Caryn Strickland v. Nancy Moritz
U.S. Court of Appeals for the Fourth Circuit
Caryn Strickland v. Nancy Moritz
Opinion
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-2056
CARYN DEVINS STRICKLAND,
Plaintiff – Appellant,
v.
NANCY L. MORITZ, The Hon., in her official capacity as Chair of the Judicial
Conference Committee on Judicial Resources; ROBERT J. CONRAD, JR., in his
official capacity as Director of the Administrative Office of the United States Courts;
ALBERT DIAZ, The Hon., in his official capacity as Chief Judge of the Fourth
Circuit and as Chair of the Judicial Council of the Fourth Circuit; JAMES N.
ISHIDA, in his official capacity as Circuit Executive of the Fourth Circuit and as
Secretary of the Judicial Council of the Fourth Circuit; JOHN G. BAKER, in his
official capacity as Federal Public Defender of the Federal Public Defender for the
Western District of North Carolina,
Defendants – Appellees.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. William G. Young, Senior District Judge for the United States District Court
for the Eastern District of Massachusetts, sitting by designation. (1:20-cv-00066-WGY)
Argued: June 30, 2025 Decided: August 15, 2025
Before W. Duane BENTON, Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, Ronald Lee GILMAN, Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, and Susan P. GRABER, Senior Circuit Judge of the United
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States Court of Appeals for the Ninth Circuit, sitting by designation.1
Affirmed by published opinion. Senior Judge Gilman wrote the opinion, in which Senior
Judge Graber and Judge Benton joined.
ARGUED: Caryn Devins Strickland, LAW OFFICE OF CARYN STRICKLAND, Lynn,
North Carolina, for Appellant. Kevin B. Soter, UNITED STATES DEPARTMENT OF
JUSTICE, for Appellees. ON BRIEF: Yaakov M. Roth, Acting Assistant Attorney
General, Courtney L. Dixon, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellees.
1
Because all members of the United States Court of Appeals for the Fourth Circuit
are recused in this case, a panel of judges from outside the Circuit was appointed for
this appeal pursuant to 28 U.S.C. §§ 291, 294.
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RONALD LEE GILMAN, Senior Circuit Judge:
Caryn Devins Strickland is an attorney who formerly worked at the Federal Public
Defender’s Office (FDO) for the Western District of North Carolina. She alleges that her
supervisor sexually harassed her, following which the response of both the Fourth Circuit
and the Administrative Office of the United States Courts purportedly violated her due-
process and equal-protection rights guaranteed by the Fifth Amendment to the United
States Constitution. The district court ruled in favor of the government on all of
Strickland’s claims after a bench trial.
Strickland now appeals that ruling, as well as the district court’s previous summary-
judgment ruling in favor of two of the individually named defendants. For the reasons set
forth below, we AFFIRM both district court decisions. We also DENY Strickland’s
motion to unseal certain materials that she filed on the appellate docket, as well as her
motion for summary reversal of the district court’s decision based on the early withdrawal
of her pro bono counsel.
I. BACKGROUND
The district court’s bench-trial decision included approximately 75 pages of factual
findings, which are largely undisputed. See Strickland v. United States, 744 F. Supp. 3d
477 (W.D.N.C. 2024). Rather than fully restate those detailed findings and the extensive
procedural history of this case here, we refer to pages 488 to 567 of the district court’s
decision. We will, however, briefly summarize the court’s findings, as well as several
points of procedural history that are relevant to the issues on appeal.
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A. The bench trial
Following a six-day bench trial, the district court issued a 127-page decision. The
gist of the court’s factual findings is as follows: While working at the FDO, Strickland
made a good-faith claim of sexual harassment against her immediate supervisor, J.P. Davis.
Anthony Martinez, Davis’s supervisor and the FDO Unit Executive, responded by
rearranging the organizational chart so that Strickland no longer reported to Davis and
instructing Davis to cease contacting her. He also converted Strickland’s sick leave to
administrative leave so that she would not suffer financial harm from having taken sick
leave to avoid contact with Davis, authorized full telework, and followed through on a
previous plan to promote her to Assistant Federal Public Defender. Martinez later offered
Strickland his own office at the unit’s Asheville site. In parallel with this response, various
Fourth Circuit and other judiciary employees became involved in the procedures outlined
in the Employee Dispute Resolution (EDR) Plan that was applicable at the time. The
Fourth Circuit since has revised its Plan, but all references in this opinion are to the
applicable version.
The EDR Plan 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. Under Chapter X, an employee could
request counseling and mediation to resolve the dispute. If counseling and mediation were
unsuccessful, the employee could then file a formal Chapter X complaint, which would
trigger a full evidentiary hearing conducted by a presiding judicial officer and which could
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result in a wide range of potential remedies.
Strickland formally reported to Martinez, in August 2018, that Davis was sexually
harassing her. Martinez initiated a wrongful-conduct proceeding against Davis shortly
thereafter. District Court and Probation Office Human Resources Specialist Heather Beam
was subsequently appointed to complete the investigation required under Chapter IX. A
month later, Strickland filed her own wrongful-conduct report, which included allegations
against Martinez for retaliation and discrimination, along with a Chapter X request for
counseling. Beam was then instructed to complete a unified investigation that would
inform both the Chapter IX and Chapter X proceedings. Strickland later participated in the
mediation phase of Chapter X. But 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.
Several judiciary employees behaved imperfectly before and during the EDR
process. In particular, “Davis was a controlling manager who . . . [took] actions that
reasonably made Strickland uncomfortable.” Strickland, 744 F. Supp. 3d at 563.
Martinez, too, made thoughtless comments to Strickland—most notably, his use of a
“marriage metaphor”—that she understandably believed was dismissive of her good-faith
complaint. See id. at 509.
Judiciary employees who were responsible for the EDR process also made various
missteps. Beam disrespected Strickland’s expectations of confidentiality and failed to
complete a thorough EDR investigation in a timely manner. Other well-intentioned
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employees, such as Fourth Circuit Chief Mediator Ed Smith and former Judicial Integrity
Officer Jill Langley, carried out their duties with professionalism and integrity, but were at
times stymied by structural imperfections or a lack of clarity in the Plan.
The bench trial focused on two claims: First, that the government’s implementation
of the EDR Plan, as applied to Strickland, violated her due-process rights under the Fifth
Amendment; and second, that Martinez violated her equal-protection rights under the Fifth
Amendment by responding to her good-faith claim of sexual harassment with deliberate
indifference and a “mixture” of retaliation and discrimination. The district court ruled in
favor of the government on both claims, concluding that none of the government’s various
failures rose to the level of deliberate indifference, retaliation, discrimination, or a
deprivation of due process.
B. Strickland’s due-process claim
When Strickland filed her complaint in this case in 2020, it contained not only an
as-applied due-process challenge to the EDR Plan, but also a facial challenge. Upon the
government’s motion to dismiss, the district court ruled in late 2020 that Strickland had not
stated a due-process claim under either theory because she had not alleged a cognizable
life, liberty, or property interest. This court reversed in part, holding that Strickland had
adequately pleaded “that she has protected property interests that were created and defined
by the EDR Plan.” Strickland v. United States, 32 F.4th 311, 348 (4th Cir. 2022).
Nevertheless, this court ruled that Strickland’s facial challenge failed because, by its terms,
Chapter X of the Plan provided sufficient procedural safeguards. See id. at 354–55.
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But this court allowed Strickland’s as-applied challenge to proceed, relying on the
Seventh Circuit’s opinion in Spreen v. Brey, 961 F.2d 109 (7th Cir. 1992). See Strickland,
32 F.4th at 355. Some background here is helpful. A plaintiff typically will not prevail on
a procedural-due-process claim unless the plaintiff has “taken advantage of the processes
that are available to him or her, unless those processes are unavailable or patently
inadequate.” Ashley v. NLRB, 255 F. App’x 707, 710 (4th Cir. 2007) (quoting Alvin v.
Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Strickland abandoned the EDR process before
utilizing her right to a Chapter X hearing, thus presumptively forfeiting her due-process
claim. But there are exceptions to the general rule.
In Spreen, the plaintiff-employee was forced to choose between resignation and
termination for cause. She alleged that she chose to resign, forgoing the post-termination
procedures to which she otherwise would have been entitled, because the defendants
misrepresented to her that she would lose her benefits if she were terminated. The Seventh
Circuit held that, by making this material misrepresentation, on which the plaintiff
“reasonably rel[ied],” see Spreen, 961 F.2d at 113, the defendants had coerced the plaintiff
to resign. She therefore stated a procedural-due-process claim for deprivation of the post-
termination procedures. See id.
