Employment Law Daily Vulgar-talking judge’s attempt to rehash facts of assistant’s hostile environment, retaliation claims doomed qualified immunity denial appeal
Friday, July 13, 2018

Vulgar-talking judge’s attempt to rehash facts of assistant’s hostile environment, retaliation claims doomed qualified immunity denial appeal

By Marjorie Johnson, J.D.

In a case by a judicial administrative assistant against a county judge who purportedly created a hostile work environment with his explicit sexual banter and retaliated against her for complaining, a divided Sixth Circuit rejected the judge’s appeal of the district court’s denial of summary judgment on qualified immunity grounds, finding it had no jurisdiction to consider the appeal since the judge’s arguments relied solely on disagreements with the lower court’s weighing of facts and factual inferences, and not questions of law. The dissent would have applied a de novo review to determine whether denial of qualified should have been affirmed (Barry v. O’Grady, July 11, 2018, Daughtery, M.).

Vulgar comments about female attorney. The employee alleged that the judge created a hostile work environment by making or encouraging vulgar comments about women, In particular, she asserted that he and two bailiffs explicitly discussed the sex life of a female lawyer who regularly appeared before the court, with one of the bailiffs saying that she “licked [a male lawyer] like a lap dog” and the judge responding that she must be “good at what she does.” Angry at what she overheard, the employee posted about the conversation on Facebook and told the female lawyer about it.

When the judge learned that she had reported the conversation to the female lawyer, he began to retaliate. After the employee complained to the court administration, she was moved out of the judge’s chambers and eventually accepted a transfer to a less-desirable position. Nevertheless, her work life continued to devolve and she suffered from mental health issues.

She brought this lawsuit against several defendants, including the judge, asserting claims of First Amendment retaliation and Fourteenth Amendment gender bias. The district court dismissed her claims against the other defendants on summary judgment. However, it rejected the judge’s qualified immunity defense and allowed her to proceed on her claims against him, concluding that triable issues remained. On appeal, the judge contended that the district court erred in denying him qualified immunity.

Appealability of denial of qualified immunity. Because the denial of summary judgment is not a final decision, it ordinarily is not appealable. However, the denial of qualified immunity can be treated as final and appealable if it presents a purely legal question. But if the denial turned on an issue of fact it is not appealable, as explained by the U.S. Supreme Court in Johnson v Jones. There are only two narrow exceptions: if the district court’s factual determination are shown to be “blatantly and demonstrably false” or if the defendant is “willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal.”

Here, the judge did not attempt to argue that any of the district court’s factual conclusions were “blatantly and demonstrably false,” but instead based his appeal almost exclusively on his disagreements with the district court’s factual determinations and inferences. This was insufficient to give the appeals court jurisdiction. He also did not present any “neat abstract issues of law,” but instead applied his own factual conclusions and inferences to her claims.

Argued the disputed facts. For example, he failed to accept her claim that she felt forced to take the allegedly retaliatory transfer. Instead, he continued to argue that he believed that she wanted the transfer and that she did not have to accept it. Such propositions were not legal arguments, they were factual conclusions that were unsupported at least and directly refuted at most.

His argument regarding her gender discrimination claim fared no better. He began by boldly contending that there was “no evidence whatsoever” of his “hostility to women in general.” He then argued, amongst other things, that she provided only one example of his use of the term “bitch” and that she herself used the word on her personal Facebook page. He also addressed his alleged description of a female as “hot,” while remarking that “if I wasn’t married . . .” by arguing that there was “no reasonable inference” of anti-female bias because the employee herself described someone as hot on her Facebook page. Similarly, he averred that the employee’s Facebook post about his vulgar conversation about the female lawyer’s sex life arguably contained “the only comment that is demeaning to the class of women in the entire evidentiary record.”

In these instances, he failed to accept the employee’s facts and show why, as a matter of law, she could not prevail on her claim. Instead, he challenged “the weight, the plausibility, and the credibility of the evidence supporting her gender-bias claim.” Accordingly, since he did not accept the facts in the light most favorable to employee, but instead relied on his own disputed version of the facts, he placed his appeal squarely into the category of cases that Johnson prohibited the appeals court from. Accordingly, his appeal was dismissed for lack of jurisdiction.

Dissent would have considered merits. Dissenting, circuit judge Jeffrey Sutton averred that the majority read Johnson too broadly, and that the appeals court should have applied a de novo review to the district court’s decision to determine whether its denial of qualified should have been affirmed on the ground that a material fact dispute remained. To do so may have given the employee and trial judge “clear direction as to what was at stake and what law should control the jury trial at prongs one and two of the qualified immunity inquiry, and in the event of a future appeal, “the law of the case would establish the contours of what the jury could permissibly decide.”

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