Law clerk details pregnancy discrimination claim after federal judge fired her 10 days before her baby was born - The Washington Post

Caitlyn Clark had just received a raise and an offer to extend her two-year clerkship with a federal judge in her hometown in Georgia in January 2020 when she disclosed she was pregnant. That’s when she said the judge’s longtime career clerk became highly critical of her work — at one point expressing exasperation that Clark’s planned maternity leave would add to her workload. The judge himself suggested Clark did not have the “intensity” for the job.

The details of Clark’s pregnancy discrimination and harassment claims, which she pursued for the next year, were laid out in an internal court investigation obtained by The Washington Post. Clark’s account will be spotlighted Thursday by a congressional committee scrutinizing gaps in the judiciary’s reporting system and exploring additional workplace protections for court employees, who lack the same rights afforded other government and private-sector workers.

“I need to fix this for everyone, for the people who come after me, for my daughters,” Clark said in an interview. “I’ve done all this work and I’m not going to get anything out of it, but I can make sure it doesn’t happen again or at least try.”

Clark has appealed an initial decision rejecting her claims and clearing the judge, C. Ashley Royal of the Middle District of Georgia, of misconduct. A separate complaint filed last summer with the court’s governing council is pending.

Royal declined to respond to Clark’s claims and questions from The Post, saying in an email that it would be “improper for me to comment on it publicly at this time” because the appeal process is ongoing. He and the career clerk repeatedly told the judge assigned to investigate Clark’s allegations last year that their concerns were related only to poor job performance — not to her pregnancy, according to transcripts of their interviews conducted as part of the investigation.

Royal, 72, told the investigating judge he felt “sandbagged” by Clark’s claims, according to his interview transcript. He characterized her account as “devious and as far as I’m concerned it is corrupt and I don’t want her back and nobody at my courthouse wants her back.”

Clark, 32, is one of several former judiciary employees scheduled to testify Thursday as a House Judiciary panel considers bipartisan legislation to extend anti-discrimination rights and remedies to court employees and to create an independent commission to oversee workplace conduct issues. The judiciary’s 30,000 employees are not covered by federal laws that prohibit workplace discrimination and retaliation. Former employees, lawmakers and advocates have pressed for additional protections ever since leaders of the U.S. courts were forced in 2018 to respond to sexual misconduct claims against a prominent appeals court judge.

In his most recent annual report on the state of the judiciary, Chief Justice John G. Roberts Jr. acknowledged in December that the federal courts can do more to ensure a harassment-free workplace, but said it would be inappropriate for lawmakers to intervene in the affairs of an independent, coequal branch of government. The federal judiciary’s administrative office reiterated its opposition to the legislation this week and pointed to substantial improvements to its policies intended to increase reporting options for employees and provide them with confidential guidance for navigating such situations.

An advisory board Roberts created to address such issues also announced new recommendations this week aimed at ensuring an unbiased process, including a requirement that misconduct investigations be conducted by a judge from a different courthouse and the possibility of monetary damages for substantiated claims.

While the Administrative Office of the U.S. Courts said it is precluded from discussing a pending confidential complaint, a spokesperson said, “We are determined to continue listening to and learning from our employees and putting the right safeguards in place to ensure a safe, respectful and professional workplace for everyone in the federal court system.”

Clark and her attorney, Michelle Cohen Levy, who have spent 18 months pursuing her claims, say there remains no meaningful, transparent process for employees to obtain an independent review, in part because the judiciary is policing itself with fellow judges overseeing investigations.

Judges have “no incentive to police how their friends and colleagues manage clerks or run their respective chambers,” Clark wrote in her prepared testimony, adding that “challenging a sitting federal judge and ruining one’s career is simply not worth the risk to most young lawyers, especially when the only available resolution processes are not impartial.”

Clark graduated 13th out of a class of 123 at Mercer University School of Law in her hometown of Macon, Ga. She was a law review editor, moot court competition coach and, during her third year, worked as an intern in Royal’s chambers in the historic white marble courthouse named for a Georgia judge who helped oversee desegregation.

After graduation, Clark worked at a private law firm, where, she said, she reveled in the strategy and competitiveness of litigation. But she jumped at the opportunity to return to Royal’s chambers for a two-year term starting in July 2019.

For six months, Clark said, the judge and his career clerk, who edited and supervised her work, were pleased with Clark’s performance. The judge asked her to stay on for an additional two years and signed off on a nearly $15,000 raise in early January, according to transcripts of interviews from the internal investigation.

After Clark announced her pregnancy later that month, she alleges, the career clerk’s attitude toward her shifted and she became highly critical of Clark’s work. The clerk acknowledged in an interview for the internal investigation that she was not “overly excited” about Clark’s pregnancy announcement. She emphasized that she was already concerned that Clark’s work drafting an important opinion was taking longer than expected.

Clark declined to name the career clerk in her congressional testimony, saying that, unlike the judge, the clerk is not a high-ranking public official. The Post agreed not to identify the clerk, who declined to comment for this story citing the ongoing appeal.