In the present case, this court analogized that Strickland could show a deprivation
of procedural due process if she proved that she was coerced to abandon her complaint
before proceeding to the Chapter X hearing. Strickland, 32 F.4th at 355. She could prove
coercion, in turn, by showing that she “was led to believe” that Martinez would be the final
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decisionmaker in the EDR process. Id. Such a consideration would be material to
Strickland’s decision to drop her complaint because, if Martinez were indeed the final
decisionmaker, “a reasonable factfinder could conclude that continuing with the EDR
process would be futile and that Strickland had reason to believe that the more suitable
alternative was to drop her complaint and accept the Fourth Circuit clerkship” that was
offered to her. Id. at 356.
C. Strickland’s equal-protection claim and the “Me Too” evidence
Strickland’s equal-protection claim likewise narrowed during pretrial proceedings.
Her complaint alleged that Martinez, Fourth Circuit Executive James Ishida, and Fourth
Circuit Chief Judge Roger Gregory all violated her equal-protection rights. In 2023, the
government moved for summary judgment on Strickland’s equal-protection claim against
all defendants. Strickland opposed the motion and cross-moved for summary judgment on
her claim against Martinez.
In connection with her motion, Strickland moved to file a proposed exhibit under
seal. She then filed a fully redacted exhibit—that is, with entirely blank pages—six days
later. Unredacted, the exhibit contained 77 pages of materials that Strickland refers to as
the “Me Too” evidence. It consisted of four requests for counseling or mediation under
Chapter X of the EDR Plan, as well as follow-up materials. Each request detailed
accusations of gender-based discrimination or harassment by Martinez, Davis, and others
at the FDO; accusations of retaliation by Martinez; or both types of accusations. All of the
inappropriate behavior was alleged to have taken place in the year before or within several
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years after the events that gave rise to Strickland’s suit. What follows is a highly abridged
procedural history regarding this evidence.
The district court never ruled on Strickland’s motion to file her summary-judgment
exhibit under seal. In July 2023, it denied the cross-motions regarding Martinez, ruling
that the claim could proceed to trial. It also granted the government’s motion for summary
judgment regarding Ishida and Chief Judge Gregory. The court concluded that no
reasonable juror could find that either Ishida or Chief Judge Gregory acted with
discriminatory intent. Strickland filed a motion for reconsideration. She argued, among
other things, that the court had not considered the content of her proposed Me Too exhibit.
The court denied her motion.
At trial, Strickland once again attempted to introduce the Me Too evidence under
seal. The district court allowed her to label the sealed materials as Trial Exhibit BB. But
when she sought to admit the materials, the court ruled the exhibit inadmissible on hearsay
and relevance grounds. The court then ruled in favor of Martinez on Strickland’s equal-
protection claim.
After trial, Strickland moved to unseal “all orders and directions sealing this case,”
which the district court also denied. She then filed a motion in this court for permission to
file a mostly unredacted version of several documents from the district court, including a
version of the Me Too evidence that contained minor redactions to protect the identities of
the complainants and certain third parties. This court issued an order “defer[ring]
consideration of the motion to unseal pending review of the appeal on the merits.”
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II. ANALYSIS
On appeal, Strickland challenges the district court’s due-process and equal-
protection rulings. She raises two challenges regarding due process. Strickland first argues
that the court erred in determining that she did not reasonably believe that Martinez would
be the final decisionmaker on her EDR complaint. Next, she contends that the court failed
to consider that “an accumulation of errors” in the EDR process rendered it “fundamentally
unfair,” which coerced her to abandon the process prematurely. Regarding her equal-
protection claims, Strickland argues that the court erred in not concluding that (1) Martinez
was deliberately indifferent to her being sexually harassed by Davis, and (2) Martinez
subjected Strickland to a mixture of retaliation and discrimination in response to her
complaint.
Strickland also appeals the district court’s grant of summary judgment in favor of
Ishida and Chief Judge Gregory. She further contends that the court erred by excluding
the Me Too evidence, both when considering summary judgment and then at trial. In
addition, Strickland contends that Title VII’s exclusion of judiciary employees is
unconstitutional as applied to her.
We will address all of the above arguments in turn. Finally, we will analyze
Strickland’s motion to unseal the Me Too evidence on the appellate docket, as well as her
motion for summary reversal based on the early withdrawal of her pro bono counsel.
A. Legal standard
This court reviews a grant of summary judgment de novo and draws “[a]ll inferences
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. . . in a light most favorable to the non-movant.” Okoli v. City of Baltimore, 648 F.3d 216,
220(4th Cir. 2011) (quoting Williams v. Griffin,952 F.2d 820, 823
(4th Cir. 1991)). We
review a judgment following a bench trial under a “mixed standard of review,” with the
district court’s legal conclusions being reviewed de novo and its findings of fact being
reviewed “for clear error.” Heyer v. United States Bureau of Prisons, 984 F.3d 347, 355
(4th Cir. 2021) (quoting Roanoke Cement Co. v. Falk Corp., 413 F.3d 431, 433 (4th Cir.
2005)). Factual findings will not be reversed unless they were derived under an incorrect
legal standard, they ignore substantial evidence supporting the opposite conclusion, or they
are contrary to the clear weight of the evidence. Id.
B. Due process
i. Strickland’s belief that Martinez would be the final decisionmaker on
her complaint was unreasonable
As this court previously held, Strickland could prevail on her due-process claim if
she proved that she was “led to believe” that Martinez would be the final decisionmaker
on her complaint. See Strickland, 32 F.4th at 355. Strickland argued at trial that statements
by Smith (the Fourth Circuit’s Chief Mediator) and Langley (the former Judicial Integrity
Officer) led her to believe that Martinez would be the de facto decisionmaker on remedies.
She contended that, based on these statements, she believed that the presiding judicial
officer in the Chapter X hearing would either not order any remedies or would not have the
power to force Martinez to comply with whatever remedies were ordered. The district
court found that Strickland genuinely believed that Martinez would be the final
decisionmaker, but it determined that this belief was unreasonable. See Strickland, 744 F.
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Supp. 3d at 599.
Regarding Smith, the district court found that, although Smith expressed frustration
about the remedies available through the EDR process and encouraged Strickland to reach
a settlement, his statements could not reasonably have given rise to the beliefs that
Strickland professed. The court noted that Smith’s “frustration stem[med] from the
remedies available to any and all complainants, and not with who would be administering
those remedies.” Id. at 596. It also found that Smith’s comment that “[Martinez] does
have a boss. It’s the chief judge. He can be removed.” would have “unequivocally refuted
any concern from Strickland that a presiding judicial officer could not order remedies
within the Federal Defenders’ Office.” Id. at 597.
Concerning Langley, the district court found that her uncertain statements—for
instance, Langley told Strickland that she “literally did not know” what would happen if
Martinez refused to comply with the presiding judicial officer’s orders, but that Martinez
was “obligated under the plan to take those remedies,” see id. at 551—would not
reasonably have led Strickland to believe that Martinez would refuse to follow orders given
by the presiding judicial officer. The court reasoned that “Langley’s uncertainty, as
conveyed to Strickland, did not rise to telling Strickland unequivocally that Martinez would
be the final decisionmaker on Strickland’s remedies following her Chapter X hearing,” and
that “any belief otherwise based on these statements was unreasonable.” Id. at 598.
In addition, the district court found that Strickland’s belief required her to disregard
the plain text of the EDR Plan itself, which provides that the presiding judicial officer in a
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Chapter X hearing “may order a necessary and appropriate remedy.” The court concluded
that “[f]or Strickland to believe, on the basis of not only ‘extratextual,’ but also uncertain
and out-of-context statements, that the presiding judicial officer would not be able to order
remedies as stated in the EDR Plan was unreasonable.” Id. at 599.
Strickland responds by arguing that the district court’s focus on Langley’s
uncertainty “misconstrues the legal standard.” She contends that “the issue is not whether
Langley was certain about her convictions, but rather whether it was reasonable for
Strickland to rely on her statements expressing uncertainty.”
True enough, this court’s prior opinion held that Strickland could prevail if she was
“led to believe”—not necessarily by the government alone, and not necessarily by a direct
misrepresentation—that Martinez would be the final decisionmaker regarding remedies
imposed through the Chapter X proceeding. See Strickland, 32 F.4th at 355. That
flexibility left the door open for Strickland to prove that external circumstances, such as
the lack of clarity regarding the relationship between the Fourth Circuit and the FDO, as
well as statements that were not direct misrepresentations, contributed to her belief that
Martinez would be the final decisionmaker. But Strickland cannot prevail on her claim
simply by proving that she was led to be “uncertain” about Martinez’s authority. The
district court, therefore, did not “misconstrue the legal standard” by focusing on Langley’s
uncertainty and on whether Strickland “reasonably believed,” see Strickland, 744 F. Supp.
3d at 595, that Martinez would be the final decisionmaker, see also id. at 598 (opining that
“[r]easonable uncertainty, . . . and even reasonable concern, does not rise to the level of
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conviction”).
Strickland also points to a variety of other external circumstances, such as the
subsequent adoption of a separate EDR Plan for FDOs, that she says were “based on
concerns about independence” and reflect legitimate confusion “about how personnel
actions could be enforced against federal defender offices.” We first note that some of
these external circumstances were not presented at trial and therefore have no bearing on
our analysis of whether the district court clearly erred.
