                                              Filed:   August 8, 2005

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                           No. 04-2151(L)
                          (CA-03-90-2-18)


ADDIE MIKKELSEN, on behalf of herself and all
female employees, current, former and future,
of H. Wayne DeWitt, Sheriff, County of
Berkeley,

                                              Plaintiff - Appellant,

          versus


H. WAYNE DEWITT, in his personal capacity,

                                                Defendant - Appellee,

          and


BERKELEY COUNTY; HENRY BROUGHTON,

                                                            Defendants.



                             O R D E R


     The court amends its opinion filed July 15, 2005, as follows:

     On page 2, line 2 of attorney information, following the name

of Caroline Wrenn Cleveland, “LAW OFFICE OF DUFFIE STONE, L.L.C.,”

is deleted, and “Bluffton” is changed to “Charleston.”

                                         For the Court - By Direction



                                             /s/ Patricia S. Connor

                                                    Clerk
                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-2151



ADDIE MIKKELSEN, on behalf of herself and all
female employees, current, former and future,
of H. Wayne DeWitt, Sheriff, County of
Berkeley,

                                             Plaintiff - Appellant,

          versus


H. WAYNE DEWITT, in his personal capacity,

                                             Defendant - Appellee,

          and


BERKELEY COUNTY; HENRY BROUGHTON,

                                                       Defendants.


                            No. 04-2165



ADDIE MIKKELSEN, on behalf of herself and all
female employees, current, former and future,
of H. Wayne DeWitt, Sheriff, County of
Berkeley,

                                             Plaintiff - Appellee,

          versus


H. WAYNE DEWITT, in his personal capacity,

                                             Defendant - Appellant,
           and


BERKELEY COUNTY; HENRY BROUGHTON,

                                                       Defendants.



Appeals from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CA-03-90-2-18)

Argued:   May 24, 2005                    Decided:   July 15, 2005


Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ray P. McClain, Charleston, South Carolina, for Appellant/Cross-
appellee. Caroline Wrenn Cleveland, Charleston, South Carolina,
for Appellee/Cross-appellant.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM:

     Addie Mikkelsen, a court security officer, brings this suit

against her former boss, Sheriff Wayne DeWitt, under 42 U.S.C.

§ 1983 (2000).    Her claims -- arising under the Equal Protection

Clause and the First Amendment -- involve the sheriff’s allegedly

inadequate and impermissible response to her complaint that she was

sexually harassed by a fellow officer.           That officer was asked to

resign and subsequently resolved his civil dispute with Mikkelsen

in a settlement.        Mikkelsen’s only remaining claims are against

Sheriff DeWitt in his individual capacity as her supervisor.

     We hold that these claims were properly dismissed.                   The

evidence   does   not    establish,    as   it   must,   that   the   sheriff

demonstrated “deliberate indifference” to a risk that women like

Mikkelsen were being sexually harassed.           Shaw v. Stroud, 13 F.3d

791, 799 (4th Cir. 1994).         Nor does it show that the sheriff

retaliated against Mikkelsen because she complained.            We therefore

affirm the district court’s grant of summary judgment to the

defendant.



                                      I.

     H. Wayne DeWitt is the sheriff of Berkeley County, South

Carolina. Addie Mikkelsen worked for the Berkeley County Sheriff’s

Office as a court security officer from 1997 to 2000, and again

from 2001 to 2002.


                                      3
      According to Mikkelsen, beginning in December 2001 she began

to   receive      unwanted    attention    from     her    immediate    supervisor,

Lieutenant Henry Broughton.          Mikkelsen says Broughton made several

sexual advances towards her -- including attempting to kiss her and

transmitting several inappropriate pager messages.

      In January 2002, Mikkelsen reported her allegations up the

chain of command at the sheriff’s office, and they came to DeWitt’s

attention on January 17.          The following day, Sheriff DeWitt placed

Broughton on paid administrative leave. Mikkelsen then retained an

attorney who wrote a letter on her behalf summarizing Broughton’s

actions.

      Shortly thereafter DeWitt contacted Marie Wauben, the County’s

Director     of    Human     Resources,    and     asked    her    to   conduct    an

investigation into the matter. Wauben testified that she was asked

by DeWitt to be an “independent fact-finder” and “third-party

investigator”       into     Mikkelsen’s       allegations.       Outside   of   this

investigation, Wauben had no relationship with DeWitt or the

deputies of the Berkeley County Sheriff’s Office.

      Wauben took eight weeks to complete her investigation.                      She

ultimately concluded that some of Mikkelsen’s allegations were

credible (specifically the ones involving the inappropriate pager

messages).     However, she further determined that Mikkelsen herself

had also engaged in inappropriate conduct.                 She informed DeWitt of

reports that Mikkelsen had, among other things, left flirtatious


                                           4
messages on napkins for Broughton and had been seen massaging his

neck.

       Based on this information, Sheriff DeWitt sent two letters.

He sent a letter to Broughton asking him to resign or face

termination.     Broughton chose to retire on March 15, 2002.                Four

days later, DeWitt sent a letter to Mikkelsen accusing her of

conduct unbecoming of an officer.           He presented her with the same

choice he gave Broughton.      Mikkelsen’s job was terminated on March

25, 2002.

       Mikkelsen says the allegations in her termination letter are

mere “gossip.”       She argues that DeWitt erroneously credited them

and impermissibly shifted the focus of the investigation away from

Broughton’s conduct and to her own. According to Mikkelsen, DeWitt

has had a history of hostility towards sexual harassment claims

since one was once publicly made against him.

       Mikkelsen filed suit in federal court for the district of

South Carolina naming Berkeley County, Sheriff DeWitt (in his

personal capacity), and Lt. Broughton as defendants.              She settled

her claims against Broughton, and the claims against the County

were dismissed on summary judgment and have not been appealed.

       The    only   counts   before       us,   therefore,   are    the      two

constitutional claims against Sheriff DeWitt.             Mikkelsen     argues

that    the   sheriff   violated   her       Equal   Protection     rights    by

perpetuating a policy of discouraging sexual harassment complaints.


                                       5
She further claims that DeWitt violated her First Amendment rights

by   demoting    her    to    clerical      duties     and     then   firing    her   in

retaliation for reporting Broughton.                 The district court found for

DeWitt on summary judgment, and we review that finding de novo.

TFWS, Inc. v. Schaefer, 325 F.3d 234, 236 (4th Cir. 2003).



                                         II.

       We    first     address     Mikkelsen’s         Equal     Protection      claim.

Mikkelsen accuses DeWitt of creating a work environment where

sexual harassment complaints are discouraged, such that potential

harassers may proceed uninhibited by a threat of consequences.

       “[I]ntentional        sexual   harassment       of    employees     by   persons

acting under color of state law violates the Fourteenth Amendment

and is actionable under § 1983.”                Beardsley v. Webb, 30 F.3d 524,

529 (4th Cir. 1994).         Assuming a constitutional violation occurred

here, however, does not by itself resolve the question at hand.                       To

take advantage of the remedy afforded by § 1983, Mikkelsen must

prove that DeWitt is liable for the violation under some recognized

theory of fault.        See Collins v. City of Harker Heights, 503 U.S.

115,   120    (1992).        Her   theory       is   that    DeWitt   is   liable     for

Broughton’s actions because he created a “policy” effectively

permitting male officers to freely harass their female co-workers.

       First, a point of clarification.               Mikkelsen’s contention that

Sheriff DeWitt is a “policy maker” does not quite capture the


                                            6
relevant issue here.         Debating whether a public employer has

adopted an unconstitutional “custom” or “policy” is a question to

be asked when examining the basis for municipal liability under

§ 1983.   See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91

(1978).   It is not the right question to ask when confronting a

supervisor’s potential liability in his individual capacity.              See

Randall v. Prince George’s County, 302 F.3d 188, 206, 210 (4th Cir.

2002) (inquiring into the existence of a policy to assess municipal

liability, but employing separate analysis to determine individual

supervisor’s liability).

