Rebecca Lewis, Brenda Heath v. David McDade Individually and in His Official Capacity as District Attorney
Docket: 99-12782
Court: Court of Appeals for the Eleventh Circuit; May 21, 2001; Federal Appellate Court
The Eleventh Circuit Court of Appeals denied a petition for rehearing en banc regarding the case of Lewis v. McDade, affirming the district court's ruling on qualified immunity for Defendant David McDade, the District Attorney. The court found that a majority of active judges did not support rehearing the case en banc, citing the recent en banc hearing in Marsh v. Butler County as a reason to reserve resources for tackling new issues. The court reiterated that only unwanted sexual conduct constitutes harassment, referencing established case law that distinguishes between acceptable workplace behavior and actionable harassment.
The judges noted that the plaintiffs had actively participated in sexual conduct in the workplace, which complicated the determination of whether McDade's actions were unconstitutional. They emphasized that the legal standards at the time of the incidents were unclear, and no similar precedents existed that would have put McDade on notice that his behavior was unlawful. The court pointed out that the facts, including instances of mutual teasing and the plaintiffs' prior praise of McDade as an employer, supported the conclusion that qualified immunity was applicable. The court ruled that the totality of circumstances did not amount to a violation of constitutional rights, thus affirming McDade's qualified immunity.
Circuit Judge Barkett dissents from the court's decision to deny rehearing en banc, emphasizing that District Attorney McDade's actions—such as derogatory remarks to female employees, inappropriate photography, and sexual harassment—should have been clearly recognized as unlawful conduct. Barkett argues that qualified immunity should not protect McDade, as a reasonable district attorney in 1994 would understand that such behavior constituted sexual harassment, contradicting the court's conclusion that no pre-existing case sufficiently parallels the facts. She references Supreme Court precedents, specifically Anderson v. Creighton and United States v. Lanier, asserting that the unlawfulness of McDade's actions should have been apparent based on existing law. Barkett contends that the requirement for a "fundamentally similar" precedent is overly restrictive and that sexual harassment is identifiable across various contexts, thus warranting en banc review.
In Braddy v. Florida Department of Labor and Employment Security, the court ruled that the defendant was not entitled to qualified immunity against a sexual harassment claim due to allegations of extreme misconduct, including following the plaintiff with a bull whip and making sexually explicit comments. The ruling emphasized that the absence of a precisely similar case prior did not excuse the defendant's actions, paralleling the notion that a reasonable district attorney should recognize that behaviors like throwing coins down female employees' blouses and photographing them constitute sexual harassment without needing identical prior rulings. The decision conflicted with established precedents from the Supreme Court and the Eleventh Circuit, as well as other appellate courts, which have consistently held that prior case law does not need to present fundamentally identical facts to inform reasonable persons about what constitutes harassment. It was noted that government officials should be protected when acting in good faith under unclear legal standards but the court's ruling inadvertently protects those who knowingly violate the law, undermining the remedies intended by Congress in Title VII and Section 1983. The document calls for an en banc reconsideration and publication of the opinion to address these issues. The summary references supportive cases and established legal principles regarding sexual harassment and discrimination, reinforcing the argument for clearer accountability for government officials.
The court distinguishes the current case from previous ones based on three key points: 1) only one plaintiff reported McDade's sexual harassment; 2) some plaintiffs engaged in certain behaviors; and 3) plaintiffs described McDade positively as a friend and employer. However, these points do not affect the established right to be free from sexual harassment in the workplace as of 1994. Notably, the law does not require victims to inform perpetrators of their misconduct for liability to be established, and any involvement by plaintiffs in questionable behavior relates to McDade's intent rather than the legal violation itself. Praise for McDade does not negate the existence of harassment.
The Seventh Circuit's precedent established by 1993 affirmed that sexual harassment violated equal protection rights, regardless of whether similar cases existed. Similarly, the Tenth Circuit recognized that even in the absence of direct case law, it was clear by 1994 that public officials could not use their positions to sexually harass non-employees. The Ninth Circuit established the right against sexual harassment for public employees back to 1982, while the Third Circuit noted that by 1986, the public understood that allowing harassment to continue violated rights, even if cases with analogous facts were lacking.
The author disagrees with Judges Edmondson and Dubina regarding the relevance of Marsh v. Butler County, and emphasizes that the plaintiffs' involvement in some behaviors does not equate to acceptance of McDade's abusive and derogatory conduct, which was distinctly directed at females in the office.