But our conclusion would not change even if we did consider this evidence. The
evidence, at most, corroborates the reasonable uncertainty that might have resulted from
Langley’s statements. Uncertainty alone, however, is insufficient to satisfy the standard
defined by this court. Id.
We also note that Martinez’s actions during the EDR process would not 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. Martinez testified “that he would, of course,
have done whatever Chief Judge Gregory had recommended.” Id. at 603 n. 143. Martinez
might have lacked an understanding about the seriousness of workplace sexual harassment
generally, and he might have made thoughtless comments to Strickland, such as the
“marriage metaphor.” But there is no evidence that this thoughtlessness and lack of
understanding influenced the concrete actions that Martinez took in response to
Strickland’s good-faith complaint. He demonstrated a willingness to accommodate
Strickland during the EDR process, including the granting of her telework request and
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offering her the use of his own office space in Asheville. These facts make all of the alleged
confusion about Martinez’s authority to eschew orders from a Chapter X hearing officer a
nonissue.
Strickland further argues that the district court failed to consider, or afford
appropriate weight to, several of Smith’s statements during the Chapter X mediation
process. She asserts, for example, that Smith told her that “‘[n]one’ of the remedies under
the plan are ‘going to do anything’ because the only remedy that would be effective was
discipline for misconduct.”
Strickland correctly notes that Smith expressed frustration about what he viewed as
the poor fit of the available EDR remedies to Strickland’s case. But whatever Smith’s
opinions about the efficacy of the remedies, Strickland points to no evidence that he told
her that the hearing officer would not order those remedies or that those remedies were
otherwise unavailable.
Strickland also argues that “the [district] court did not consider Smith’s statements
that he was ‘not disagreeing’ with concerns that ‘the hearing officer can’t do anything,’
and a hearing would be a ‘sham’ and a ‘kangaroo court.’” But the district court analyzed
this conversation in detail, and it properly concluded that this conversation did not
reasonably lead Strickland to believe that the judicial officer would refuse to order
remedies. See id. at 596–97.
As the district court found, Smith repeatedly lamented the limits of the EDR process
and expressed doubt that the available remedies would make Strickland comfortable in the
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office again. But Smith’s agreement with Strickland’s concern that “the hearing officer
can’t do anything because they’re not going to micromanage the office” could not
reasonably be interpreted, in context, as an unequivocal statement that the hearing officer
would not order any remedies. His statement was more a commiseration about the
limitations inherent in the EDR process and inherent in an employee’s continuing to work
in an office where she experienced past harassment. We believe that a more reasonable
interpretation of the “anything” comment, see id., would be “anything that would address
all of Strickland’s concerns.”
Strickland also challenges the district court’s finding that the “[h]e can be removed”
comment “unequivocally refuted any concern from Strickland that a presiding judicial
officer could not order remedies.” Id. at 597. She argues that whether Martinez could be
removed for refusing to comply with remedies ordered by the presiding judicial officer
remains unclear, and that “the court acknowledged that there is no mechanism for a federal
defender to be removed as a result of an EDR proceeding.”
Strickland is mistaken. The district court noted that, although “the point is
regrettably obscure,” the EDR Plan “as written vests in [the presiding judicial officer] the
authority to make employment decisions.” Id. at 603. Further, the court opined, “if we’re
serious, the [judicial officer] must have that authority” unless there is a court rule or statute
to the contrary. Id. Strickland might have had some concern about whether this was the
case. But even if Strickland believed that this was not the case, the court properly
concluded that her belief was unreasonable.
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Finally, Strickland argues that Martinez would in fact be the final decisionmaker
because he alone was responsible for disciplining Davis. But Martinez’s authority to
discipline Davis has no relevance to whether Martinez would be the final authority on
Chapter X remedies which, as noted, Strickland did not pursue. Those remedies do not
include discipline, which can be achieved only through a Chapter IX wrongful-conduct
proceeding. Martinez’s disciplinary role means, at most, that the Chapter IX process,
standing alone, might have been procedurally inadequate.
But, as we will explain in greater detail below, Strickland cannot prevail on her due-
process claim based on a theory that the Chapter IX process insufficiently vindicated her
due-process rights. Even if the Chapter IX process was inadequate, Strickland had the
option to invoke the robust procedures in Chapter X, which this court has already
determined are facially adequate. That process would not have resulted in discipline. But
it made available a variety of other remedies, including placement in a comparable position,
promotion, or leave. See Strickland, 744 F. Supp. 3d at 494 n. 14. And as the record shows,
the government was willing to provide Strickland with other remedies, including telework,
transfer out of Davis’s chain of command, and transfer to the Asheville office. Strickland
does not explain persuasively why those remedies were insufficient to vindicate her
substantive right under the EDR Plan to be free of sexual harassment and discrimination.
ii. The EDR process was not so “fundamentally unfair” that it violated
Strickland’s due-process rights or coerced her to abandon the process
Strickland further contends that her due-process rights were violated because of the
“fundamental[] unfair[ness]” of the EDR process as it was applied to her. First, she argues
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that “an accumulation of errors” in the government’s application of the EDR Plan, such as
breaches of confidentiality and Martinez’s participation in the process, rendered the
process constitutionally inadequate. She next argues that the government’s
implementation of the EDR process was so problematic that it coerced her into
withdrawing from the process prematurely, which deprived her of the procedures available
under Chapter X.
The district court rejected both arguments and declined to consider them on their
merits. It concluded that, under this court’s previous opinion, the only pathway for
Strickland to establish a due-process violation was to prove that she reasonably believed
that Martinez would be the final decisionmaker on her EDR complaint. The district court
characterized Strickland’s fundamental-unfairness argument as an impermissible
“[a]ttempt[] to [b]roaden the Fourth Circuit’s [h]olding” regarding due process. Id. at 599.
Strickland, on the other hand, argues that she can prove a due-process violation if she shows
that she was in any way pressured to abandon the EDR process.
We are unpersuaded by both the district court’s and Strickland’s differing
interpretations of this court’s prior opinion. That opinion held that Strickland adequately
pleaded a violation of due process by alleging that she was coerced to abandon her
complaint because she was led to believe that Martinez would be the final decisionmaker.
As the district court observed, Strickland’s interpretation of this court’s ruling improperly
collapses the two steps of the holding into a single step of coercion, see Strickland, 744 F.
Supp. 3d at 600, and she appears to suggest that any action that pressured her to abandon
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the EDR process would amount to a due-process violation. Strickland argues, for example,
that the decision to hold discipline in abeyance during the Chapter X proceeding violated
her due-process rights. We reject Strickland’s overbroad interpretation.
On the other hand, the district court read this court’s opinion too narrowly. The
opinion simply acknowledged that Strickland’s allegation that she was misled about
Martinez’s role in the EDR process was one way in which her complaint stated a due-
process claim. That was all that was required at the motion-to-dismiss stage. This court
did not rule that all other combinations of allegations in Strickland’s complaint failed to
state a due-process claim, nor did it explicitly preclude Strickland from proving a violation
of due process by other means at trial. To do so at the motion-to-dismiss phase would have
been premature.
In the prior opinion, this court correctly recognized that the contours of Strickland’s
claim—that she was coerced to forgo procedural protections to which she had a due-
process right—are highly analogous to those of a coerced-resignation claim. See
Strickland, 32 F.4th at 355. This court acknowledges that several theories of coerced
resignation can trigger a due-process violation, only one of which is encompassed by the
rule in Spreen. See, e.g., Bodkin v. Town of Strasburg, 386 F. App’x 411, 413 (4th Cir.
2010). We thus see no justification for limiting Strickland solely to the Spreen type of
coercion.
We can, however, affirm the district court’s decision in spite of its failure to consider
these alternative theories if we conclude that the error was harmless. See Gator Tail, LLC
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v. Mud Buddy LLC, 618 F. App’x 992, 1000 (Fed. Cir. 2015) (concluding that the district
court’s application of the incorrect legal test at a bench trial was harmless); Mungo v.
Taylor, 355 F.3d 969, 976(7th Cir. 2004) (same); EEOC v. Alton Packaging Corp.,901 F.2d 920, 925
(11th Cir. 1990) (holding that, although the district court at a bench trial
“erred in its choice of legal principles, the error was harmless because [the prevailing party]
would have prevailed under the applicable legal principles”).
We recognize that we could remand this issue to the district court for further
analysis. In this case, however, the relevant factors weigh in favor of our analyzing
Strickland’s alternative theories in the first instance. To start, the underlying facts in the
district court’s opinion are mostly undisputed, making this predominately a legal question.
Deciding the issue now would also not prejudice Strickland because she expanded her due-
process argument before the district court beyond the contention that she was led to believe
that Martinez would be the final decisionmaker. Instead, she argued more generally that
the process was unfair and that she was coerced to end it for a variety of reasons.
