Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—4th Cir.: Former Federal Public Defender’s Office attorney can’t revive due process, equal protection claims, (Aug 19, 2025)

By Kathleen Kapusta, J.D.

The attorney claimed her supervisor sexually harassed her and during the ensuing investigation and dispute resolution process, various missteps were made by judicial personnel.

A former Federal Public Defender’s Office (FDO) attorney who alleged her supervisor sexually harassed her and that the Fourth Circuit and Administrative Office of the United States Courts subsequently violated her due process and equal protection rights was unable to convince the Fourth Circuit to overrule the district court’s bench trial and summary judgment rulings in favor of the government. The court also denied her motion to unseal certain “Me Too” evidence (Strickland v. Moritz, No. 24-2056 (4th Cir. Aug. 15, 2025)).

After the attorney alleged that her immediate supervisor sexually harassed her, the FDO unit executive rearranged the organizational chart so that she no longer reported to the supervisor, instructed the supervisor to no longer contact the attorney, authorized the attorney to work remotely, and followed through on a previous plan to promote her to Assistant Federal Public Defender.

EDR. At the same time, various Fourth Circuit and other judiciary employees became involved in the procedures outlined in the applicable Employee Dispute Resolution (EDR) Plan, which contained two distinct dispute-resolution pathways. Chapter IX allowed an employee to file a wrongful-conduct report, which led to an investigation and, if appropriate, discipline of the accused wrongdoer and Chapter X allowed an employee to request counseling and mediation to resolve the dispute and, if that was not successful, to file a complaint.

The unit executive initiated a wrongful-conduct proceeding under Chapter IX against the supervisor and an HR specialist was assigned to investigate. A month later, the attorney filed her own wrongful-conduct report, which included allegations against the unit executive for retaliation and discrimination along with a Chapter X request for counseling. The HR rep was then instructed to complete a unified investigation.

The attorney participated in the mediation phase of Chapter X but at some point, she left the FDO and voluntarily withdrew from the EDR process before proceeding to the next stage of Chapter X—the filing of a formal complaint. Various individuals involved in the EDR process made missteps along the way, including the unit executive who made thoughtless comments to the attorney that she believed were dismissive of her complaint.

Lawsuit. The attorney subsequently sued, asserting due process and equal protection claims. The government moved to dismiss and the district court ruled that she had not stated a due-process claim. The Fourth Circuit, in a prior decision, reversed in part, holding that she had adequately pleaded “that she has protected property interests that were created and defined by the EDR Plan.” After a six-day bench trial, the district court ruled in favor of the government on both her due process and equal protection claims. It further ruled that her facial challenge failed because Chapter X provided sufficient procedural safeguards.

Reasonable belief. On appeal, the attorney, challenging the district court’s due process ruling, first argued that the district court erred in determining that she did not reasonably believe the unit executive would be the final decisionmaker on her EDR complaint. Here, the Fourth Circuit pointed out that it had previously held that she could prevail on her due process claim if she proved that she was “led to believe” he would be the final decisionmaker on her complaint.

Though she pointed to statements by various court personnel that she claimed led her to believe he would be the de facto decisionmaker on remedies, she could not prevail, said the appeals court, simply by proving she was led to be “uncertain” about his authority. Nor, said the court, would the unit executive’s actions during the EDR process have led a reasonable person to believe that he would refuse to comply with any remedies that were mandated as a result of the Chapter X hearing. He “might have lacked an understanding about the seriousness of workplace sexual harassment generally, and he might have made thoughtless comments” to the attorney but there was no evidence this influenced the concrete actions he took in response to her complaint.

As to the attorney’s contention that the unit executive would be the final decisionmaker because he alone was responsible for disciplining her supervisor, this disciplinary authority was not relevant to whether he would be the final authority on Chapter X remedies which, the court observed, the attorney did not pursue.

Not fundamentally unfair. The attorney next argued that her due process rights were violated because of the fundamental unfairness of the EDR process as it was applied to her. She pointed to various errors and irregularities in the EDR process but there all happened before the Chapter X hearing procedures commenced. To rule in her favor, said the court, “we would have to conclude that she was entitled to due-process protection within the Chapter IX investigation and the Chapter X counseling and mediation stages alone, without regard to the protections in the later stages of Chapter X.” Such an expectation, the court continued, “is at odds with the structure of the EDR Plan.”

Coercion. Regarding her argument that the government’s implementation of the EDR process was so problematic that it coerced her into withdrawing from the process prematurely, to the extent she believed that errors in the EDR process deprived her of a real chance to “stand pat and fight,” the court found that belief was unreasonable. While some of the missteps likely made the Chapter IX investigation report less reliable, she did not explain how those failures would have deprived her of a fair fight in the Chapter X hearing to which she was entitled had she continued with the EDR process.

Nor was she able to show “a calculated effort to pressure” her into dropping her complaint “through the imposition of unreasonably harsh conditions.” She complained that the Chapter IX investigation was biased, that the investigator breached her expectations of confidentiality, and that the unit executive’s counseling was held in abeyance until the completion of the EDR process but these “frustrations, challenges and disappointments” did not rise to the level of constructive discharge, said the court, and she did not argue that any of the government’s failures during the EDR process constituted deliberate efforts to pressure her to abandon the process. Accordingly, the court affirmed the district court’s rejection of her due process claim.

Equal protection. Turning to her claim the unit executive violated her equal protection rights by responding to her complaint with deliberate indifference, the appeals court pointed to the steps he took to remedy the harassment. And while the attorney argued that he also made missteps and misjudgments, none of those actions, the court explained, undermined the reasonable, concrete steps he took to protect her.

As to her contention that the unit executive retaliated and discriminated against her for raising sexual harassment allegations, while she raised a litany of allegedly retaliatory incidents, the district court, said the appeals court, did not clearly err in concluding that none of them were in fact retaliatory or motivated by gender-based discrimination.

Me Too evidence. Regarding the district court’s exclusion of Me Too evidence, the appeals court assumed without deciding that the lower court abused its discretion in excluding the evidence. As to any potential effect on the bench-trial ruling, the court noted that the unit executive acted swiftly and reasonably effectively in response to the attorney’s complaint and the Me Too materials showed only that he was accused of acting less reasonably in response to other, unrelated complaints of discrimination or harassment, and that he allegedly engaged in unrelated gender-based discrimination.

“Such evidence,” said the court, might have affected the district court’s analysis of the other elements of the deliberate-indifference test—most notably, the element of discriminatory intent—but it is not relevant to the deliberate-indifference prong as it relates to [the attorney].” His actions in response to her report of sexual harassment were quite reasonable, the court stated, and nothing in the sealed Me Too materials undermined that conclusion.

The case is No. 24-2056.

Judge: Gilman, R.

Attorneys: Caryn Devins Strickland, pro se. Courtney Lynn Dixon, U.S. Department of Justice, for Nancy L. Moritz.

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