Filed: August 8, 2005
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2151(L)
(CA-03-90-2-18)
ADDIE MIKKELSEN, on behalf of herself and all
female employees, current, former and future,
of H. Wayne DeWitt, Sheriff, County of
Berkeley,
Plaintiff - Appellant,
versus
H. WAYNE DEWITT, in his personal capacity,
Defendant - Appellee,
and
BERKELEY COUNTY; HENRY BROUGHTON,
Defendants.
O R D E R
The court amends its opinion filed July 15, 2005, as follows:
On page 2, line 2 of attorney information, following the name
of Caroline Wrenn Cleveland, “LAW OFFICE OF DUFFIE STONE, L.L.C.,”
is deleted, and “Bluffton” is changed to “Charleston.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2151
ADDIE MIKKELSEN, on behalf of herself and all
female employees, current, former and future,
of H. Wayne DeWitt, Sheriff, County of
Berkeley,
Plaintiff - Appellant,
versus
H. WAYNE DEWITT, in his personal capacity,
Defendant - Appellee,
and
BERKELEY COUNTY; HENRY BROUGHTON,
Defendants.
No. 04-2165
ADDIE MIKKELSEN, on behalf of herself and all
female employees, current, former and future,
of H. Wayne DeWitt, Sheriff, County of
Berkeley,
Plaintiff - Appellee,
versus
H. WAYNE DEWITT, in his personal capacity,
Defendant - Appellant,
and
BERKELEY COUNTY; HENRY BROUGHTON,
Defendants.
Appeals from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CA-03-90-2-18)
Argued: May 24, 2005 Decided: July 15, 2005
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ray P. McClain, Charleston, South Carolina, for Appellant/Cross-
appellee. Caroline Wrenn Cleveland, Charleston, South Carolina,
for Appellee/Cross-appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Addie Mikkelsen, a court security officer, brings this suit
against her former boss, Sheriff Wayne DeWitt, under 42 U.S.C.
§ 1983 (2000). Her claims -- arising under the Equal Protection
Clause and the First Amendment -- involve the sheriff’s allegedly
inadequate and impermissible response to her complaint that she was
sexually harassed by a fellow officer. That officer was asked to
resign and subsequently resolved his civil dispute with Mikkelsen
in a settlement. Mikkelsen’s only remaining claims are against
Sheriff DeWitt in his individual capacity as her supervisor.
We hold that these claims were properly dismissed. The
evidence does not establish, as it must, that the sheriff
demonstrated “deliberate indifference” to a risk that women like
Mikkelsen were being sexually harassed. Shaw v. Stroud, 13 F.3d
791, 799 (4th Cir. 1994). Nor does it show that the sheriff
retaliated against Mikkelsen because she complained. We therefore
affirm the district court’s grant of summary judgment to the
defendant.
I.
H. Wayne DeWitt is the sheriff of Berkeley County, South
Carolina. Addie Mikkelsen worked for the Berkeley County Sheriff’s
Office as a court security officer from 1997 to 2000, and again
from 2001 to 2002.
3
According to Mikkelsen, beginning in December 2001 she began
to receive unwanted attention from her immediate supervisor,
Lieutenant Henry Broughton. Mikkelsen says Broughton made several
sexual advances towards her -- including attempting to kiss her and
transmitting several inappropriate pager messages.
In January 2002, Mikkelsen reported her allegations up the
chain of command at the sheriff’s office, and they came to DeWitt’s
attention on January 17. The following day, Sheriff DeWitt placed
Broughton on paid administrative leave. Mikkelsen then retained an
attorney who wrote a letter on her behalf summarizing Broughton’s
actions.
Shortly thereafter DeWitt contacted Marie Wauben, the County’s
Director of Human Resources, and asked her to conduct an
investigation into the matter. Wauben testified that she was asked
by DeWitt to be an “independent fact-finder” and “third-party
investigator” into Mikkelsen’s allegations. Outside of this
investigation, Wauben had no relationship with DeWitt or the
deputies of the Berkeley County Sheriff’s Office.
Wauben took eight weeks to complete her investigation. She
ultimately concluded that some of Mikkelsen’s allegations were
credible (specifically the ones involving the inappropriate pager
messages). However, she further determined that Mikkelsen herself
had also engaged in inappropriate conduct. She informed DeWitt of
reports that Mikkelsen had, among other things, left flirtatious
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messages on napkins for Broughton and had been seen massaging his
neck.
Based on this information, Sheriff DeWitt sent two letters.
He sent a letter to Broughton asking him to resign or face
termination. Broughton chose to retire on March 15, 2002. Four
days later, DeWitt sent a letter to Mikkelsen accusing her of
conduct unbecoming of an officer. He presented her with the same
choice he gave Broughton. Mikkelsen’s job was terminated on March
25, 2002.
