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Judges’ cautionary letter supports court employee’s hostile environment claim

By Joy P. Waltemath, J.D.

Although most of the employee’s claims failed for lack of specificity, her allegations about one judge’s racist and sexist allusions were enough to avoid dismissal.

Resurrecting only the hostile work environment claim of a dockets coordinator against one municipal court judge—she had sued four—the Sixth Circuit mostly agreed with the lower court that her First Amendment retaliation, civil conspiracy, and hostile environment claims against the other individual defendants were fatally flawed. Although her complaints of gender and race discrimination were protected activity, her complaint was composed of broad conclusory allegations against all but one of them collectively, rather than factual allegations against each specifically, defeating her retaliation and conspiracy claims. But her hostile environment claim against the judge who allegedly targeted her for years, and whose behavior prompted a cautionary letter about him by other judges, had enough specific facts that the appeals court found it could proceed (Boxill v. O’Grady, August 16, 2019, Stranch, J.).

Complaints. The female African-American employee worked as a specialty dockets coordinator at a county municipal court, from which she resigned in August 2014. Her complaint alleged that beginning in November 2011, one of the judges (who had formerly been a bailiff) made hostile comments that “mirrored sexist and racist allusions” he had made while he was bailiff, and that he was “hostile and intimidating” to her personally. She complained about this ongoing harassment several times between 2011 and 2013, including to one of the judges named as a defendant, but she said no action was taken and that she was discouraged from taking further action. In April 2013, she said the defendants began removing responsibilities from her and diminishing her role.

The judges’ letter. In March 2014, a different judge, not named as a defendant, drafted a letter to three of the defendant judges about the fourth judge defendant’s behavior. That original letter was “toned down,” but she contended it expressed concern that, “if left unaddressed, Judge O’Grady’s behavior m[ight] result in future litigation that could subject the Court to liability, possibly for the creation and continuation of a hostile work environment, and the payment of damages.” According to her complaint, this letter memorialized her complaints about the judge, and a week after it was written, she was formally demoted. The judge also allegedly announced he was “targeting” specialty docket staff. She resigned about five months later after the judges allegedly bypassed her, instead working with her Caucasian male subordinate.

The district court dismissed her complaint in its entirety, and she appealed. The Sixth Circuit affirmed except for her hostile work environment claim against one judge.

First Amendment retaliation. Although the Sixth Circuit found her complaints of gender and race discrimination qualified as protected speech, and the alleged adverse actions (a formal demotion and reduction in her job responsibilities) would deter a person of ordinary firmness from engaging in that speech, she failed to allege a plausible retaliation claim against three of the judges and the court administrator. In short, she failed to state facts specific to those defendants, making “broad, conclusory allegations” that they collectively diminished her job responsibilities. Her complaint lacked facts that could infer that any of the individuals took those actions in response to her protected speech.

As against the one judge, however, she had alleged some specific facts, in particular that he “announced that he was ‘targeting’ Specialty Docket staff,” assembled a “team of Judges” to monitor her work, and “began bypassing [her] on issues that were hers to address.” That would support an adverse action, but she failed to allege any facts that the judge’s actions were motivated, even in part, by her protected complaints. In fact, she did not plead non-conclusory facts to show that the judge was even aware of her complaints against him. Consequently, her First Amendment retaliation claims failed.

Civil conspiracy under Sec. 1983. The employee’s conspiracy claims failed for the same reason her retaliation claims failed—she pleaded no facts relevant to the individual liability of the three judges or the court administrator. And while her claims against the fourth judge were more specific, she again failed to allege that he was aware of her complaints against him. The judge “could not have conspired to retaliate against [the employee] on the basis of complaints he knew nothing about,” reasoned the appeals court.

Section 1981 retaliation. Even though the district court erred in finding that the dockets coordinator could not use Sec. 1983 as a vehicle to vindicate her rights under Sec. 1981, her claim still failed, said the court, because the elements of a retaliation claim under Sec. 1981 are the same as those under Title VII, and her complaint did not plausibly allege that any of the individual defendants took an adverse action against her because of her protected speech.

Hostile work environment. The employee also alleged that each defendant contributed to a hostile work environment by making or condoning sexist and racist comments. However, she again failed to plead any non-conclusory facts showing that the three judges or court administrator knew about her alleged harassment and failed to act. Rather, her allegations about the letter circulated among them indicates that they took proactive steps to address the other judge’s behavior. Here vague references were not enough to state a plausible claim against any of these individuals.

Enough as to one judge. But her hostile work environment claim against the other judge, O’Grady, was different, as it specifically alleged that in 2011 he began making the same type of hostile sexist and racist comments that he had as a bailiff, and that she told a different, non-defendant judge that O’Grady’s conduct was “interfer[ing] with her ability to succeed in her work.” She alleged a draft of the letter about her complaints was circulated among the other judges, and even as revised, it concluded that, if left unaddressed, the offending judge’s behavior might be deemed a hostile work environment. To the appeals court, she had therefore plausibly alleged that the judge had made sexist and racist comments directed at her and others for years, she reported to her superiors his harassment was interfering with her work, and “this harassment was sufficiently severe and/or pervasive that judges and administrators at the courthouse felt it necessary to memorialize their concerns about his behavior in writing.”