      In this case, Mikkelsen’s claims against Berkeley County are

not before us; the only remaining defendant is Sheriff DeWitt in

his personal capacity. Therefore, as our precedent makes clear, to

hold DeWitt responsible for Broughton’s behavior, DeWitt’s conduct

must meet the test for “supervisory liability.”          And our analysis

on that question is guided by the test enunciated in Shaw v.

Stroud, 13 F.3d 791 (4th Cir. 1994).        See also Randall, 302 F.3d at

206   (using   Shaw   test   to   assess   supervisory   liability   of    an

individual); Tigrett v. Rector & Visitors of the Univ. of Va., 290

F.3d 620, 630-31 (4th Cir. 2002) (same); Baynard v. Malone, 268

F.3d 228, 235 (4th Cir. 2001) (same).*


      *
      The district court approached this question in a different
manner.   It held that DeWitt’s potential liability should be
analyzed using the Supreme Court’s Title VII standards -- as
modified by Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and
Burlington Indus. v. Ellerth, 524 U.S. 742 (1998). It is important

                                      7
     Shaw teaches that “supervisory officials may be held liable in

certain circumstances for the constitutional injuries inflicted by

their subordinates.”    13 F.3d at 798.    Such liability “is not

premised upon respondeat superior but upon ‘a recognition that

supervisory indifference or tacit authorization of subordinates’

misconduct may be a causative factor in the constitutional injuries

they inflict on those committed to their care.’”      Id. (quoting

Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)).

     Three elements are required to establish supervisor liability

under § 1983.   A plaintiff must show:

     (1) that the supervisor had actual or constructive
     knowledge that his subordinate was engaged in conduct
     that posed a pervasive and unreasonable risk of
     constitutional injury to citizens like the plaintiff;

     (2) that the supervisor’s response to that knowledge was
     so inadequate as to show deliberate indifference to or
     tacit authorization of the alleged offensive practices;
     and

     (3) that there was an affirmative causal link between the
     supervisor’s inaction and the particular constitutional
     injury suffered by the plaintiff.

Shaw, 13 F.3d at 799 (internal quotations omitted).




to remember, as the district court briefly noted, that Faragher and
Burlington govern liability standards for employers, not for
supervisors in their individual capacities.
     In any event, even after Faragher and Burlington, our court
has held that “[e]mployees are not liable in their individual
capacities for Title VII violations.” Lissau v. S. Food Serv.,
Inc., 159 F.3d 177, 178 (4th Cir. 1998). Thus, even under this
alternative analysis, Mikkelsen’s claim would fail.

                                 8
       While it is questionable whether Mikkelsen satisfies any of

these three elements, our focus here will be on the second one.                       We

must      determine     whether       DeWitt         demonstrated           “deliberate

indifference” to the presence of sexual harassment in his office.

Id. Mikkelsen must prove that DeWitt showed “continued inaction in

the face of documented widespread abuses.”                       Slakan, 737 F.2d at

373. “Deliberate indifference is a very high standard -- a showing

of mere negligence will not meet it.”                Grayson v. Peed, 195 F.3d

692, 695 (4th Cir. 1999).            As such, “a supervisory official who

responds reasonably to a known risk is not deliberately indifferent

even if the harm is not averted.”            Baynard v. Malone, 268 F.3d 228,

236 (4th Cir. 2001).

       To assess whether Sheriff Dewitt responded reasonably to the

risk   that   his   female    employees      were        being    subject    to   sexual

harassment, we are helped by considering his response to the

allegations    in     this   very    case.         One    day    after    learning    of

Mikkelsen’s    complaint,      DeWitt        put    the     alleged      offender     on

administrative      leave.      Shortly       thereafter,          he    contacted    an

independent    fact-finder      to   conduct        an    investigation       into   the

matter.    This investigator, in fact, testified that rarely had she

seen an employer respond so promptly. Following her investigation,

DeWitt immediately asked Broughton to resign.