The government, in contrast, appears to have relied on the district court’s opinion
to somewhat constrain its due-process briefing. But the government would not be
prejudiced because, as we explain below, Strickland’s alternative due-process theories
clearly fail—even without the benefit of the government’s briefing on this issue. See
United States v. Faulls, 821 F.3d 502, 512 n.4 (4th Cir. 2016) (“Although we generally do
not consider issues not passed upon below, the question before us is purely one of law, and
we perceive no injustice or unfair surprise in doing so here.”).
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1. Accumulation of errors
Strickland’s first “fundamental unfairness” argument—that an accumulation of
errors and irregularities in the EDR process violated her due-process rights—does not fit
within the coerced-resignation framework. Her argument, moreover, is foreclosed by the
structure of the EDR Plan.
In general, a plaintiff can prove a due-process violation by showing that she was
denied the “minimum measure of procedural protection warranted under the
circumstances.” Mallette v. Arlington Cty. Emps.’ Supplemental Ret. Sys. II, 91 F.3d 630,
634 (4th Cir. 1996). The “basic requirements” of due process are “notice and an
opportunity to be heard,” but “due process is flexible and calls for such procedural
protections as the particular situation demands.” D.B. v. Cardall, 826 F.3d 721, 743 (4th
Cir. 2016) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). An opportunity to be
heard “need not be an adversarial hearing, a full evidentiary hearing, or a formal hearing.”
Id. (internal quotation marks omitted).
All of the procedural errors about which Strickland complains happened before the
Chapter X hearing procedures commenced. To rule in Strickland’s favor, 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, as the government
points out, is at odds with the structure of the EDR Plan. The district court determined,
and Strickland does not appear to dispute, that “Chapter IX does not provide any employee
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with any rights or remedies.” Strickland, 744 F. Supp. 3d at 494. Instead, the “clear and
specific set of procedures that are to be followed in the event that an employee claims that
his or her substantive rights . . . under the EDR Plan have been violated,” see Strickland,
32 F.4th at 349–50, are found in the Chapter X hearing.
Complaints about the earlier stages of the EDR process are especially unconvincing
here because the full evidentiary hearing guaranteed by Chapter X is at the upper end of
procedural safeguards. Strickland would have had the opportunity to take discovery,
present evidence, and cross-examine witnesses. The presiding judicial officer would have
made a final determination on her complaint, and Strickland could have appealed any
adverse decision. Such a hearing plainly would have provided the “minimum measure of
procedural protection warranted under the circumstances.” See Mallette, 91 F.3d at 634.
And this court has already rejected Strickland’s challenges to the facial adequacy of a
Chapter X hearing.
Strickland’s attempts to assert an as-applied challenge to the adequacy of that
hearing also run afoul of the rule that, to prevail on a due-process claim, “a plaintiff must
have taken advantage of the processes that are available to him or her, unless those
processes are unavailable or patently inadequate.” Ashley v. NLRB, 255 F. App’x 707, 710
(4th Cir. 2007) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)); see also Dotson
v. Griesa, 398 F.3d 156, 161 n.2 (2d Cir. 2005) (collecting cases); cf. Strickland, 32 F.4th
at 355 (holding that Strickland’s failure to make use of an available procedure to request
the disqualification of Chief Judge Gregory “prevents her from now asserting that his
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involvement automatically violated her due process rights” (citing Dotson, 398 F.3d at 161
n.2)).
To the extent that Strickland argues that the Chapter X procedures, as applied to her,
would have been “patently inadequate,” see Ashley, 255 F. App’x at 710, that argument
fails. Procedures are patently inadequate when they are “absolutely blocked or there is
evidence that the procedures are a sham.” Alvin, 227 F.3d at 118. Strickland asserts that
(1) the process was unreasonably delayed, (2) the Plan could not afford her effective relief
because the imposition of counseling for Martinez was held in abeyance and because
Martinez was the only one who could discipline Davis, and (3) the administrative body that
would decide the complaint was biased because Martinez would be the de facto final
decisionmaker.
Concerning the timeframe, Strickland correctly notes that the district court found
that the Chapter IX investigation took “far too long.” Strickland, 744 F. Supp. 3d at 565.
But the court attributed that delay to Beam, the appointed investigator, who was not
involved in the Chapter X hearing process. There was no indication that the Chapter X
hearing process—the process of which Strickland failed to avail herself—would have been
delayed, let alone to an unreasonable degree. Accordingly, the delay does not support a
claim that the Chapter X hearing was “absolutely blocked” or a “sham.” See Alvin, 227
F.3d at 118.
Regarding the efficacy of remedies, Strickland’s dissatisfaction with the remedies
available through the Plan also does not establish that the Plan’s process was a sham.
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Strickland does not dispute that a variety of remedies were available under Chapter X, even
if discipline was not one of them. She cites no authority for the principle that a procedure
is patently inadequate if it cannot result in the complainant’s preferred relief, or even the
most tailored, ideal relief under the circumstances; such a rule would be unworkable.
Finally, as described above, Strickland has not shown that, contrary to the text of
the EDR Plan, Martinez would have in practice been the final decisionmaker on her
complaint, nor that she reasonably believed that he would be. Her accumulation-of-errors
argument therefore fails.
2. Coercion
Moving on to Strickland’s coercion argument, we analyze whether Strickland could
prevail under any applicable legal standard for a coerced resignation. This court’s previous
opinion analogized to the standard for the one sub-type of coerced resignation that was
outlined by the Seventh Circuit in Spreen. But broadly speaking, this court recognizes two
types of coerced resignation: (a) involuntary resignation (which includes the sub-type
outlined in Spreen) and (b) constructive discharge. We read Strickland’s brief to invoke
both, so we will address each argument in turn.
We emphasize at the outset that we apply the coerced-resignation theories by
analogy. The relevant inquiry is whether Strickland was coerced to abandon the EDR
process, not whether she was coerced to resign. Even if Strickland were able to show that
flaws in the process or working conditions pressured her to quit her job, this would not
establish that she was pressured to abandon the EDR process. The government aptly points
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out the disconnect between the two concepts:
Nothing precluded plaintiff from continuing to pursue her Chapter X claim
after leaving the Federal Defender’s Office. To the contrary, the EDR Plan
expressly extends coverage to former employees, see EDR Plan, Ch. I, § 3,
and provides for remedies such as reinstatement that necessarily extend to
former employees, see EDR Plan, Ch. X, § 12.
a. Involuntary resignation
“A resignation is involuntary when it is obtained either through material
misrepresentation, or by duress or coercion.” Bodkin v. Town of Strasburg, 386 F. App’x
411, 413(4th Cir. 2010) (citing Stone v. Univ. of Maryland Med. Sys. Corp.,855 F.2d 167
,
174 (4th Cir. 1988)). “Under the misrepresentation theory” (the theory in Spreen), “a
resignation may be found to be involuntary if induced by an employee’s reasonable reliance
upon an employer’s misrepresentation of a material fact concerning the resignation. A
misrepresentation is material if it concerns either the consequences of the resignation or
the alternative to resignation.” Stone, 855 F.2d at 174 (internal quotation marks and
citations omitted).
“Under the duress/coercion theory, a resignation may be found involuntary if on the
totality of [the] circumstances it appears that the employer’s conduct . . . deprived the
employee of free choice in the matter.” Id. Circumstances to be considered are: “(1)
whether the employee was given some alternative to resignation; (2) whether the employee
understood the nature of the choice he was given; (3) whether the employee was given a
reasonable time in which to choose; and (4) whether he was permitted to select the effective
date of resignation.” Id.
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“[T]he assessment [of] whether real alternatives were offered must be gauged by an
objective standard rather than by the employee’s purely subjective evaluation; that the
employee may perceive his only option to be resignation—for example, because of
concerns about his reputation—is irrelevant.” Id. “[T]he mere fact that [an employee’s]
choice is between comparably unpleasant alternatives—e.g., resignation or facing
disciplinary charges—does not of itself establish that a resignation was induced by duress
or coercion, hence was involuntary.” Id.
Strickland argues that she was coerced to end the EDR process for a variety of
reasons, one of which was that she believed that Martinez would be the de facto final
decisionmaker. Because we have already determined that the district court did not err in
finding that belief unreasonable, we focus here on the remaining circumstances that
Strickland characterizes as coercive: that the failure to recuse Martinez from the entire
EDR process, as well as breaches of confidentiality and other errors during the Chapter IX
investigation, rendered the entire process biased; that the breaches of confidentiality
damaged Strickland’s reputation and embarrassed her; and that the counseling that
Martinez was slated to receive as a result of the Chapter IX investigation was held in
abeyance until the resolution of the entire EDR process.
