recognizing that the distinction between government employees and independent contractors has “deep roots in our legal tradition,” but “see[ing] no reason … why” a first amendment claim “should turn on the distinction”
How later courts described this case
- recognizing that the distinction between government employees and independent contractors has “deep roots in our legal tradition,” but “see[ing] no reason … why” a first amendment claim “should turn on the distinction”
- equal protection sexual harassment claim borrows Title VII standard for liability
- “It is not necessary … that the very action in question has previously been held unlawful.” (quotation marks omitted)
- addressing both due process and equal protection claims
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SAMANTHA PIKE and )
NATASHA IRVING, )
)
Plaintiffs, )
)
v. ) No. 1:22-cv-00360-LEW
)
CHARLES F. BUDD, JR. in his )
Individual capacity, )
)
Defendant. )
ORDER ON MOTION FOR RELIEF FROM JUDGMENT
On June 14, 2023, I issued an order granting Defendant Charles Budd’s motion to
dismiss after concluding that Plaintiff Samantha Pike’s § 1983 equal protection sexual
harassment claim was undermined as a matter of law by the qualified immunity doctrine.
Decision on Defendant’s Motion to Dismiss (ECF No. 23).1 Although I regarded the
existence of state action to be uncertain, I assumed for purposes of my ruling that Pike
alleged sufficient facts to state a claim of sexual harassment. My qualified immunity
determination primarily turned on the fact that Pike is employed by a private entity rather
than the state, but also on the facts that Budd’s behavior was limited to verbal harassment
and circuit court opinions in analogous cases are exceedingly rare (and non-existent in this
Circuit), all of which suggested to me that the ability of the Equal Protection Clause to
1 In the Order I also dismissed the equal protection claim of Plaintiff Natasha Irving. Plaintiff Irving did
not request reconsideration or appeal the dismissal of her claim.
reach the circumstances of this case was not (and is not) clearly established. My ruling
was also informed by a desultory briefing effort on the Plaintiff’s part in relation to the
qualified immunity concern.
The matter is now before the Court on Plaintiff’s Motion for Relief from Judgment
(ECF No. 23) and Motion for Leave to Amend (ECF No. 30). Because Plaintiff has also
filed a Notice of Appeal (ECF No. 24), I presently lack the jurisdiction to award the relief
requested by Plaintiff, but I am authorized to either deny the motions or issue an “indicative
ruling” stating that I would grant the motions if the First Circuit remanded the case for that
purpose. See Fed. R. Civ. P. 62.1.
Based on my reconsideration of the arguments presented and certain authorities2
cited in Plaintiff Pike’s more helpful post-judgment filings, I am persuaded that the pivotal
issue is not, strictly speaking, Plaintiff Pike’s employment status, but rather Defendant
Charles Budd’s supervisory authority over Pike’s employment. Nonetheless, these two
considerations bear a strong connection to one another, given that Plaintiff’s employment
with a private entity impacts whether Defendant would be on notice that constitutional
jurisprudence makes him a supervisor in the shared work setting.
I also acknowledge that, unlike with due process cases, a plaintiff in an equal
protection case does not need to stand on a government-derived right, such as a right
associated with public employment, in order to assert a claim. See, e.g., Kando v. Rhode
2 See Johnson v. Martin, 195 F.3d 1208, 1217 (10th Cir. 1999); Ebelt v. Cnty. of Ogemaw, 231 F. Supp. 2d
563, 569-70 (E.D. Mich. 2002); cf. O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 721-22
(1996).
Island State Bd. of Elections, 880 F.3d 53, 58-59 (1st Cir. 2018). Equal protection claims,
like first amendment claims, are not conditioned on the plaintiff’s ability to show harm to
an interest protected under state law the way many due process claims are. See, e.g.,
Harron v. Town of Franklin, 660 F.3d 531, 537 (1st Cir. 2011) (addressing both due
process and equal protection claims); see also, cf. O’Hare Truck Serv., Inc. v. City of
Northlake, 518 U.S. 712, 721-22 (1996) (recognizing that the distinction between
government employees and independent contractors has “deep roots in our legal tradition,”
but “see[ing] no reason … why” a first amendment claim “should turn on the distinction”).
A plaintiff with an equal protection claim also does not necessarily have to
demonstrate that the Defendant engaged in an affirmative exercise of authority designed to
undermine the plaintiff’s employment status (such as in cases of quid pro quo sexual
harassment or retaliatory adverse employment measures). Workplace harassment by a
supervisor, if severe or pervasive, is itself a material modification of the terms and
conditions of employment, and a more proactive effort on the part of a supervisor to
undermine a plaintiff’s employment prospects through adverse action is not necessary for
a harassment claim to be viable. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (Title
VII); see also Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 897 (1st Cir. 1988) (equal
protection sexual harassment claim borrows Title VII standard for liability).
Furthermore, the rarity of circuit court opinions addressing analogous cases of state-
actor harassment of a private-entity’s employee—and the near ubiquity of opinions
addressed to state-actor-on-state-employee harassment—does not necessarily compel the
conclusion that the underlying legal principles that inform this case are not clearly
established or are subject to debate. Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (“It is
not necessary … that the very action in question has previously been held unlawful.”
(quotation marks omitted)).
Nevertheless, this is an employment case and thus the issue remains whether
precedent in this area teaches that a reasonable official in Defendant Budd’s position would
apprehend that directing unwelcome sexual advances toward a person in Plaintiff Pike’s
position would offend the Equal Protection Clause and thereby give rise to liability under
the Constitution of the United States through 42 U.S.C. § 1983. I remain persuaded that,
notwithstanding Plaintiff’s desire to plead additional “facts” in an effort to characterize a
judge as the supervisor of everyone whose work brings them to the courthouse, that
contention is, at best, subject to debate and, consequently, Defendant is shielded by
qualified immunity. Indeed, many if not most judges3 would regard professionals such as
counselors to be like other private professionals who work in the courthouse (e.g.,
attorneys), on approximately symmetrical footing from an employment standpoint who
plainly are not subordinates subject to their supervisory oversight. It is not obvious to me
from the authority filed over several installments that apparent supervisory authority, if
such a thing exists, rooted exclusively in a subjective belief that a judge’s authority is
3 In my Decision on Defendant’s Motion to Dismiss, I explained that I was not requiring Plaintiff to identify
precedent involving a judge. Decision at 18 n.11. However, at present Plaintiff is seeking to amend her
complaint to suggest that a state district court judge has paramount supervisory authority over a drug court
counselor whose employer has a contract with the State. For this reason, it appears to be necessary to focus
the inquiry on the clarity of the law regarding judicial oversight of private professionals who work in the
courthouse.
without end, is the equivalent of a judge’s actual legal supervisory role over employment
subordinates, necessary to support the beginnings of a constitutional claim.
Conclusion
For the foregoing reasons, the Motion for Relief from Judgment is DENIED.
Dated this 23rd day of August, 2023.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE