Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—1st Cir.: Judge who made unwelcome sexual advances toward treatment counselor not entitled to qualified immunity, (Mar 31, 2025)

By Todd Harrison, J.D.

“…a state actor who employs his or her state authority to create a hostile work environment in the workplace violates the Fourteenth Amendment.”

Vacating a district court’s dismissal of a Section 1983 claim brought by the employee of a treatment and recovery center against the presiding judge at Maine’s Adult Treatment and Recovery Court, the First Circuit determined that the judge was not entitled to qualified immunity, the employee plausibly alleged a violation of the equal protection right to be free from a hostile work environment, and that such right was clearly established. The court further held that, when considering a Section 1983 hostile work environment claim, the sixth element of the Title VII framework should be replaced with the requirement that a person responsible for the hostile environment acted under color of law and that a plaintiff must show that some basis for individual liability has been established (Pike v. Budd, No. 23-1593 (1st Cir. Mar. 28, 2025)).

The plaintiff in this case is a licensed drug and alcohol treatment counselor employed by Wellspring, Inc. She worked at Maine’s Adult Treatment and Recovery Court (TRC), a voluntary treatment and recovery program. The defendant is the presiding judge who oversaw TRC.

Promotion. In 2020, the employee was promoted to program director, making her the lead treatment provider for TRC. Although she was directly employed by Wellspring, she was a member of the TRC team, which consists of trained individuals, including the presiding judge, prosecutor, defense counsel, probation officers, case managers, treatment providers, and law enforcement officers.

Presiding judge. The presiding judge at TRC supervised the entire team, entitling him to decision-making authority over certain aspects related to TRC, including the ability to remove members from the team and to decide whether to renew Wellspring’s contract with TRC.

Conference. In July 2022, the employee and the judge attended the National Association of Drug Court Professionals Conference in Nashville. All members of the TRC team were “effectively required” to attend the conference.

Advances. On the evening of the first day of the conference, the judge and the employee saw each other at a rooftop bar and spoke with one another a few times. At the end of the evening, the judge suggested that they share a ride back to the hotel. When they arrived, the judge asked the employee what room she was staying in. The judge told the employee he was staying across the hall from her, which was not true. He followed her to her room and held her door open, stating, "Well, I'm not going to come in unless you invite me in."

Feeling unsafe, the employee backed into the hallway, at which point the judge invited her to have a drink in the lobby. The employee attempted to demure but eventually acquiesced. During this time, the judge shared, unprompted, issues that he was experiencing with his marriage, his receipt of sexual propositions due to his position as a judge, and questioned the employee about her personal life.

The following day, the employee attempted to avoid being alone with the judge, who continued to follow her around and attempted to engage in conversation with her. Eventually, the employee returned to the hotel, at which the point the judge texted her, “Can’t believe you ditched me.” The day after that, the employee attended the conference but opted out of a planned sightseeing tour with the group.

Chambers. Upon returning home, the employee did not go to TRC the week following the conference, only returning two weeks later accompanied by a coworker at her request. At one point, the judge summoned the employee to his chambers. The two met alone, and the judge inferred that he was going to leave his wife, which the employee interpreted as him wishing to pursue a relationship with her.

Lawsuit. Subsequently, the employee filed this lawsuit, asserting a Section 1983 claim against the judge alleging that he had violated the Equal Protection Clause by engaging in sexually harassing conduct creating a hostile work environment. The judge filed a motion to dismiss raising a qualified immunity defense. The district court granted the motion, concluding that a reasonable official in the judge’s position would not have known that his sexual advances towards a private employee violated the Equal Protection Clause. This appeal followed.

Arguments. In the district court, the judge raised three independent arguments in support of his motion to dismiss: (1) that the employee had failed to plausibly allege that he had acted under color of state law; (2) that the employee had failed to plausibly allege that she was subjected to actionable sexual harassment under the Equal Protection Clause; and (3) that he was entitled to qualified immunity. All three issues were contested on appeal.

Color of state law. First, the court considered whether the judge was acting under color of state law when he made his unwelcome sexual overtures. The judge had argued that state action is limited by time and setting and since the alleged harassment at the conference occurred outside of conference programming, there was no state action here. The court was not convinced.

Time and setting are only factors in a totality of the circumstances analysis, explained the court. As the presiding judge of TRC, he had a supervisory relationship to the employee. Further, the judge only attended the conference because of his position and the employee only attended because it was part of her duties as a TRC team member.

In addition, just as it was their work that brought the employee and judge to the conference, so too was it their work that brought them to the courthouse back in Maine. Taken as a whole, the allegations were sufficient to plausibly establish that the judge was acting under color of state law to create a hostile work environment, said the court.

HWE framework. Next, the court noted that in a line of cases considering sexual harassment claims under Section 1983, it has recognized that the analytical framework for proving discriminatory treatment under Title VII is equally applicable to constitutional claims. However, the court also noted that hostile work environment claims under Title VII do not always fit easily within the context of individual liability under Section 1983. Indeed, as the judge here repeatedly pointed out, the employee worked for Wellspring, not the state of Maine.

This raised the question of whether the employee was precluded from asserting a Section 1983 action alleging that the judge violated her right to be free from a hostile work environment. The court answered in the negative, holding that, when considering a Section 1983 hostile work environment claim, the sixth element of the Title VII framework—that some basis for employer liability has been established—should be replaced with the requirement that a person responsible for the hostile environment acted under color of state law. “…a plaintiff must show, among other things, that some basis for individual liability has been established,” said the court.

Here, the employee’s theory was that the judge is individually liable to her because he personally created a hostile work environment through his persistent advances that she had repeatedly made clear were unwelcome. Notwithstanding the fact that they did not share an employer, an individual basis existed for the judge’s liability under Section 1983.

Severe or pervasive. Turning to the issue of whether the judge’s alleged conduct was so severe or pervasive as to alter the conditions of employment, the judge contended that the conduct did not rise to such a level because it was verbal rather than physical. The court was unmoved, noting that whether conduct was verbal or physical is not the linchpin of its inquiry.

Concluding that the employee plausibly alleged a hostile work environment for purposes of a motion to dismiss, the court again noted the judge’s position of authority, and that his description of purely verbal comments was not made in isolation but could be seen by a jury as “part of a mosaic of physically intimidating behavior.”

Clearly established right. Regarding the judge’s claim for qualified immunity, he argued that there was no controlling case law that clearly establishes that an official in his position who engaged in this particular conduct in a shared work setting violates the Equal Protection Clause. The court again was not moved.

“In our circuit, it is clearly established that a state actor violates the Equal Protection Clause upon creating a hostile work environment,” said the court. Due to the unique shared work setting in this case, along with the employee’s role as a TRC counsel and the judge’s role as presiding judge of TRC, the context of the two’s working relationship was akin to an employer-employee relationship such that clearly established principles would put the judge on notice that this sexually harassing conduct would amount to a constitutional violation of equal protection rights. Accordingly, the First Circuit vacated the district court’s grant of dismissal based on qualified immunity and remanded the matter for further proceedings.

The case is No. 23-1593.

Judge: Gelpí, G.

Attorneys: Shelby Hannah Leighton (Public Justice) for Samantha Pike. Melissa A. Hewey (Drummond Woodsum) for Charles F. Budd, Jr.

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