We acknowledge that any of these circumstances—the perceived bias in the
investigation, the prospect of embarrassing or damaging allegations leaking to colleagues,
or the desire to speed up the imposition of discipline—could cause a reasonable person to
drop her complaint. But that is not the legal standard. To prevail on her due-process claim
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under the theory of involuntary resignation, Strickland was instead required to show that
the government’s conduct “effectively deprived [her] of free choice in the matter.” See id.
The circumstances that Strickland highlights in her brief certainly forced her to
choose between dropping her complaint and the “comparably unpleasant alternative[],” see
id., of completing the process. But that is insufficient to demonstrate involuntary
resignation. Cf. id. at 174–75 (holding that a resignation was voluntary when the employee
was forced to choose between resignation and facing disciplinary charges, and “that the
employee may perceive his only option to be resignation—for example, because of
concerns about his reputation—is irrelevant”); see also Hargray v. City of Hallandale, 57
F.3d 1560, 1568 (11th Cir. 1995) (holding that “resignations can be voluntary even where
the only alternative to resignation is facing possible termination for cause or criminal
charges” because, in such cases, “the fact remains that plaintiff had a choice. [Plaintiff]
could stand pat and fight.” (internal quotation marks omitted) (emphasis in original)).
To the extent that Strickland believed that errors in the EDR process deprived her
of a real chance to “stand pat and fight,” id., this belief was unreasonable. The various
procedural failures that Strickland has identified pertain to the Chapter IX investigation
and the counseling and mediation phases of Chapter X. Some of these regrettable missteps
likely made the Chapter IX investigation report less reliable. But Strickland does not
explain how these 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.
Strickland counters by pointing out that the flawed Chapter IX investigation report
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would have been provided to the presiding judicial officer and that Martinez’s views would
be sought as the Unit Executive during the Chapter X proceeding. But Strickland cannot
persuasively argue that any input by Martinez would render the entire Chapter X process
irreparably biased, just as an adverse or even dishonest witness would not turn an otherwise
fair proceeding into a sham. As for the Chapter IX investigation report, Strickland could
have requested that the report be excluded. And even if that request were denied, the
presiding judicial officer would nevertheless have made his or her own independent
judgment on Strickland’s case. The officer would have done so after both sides took
discovery, presented evidence, and cross-examined witnesses.
Given these robust procedures, there is no basis to conclude that the availability of
a biased report would have made the Chapter X hearing a sham. See Stone, 855 F.2d at
169, 174 (“[T]he assessment whether real alternatives were offered must be gauged by an
objective standard rather than by the employee’s purely subjective evaluation.”). For the
same reasons, there is nothing in the Chapter X procedures that would render the hearing
“patently inadequate.” See Ashley v. NLRB, 255 F. App’x 707, 710 (4th Cir. 2007) (internal
quotation marks omitted). We accordingly reject Strickland’s involuntary-resignation
argument.
b. Constructive discharge
This leaves the issue of constructive discharge. Such a discharge occurs when “an
employer deliberately makes an employee’s working conditions intolerable and thereby
forces him to quit his job.” Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.
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1985). A plaintiff asserting a constructive-discharge claim in the due-process context must
“prove two elements: deliberateness of the employer’s action, and intolerability of the
working conditions.” Id. Intolerability of the working conditions
is assessed by the objective standard of whether a reasonable person in the
employee’s position would have felt compelled to resign. An employee may
not be unreasonably sensitive to his working environment. Thus, the law
does not permit an employee’s subjective perceptions to govern a claim of
constructive discharge. Every job has its frustrations, challenges and
disappointments; these inhere in the nature of work. An employee is
protected from a calculated effort to pressure him into resignation through
the imposition of unreasonably harsh conditions, in excess of those faced by
his co-workers. He is not, however, guaranteed a working environment free
of stress.
Id. (internal quotation marks and citations omitted).
Strickland has not shown “a calculated effort to pressure” her into dropping her
complaint “through the imposition of unreasonably harsh conditions.” See id. Again,
Strickland complains that the Chapter IX investigation was biased, that Beam and Ishida
breached her expectations of confidentiality, and that Martinez’s counseling was held in
abeyance until the completion of the EDR process. These circumstances understandably
proved frustrating and stressful, and Strickland might have reasonably decided that she
preferred not to see the process through to the end. But “frustrations, challenges and
disappointments” do not rise to the level of constructive discharge. See Goldsmith v.
Baltimore, 987 F.2d 1064, 1072 (4th Cir. 1993) (holding that “isolated incidents” did not
rise to the level of constructive discharge and that “a certain amount of conflict” was
inevitable in the plaintiff’s position).
Strickland, moreover, does not argue that any of the government’s failures during
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the EDR process constituted deliberate efforts to pressure her to abandon the process. In
fact, she asserts that “intent is not an element of a due process claim.” But Strickland
confuses the legal standard for a Title VII constructive-discharge claim—which does not
require proof of intent by the employer—with the legal standard for a due-process
constructive-discharge claim. See id. (holding that a plaintiff asserting constructive
discharge in a due-process context must “prove two elements: deliberateness of the
employer’s action, and intolerability of the working conditions”).
Strickland not only fails to present evidence of deliberateness, but in fact explicitly
attributes several of the conditions of which she complains to negligence. She
acknowledges, for example, that Beam “did not consider the possibility” that breaches of
confidentiality in the EDR process “might expose Strickland to retaliation.” And
Strickland does not dispute that Ishida’s decision to hold discipline in abeyance was driven
by “pragmat[ism]” rather than “malic[e]” or a “desire to coerce Strickland.” For these
reasons, Strickland has fallen well short of proving her due-process claim on a
constructive-discharge theory.
We also note that Strickland complains of other unfavorable working conditions,
such as teleworking and hostility from coworkers, in the context of her equal-protection
constructive-discharge claim. But Strickland does not argue that the working conditions
of which she complains were part of a “calculated effort,” see id., to pressure her to
abandon her complaint.
And, as noted at the outset, even if working conditions had pressured Strickland to
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quit her job, this would not establish that she was pressured to abandon the EDR process.
Nothing in the record suggests that, after she accepted the Fourth Circuit clerkship, anyone
pressured her to withdraw her EDR claim, which she chose to do voluntarily. Strickland,
744 F. Supp. 3d at 554.
In sum, we conclude that Strickland’s coercion argument is unpersuasive. Because
we affirm the court’s rejection of Strickland’s due-process claim, we necessarily reject
Strickland’s argument concerning the appropriate remedies for a due-process violation.
C. Equal protection
We next address Strickland’s challenges to the district court’s equal-protection
rulings. At trial, the court rejected Strickland’s arguments that Martinez violated her equal-
protection rights by responding to her good-faith complaint with deliberate indifference,
and by subjecting her to a mixture of retaliation and continued sexual harassment. And at
summary judgment, the court rejected her argument that Ishida and Chief Judge Gregory
were deliberately indifferent to her sexual-harassment complaint.
We will address the district court’s trial decision first, followed by its summary-
judgment ruling. Finally, we will analyze Strickland’s argument that the court erred, both
when considering summary judgment and then at trial, by refusing to admit the Me Too
evidence.
i. The district did not err in finding no merit to Strickland’s claim that
Martinez was deliberately indifferent to Strickland’s
sexual-harassment complaint
“[T]he Fifth Amendment’s Equal Protection Clause secures a federal judiciary
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employee’s right to be free from sexual harassment in the workplace. It thus both guards
against sexual harassment perpetrated by other federal judiciary employees and protects
federal judiciary employees from deliberate indifference on the part of federal judicial
employees charged with preventing sexual harassment and investigating complaints of
sexual harassment.” Strickland, 32 F.4th at 359. “[F]ederal judiciary employees who
occupy supervisory roles and/or who are charged with enforcing an EDR plan can, under
Feminist Majority Foundation, be held liable under the Fifth Amendment for their
deliberate indifference to sexual harassment committed by a federal judiciary employee or
supervisor against another federal judiciary employee.” Id., discussing Feminist Majority
Found. v. Hurley, 911 F.3d 674 (4th Cir. 2018). “The elements of [a deliberate indifference
equal protection] claim . . . are essentially identical to those outlined by the Fourth Circuit
in Feminist Majority Foundation: (1) the plaintiff was subjected to sexual harassment by
another employee or supervisor; (2) the plaintiff alerted supervisory officials and/or
officials responsible for overseeing the court’s EDR plan about the sexual harassment; (3)
the supervisory officials and/or officials responsible for overseeing the court’s EDR plan
responded to the allegations with deliberate indifference; and (4) the deliberate indifference
was motivated by a discriminatory intent.” Id.
The district court did not discuss all four elements of the test because it concluded
that the evidence did not satisfy either element three—deliberate indifference—or element
four—discriminatory intent. With respect to the former, supervisors are deliberately
indifferent when they respond to sexual harassment “in a manner clearly unreasonable in
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light of known circumstances.” Feminist Majority Found., 911 F.3d at 702 (internal
quotation marks omitted). The supervisor must have “kn[own] about harassment of the
plaintiff and acquiesced in that conduct by refusing to reasonably respond to it.” Id. at
702–03 (internal quotation marks omitted).
