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Ex-public defender brings sex harassment case to Fourth Circuit

While most employees can seek redress in court for workplace harassment claims, those who work for the federal judiciary must instead use an administrative process that many say is deeply flawed.

RICHMOND, Va. (CN) — A Fourth Circuit hearing Wednesday shined a light on a lack of legal recourse for employees of the federal court system who have been harassed or discriminated against.  

The hearing, held remotely by the Richmond-based appeals court, centered on a March 2020 complaint filed by Jane Roe, a pseudonym for a former federal public defender in the Western District of North Carolina. According to the lawsuit filed in Asheville federal court, Roe had long dreamed of becoming a public defender, but after she accepted the job she quickly discovered a workplace culture of “bullying, sexism, homophobia, racism, and mockery of disabilities was normalized.”

She tried to look beyond these problems and advance her career, accepting a mentorship program with an unnamed first assistant federal defender. But that opportunity would soon become the subject of her own harassment complaint, she claims, with unwanted sexual advances and harassment from her boss.

She says she hit roadblocks as soon as she tried to complain about the alleged abuse. Her lawsuit details how efforts to report the issues to higher-ups were often dismissed.  When she couldn’t take it anymore, she sought an internal review process only to be told “the cards were ‘stacked’” against her and “it might be less risky for her personally if she looked for another job.” 

Roe pursued the misconduct investigation anyway, known as an employment dispute resolution, or EDR, plan, which is handled by the federal appeals court which oversees the district court at issue, in this case the Fourth Circuit. Though she says she found sympathy from some of those reviewing the case, a myriad of other issues — including glaring conflicts of interest — followed. Discouraged, she bailed on the internal complaint process and accepted a transfer to a clerkship with the Fourth Circuit. When that ended, however, she was unable to find work in another federal judiciary office. 

North Carolina attorney Cooper Strickland filed Roe's lawsuit against the Judicial Conference of the United States, the Administrative Office of the United States Courts, the Fourth Circuit and its Chief Justice Circuit Judge Roger Gregory, among others. He claims the workplace conditions amounted to an unconstitutional constructive discharge.

While a normal employee might have traditional workplace harassment causes of action to file under Title VII, the employment law enacted as part of the Civil Rights Act of 1964, its rules do not apply to federal judiciary employees. 

With the courts being independent of other branches, and essentially self-governed outside of appointments, the EDR plan is supposed to make up for the lack of traditional legal recourse. 

To circumvent this roadblock, Roe tried instead to assert Fifth Amendment claims, alleging the entire ordeal — including how the process could damage her hopes for future work in other federal courts — amounted to a denial of due process. 

U.S. District Judge William G. Young dismissed her case in December 2020, finding the defendants were protected by  sovereign immunity and condoning her constitutional claims "would be to graft Title VII standards onto the Fifth Amendment.”

Harvard Law professor Jeannie Suk Gersen, however, argued on behalf of Roe at the Fourth Circuit on Wednesday morning that the lower court misunderstood the nature of the EDR plan.

While judiciary officials may be shielded from Title VII claims, the botched process Roe was forced to endure created a property interest that she could seek Fifth Amendment relief for, Gersen argued.

“The EDR plan creates a legitimate entitlement for judiciary employees to be free of discrimination in the workplace,” Gersen said. “As such it's a property interest that has to have fair procedures before it is going to be deprived of the victim.” 

Department of Justice attorney Thomas Byron countered on behalf of the judiciary defendants that the real issue was Roe’s failure to complete the EDR plan.

“These kinds of free floating constitutional claims are precluded where an EDR plan creates an available remedy and Congress intended that,” Bryon argued.

Senior U.S. Circuit Judge Mary Beck Briscoe – sitting by designation from the Denver-based 10th Circuit after the Fourth Circuit judges recused themselves, likely because the court is a defendant – pushed back on his theory. 

“That’s all well and good, but what if the plan is not followed, then there is no remedy and that’s a problem, is it not?” the Bill Clinton appointee asked.  

“It’s not a question of whether a particular individual is seeking relief, it's whether Congress sought to preclude such relief,” Byron responded. 

Senior U.S. Circuit Judge Michael Joseph Melloy, a George W. Bush appointee sitting by designation from the St. Louis-based Eighth Circuit, questioned the distinction, suggesting such preclusion could make the EDR process worthless. 

“If the process goes off the rails, and you’ve got a situation as alleged by this case, and then it’s subject to ongoing retaliation, do you just have to wait and live with it for a few years for the plan to run?” Melloy asked. 

“Yes,” Byron responded. “The process that’s available is the process.” 

Gersen was noticeably perturbed by this argument. On rebuttal, she instead suggested the government was misreading the evidence which showed a pattern of Roe’s supervisors telling her any attempt to complete the EDR process would be more trouble than it's worth. 

The defendants and their employees "were the ones who allegedly forced her to resign and withdraw the claim,” she said.

Roe is far from alone in her case. Amici briefs supporting her included a filing from the National Women’s Law Center, cosigned by more than 40 other legal groups who represent diverse and protected classes. 

“Other employees watched as Roe’s reputation was demeaned, her complaints mocked, and her job responsibilities diminished—sending a clear message that in the Fourth Circuit, it is better to stay quiet than report sexual harassment,” the amicus brief states.

Perhaps even more unsettling was a collection of stories included in another amicus brief filed by current and former employees of the judiciary who detailed their own experiences of harassment, many of whom went unnamed due to fear of retaliation. 

One story from the brief mirrored Roe’s case in chilling detail. The unnamed worker took a job as an assistant federal public defender before going under the wing of a male supervisor. Before long, her supposed mentor allegedly attempted to kiss her and repeatedly asked her on dates despite her refusal.

“I was so terrified of him when I was alone in his office that I sprinted out,” the employee said in the filing. After three weeks at the job, she was asked to resign. 

Roe "is hardly alone, both in terms of the harassment she faced and how the judiciary’s reporting procedures failed her," the employees' brief states.

Senior U.S. Circuit Judge Ronald Lee Gilman, another Clinton appointee sitting by designation from the Cincinnati-based Sixth Circuit, rounded out Wednesday’s panel. The judges did not say when they intended to rule.

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