm’s amorphous 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 informed 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 did not wish to pursue her complaint because 

she had spoken with Judge Stewart and resolved the matter, Chief Judge King respected 

her wishes. Although this decision may have been inconsistent with the letter of the 

State’s harassment policy, which indicates that all sexual harassment complaints will be 

investigated, it was entirely reasonable under the circumstances. Cf. Brown v. Perry, 184 

F.3d 388, 396 (4th Cir. 1999) (holding that supervisors who violated the employer’s 
27 

directive that all sexual harassment be reported 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 future contact”; (2) “offer[ed] immediate 

unconditional support to the victim,” (3) suggested that the victim speak with an Equal 

Employment Opportunity officer; and (4) declined to report the victim’s sexual 

harassment complaint only after she requested that they not pursue the matter). 

Importantly, when Helm made specific allegations of sexual harassment to Judge 

Bednar in August 2007, Judge Bednar immediately contacted Chief Judge King and 

Steven Crossland, who reported the complaint to the OJA the same day. The OJA 

coordinated with the KCJQ and quickly began an investigation that resulted in 

disciplinary proceedings against Judge Stewart. Additionally, Crossland made plans to 

reassign Helm’s duties so that she would not have to work for Judge Stewart when she 

returned from medical leave. Crossland also 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 efforts to correct promptly 

Judge Stewart’s harassing behavior. 

Because the undisputed facts demonstrate that the State acted reasonably to 

prevent and correct promptly Judge Stewart’s sexually harassing 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 second 
28 

prong of the defense. 

2. Whether Helm Unreasonably Failed to Take Advantage of 

Preventive or Corrective Opportunities or to Avoid Harm 

Otherwise

An employer may satisfy the second element of the Faragher/Ellerth defense by 

showing that the victimized employee unreasonably 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 unreasonable). 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 explained above, because Helm signed a form 

acknowledging that she had read and understood the policies 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 argument is unavailing, and we have no basis on 

which to disturb the district court’s conclusion that the State carried its burden on the 

second prong of the Faragher/Ellerth defense. 

Because the State has shown that no genuine issues of material fact exist regarding 

the reasonableness of its preventive and corrective measures and the unreasonableness of 

Helm’s mitigation efforts, the district court properly granted summary judgment in favor 

of the State on Helm’s sexual harassment claim. 

D. Motions to Seal Portions of the Appendices 
29 

 Finally, we turn to the parties’ motions to seal portions of their respective 

appendices. Helm seeks to seal five volumes of her six-volume appendix, while the State 

seeks to seal one volume of its two-volume appendix. The Clerk of this Court 

provisionally granted the parties’ motions, leaving the ultimate decision 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 Court, “in its discretion, may seal documents if the public’s 

right of access is outweighed by competing interests.” United States v. Hickey, 767 F.2d 

705, 708 (10th Cir. 1985) (internal quotation 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 seeking 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 (internal quotation marks omitted). 

 In support of their motions to seal, the parties 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 long been recognized, “[t]he Supreme 

Court has not yet ruled on ‘whether there is [also] 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) (quoting United States v. McVeigh, 119 F.3d 806, 812 (10th 

Cir. 1997) (per curiam)). 
30 

that are subject to a stipulated protective order entered by the district court on January 14, 

2009. Even assuming, however, that the district court’s protective order is valid and has 

continuing effect in that court, the order cannot limit our authority to decide whether the 

parties may file documents under 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 possession.”). 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 court. Rather, the parties must articulate a real 

and substantial interest that justifies depriving 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 deny 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 volumes of their respective 

appendices.