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Denver Wins Sexual Harassment Suit Filed by Former Jail Captain; Tenth Circuit Affirms

by Matt Clarke

On May 29, 2014, a Colorado federal jury found in favor of the City of Denver in a lawsuit brought by a former jail captain who was allegedly sexually harassed by another employee and subjected to daily sexual harassment by prisoners, which her superiors refused to address. The Tenth Circuit affirmed the judgment in the case in September 2015.

Former jail captain Cheryl Arabalo, 45, filed a federal civil rights action against fellow jail captain Silver Gutierrez and the City of Denver. According to court documents, Gutierrez served a 75-day suspension without pay as punishment for asking Arabalo to expose her breasts and, at another time, asking her to pull up her shirt and sit on his lap. Arabalo, in turn, was fired after Gutierrez reported her for improperly withdrawing money from the Denver Sheriff’s Foundation (DSF) bank accounts.

Arabalo founded DSF in 2005 to provide assistance to sheriff’s department employees in emergencies. Arabalo and Gutierrez were once close friends, and both held positions in DSF. At the time of the embezzlement accusation, Arabalo served as president of DSF and Gutierrez was the foundation’s treasurer. A grand jury failed to return an indictment in the embezzlement case.

Arabalo also claimed that Deputies William Current and Tyler Mazzotti, both members of DSF’s board, had drugged and raped her while off duty in 2011. She allegedly reported the incident to a jail major the next day, but failed to file a police report after the major told her the deputies would simply claim the sex was consensual.

U.S. District Court Judge Marcia S. Krieger instructed jurors to only consider the rape allegation in the context of background information because Arabalo had waited too long to add it as a claim in her lawsuit. Arabalo argued that the embezzlement charges were filed to cover up her allegations of rape and sexual harassment.

Arabalo’s attorney, Zachary Mugge, said that after Arabalo’s husband was featured in a sex film with another woman, prisoners at the jail began taunting her daily. She allegedly reported the problem, but several supervisors failed to take action to stop the harassment.

Arabalo had originally filed a sexual harassment complaint with the Colorado Division of Civil Rights. While that was pending, the sheriff’s department began an investigation into Arabalo. She was then suspended for 70 days for filing an incorrect computer report on her supervision of routine checks on prisoners. Before she could return to work and after the grand jury failed to indict her on the embezzlement charge, Gutierrez took the embezzlement allegation to the sheriff’s department. Arabalo was placed on investigative leave and eventually fired for stealing DSF funds.

Linda Lee, another attorney representing Arabalo, noted that the sheriff’s department was slow to look into the allegations of sexual harassment, waiting two years to begin an investigation and then stalling some more.

“There were no disciplinary actions for almost a year – they claim they have a zero tolerance policy, but it is really zero enforcement,” said Lee, who also noted that Arabalo’s disciplinary problems were questionable. “She has been on the force for 18 years without problems, then when she reports harassment she gets hammered. She rose to the level of captain, but the moment she says someone sexually harassed her, she is no longer a good employee.”

Unsurprisingly, Denver City Attorney Scott Martinez had a different take, commending the verdict by the jury of six men and six women that found against Arabalo.

“We believe the jury’s quick decision reflects agreement with our position,” he said. “Taking an hour to deliberate in a federal case shows this wasn’t a close call.”

Arabalo filed a notice of appeal in July 2014, and on September 9, 2015 the Tenth Circuit affirmed both the district court’s grant of the City of Denver’s summary judgment motion against Arabalo and grant of Gutierrez’s motion to dismiss. See: Arabalo v. City of Denver, 2015 U.S. App. LEXIS 16004 (10th Cir. 2015).

Post-trial, the district court entered judgment in favor of Captain Gutierrez and against Arabalo in the amount of $19,714.00, plus taxed $3,089.48 in costs against Arabalo for the City of Denver and $804.02 for Gutierrez. See: Arabalo v. City of Denver, U.S.D.C. (D. Colo.), Case No. 1:11-cv-02343-MSK-MEH.

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Related legal cases

Arabalo v. City of Denver

Arabalo v. City of Denver