When the coronavirus pandemic took hold in March 2020, the judge sent everyone home and Clark said her relationship with the clerk completely broke down. Instead of providing helpful feedback, Clark contends, she was overly harsh about her work. Assignments piled up and Clark struggled to meet deadlines.

“I did what I do with every single law clerk which is I edit their work. I try to help them,” she said. “I know what Judge Royal wants and he demands a high-quality outcome.”

In April, the judge asked Clark to meet at his home. Clark was about five months pregnant. She was working early in the morning and late at night so she could care for her 15-month-old while his day care remained closed because of the pandemic. In Royal’s backyard, according to interview transcripts, the judge told Clark to do better.

“'Caitlyn, I don’t know why you’re not getting the work done, but I have three ideas. The first one is you aren’t smart enough to do the work. The second one is your heart is not in the job, and the third one is because you don’t have the intensity to do the job.' And then I said, ‘I don’t know which one of them it is, but it’s not working out here,’” Royal recounted to the investigating judge, the transcripts show.

The judge’s courtroom deputy, who attended the backyard meeting to take notes, recalled in her interview for the internal investigation that Royal told Clark, “Now while this may be a good mommy job, work still has to get done.”

Clark said she was shocked and dismayed by the negative feedback. Later that day, she called the career clerk to discuss the schedule for the week. The clerk acknowledged in her interview with the investigating judge that she raised her voice during their phone call and expressed frustration about the escalating workload and Clark’s upcoming maternity leave.

“I think I probably said, ‘Caitlyn, it’s infuriating to me. I mean, you’re pregnant. You’re going on maternity leave. We have so much work that is piling up,” the career clerk recounted, according to her interview transcript.

The clerk acknowledged in the interview that it was not her “finest moment” but said she was overwhelmed and losing faith in Clark’s ability to get the work done.

The next day, Clark reported the exchange to Royal. The judge said he talked with the career clerk, who apologized to him and later to Clark, and did not believe anything else needed to be done, according to the transcripts, which quote the judge as saying: “What was I going to do? Bring them in and say, okay, girls, y’all need to be sweet to each other? There wasn’t anything else I could say.”

“I didn’t want to quit. I’d worked too hard in law school and this clerkship meant a lot to me. I wasn’t going to let it go,” she said.

With Clark’s husband running a landscaping business and a second baby on the way, the family also relied on her health-care benefits, she said.

In June, Clark discussed her upcoming maternity leave with the judge. At that meeting, Royal reiterated his disappointment with the backlog of pending motions and rescinded the two-year extension, the transcripts show. He told Clark he had hired a new clerk who would start while she was on leave.

The third clerk was “going to come in; Caitlyn would come back; and we were going to give Caitlyn the easy stuff and just kind of put her out to the pasture on things that really didn’t take much work on her part,” the judge said, according to his interview transcript.

In mid-August, the judge called Clark into his chambers with the courthouse clerk present for the discussion. He told her to pack up her office and not to return after her maternity leave, Clark said.

That fall, the Middle District of Georgia put in place new system for resolving employment disputes. She initially tried to resolve her claims through a mediation process. In December 2020, a colleague of Royal’s took a first look at the allegations and conducted interviews, according to the judge’s report. He determined that the issues could not be resolved through mediation.

Macon is a close-knit town and an even smaller legal community, and Clark said she struggled to find an attorney to help her file a formal complaint. She asked former law professors, classmates and advocacy groups for help.

In February 2021, Clark filed a formal administrative complaint through the court’s employment dispute resolution plan. The claim was handled by Judge J. Randal Hall from the neighboring Southern District of Georgia and Clark got help from Levy, a lawyer in Florida.

Hall rejected Clark’s discrimination claims against the court and found that the judge had a “legitimate, nondiscriminatory reason for terminating Ms. Clark’s employment — her poor work performance,” according to his written decision, which Clark has appealed to the Judicial Council of the 11th Circuit, which oversees the district courts in Georgia. He said Clark was “not completing her work in a timely manner, which resulted in a backlog of unresolved motions.”

Hall reviewed the career clerk’s edits and found them “thoughtful and constructive,” he wrote — not overly critical as Clark alleged — and he reviewed emails that he said appeared to be “very cordial and friendly.”

Even if the allegations about the phone call are true, Hall wrote, the conduct “does not rise to the level of severe or pervasive necessary to establish a claim for a hostile work environment.”

“I have rarely — if at all — seen a complaint for discrimination, harassment, and retaliation as meritorious as this case; however, the merits of this case were irrelevant given the highly flawed nature” of the process, she wrote in her letter to the House committee.

“In allowing the judiciary to operate as its own investigator and arbiter, there is no meaningful path for a judicial employee to make a confidential complaint, obtain an independent investigation of that complaint, and, if dissatisfied with the outcome of that investigation, pursue their claim through the means available to virtually every other employee.”

source: https://www.washingtonpost.com/politics/2022/03/17/law-clerk-pregnancy-discrimination-case/

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