       Sheriff DeWitt’s reaction was thus rapid, reasonable, and

appropriate.    If, as Mikkelsen contends, DeWitt was predisposed to


                                        9
ignore sexual harassment complaints, then his conduct toward her

specific complaint is inexplicable.                     Regardless of the ultimate

fallout from the investigation, it is hard to accept Mikkelsen’s

contention that Dewitt does not permit sexual harassment complaints

to be investigated when his actions here do not fit that pattern at

all.     We thus cannot find that DeWitt demonstrated “deliberate

indifference” to sexual harassment complaints, and we therefore

cannot hold him liable for Broughton’s misconduct.



                                             III.

        Mikkelsen next claims that DeWitt violated her First Amendment

rights by firing her in retaliation for protected speech.

        It    is     true   that    public     employees       may   not   be     fired      in

retaliation for speaking on matters of public concern.                            Pickering

v. Bd. of Educ., 391 U.S. 563 (1968); see also Connick v. Myers,

461 U.S. 138 (1983).             The parties ask us to weigh in on a debate

among        the     circuits      regarding        whether    complaints        of    sexual

harassment count as such public matters.                      Compare Azzaro v. County

of Allegheny, 110 F.3d 968, 978-79 (3d Cir. 1997) (finding them to

be public matters) with Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d

134, 143 (2d Cir. 1993) (finding them not to be public matters

where     the       complaints      were   personal       in    nature     and        did   not

“implicate[] system-wide discrimination”).                        The answer to this

question           may   very   well    change        depending      on    the        specific


                                               10
circumstances involved. But in any event, we need not grapple with

the issue today because there is no evidence that DeWitt retaliated

against Mikkelsen for any speech.

       An     essential       component       of    any     public      employee’s      First

Amendment retaliation claim is proving a “causal relationship

between       the   protected       speech        and    the    retaliatory       employment

action.”       Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir. 2004).

Plaintiff       must    establish         “that      the    protected       speech     was   a

substantial         factor     in    the     decision          to   take    the     allegedly

retaliatory action.”            Goldstein v. Chestnut Ridge Volunteer Fire

Co.,    218    F.3d    337,    352    (4th        Cir.   2000)      (internal      quotations

omitted).

       Although we must defer to Mikkelsen’s version of the events

leading to her claim, id. at 356, it is still not apparent that

DeWitt      fired     her     because       she    reported         Broughton.        Several

undisputed facts belie any such argument.                           Mikkelsen’s speech --

her complaint about Broughton -- prompted DeWitt to immediately

initiate an investigation.                  It was not until eight weeks later,

after       much    evidence        was     gathered        through     the       independent

investigator’s         review,       that    DeWitt        decided     to   terminate    the

employment of both Mikkelsen and Broughton.                          It is difficult for

plaintiff to contend that DeWitt would waste the time and resources

required for such an investigation if his goal was simply to

retaliate against Mikkelsen for making the complaint in the first

place.      On the contrary, his actions indicate a supervisor who was

quite responsive to the initial allegation.

                                              11
     Moreover, there is a far more compelling explanation for

Mikkelsen’s termination -- namely, the reports of Mikkelsen’s

misconduct that came to light from Wauben’s investigation.                     Even

if, as Mikkelsen urges, the reports of her flirtatious conduct were

unfounded,   that   does     not   alter     the   fact   that     DeWitt   could

reasonably have believed in their veracity. DeWitt made a decision

to fire Mikkelsen only after learning of the investigation’s

results.     No   evidence    exists    to    indicate     that    DeWitt   fired

Mikkelsen for her initial complaint rather than for the subsequent

reports of her inappropriate behavior.



                                      IV.

     Allegations of sexual harassment are a serious matter, and

many of Broughton’s actions towards Mikkelsen give cause for real

concern.     However, Sheriff DeWitt did not sit idly by. After

placing    Broughton   on     leave    immediately        and     contacting    an

independent fact-finder to conduct an investigation, we are hard

pressed to fault the sheriff for being “deliberately indifferent”

to sexual harassment complaints. Since DeWitt responded reasonably

to Mikkelsen’s allegations and because we find no evidence to

suggest he fired her for making them, he is not liable to Mikkelsen

under § 1983.

     The judgment is

                                                                      AFFIRMED.




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