Wilcox v. Lyons, No. 19-1005 (4th Cir. 2020)Annotate this Case
Plaintiff, a former Deputy Commonwealth Attorney for Carroll County, Virginia, filed suit under 42 U.S.C. 1983, alleging that her former employer violated the Fourteenth Amendment's Equal Protection Clause by terminating her in retaliation for reporting alleged sex discrimination.
In line with Fourth Circuit precedent and the majority of courts to consider the question, the court held that a pure retaliation claim is not cognizable under the Equal Protection Clause. The court explained that, to the extent a public employee contends she suffered adverse consequences for expressing complaints or reporting discrimination to her employer, her claim arises under the First Amendment. Furthermore, to the extent a public employee links an alleged retaliatory action to her gender, that allegation would constitute part of an equal protection discrimination claim, not a freestanding retaliation claim. In this case, plaintiff has not made such an allegation, nor has she pleaded a First Amendment action. Rather, the right to be free from retaliation for protesting sexual harassment and sex discrimination upon which plaintiff solely relies is a right created by Title VII, not the equal protection clause. The court noted that these existing legal avenues challenging public employer retaliation remain open to employees, but declined to create a new one under the auspices of the Fourteenth Amendment. Accordingly, the court affirmed the district court's dismissal of plaintiff's retaliation claim under the Equal Protection Clause.