The Case
McDade was sued for sexual harassment in his office, and those claims survived a motion for summary judgment, but were dismissed on an appeal to the 11th Circuit Court of Appeals. The Plaintiff requests a rehearing en banc, which was denied. Here is what a dissenting judge in the rehearing en banc decision stated:
[T]he panel held that although District Attorney McDade "ran a DA's office rife with gender-discrimination," qualified immunity protects him from civil liability because there is no pre-existing case which would have put him on notice that: (1) berating his female employees with pejorative terms such as "hysterical female," "bitch," "blonde bombshell," "smurfette," and "bimbette," (2) photographing his female employees' buttocks, (3) throwing coins and other objects down his female employees' blouses, (4) telling a female employee to uncross and cross her legs again while he watched, (5) stating that the only thing women are good for is "making babies," (6) saying "women don't have the balls to be prosecutors," and (7) embarrassing his female employees with statements such as "you can't come in, Rita doesn't have her clothes on," constituted sexual harassment.
Lewis v. McDade, 250 F.3d 1320, 1321 (11th Cir. 2001) (Justice Barkett, dissenting from denial of rehearing en banc).
Here is the full statement of facts from the trial court decision appealed from:
Defendant McDade was elected District Attorney for the Douglas Judicial Circuit in the summer of 1990. Though persons employed in the District Attorney's office are paid by the State and/or Douglas County, the authority to hire, supervise, discipline, and terminate these employees rests with Defendant McDade.
Plaintiff Lois Gerstenberger was hired as an assistant district attorney by Defendant McDade's predecessor, Frank Winn, on November 1, 1986. After Defendant McDade was elected District Attorney, he allowed Plaintiff Gerstenberger to continue to work as an assistant district attorney in the office. Plaintiff Gerstenberger resigned on August 18, 1994, to be effective September 2, 1994.
In January, 1990, then District Attorney Winn employed Plaintiff Martha Carver as the first and only Victim-Witness Coordinator for the District Attorney's office. Defendant McDade also allowed Plaintiff Carver to continue in this position from January 1, 1991 until she submitted her resignation on September 26, 1994, effective two weeks later.
In March, 1990, then District Attorney Winn employed Plaintiff Rebecca Lewis as his office receptionist. In November, 1990, Plaintiff Lewis was transferred to the data entry position. Defendant McDade allowed Plaintiff Lewis to remain in this position until she submitted her resignation on September 23, 1994, effective October 8, 1994.
Then District Attorney Winn employed Plaintiff Linda Hughes as a county-paid secretary in August, 1990. In April, 1994, Plaintiff Hughes was appointed to a state-funded secretary position. Upon his election, Defendant McDade allowed her to remain in this position. By letter dated August 18, 1994, Plaintiff Hughes submitted her letter of resignation to Defendant McDade.
In January, 1979, Plaintiff Rita Smith was hired by then District Attorney Winn as a state-funded secretary in the District Attorney's office. Defendant McDade allowed Plaintiff Smith to continue in her employment in this position until she resigned on October 23, 1995. Plaintiff Smith functioned as the District Attorney's Office Manager from January, 1991 until February, 1995.
In July, 1988, Plaintiff Brenda Heath was appointed as the Douglas District Attorney's first and only investigator by then District Attorney Winn. Defendant McDade allowed Plaintiff Heath to remain in this position until he terminated her on February 3, 1995.
There is no evidence that during 1994 and 1995, the Douglas District Attorney's office employed more than fifteen (15) employees, as that term is defined at 42 U.S.C. § 2000e(f), for each working day in each of twenty (20) or more weeks during that calendar year.
The office of the District Attorney operated very informally. Employees often engaged in sexually suggestive language and activities. The Magistrate Judge has reviewed this conduct in detail in the Report and Recommendation which is incorporated herein. However, a brief summary of that evidence, construed in a light most favorable to Plaintiffs, follows.
Defendant McDade would tell a woman employee to walk down the hall so that he could watch her walk from behind. On occasion, he made comments about Plaintiff Lewis' legs and that her dress was a "turn-on." Defendant McDade would often throw coins down the blouses or bras of the female employees. Defendant McDade also shot rubber bands at the breasts and buttocks of the female employees. On several occasions, Defendant McDade lifted [*1337] Plaintiffs Gerstenberger and Smith off the ground. Defendant McDade lifted the suit jacket of Plaintiff Gerstenberger and looked and pointed at her buttocks. When someone would knock on his door while a woman was in his office, on occasion Defendant McDade would state, "You can't come in, she doesn't have her clothes on" or "Don't come in right now, I don't have my pants on." Defendant McDade told Assistant District Attorney Perrin (a female employed from November, 1991 through July, 1992) she would have to wear the office uniform (a bikini) while playing volleyball at the Prosecuting Attorneys Council Meeting. On an occasion when a man was being prosecuted who had obtained a penile implant, Defendant McDade carried the implant around the office proclaiming he was larger than the implant.
