South Carolina Lawyers Weekly
While sovereign immunity will limit her claims, a former federal public defender in North Carolina can pursue claims against the judiciary for failing to take immediate and effective action regarding her sexual harassment complaints, the 4th U.S. Circuit Court of Appeals unanimously ruled on April 26.
The ruling partly reverses a 2020 dismissal of the lawsuit by U.S. District Court Judge William G. Young.
Because the 4th Circuit is a defendant, judges from other circuits were designated to hear the case. The three-judge panel consisted of 10th Circuit Senior Circuit Judge Mary Beck Briscoe, 6th Circuit Senior Circuit Judge Ronald Gilman, and 8th Circuit Senior Circuit Judge Michael Melloy.
In a nutshell, the court found that the Fifth Amendment to the U.S. Constitution secures a federal judiciary employee’s right to be free from sexual harassment in the workplace.
“We have no doubt, given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth and Fourteenth Amendments, that they should be extended to retaliation claims brought under the equal protection component of the Fifth Amendment’s Due Process Clause,” Briscoe wrote.
‘Quid pro quo’ harassment
Caryn Strickland, who worked for the Federal Public Defender’s Office in the Western District of North Carolina, claims that she was harassed by her supervisor, the first assistant public defender, who “lavished” her with attention, created “shadowing” activities for her exclusively, and asked her to drink alcohol with him in work settings, looking to create a “quid pro quo” arrangement. She further claims that she was retaliated against when she reported the alleged abuse and that the office normalized “bullying, sexism, homophobia, racism, and mockery of disabilities,” promoting those responsible for the conduct and punishing those who complained.
Strickland alleges that rather than taking proper action when she reported the harassment, the federal public defender required her to continue to work under and meet with the first assistant and that he reclassified her job and denied her a promotion.
Strickland said that she tried to “self-manage” the situation before unsuccessfully attempting to solve the issues informally through the Administrative Office of the United States Courts. As part of the first two steps of the 4th Circuit’s Employment Dispute Resolution Plan (EDR Plan), Strickland filed a request for counseling and a wrongful conduct report and a request for mediation. Ultimately, after “delays, procedural irregularities, and no resolution,” Strickland resigned in March 2019 and claims that she was constructively discharged.
Strickland filed suit in 2020, alleging violations of her due process and equal protection rights, but the district court dismissed those claims, finding that claims against the defendants in their official capacity were precluded by sovereign immunity and that claims against defendants in their individual capacity failed to state any cognizable claims for relief.
Deliberate indifference impermissible
Briscoe noted that the EDR Plan was implemented by the 4th Circuit because federal judiciary employees have no remedies under the Civil Service Reform Act and are not covered by Title VII of the Civil Rights Act, and that judiciary employees in management roles can be held liable for deliberate indifference to sexual harassment “committed by a federal judiciary employee or supervisor against another federal judiciary employee.” The court held that the Fifth Amendment’s equal protection clause guards against sexual harassment by other federal judiciary employees and “protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.”
While the circuit’s EDR Plan does not afford employees a substantive right to continued employment, it does provide the substantive right to work under conditions free from discrimination and harassment and to be free from retaliation where employees file a claim under the plan. Further, it creates a clear and specific set of procedures to follow when an employee claims that those rights have been violated, the court found.
“Defendants could of course have chosen not to provide a right to combat the harassment of federal judiciary employees. But once they did so by adopting the EDR Plan, ‘the floor for the procedures due is set by the federal Constitution,’” Briscoe wrote, citing the 3rd Circuit decision in 1987’s Stephany v. Wagner.
The court rejected Strickland’s argument that the internal employment dispute resolution process used by the 4th Circuit like other courts to handle misconduct complaints was unconstitutional but found that the refusal to disqualify the federal public defender from the investigation to be a plausible violation of her due process rights.
The court also declined to vacate the district court’s judgment and to recuse District Judge Young, holding that Strickland has not shown a likelihood of actual bias.