In the present case, the district court found that Martinez took the following steps to
remedy the harassment alleged by Strickland: He promptly initiated a Chapter IX
investigation, removed Davis as Strickland’s supervisor, instructed Davis not to contact
Strickland, implemented a “gatekeeper” to ensure that Strickland would not be assigned
work from Davis, took Strickland out of Davis’s chain of command, and granted her
request to telework. Martinez later, during mediation, offered Strickland his own office
space at the Asheville unit. As a result, Strickland and Davis had “no further meaningful
contact,” and Strickland “did not see Davis again” once she began teleworking. Strickland,
744 F. Supp. 3d at 574. The court properly concluded that, on this record, Martinez’s
actions were not a “clearly unreasonable” response to Strickland’s sexual-harassment
complaint. See Feminist Majority Found., 911 F.3d at 702.
Strickland, however, points to numerous missteps and misjudgments by Martinez,
such as his “marriage metaphor” remark and apparent suspicion of her complaint. In
addition, she brings up actions by others that she characterizes as errors, including Chief
Judge Gregory’s decision not to formally disqualify Martinez from the EDR process,
Beam’s breaches of confidentiality during that process, and Ishida’s refusal to allow
interim relief. Strickland correctly points out that acts by other employees should inform
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the deliberate-indifference analysis, given that her claim against Martinez is an official-
capacity claim. But “[i]t is not enough simply to point to what could or should have been
done.” Koon v. North Carolina, 50 F.4th 398, 406 (4th Cir. 2022) (analyzing a deliberate-
indifference claim in the ADA context).
None of the actions by Martinez or the others mentioned by Strickland undermined
the reasonable, concrete steps that Martinez took to protect Strickland from the alleged
harassment. The district court accordingly did not err in concluding that Strickland failed
to meet her burden on the third prong of the deliberate-indifference test. And to the extent
that the court did not appropriately consider the actions of other employees in its analysis,
that error was harmless.
We similarly reject Strickland’s argument that the district court clearly erred by not
relying on the opinion of Strickland’s workplace expert, Vida Thomas. As Strickland
acknowledges, Thomas provided an opinion regarding “guidance about ‘standards of care’
and ‘departure[s] from typical adjudicatory or procedural norms.’” In other words, Thomas
opined on “what could or should have been done.” See id. The court instead correctly
evaluated whether the response to Strickland’s complaint was “clearly unreasonable,” see
Feminist Majority Found., 911 F.3d at 702, and correctly concluded that it was not.
Strickland also suggests that we should place particular importance on the lack of
disciplinary action against Davis in analyzing the reasonableness of the government’s
response. She relies on this court’s recent decision in Blair v. Appomattox Cnty. Sch. Bd.,
No. 24-1682, 2025 WL 2249351 (4th Cir. Aug. 7, 2025), involving a high school
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administration that took woefully inadequate actions to prevent a transgender student from
being bullied by classmates. But the deliberate indifference in that case bears no
resemblance to the effective steps taken by Martinez to separate Strickland from Davis in
the present case.
Strickland next argues that the response to her complaint made her “vulnerable to
future harassment,” which she claims is evidence that the response constituted deliberate
indifference. See Doe v. Fairfax Cty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021). But the
district court correctly found that the only communication that Strickland received from
Davis after she made her complaint was a single email to a client on which Strickland was
copied. Although the court did not make a finding regarding whether that particular email
constituted sexual harassment, there is no showing in the record that the actions or inactions
of any judiciary employee made Strickland vulnerable to further harassment by Davis.
Instead, the record shows that Davis sent the email in spite of actions that were reasonably
calculated to prevent him from doing so, including telling Davis not to contact Strickland
and removing her from his chain of command.
Strickland’s argument regarding the FDO’s lack of training for handling sexual-
harassment complaints also fails. She contends that the responses of Martinez and the other
judiciary employees to her complaint were a highly predictable consequence of a lack of
training on the handling of sexual-harassment complaints. But the district court correctly
determined that Martinez’s and the other judiciary employees’ responses did not violate
Strickland’s equal-protection rights. So even if the FDO’s lack of training on how to handle
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sexual-harassment complaints created a risk that judiciary employees would respond
inadequately to sexual-harassment complaints, that risk did not materialize in Strickland’s
case.
This ends our inquiry with respect to Strickland’s deliberate-indifference claim
against Martinez. Strickland’s failure to prove the third prong of the test is fatal to that
claim, so we need not address her arguments regarding the other prongs.
ii. The district court did not err in rejecting Strickland’s claim that
Martinez subjected her to a “mixture” of retaliation and
discrimination
Strickland also argues that Martinez retaliated and discriminated against her for
raising sexual-harassment allegations. “[C]ontinued sexual harassment and adverse
treatment of a female employee unlike the treatment accorded male employees remains
actionable as a violation of the Equal Protection Clause even when the sex discrimination
and harassment continue after, and partially in response to, the female employee’s report
of prior discrimination and harassment.” Strickland, 32 F.4th at 357 (quoting Wilcox v.
Lyons, 970 F.3d 452, 461 (4th Cir. 2020)) (emphasis removed). When an employee is
subjected to “a mixture of retaliation and continued sexual harassment,” the conduct
violates equal-protection rights by “maintain[ing] and reinforc[ing] the hostile work
environment that [the harassing supervisor] had created.” Beardsley v. Webb, 30 F.3d 524,
530 (4th Cir. 1994).
At trial, Strickland raised a litany of allegedly retaliatory incidents. The district
court did not clearly err in concluding that none of them were in fact retaliatory or
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motivated by gender-based discrimination. It found that: “Martinez did not remove
Strickland off of the path of becoming an AFPD [Assistant Federal Public Defender]” when
“[n]either Martinez, nor Strickland’s offer letter, promised Strickland that she would be an
AFPD by a certain time,” Strickland, 744 F. Supp. 3d at 581–82; Martinez did not consider
Strickland for the open AFPD role because “it was identical to the position that she already
had,” id. at 583; Strickland’s responsibilities were diminished because “the FDO
management team was . . . adjusting its workload after the departure of another [Research
and Writing Specialist],” id. at 584; Martinez assigned a “gatekeeper” to “protect
Strickland from further contact with Davis,” not to demote her, id. at 585; “Strickland’s
locality pay was not removed and . . . Martinez [did not] attempt[] to remove it,” id. at 586;
Martinez did not backdate forms to make her ineligible for a promotion, but rather “the
timing of Strickland’s conversion [was] simply a coincidence,” id. at 588; Strickland was
not “forced to telework,” but rather “[she] requested to telework,” and there was “a genuine
lack of office space in Asheville,” id. at 588–89; and, finally, the pay raise given to a male
attorney in a similar role soon after Strickland’s resignation was not discriminatory, but
rather the correction of an “administrative oversight,” id. at 583.
All of these findings are amply supported by the record. We therefore reject
Strickland’s contention that the district court committed clear error in ruling against the
equal-protection claim that she based on the above “mixture” of retaliation and
discrimination allegations.
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iii. The district court did not err in granting summary judgment in favor
of Ishida and Chief Judge Gregory
We similarly are unpersuaded by Strickland’s somewhat abbreviated argument
regarding the grant of summary judgment in favor of Ishida and Chief Judge Gregory. A
grant of summary judgment is reviewed de novo, drawing “[a]ll inferences . . . in a light
most favorable to the non-movant.” Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir.
2011). Although Strickland argues that Ishida’s actions demonstrated that he “sided with
Martinez” and that he therefore treated male supervisors more favorably, the district court
properly concluded that “[t]his evidentiary gap is simply too great to bridge.” The record
lacks evidence to support the third and fourth prongs of Strickland’s equal-protection claim
against Ishida—deliberate inaction or a cover-up and an intent to treat Strickland worse
because of her sex. See Strickland, 32 F.4th at 359. The court therefore properly granted
summary judgment in favor of Ishida.
Similarly, Strickland asks us to infer discriminatory intent from Chief Judge
Gregory’s decision not to disqualify Martinez from the investigative process, and from his
“hands-off” approach to the investigation itself. But Strickland failed to present any
evidence from which such a conclusion could reasonably be drawn. The district court
therefore properly granted summary judgment in favor of Chief Judge Gregory.
iv. Any error in excluding the Me Too evidence was harmless
The next issue before us is the district court’s disposition of the Me Too evidence.
We assume, without deciding, that the court abused its discretion in excluding the Me Too
evidence both at summary judgment and at trial. This leaves Strickland with the burden of
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showing that the error was not harmless. See Shinseki v. Sanders, 556 U.S. 396, 409
(2009). In considering the question of harmlessness, we evaluate “‘the likelihood that the
result would have been different,’ as well as how the error might impact the public
perception of such proceedings.” Sea “B” Mining Co. v. Addison, 831 F.3d 244, 253–54
(4th Cir. 2016) (quoting Shinseki, 556 U.S. at 411); see also Coastal Coal Co., LLC v.