Plaintiffs also participated in the sexual games and conduct in the office. On one occasion, the female employees dressed as prostitutes. The female employees gave Defendant McDade a photo album with sexually-charged comments accompanying the photographs. On one occasion, the female employees presented Defendant McDade with an ice sculpture of breasts. Also, a tape recorded montage of sexual comments and innuendos was prepared for Defendant McDade. (The Plaintiffs also gave Defendant McDade a number of cards and notes praising him as a boss. At times, Plaintiffs were unoffended by Defendant McDade's conduct and willingly joined in it. At other times, they found his conduct demeaning. Though at times certain of the Plaintiffs may have mildly intimated displeasure with some of the sexual comments or activities, no Plaintiff lodged any type of formal complaint concerning the same.
Defendant McDade also used language and conduct which, while not sexual in nature, was demeaning and abusive toward females. Again, this conduct is described in detail in Parts Three and Four of the Report and Recommendation, which have been incorporated herein, but a summary follows. Defendant McDade would often yell at the female employees and use abusive language. On one occasion, he loudly cursed Plaintiff Lewis in a courtroom filled with people. On another occasion, Plaintiff Lewis delivered a book for Defendant McDade to Detective Shaddix. Detective Shaddix was not in his office, and Detective Brumbalow took the book from Plaintiff Lewis for Detective Shaddix. When she told Defendant McDade what had occurred, he pounded his fist on the desk and said, "What in the hell did I tell you to do with the goddamn mother fucking book!?" When Plaintiff tried to explain that Detective Brumbalow had taken the book from her and placed it on Detective Shaddix's desk, Defendant stated, "Does Brumbalow sign your goddamn paycheck?" Plaintiff started trembling and was speechless. Defendant finally told her to leave his office.
When females would ask for time off for medical reasons, Defendant routinely stated that the employee was "having her annual nervous breakdown," or "sunbathing on the deck," or "PMS'ing." When a woman employee would make a statement or ask a question in front of visitors, Defendant McDade would often respond "that's not true" or "that didn't happen." When women employees would ask for a second of Defendant McDade's time, he would often say "not unless you've got an empty pocket, I [*1338] gotta pee!"
Defendant McDade required Plaintiff Heath to work on his campaign. Plaintiff Heath asked Defendant McDade if he wanted the other women in the office to help. He replied, "I don't want a bunch of stupid lazy women getting in the way but you be there at 6 p.m." Plaintiff Heath had to get the food, buy beer, cigarettes, etc. for the "men" who helped.
Immediately after Plaintiff Hughes began working in the District Attorney's office, she noticed Defendant McDade was disrespectful and insulting to women. During her first few days, Defendant McDade came into the secretaries' office and demanded loudly that he wanted somebody to "pick up this file" and do the work required. He then dropped the file in the middle of the floor and all three (3) secretaries immediately went to their knees to retrieve the file.
When Defendant McDade wanted to throw out something from his mail basket, he would drop it on the floor beside Plaintiff Hughes' desk. When she would move her trash can under his hand to catch the trash, Defendant McDade would deliberately move over causing the trash to fall on the floor and causing Plaintiff to get on the floor to pick it up.
Defendant McDade constantly pitted the women in the office against one another by telling them lies about the other women. Defendant McDade would have swimming parties at his home and require all of the women employees to come and to wear bathing suits.
Defendant McDade referred to women in the following terms: "that bitch," "blonde," "friggin idiot," "hysterical," "whiney," "squalling," "my baby," "a honey," "fucking bitch," "feather head," "bazumbas," "stupid bitch," "whoa baby!" He used these terms in reference to women lawyers, women in the District Attorney's and Clerk's offices, women victims, and women members of victims' families.
Defendant McDade referred to employee Rita Fitzpatrick as a "bleach blonde," "a hypochondriac," "money grubber," and a "hysterical female." Further, he stated that he thought she had breast implants. Fitzpatrick complained to Plaintiff Smith that she felt Defendant McDade's actions were discriminatory towards women. McDade told Smith that "she [Fitzpatrick] wouldn't last six months--that there was more than one way to skin a cat and he wanted her to resign." He then ignored Fitzpatrick's comments and questions and ordered her to carry big boxes of files upstairs even though she was ill. Ultimately, she resigned.
On two occasions, Defendant McDade hit Plaintiff Carver. On the first occasion, he hit her in the presence of the head of the Council on Battered Women in Atlanta. Defendant McDade said he did it to see what the reaction of the Director of the Council on Battered Women would be. Plaintiff Carver was shocked and did not laugh or think the matter was a joke. The second occasion occurred in the last year of Plaintiff Carver's employment. On that occasion, Defendant McDade simply walked up and hit her. He did not say anything, but the hit left a mark on her. Plaintiff Carver simply responded, "Ouch, that hurt." On another occasion, Defendant McDade grabbed Plaintiff Carver and told her that she did not know how close he had come to hitting her.
