In Pike v. Budd, 133 F.4th 74 (1st Cir. 2025), the court vacated the lower court’s dismissal of plaintiff’s sexual harassment claim based on qualified immunity.
The court summarized the alleged facts as follows:
Plaintiff-Appellant Samantha Pike (“Pike”), a licensed alcohol and drug treatment counselor employed by Wellspring, Inc. (“Wellspring”), worked at Maine’s Adult Treatment and Recovery Court (TRC), a voluntary treatment and recovery program, in Penobscot County. Defendant-Appellee Charles Budd, Jr. (“Budd”) was the presiding judge who oversaw TRC. As the presiding judge, Budd attended an out-of-state, work-related conference alongside other TRC members, including Pike. At that conference, Budd made unwelcome sexual advances towards Pike which then, upon returning to Maine, continued in his chambers at TRC.
Plaintiff filed a § 1983 action against Budd, which the district court dismissed, on the ground that Budd was entitled to qualified immunity because case law did not clearly establish that Budd would violate the Fourteenth Amendment’s Equal Protection Clause in this context.
The First Circuit disagreed. From the decision:
In reviewing Budd’s alleged conduct “from the perspective of a reasonable person in [Pike’s] position,” we conclude that Pike’s complaint plausibly alleges a hostile work environment claim for the purposes of a motion to dismiss. Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). We start by emphasizing that Budd’s position of authority over Pike can be a contributing factor in a jury’s determination of severity. See, e.g., Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1056 (9th Cir. 2007) (explaining that while the supervisor’s conduct was “physically less threatening” then conduct alleged in other sexual harassment cases, the supervisor’s “position as [the plaintiff’s] immediate boss made his actions emotionally and psychologically threatening”); Quantock v. Shared Mktg. Serv., Inc., 312 F.3d 899, 904 (7th Cir. 2002) (per curiam) (concluding that a reasonable jury could find conduct sufficiently severe given the harasser’s “significant position of authority at the company,” the “close working quarters” between him and the plaintiff, and that he had made requests for sex directly to the plaintiff); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (”[A] supervisor’s power and authority invests his or her harassing conduct with a particular threatening character …. ”).
With this in mind, we cannot agree with Budd’s characterization of the alleged conduct as being “exclusively verbal.” Of course, allegations of inappropriate comments do form part of the basis for Pike’s claim. She alleges that Budd asked her to invite him into her hotel room; shared (unprompted) with her personal issues in his marital life and his receipt of sexual propositions due to his position as a judge; and questioned Pike about her personal life. Budd is alleged to have commented on Pike’s physical appearance — both in private to Pike and in front of her colleagues — and that of several female TRC clients; and even, while in Pike’s presence, said to another female coworker “I can see your undergarments from here.”8
However, these comments were not made in isolation but could be viewed by a jury as part of a mosaic of physically intimidating behavior. Significantly, Pike claims that Budd’s untoward behavior began *89 with him lying about the location of his hotel room in an endeavor to follow Pike to her room. When Pike opened the door to her room, Budd allegedly stood close enough behind her to reach around and hold the door into her room open before he suggested he be invited in. Not wanting to invite him in, Pike backed into the hallway whereupon, she claims, Budd repeatedly asked her to join him for a drink. Given Budd’s presence outside her hotel room door, his attempt to enter her room, and his refusal to accept her objections to going downstairs with him, at this stage we cannot say that no jury could find it reasonable for Pike to feel “cornered and like she needed to get out of the hallway with Judge Budd and get him away from her room.”
This interaction is relevant to the analysis for several reasons. First, we think that the intimidating nature of the event colors how a reasonable person could perceive the alleged inappropriate comments made by Budd described above. Additionally, it tends to establish a trend of potentially intimidating and, frankly, creepy behavior. At the next night of the conference, Budd allegedly followed Pike around at dinner and then to bars. Pike claims that Budd came up behind her “on multiple occasions,” and when she went outside with a male coworker to discuss the judge’s behavior, Budd followed her outside and again stood right behind her. His alleged pursuit was so persistent that a coworker stated that Budd was watching Pike throughout the night and “he would pop up behind Mrs. Pike’s shoulder every time she tried to get away from him.”
Further, a jury could find that the sexual advances and physically intimidating behavior did not end at the conference. Pike alleges that the next time she saw Budd, two weeks later, he used his position of authority to get Pike alone his chambers, alluded again to pursuing a sexual relationship with her, and came up behind her when Pike attempted to leave. Taking these asserted claims as true, we cannot say that Budd’s alleged physically intimating behavior combined with his repeated sexual advances is insufficiently severe to state a claim for sexual harassment. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 571-72 (2d Cir. 2000) (finding that the “physically threatening nature of [the harasser’s] behavior,” which consisted of standing very close to women, looking them up and down in an uncomfortable way, and “repeatedly ended with him backing [the plaintiff] into the wall until she had to ‘cut the conversation short’ in order to extricate herself, brings this case over the line separating merely offensive or boorish conduct from actionable sexual harassment”) superseded on other grounds by N.Y.C. Local L. No. 85.
…
Therefore, considering Budd and Pike’s shared work setting and his authority over her as TRC’s presiding judge,9 in combination with his alleged misconduct, we conclude that Pike’s complaint sufficiently portrays a state-empowered supervisor who crossed the line from merely making uncomfortable and inappropriate comments to one who engaged in sexual harassment. See Vera, 622 F.3d at 27-28 (noting that the shared workspace coupled with the defendant’s inappropriate practices of staring and drawing close to the plaintiff amounted to an actionable hostile work environment claim)
The court further held that the defendant was unable to avail themselves of the doctrine of Qualified Immunity, noting that “at the time Budd allegedly made his unwelcome sexual advances to Pike, a reasonable official in his position would have known that such conduct would violate the equal protection right to be free from a hostile work environment.”
In sum, the court concluded that “the Fourteenth Amendment prohibits state actors from employing their authority to discriminate on the basis of sex,” that “creating a hostile environment in the workplace on the basis of sex is one form of sex discrimination,” and that “a state actor who employs his or her state authority to create a hostile work environment in the workplace violates the Fourteenth Amendment.”