Mikkelsen says the allegations in her termination letter are
mere “gossip.” She argues that DeWitt erroneously credited them
and impermissibly shifted the focus of the investigation away from
Broughton’s conduct and to her own. According to Mikkelsen, DeWitt
has had a history of hostility towards sexual harassment claims
since one was once publicly made against him.
Mikkelsen filed suit in federal court for the district of
South Carolina naming Berkeley County, Sheriff DeWitt (in his
personal capacity), and Lt. Broughton as defendants. She settled
her claims against Broughton, and the claims against the County
were dismissed on summary judgment and have not been appealed.
The only counts before us, therefore, are the two
constitutional claims against Sheriff DeWitt. Mikkelsen argues
that the sheriff violated her Equal Protection rights by
perpetuating a policy of discouraging sexual harassment complaints.
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She further claims that DeWitt violated her First Amendment rights
by demoting her to clerical duties and then firing her in
retaliation for reporting Broughton. The district court found for
DeWitt on summary judgment, and we review that finding de novo.
TFWS, Inc. v. Schaefer, 325 F.3d 234, 236 (4th Cir. 2003).
II.
We first address Mikkelsen’s Equal Protection claim.
Mikkelsen accuses DeWitt of creating a work environment where
sexual harassment complaints are discouraged, such that potential
harassers may proceed uninhibited by a threat of consequences.
“[I]ntentional sexual harassment of employees by persons
acting under color of state law violates the Fourteenth Amendment
and is actionable under § 1983.” Beardsley v. Webb, 30 F.3d 524,
529 (4th Cir. 1994). Assuming a constitutional violation occurred
here, however, does not by itself resolve the question at hand. To
take advantage of the remedy afforded by § 1983, Mikkelsen must
prove that DeWitt is liable for the violation under some recognized
theory of fault. See Collins v. City of Harker Heights, 503 U.S.
115, 120 (1992). Her theory is that DeWitt is liable for
Broughton’s actions because he created a “policy” effectively
permitting male officers to freely harass their female co-workers.
First, a point of clarification. Mikkelsen’s contention that
Sheriff DeWitt is a “policy maker” does not quite capture the
6
relevant issue here. Debating whether a public employer has
adopted an unconstitutional “custom” or “policy” is a question to
be asked when examining the basis for municipal liability under
§ 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978). It is not the right question to ask when confronting a
supervisor’s potential liability in his individual capacity. See
Randall v. Prince George’s County, 302 F.3d 188, 206, 210 (4th Cir.
2002) (inquiring into the existence of a policy to assess municipal
liability, but employing separate analysis to determine individual
supervisor’s liability).
In this case, Mikkelsen’s claims against Berkeley County are
not before us; the only remaining defendant is Sheriff DeWitt in
his personal capacity. Therefore, as our precedent makes clear, to
hold DeWitt responsible for Broughton’s behavior, DeWitt’s conduct
must meet the test for “supervisory liability.” And our analysis
on that question is guided by the test enunciated in Shaw v.
Stroud, 13 F.3d 791 (4th Cir. 1994). See also Randall, 302 F.3d at
206 (using Shaw test to assess supervisory liability of an
individual); Tigrett v. Rector & Visitors of the Univ. of Va., 290
F.3d 620, 630-31 (4th Cir. 2002) (same); Baynard v. Malone, 268
F.3d 228, 235 (4th Cir. 2001) (same).*
*
The district court approached this question in a different
manner. It held that DeWitt’s potential liability should be
analyzed using the Supreme Court’s Title VII standards -- as
modified by Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and
Burlington Indus. v. Ellerth, 524 U.S. 742 (1998). It is important
7
Shaw teaches that “supervisory officials may be held liable in
certain circumstances for the constitutional injuries inflicted by
their subordinates.” 13 F.3d at 798. Such liability “is not
premised upon respondeat superior but upon ‘a recognition that
supervisory indifference or tacit authorization of subordinates’
misconduct may be a causative factor in the constitutional injuries
they inflict on those committed to their care.’” Id. (quoting
Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)).
Three elements are required to establish supervisor liability
under § 1983. A plaintiff must show:
(1) that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct
that posed a pervasive and unreasonable risk of
constitutional injury to citizens like the plaintiff;
(2) that the supervisor’s response to that knowledge was
so inadequate as to show deliberate indifference to or
tacit authorization of the alleged offensive practices;
and
(3) that there was an affirmative causal link between the
supervisor’s inaction and the particular constitutional
injury suffered by the plaintiff.
Shaw, 13 F.3d at 799 (internal quotations omitted).
to remember, as the district court briefly noted, that Faragher and
Burlington govern liability standards for employers, not for
supervisors in their individual capacities.
In any event, even after Faragher and Burlington, our court
has held that “[e]mployees are not liable in their individual
capacities for Title VII violations.” Lissau v. S. Food Serv.,
Inc., 159 F.3d 177, 178 (4th Cir. 1998). Thus, even under this
alternative analysis, Mikkelsen’s claim would fail.