Harrison, No. 22-2122, 2024 WL 3042895, at *1 (4th Cir. June 18, 2024) (“An error is
harmless when we can conclude with confidence that no reasonable [factfinder], after fully
considering the evidence, could have reached a different result.”). The parties here focus
on the likelihood of a different result.
We first address any potential effect of the Me Too evidence on the bench-trial
ruling that Martinez was not deliberately indifferent to Strickland’s sexual-harassment
complaint. As previously discussed, the district court concluded, and we agree, that
Martinez acted swiftly and reasonably effectively in response to Strickland’s complaint.
The Me Too materials show only that Martinez 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 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 Strickland.
Martinez’s actions in response to Strickland’s report of sexual harassment were quite
reasonable, and nothing in the sealed materials undermines that conclusion.
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Next, we address whether the Me Too evidence would have affected the district
court’s conclusion that Martinez did not engage in a mixture of retaliation and sex
discrimination. Regarding this theory, Strickland argues primarily that the materials would
have altered the court’s analysis of the timing of her promotion to an AFPD. She also
points to the alleged “elimination” of her locality pay and the confusion about her precise
pay grade, as well as the promotion received by another staff attorney on the day after
Strickland resigned. The court determined, however, that Strickland’s argument that these
actions were motivated by discrimination or retaliation was too speculative. We conclude
that the sealed materials would not have swayed a reasonable factfinder from that
conclusion.
The probative value of the Me Too evidence with regard to the issue of Martinez’s
discriminatory intent is not zero, but it is exceptionally weak. Those materials contain only
allegations of misconduct, with no findings of misconduct for any of the complaints. And
the materials are one-sided; the record contains no response by any of the accused persons
or other potential witnesses. For these reasons, we find that that any error in excluding
these materials was harmless with regard to the district court’s conclusions after trial.
Finally, we address whether the exclusion of the Me Too evidence had any effect
on the district court’s grant of summary judgment in favor of Ishida and Chief Judge
Gregory. This issue requires little analysis because none of the sealed materials contains
any allegation of impropriety by either of them. So even assuming that Ishida and Chief
Judge Gregory were aware of the allegations against Martinez and others, that would not
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show that either of them had discriminatory intent or that their actions during Strickland’s
unrelated proceedings amounted to deliberate indifference. Accordingly, any error by the
district court in declining to consider the Me Too evidence at the summary-judgment stage
of the case was harmless.
D. Exclusion from Title VII
Strickland further argues that the exclusion of judiciary employees from the civil-
rights protections that Title VII provides to other federal employees is unconstitutional.
This exclusion, she contends, infringes on her fundamental right to be free from sex
discrimination and is arbitrary.
Strickland, however, raises her argument for the first time in her appeal from the
district court’s final judgment. As the government points out, “[t]his court has repeatedly
held that issues raised for the first time on appeal generally will not be considered and that
exceptions to this rule exist only in very limited circumstances, such as where refusal to
consider the newly-raised issue would be plain error or would result in a fundamental
miscarriage of justice.” Strickland, 32 F.4th at 353 (quoting Kadel v. N.C. State Health
Plan for Teachers & State Emps., 12 F.4th 422, 430 (4th Cir. 2021)) (cleaned up).
Strickland does not argue that exceptional circumstances justify a departure from
this general rule. She has had “ample opportunity” to litigate her case, including a prior
appeal to this court. Declining to consider an issue that was raised for the first time five
years into the litigation does not constitute a “miscarriage of justice.” See id. We therefore
decline to reach the merits of her Title VII argument.
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E. Motion to unseal
There remains pending Strickland’s motion to publicly file an unredacted version
of her opening brief and a version of the Me Too evidence that contains some redactions
regarding the names of the complainants and some unaccused third parties. Access to
judicial records is “protected both by common law and by the First Amendment.” Stone v.
Univ. of Maryland Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988); see also, United
States ex rel. Oberg v. Nelnet, Inc., 105 F.4th 161, 171–72 (4th Cir. 2024) (holding that the
First Amendment applies to documents related to summary judgment, even if the motion
is denied for reasons unrelated to those documents).
We review de novo a ruling on sealing under the First Amendment. Va. Dept. of
State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004). Under the First
Amendment, “public access promotes not only the public’s interest in monitoring the
functioning of the courts but also the integrity of the judiciary.” Doe v. Pub. Citizen, 749
F.3d 246, 266 (4th Cir. 2014). “Public access serves to promote trustworthiness of the
judicial process, to curb judicial abuses, and to provide the public with a more complete
understanding of the judicial system, including a better perception of fairness.” Id.
(quoting Littlejohn v. Bic Corp., 851 F.2d 673, 682 (3d Cir. 1988)). The right of public
access includes “the ability to access documents submitted in conjunction with [open]
proceedings, for only then can members of the public truly understand what has occurred
therein.” Oberg, 105 F.4th at 173.
And that right “may be abrogated only in unusual circumstances.” Doe, 749 F.3d
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at 266 (quoting Stone, 855 F.2d at 182). “[A]ccess may be restricted only if closure is
necessitated by a compelling government interest and the denial of access is narrowly
tailored to serve that interest.” Oberg, 105 F.4th at 171(quoting Doe,749 F.3d at 266
).
“The court must consider less drastic alternatives to sealing and, if it decides to seal the
documents, must ‘state the reasons for its decision to seal supported by specific findings,
and the reasons for rejecting alternatives to sealing in order to provide an adequate record
for review.’” Stone, 855 F.2d at 181 (quoting In re Knight Publishing Co., 743 F.2d 231,
235 (4th Cir. 1984)).
“Though the First Amendment poses a high bar . . . [,] it is not insurmountable.”
Oberg, 105 F.4th at 171 n.8. This court has recognized sufficiently compelling
governmental interests in “protecting a defendant’s right to a fair trial before an impartial
jury,” id.; protecting “a minor victim’s wellbeing,” id.; and “risks to national security,”
Doe, 749 F.3d at 269. Perhaps most relevant here, this court has held that “protecting the
privacy rights of trial participants such as victims or witnesses” can be a sufficiently
compelling governmental interest to allow sealing. Id.
The EDR Plan ensures confidentiality to complainants. Among other things, it
provides that “[a]ll individuals involved in the investigation shall protect the confidentiality
of the allegations of wrongful conduct to the extent possible” and that, “[u]nless waived by
the employee, the Court or employing office shall protect the confidentiality of allegations
filed under this Plan to the extent possible.” Several of the complainants, including
Strickland, expressed frustration about a lack of confidentiality and hesitation to take
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actions because of those concerns.
To the extent that Strickland argues that ensuring the privacy rights of the
complainants is not a sufficiently compelling governmental interest to warrant sealing, we
disagree. Protecting their privacy rights in the circumstances here is akin to the compelling
governmental interest in “protecting the privacy rights of trial participants such as victims
or witnesses.” See id. Nothing suggests that, simply because another complainant with
similar circumstances files a public lawsuit, the privacy rights of other complainants must
yield. Each complainant is permitted to waive confidentiality individually, but none has
done so here. Moreover, adopting Strickland’s rule would chill the filing of future
complaints, undermining the important protections afforded to complainants by the EDR
Plan.
Strickland correctly points out that this case raises novel theories and that the
government is itself effectively the defendant. But those factors do not, in our view,
outweigh the significant privacy interests of the government-employee complainants, as
well as innocent third parties, that would be eviscerated by an order unsealing their
complaints.
Strickland makes two additional arguments in her motion to unseal. First, she
argues that the materials already have been publicly disclosed. Remarkably, she points to
her own questionable actions as the source of the public disclosure. The district judge
permitted her to make an offer of proof to the court reporter in his absence, and he then
left. Strickland then began her offer of proof and apparently displayed some of the sealed
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materials in court.
The government’s lawyer suggested that displaying the documents was
inappropriate. Strickland started arguing, prompting the clerk of the court to intervene:
“Excuse me. Excuse me. Excuse me. We are not in court right now, there’s no need to
display any evidence, we are simply making an offer of proof, as requested, with the Court
Reporter.” Strickland then presumably stopped displaying the sealed materials. The
district court accurately, if dryly, summarized the effect of this conduct: “The plaintiff’s
offer of proof did not operate to waive the designation.” We agree.
Strickland’s second argument is that the privacy rights of the complainants do not
justify the extent of the sealing ordered by the district court. She points out that we “must
consider less drastic alternatives to sealing.” See Stone v. Univ. of Maryland Med. Sys.
Corp., 855 F.2d 178, 181 (4th Cir. 1988). Strickland also points out that, in Stone, where
the district court sealed the entire case with some minor exceptions, this court held that
“[t]he breadth of that order is particularly troubling, because it would be an unusual case
in which alternatives could not be used to preserve public access to at least a portion of the
record.” Id. at 182. She asserts that the same principle applies here, suggesting that fewer
redactions could be made.
