Lindsay Okonowsky is a psychologist who worked at a federal prison in Lompoc, California. She was responsible for the psychology department in the Special Housing Unit (SHU). Steven Hellman was a corrections Lieutenant who supervised SHU’s custody staff and was responsible for the safety of inmates and staff. Hellman and Okonowsky were peers. Hellman and Okonowsky disagreed over how to manage “difficult inmates”. Hellman believed that Okonowsky made it “impossible” for he and other officers to do their jobs.
In January 2020, Hellman created an Instagram page titled “8_and_hitthe_gate.” The page did not identify its creator. In February 2020, Okonowsky became aware of the page when Instagram suggested it to her. The page contained hundreds of posts– many of which were overtly sexist, racist, anti-Semitic, homophobic– and transphobic memes that explicitly or impliedly referred to the Bureau of Prisons, and Lompoc staff and inmates. More than 100 Lompoc employees, including the Human Resources Manager, the Union President, and a member of the prison’s Special Investigative Services followed the page.
Posts or comments on the page referred to interactions at the SHU, and indicated that the person who ran the page worked in the SHU. Certain posts referred to Oknowsky specifically, including posts containing derogatory images resembling her likeness. Some of the posts were graphic, suggestive of rape and physical harassment, and depicted scenes of violence against women in general, but also against “the SHU psychologist” in particular.
Okonowsky forwarded images from the page to her supervisor, Chief Psychologist Carl Clegg. Okonowsky also messaged the prison’s Acting Safety Manager to express her concern that he was following the page, and “liking” posts. The Manager responded that the posts were funny, that he was “Sorry, not sorry,” and that she needed to toughen up or get a sense of humor.
The following day, on February 18, 2020, Okonowsky met with Clegg to discuss the page. Clegg suggested that Okonowsky transfer to a different facility within Lompoc. She agreed and was reassigned to Lompoc’s low security facility. Okonowsky also met with the prison’s Acting Complex Warden, James Engleman. The Warden said he would direct Special Investigative Agent Victor Gonzales to investigate the issue and refer the matter to the Bureau’s Office of Internal Affairs.
Later that day, a post appeared on the “8_and_hitthe_gate” page threatening Okonowsky, sexually debasing her, and denigrating a well-known woman in public leadership. The post included a sexually obscene hashtag referring to someone who could not take a joke. Someone had alerted Hellman to Okonowsky’s complaint.
Okonowsky no longer felt safe at work. She decided not to go to work the next day, sent the Warden a copy of the menacing post, and asked the Warden for a phone call. The Warden never responded. Instead, he forwarded her email to Special Investigative Agent Gonzales. Gonzales called Okonowsky that day to set up an initial meeting. During their phone conversation, Gonzales told Okonowsky that he had reviewed the page and didn’t “really see anything that’s a problem” with it.
Okonowsky returned to work and as time passed, Okonowsky felt less safe at work. Hellman continued to post disturbing content, including multiple posts to intimidate Okonowsky for reporting Hellman to prison management. The Human Resources Manager, who actively followed the page, told Okonowsky that he thought the memes were “funny.”
Okonowsky felt ostracized and concerned that she could be in danger. Her productivity declined. She emailed the Warden to ask for an update on the investigation and to state she was increasingly more uncomfortable. In March 2020, Okonowsky and her supervisor, Clegg, met with Associate Warden Gutierrez to discuss Hellman’s conduct. Clegg expressed his concern for Okonowsky’s safety and suggested that the prison convene a workplace violence Threat Assessment Team, but the Warden decided that a Threat Assessment was not warranted.
Hellman continued to post sexually explicit language that suggested sexual relations with or violence against women co-workers, which many Lompoc employees continued to “like.” In March 2020, Hellman posted an image referring to Okonowsky’s likeness accompanied by a sexually vulgar and profanity-ridden diatribe against “the one staff member” for “relentlessly tell[ing] on staff.” Several Lompoc employees, including the prison’s Safety Manager, “liked” the post.
In April 2020, a new warden arrived at Lompoc who convened a six-member Threat Assessment Team to investigate Okonowsky’s complaint. Members of the Team advised Okonowsky not to look at the page anymore, but also directed Okonowsky to inform the prison’s leadership if the posts continued.
In its report, the Threat Assessment Team concluded that numerous Lompoc employees appear to be well aware that Hellman owned the page, and that Hellman’s denial that he directed any posts at Okonowsky was unconvincing. The Team concluded that Hellman’s conduct constituted impermissible “harassing conduct” and likely violated Bureau standards of conduct. The Team recommended that management take a variety of responsive actions, including maintaining the separation of Hellman and Okonowsky, and issuing a letter to Hellman ordering him to cease posting.
On April 16, 2020, the prison issued Hellman a letter stating that his posts appeared to have violated the Bureau’s Anti-Harassment Policy. The letter ordered Hellman to cease such conduct immediately and stated that any failure to comply would not be tolerated and could result in removal. But, for at least three weeks after receiving the letter, Hellman continued to make near daily posts, including posts mocking the prison psychology department and the Threat Assessment Team, and posts suggesting sexual relations and behavior with female coworkers.
Okonowsky alerted prison management to Hellman’s continued conduct in a letter on April 27, 2020. The prison never responded, and Hellman’s conduct continued. He made an additional three posts mocking the Threat Assessment Team. And he posted sexually overt posts targeting female co-workers. On January 24, 2021, Okonowsky transferred to a BOP facility in Texas.
Okonowsky filed suit in 2021, asserting a single claim under Title VII of the Civil Rights Act of 1964 for discrimination on the basis of sex. The district court granted the Government’s Motion for Summary Judgment, but it limited its consideration of the evidence to just five posts that, in the court’s view targeted Okonowsky specifically because of her sex. The district court concluded that those posts “occurred entirely outside of the workplace” because they: were made on a staff member’s personal Instagram page; and were never sent to Okonowsky, displayed in the workplace, shown to Okonowsky in the workplace, or discussed with Okonowsky in the workplace without her consent. Okonowsky appealed.
The Ninth Circuit reversed and allowed Okonowsky to proceed with her case. The Ninth Circuit remanded for the district court to look to: 1) whether Okonowsky was subjected to verbal or physical conduct of a sexual nature; 2) whether the conduct was unwelcome; and 3) whether the conduct was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” As to the third factor, the Court held that conduct that occurs outside of the workplace must be considered. The Court rejected the notion that only conduct that occurred inside the physical workplace can be actionable, especially in light of the ubiquity of social media and its use to harass and bully both inside and outside of the workplace.
Okonowsky produced ample evidence that Hellman’s conduct made it more difficult for her to do her job. The Court found that the Bureau’s lackluster response to the complaint “reinforced rather than remediated” Hellman’s sexually harassing conduct, and cemented the discriminatory effect of his behavior within the workplace. Finally, the Court found that the Bureau’s remedial efforts were wholly inadequate and that a reasonable juror could conclude that the prison failed to take prompt and effective remedial action to address the hostile work environment.
Lindsay Okonowsky v. Merrick B. Garland, 109 F.4th 1166 (2024).