8
While it is questionable whether Mikkelsen satisfies any of
these three elements, our focus here will be on the second one. We
must determine whether DeWitt demonstrated “deliberate
indifference” to the presence of sexual harassment in his office.
Id. Mikkelsen must prove that DeWitt showed “continued inaction in
the face of documented widespread abuses.” Slakan, 737 F.2d at
373. “Deliberate indifference is a very high standard -- a showing
of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d
692, 695 (4th Cir. 1999). As such, “a supervisory official who
responds reasonably to a known risk is not deliberately indifferent
even if the harm is not averted.” Baynard v. Malone, 268 F.3d 228,
236 (4th Cir. 2001).
To assess whether Sheriff Dewitt responded reasonably to the
risk that his female employees were being subject to sexual
harassment, we are helped by considering his response to the
allegations in this very case. One day after learning of
Mikkelsen’s complaint, DeWitt put the alleged offender on
administrative leave. Shortly thereafter, he contacted an
independent fact-finder to conduct an investigation into the
matter. This investigator, in fact, testified that rarely had she
seen an employer respond so promptly. Following her investigation,
DeWitt immediately asked Broughton to resign.
Sheriff DeWitt’s reaction was thus rapid, reasonable, and
appropriate. If, as Mikkelsen contends, DeWitt was predisposed to
9
ignore sexual harassment complaints, then his conduct toward her
specific complaint is inexplicable. Regardless of the ultimate
fallout from the investigation, it is hard to accept Mikkelsen’s
contention that Dewitt does not permit sexual harassment complaints
to be investigated when his actions here do not fit that pattern at
all. We thus cannot find that DeWitt demonstrated “deliberate
indifference” to sexual harassment complaints, and we therefore
cannot hold him liable for Broughton’s misconduct.
III.
Mikkelsen next claims that DeWitt violated her First Amendment
rights by firing her in retaliation for protected speech.
It is true that public employees may not be fired in
retaliation for speaking on matters of public concern. Pickering
v. Bd. of Educ., 391 U.S. 563 (1968); see also Connick v. Myers,
461 U.S. 138 (1983). The parties ask us to weigh in on a debate
among the circuits regarding whether complaints of sexual
harassment count as such public matters. Compare Azzaro v. County
of Allegheny, 110 F.3d 968, 978-79 (3d Cir. 1997) (finding them to
be public matters) with Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d
134, 143 (2d Cir. 1993) (finding them not to be public matters
where the complaints were personal in nature and did not
“implicate[] system-wide discrimination”). The answer to this
question may very well change depending on the specific
10
circumstances involved. But in any event, we need not grapple with
the issue today because there is no evidence that DeWitt retaliated
against Mikkelsen for any speech.
An essential component of any public employee’s First
Amendment retaliation claim is proving a “causal relationship
between the protected speech and the retaliatory employment
action.” Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir. 2004).
Plaintiff must establish “that the protected speech was a
substantial factor in the decision to take the allegedly
retaliatory action.” Goldstein v. Chestnut Ridge Volunteer Fire
Co., 218 F.3d 337, 352 (4th Cir. 2000) (internal quotations
omitted).
Although we must defer to Mikkelsen’s version of the events
leading to her claim, id. at 356, it is still not apparent that
DeWitt fired her because she reported Broughton. Several
undisputed facts belie any such argument. Mikkelsen’s speech --
her complaint about Broughton -- prompted DeWitt to immediately
initiate an investigation. It was not until eight weeks later,
after much evidence was gathered through the independent
investigator’s review, that DeWitt decided to terminate the
employment of both Mikkelsen and Broughton. It is difficult for
plaintiff to contend that DeWitt would waste the time and resources
required for such an investigation if his goal was simply to
retaliate against Mikkelsen for making the complaint in the first
place. On the contrary, his actions indicate a supervisor who was
quite responsive to the initial allegation.
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Moreover, there is a far more compelling explanation for
Mikkelsen’s termination -- namely, the reports of Mikkelsen’s
misconduct that came to light from Wauben’s investigation. Even
if, as Mikkelsen urges, the reports of her flirtatious conduct were
unfounded, that does not alter the fact that DeWitt could
reasonably have believed in their veracity. DeWitt made a decision
to fire Mikkelsen only after learning of the investigation’s
results. No evidence exists to indicate that DeWitt fired
Mikkelsen for her initial complaint rather than for the subsequent
reports of her inappropriate behavior.
IV.
Allegations of sexual harassment are a serious matter, and
many of Broughton’s actions towards Mikkelsen give cause for real
concern. However, Sheriff DeWitt did not sit idly by. After
placing Broughton on leave immediately and contacting an
independent fact-finder to conduct an investigation, we are hard
pressed to fault the sheriff for being “deliberately indifferent”
to sexual harassment complaints. Since DeWitt responded reasonably
to Mikkelsen’s allegations and because we find no evidence to
suggest he fired her for making them, he is not liable to Mikkelsen
under § 1983.
The judgment is
AFFIRMED.
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