But the breadth of the redactions here is tiny compared to the record as a whole.
The record is enormous, and only one set of documents—Trial Exhibit BB—is redacted,
which has caused limited redactions in other documents when those documents refer to the
content of Exhibit BB. The “troubling” aspect in Stone was the wholesale sealing of the
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entire record. This case is not at all akin to Stone.
Nor has Strickland proffered what redactions could be omitted without revealing the
identities of the complainants and otherwise protecting their privacy. Her backup request
is that, “[a]t a minimum,” the opening brief should be unsealed. But the opening brief
clearly contains information that would allow even a moderately informed observer to
identify some complainants. For these reasons, we deny her motion to unseal.
F. Motion for summary reversal
This leaves us with Strickland’s motion for summary reversal, which she filed in
late 2024, before briefing had begun. She argued that the district court abused its discretion
by permitting pro bono counsel to withdraw from representation and that the error
warranted immediate reversal. Fourth Circuit Rule 27(f)(1) permits a motion for summary
reversal in extraordinary cases:
Motions for summary affirmance or reversal filed prior to completion of
briefing should include a showing that the issues raised on appeal are in fact
manifestly unsubstantial and appropriate for disposition by motion. Absent
such a showing, the Court will defer action on the motion until briefing is
complete.
R. 27(f)(1). We determined that Strickland had not made the requisite showing, and
we accordingly deferred ruling on the motion until the completion of briefing, so we will
analyze it now.
Before the completion of briefing, “the standard for obtaining a summary reversal
of a lower court’s judgment is strenuous.” United States v. Brookins, 345 F.3d 231, 237
n.6 (4th Cir. 2003). “[S]ummary reversal does not decide any new or unanswered question
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of law, but simply corrects a lower court’s demonstrably erroneous application of federal
law.” Id. (internal quotation marks omitted) (emphasis in original); see also James A.
Merritt & Sons v. Marsh, 791 F.2d 328, 331 (4th Cir. 1986) (“Summary reversals are
reserved for extraordinary cases.”).
This court has provided little precedential guidance on the appropriate standard for
resolving a motion for summary reversal after briefing has been completed. Because we
deferred ruling on the motion on an urgent basis, the stringent standard of review may pass
out of the picture, leaving us with an ordinary assessment of the issue, as if Strickland had
raised the issue in her briefs. Cf. Padilla-Ruiz v. Commc’n Techs., Inc., 793 F. App’x 200,
200 (4th Cir. 2020) (unpublished) (denying, after full briefing, a motion for summary
affirmance and then assessing the merits of the arguments without regard to Rule 27(f)’s
strict standard); United States v. Hill, 771 F. App’x 195, 196 (4th Cir. 2019) (unpublished)
(same). Strickland, on the other hand, declined to mention the issue in her briefs, so
continued application of Rule 27(f)’s narrow scope may be warranted. In the present
circumstances, we need not opine on those possibilities. For the reasons that follow, we
conclude that no reversible error occurred. We deny the motion for summary reversal
under either standard.
i. Background on counsel’s motion to withdraw
Strickland’s husband, a licensed attorney, has represented her throughout this case,
and Strickland herself argued this case on appeal. During discovery and the proceeding
with regard to the government’s motion to dismiss, a pro bono team, including Harvard
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Law School professor Jeannie Suk Gersen, provided additional representation. Strickland
claims that, at a deposition, a lawyer for the government “raised a sensational insinuation”
about Strickland. Shortly thereafter, her pro bono lawyers filed a joint motion to withdraw.
They represented that a “conflict ha[d] arisen” such that they could no longer continue their
representation and that there were “irreconcilable differences in the attorney-client
relationship.”
Strickland did not timely oppose the motion to withdraw. Instead, she requested
that the district court delay deciding the motion for an unspecified period of time.
Strickland’s pro bono attorneys then filed a brief reply requesting that the court rule on the
motion immediately. The next day, the court entered a text-only order, ruling that,
“[s]ufficient time having elapsed for the plaintiff to object to the motion to withdraw and
only a request for delay having been received by the Court, the motion to withdraw is
ALLOWED.”
Strickland’s motion requires us to answer two questions: (1) whether the district
court erred in granting the motion to withdraw and, if so, (2) whether summary reversal of
the court’s final judgment is warranted.
ii. The district court erred in granting counsel’s motion to withdraw
We review the district court’s decision to grant a motion to withdrawal under the
abuse-of-discretion standard. Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134,
1142–43 (4th Cir. 1990). “A district court abuses its discretion only if its conclusions are
based on mistaken legal principles or clearly erroneous factual findings.” Hunter v. Town
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of Mocksville, 897 F.3d 538, 561 (4th Cir. 2018) (internal quotation marks omitted).
Strickland urges us to analyze the district court’s exercise of its discretion by
applying the test defined in United States v. Blackledge, 751 F.3d 188, 194 (4th Cir. 2014).
Blackledge instructs the appellate court to review, among other things, the “adequacy of
the [district] court’s inquiry” and “whether the attorney/client conflict was so great that it
had resulted in total lack of communication preventing an adequate defense.” Id.
But Blackledge concerned a motion to withdraw in a criminal case. As the
government points out, such a withdrawal implicates very different concerns from the
present civil case. Strickland has no Sixth Amendment right to counsel, and she remained
represented throughout the proceedings by her husband and herself. She has not cited any
authority applying Blackledge in a civil context, and we likewise decline to apply it.
Moving on to the merits of the district court’s decision, motions to withdraw in the
Western District of North Carolina are governed by local rule LCvR 83.1(f). See Spann v.
N. Carolina Dep’t of Pub. Safety, No. 1:17 CV 104, 2017 WL 6041939, at *1 (W.D.N.C.
Dec. 6, 2017); ChampBoat Series, LLC v. In2Focus Films, Inc., No. 3:09-CV-183-RJC-
DCK, 2009 WL 10728587, at *1 (W.D.N.C. Nov. 16, 2009). LCvR 83.1(f) allows an
attorney to withdraw with leave of the court if she has “good cause” or the consent of her
client.
The district court’s stated reason for granting pro bono counsel’s motion to
withdraw in the present case was Strickland’s failure to file an opposition to the motion. It
plainly did not conduct a good-cause analysis of any kind. Because that reasoning is at
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odds with the requirements of LCvR 83.1(f), the court abused its discretion in summarily
granting withdrawal.
The government responds by pointing out that the district court had especially broad
discretion in this case because Strickland remained represented by counsel. As the
government notes, “it is not clear what sort of extreme circumstances would need to be
present to provide a colorable basis for reversing a district court’s order that allowed some
(but not all) of a civil plaintiff’s lawyers to withdraw their appearances.”
There is no question that Strickland’s remaining representation would reduce any
concerns about prejudice and could have factored into a good-cause analysis. But the local
rules governing withdrawal do not impose a different standard when a plaintiff is
represented by other counsel. Instead, the standard for any withdrawal, absent client
consent, is good cause. A district court’s failure to analyze good cause is therefore a valid
basis for the reversal of its order granting withdrawal. Accordingly, the district court erred
in granting pro bono counsel’s motion to withdraw.
iii. Reversal is unwarranted
Having determined that the district court erred in allowing withdrawal, we now
analyze whether that error justifies reversal. As an initial matter, the record suggests that
the district court’s error was more technical than substantive, and we conclude that the
error did not ultimately prejudice Strickland at trial. The court would have been within its
discretion to find good cause based on pro bono counsel’s representation of irreconcilable
differences and based on Strickland’s failure to object to withdrawal. See Iskander v. Otay
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Mesa Det. Ctr., No. 24-CV-01572-GPC-VET, 2024 WL 4983155, at *2 (S.D. Cal. Dec. 3,
2024) (finding good cause where counsel cited irreconcilable differences and that his
“client [was] not cooperating”); but see In re God’s Mercy, LLC, 285 F. Supp. 3d 904, 908
(E.D. Va. 2018) (“Counsel’s sole factual proffer is that ‘irreconcilable differences and
conflict’ exist between him and the Claimant. . . . On the basis of this single assertion, the
court cannot determine whether any of the [applicable] conditions for withdrawal are
satisfied.” (citation omitted)).
Furthermore, a finding that the withdrawal prejudiced Strickland at trial necessitates
an assumption that the district court would have required counsel to continue representing
Strickland in a pro bono capacity through the end of the case despite counsel’s protestations
of irreconcilable differences. Any such requirement would have been clearly unreasonable.
Moreover, Strickland has not cited a single civil case in which this court or any other has
vacated a judgment on the basis of an improper withdrawal of counsel. Because we
conclude that no reversible error occurred, we deny the motion for summary reversal.
III. CONCLUSION
For all of the above reasons, we AFFIRM the district court’s bench-trial and
summary-judgment rulings and DENY Strickland’s motion to unseal and her motion for
summary reversal.
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Reference
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