Plaintiff Gerstenberger asserts that, as a female, she was discriminated against in comparison to the males based upon her [*1339] greater case load, lesser salary, failure to obtain promotion to a state-paid position and less favorable benefits and vacation time. In 1990, Defendant McDade stated to Plaintiff Hughes that Plaintiff Gerstenberger was an idiot, and he was looking for a way to fire her. He asked Plaintiff Hughes to watch her and report anything to him for which he could fire her. Defendant McDade also remarked that if he fired her she would sue him for sexual harassment, that she had once "sicked her husband" on him about some joke in a lawyer's meeting. Defendant McDade refused to act on leave requests by Plaintiff Gerstenberger and directed Plaintiff Hughes that she was to put down no overtime on Gerstenberger's time sheets no matter how long she worked. Defendant McDade told Plaintiff Smith, as office manager, that he "had decided to not hire any more women assistant district attorneys because they don't have what it takes." He instructed her that if any resumes came in from women, Smith was to interview the woman and then send her a regret letter.
Assistant District Attorney Janet Perrin stated that Defendant McDade often denigrated women by stating "if you're a woman, you just don't have the 'kahonees' or … the 'stones' to be a prosecuting attorney." He also stated that Perrin and Gerstenberger, in particular, did not have the "balls" to prosecute criminals.
When Plaintiff Heath had to have surgery, she advised Defendant McDade she would require an extended period of leave. From the time she made this request, Defendant McDade refused to speak to her. Prior to Defendant McDade terminating Plaintiff Heath, he told Plaintiff Smith that he was going to fire Heath, and if Smith told Heath, Smith would be fired. When Plaintiff Heath was having physical problems because Defendant McDade had assigned her to work the phone, Plaintiff Heath sent Defendant McDade a memo requesting to speak with him. Instead, Beau McClain, the Chief Assistant District Attorney, met with her and informed her that her memo had made Defendant McDade furious, and she was lucky that Defendant McDade had not hit her.
In December, 1993, Plaintiff Carver submitted a letter of resignation to Defendant McDade. Defendant McDade asked what he had to do to get her to stay. Plaintiff Carver told him that he would have to get counseling for the way he treated women in the office.
Cathy Tatay, an employee in the District Attorney's office, complained about sexual harassment by Beau McClain. Defendant McDade stated that "Cathy Tatay's neurotic. She's got all kinds of mental problems, and I don't believe this about Beau." When McClain was on vacation, McDade reassigned Tatay to work for another attorney. When McClain returned and found that Tatay had been reassigned, he was upset. Defendant McDade then stated that the transfer was a stupid thing to do. He stated, "I don't know why I reassigned her. I should have left her right where she was. Beau doesn't have a right to be treated that way, he's Chief Assistant D.A., if he wants her as his secretary, by God, that's who he ought to have, and if she doesn't like it then she can just get out." Defendant McDade told Plaintiff Smith that he was going to force Tatay to resign because she complained about McClain. Defendant McDade moved Tatay from the secretarial area into the hallway outside McClain's office directly in McClain's line of vision and from where she could be easily overheard in McClain's [*1340] office. Tatay resigned.
Defendant McDade stated that any complaints about office matters which were made outside the office would be grounds for immediate termination. Plaintiff Hughes complained to the court administrator and a superior court judge about Defendant McDade but was told that she had no recourse but to resign.
Defendant McDade intimidated Plaintiffs by stating that as for anyone who embarrassed him with a lawsuit, he would "own all their houses and they will send all [his] children to college."
One day when several women in the office were discussing dreams, Defendant McDade stopped and listened. He stated that he had two recurring dreams. In one of those, he killed a woman by cutting her head off. When he would awake, he was never sure if it was real or a dream.
Douglas County issued sexual harassment policies which Defendant Smith distributed to all employees of the District Attorney's office. The policies provided that an employee who felt that he or she was a victim of sexual harassment should bring the matter to the immediate attention of his or her supervisor, the personnel director, or the county manager. No plaintiff ever filed a formal complaint pursuant to those policies. However, Plaintiff Smith reported Tatay's complaints to Gloria Turner, the Douglas County Personnel Director. She also told Turner there was a lot of employee dissension in the District Attorney's office, that the female employees were very upset about their treatment; that several women had left; and that Smith feared that others were going to leave because of what was going on in the office. Turner acknowledged that she had attended seminars on sexual harassment and the conduct appeared to be sexual and gender-based harassment. However, no action was taken.
Lewis v. McDade, 54 F. Supp. 2d 1332, 1336-1340 (D. Ga. 1999) (citations to dpeosition testimony and discovery documents omitted).
Hat Tips to AboveTheLaw.com and the Sentencing Law and Policy Blog.
*Genarlow Wilson is the Georgia boy who was sentenced to 10 years in prison for having consensual oral sex with a 15-year-old girl when he was 17 years old. The Georgia statute under which he was convicted has since been amended to make the same offense a misdemeanor, but the change was not made retroactive to Wilson's case. Under Georgia law at the time he would have not committed a crime if he had engaged in vaginal sex with her, rather than oral sex. The prosecutor is widely distributing videotapes of the sex act and appears to have improperly intimidated Wilson's mother as well.
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