By Bailey K. Bifoss and Andrew M. McNaught

Seyfarth Synopsis: Qualified immunity did not supply a Pennsylvania judge with a get out of jail free card, the Third Circuit concluded, holding that sexual harassment and retaliation in the workplace violate clearly established constitutional rights. However, the judge’s appeal was not a total wash, as the court refused to adopt a rule that would have denied him immunity on the claim that he violated an employee’s First Amendment rights by interfering with her freedom to associate with her unmarried, romantic partner.

At a 2004 Christmas party, Crystal Starnes, a Probation Officer, met Judge Thomas Doerr, a judge in a neighboring county. They exchanged phone numbers, and Doerr suggested they stay in touch.

According to Starnes’ lawsuit, Doerr repeatedly called her after the Christmas party to ask her to meet him in his chambers. Starnes initially declined but, in early 2005, she relented. Doerr discussed hiring Starnes for a job she wanted, and the two began a sexual relationship that Doerr allegedly said would be a “business relationship.” By summer 2005, Doerr allegedly helped Starnes get the job she wanted in the county where he was President Judge.

After the sexual relationship between Doerr and Starnes ended in 2009, Doerr allegedly continued to attempt to influence Starnes by flirting with her from the bench, making sexual gestures, holding her hand, interrupting her conversations with male colleagues, and asking her to film herself performing sexual acts.

Starnes says Doerr’s behavior grew increasingly hostile after she began dating the man that she would later marry. Doerr initially refused to permit Starnes a transfer to which she was entitled. Then, when she eventually secured the transfer, she was denied her own office, overtime, training opportunities, and other benefits. Starnes told her supervisors, including Doerr, that she intended to file a claim with the Equal Employment Opportunity Commission. Days later, she was placed on a performance improvement plan to resolve supposed deficiencies that were not mentioned in her performance review only a month earlier.

Starnes sued and, after several attempts, her third amended complaint survived Doerr’s motion to dismiss. Doerr appealed. However, the Third Circuit affirmed the District Court’s decision on all but one count.

The Third Circuit concluded the District Court correctly denied Doerr qualified immunity as to Starnes’ 14th Amendment equal protection clause claim. Indeed, immunity does not attach when a constitutional right is at issue and the right was “clearly established” at the time of the violation. The Equal Protection Clause prohibits sex-based discrimination and, according to the Third Circuit, hostile work environment harassment. Thus, Doerr should have known he was violating a clearly established constitutional right by enticing Starnes into a sexual relationship in exchange for a job.

Nor did qualified immunity insulate Doerr from Starnes’ retaliation claim.. Starnes spoke as a citizen about a matter of public concern—alleged sexual harassment by a member of the bench—in filing her EEOC complaint, bringing her conduct within the ambit of the First Amendment. By allegedly retaliating against Starnes within days of her protected First Amendment conduct, Doerr, the court concluded, should have known he was violating a well-established constitutional right.

But the Third Circuit disagreed with the District Court on whether Doerr knowingly violated Starnes’ First Amendment right to associate with her then boyfriend (now husband) and her right not to associate with Doerr. The District Court understood Starnes to allege Doerr unconstitutionally interfered with her relationship with her boyfriend when Doerr said he “hoped they were off the clock” when he ran into them outside work. However, in the Third Circuit’s view, Doerr could not have known he was violating Starnes’ First Amendment rights by his alleged comment because neither “the Supreme Court nor this court has held that unmarried, romantic partners have a fundamental right to intimate association. Nor is there a robust consensus of persuasive authority recognizing such a right.”

Thus, qualified immunity remains a powerful defense for government employers.. However, it is no get out of jail free card. The Third Circuit’s decision reinforces the degree to which it is constrained by rights that are clearly established at the time of the alleged conduct.

For more information on this or any related topics, please contact the authors, your Seyfarth attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.