DA's sexual advances were 'welcomed,' document says

'The texts reveal a friendly banter between the two'
Aug. 21, 2014 @ 08:16 AM

A lawsuit alleging that the District Attorney Jay Gaither sexually harassed an employee should be dismissed because the employee welcomed Gaither’s sexual advances, according to one of the arguments in Gaither’s defense by the N.C. Attorney General’s Office.

And even if those advances still constituted harassment, the defense document argues, the suit still should be dismissed on a legal technicality.

Whitney Nicole Shaffer, 27, a former assistant district attorney working out of an office in Hickory, filed suit against Gaither in June accusing him of sexually harassing her over her three-month employment in early 2013. Shaffer's complaint alleges Gaither, 51, who is married and has four children, said inappropriate things to her, groped her, tried to kiss her, tried to force him to touch her and sent her numerous sexually suggestive text messages. The lawsuit said that Shaffer was in fear for both her job and her own safety, citing as an example one text message on April 28, 2013, in which Gaither wrote that he does not like to be ignored.

A document in support of Gaither filed Wednesday by the attorney general’s office states that, contrary to Shaffer’s contention, her responses to Gaither’s sexually suggestive text messages showed that she and Gaither had a reciprocal personal relationship, and she responded in kind.

“The texts reveal a friendly banter between the two,” the document says.

For instance, in reply to Gaither’s message, "I've laid hands on you and love the feel of your body ... I'm distracted at this point," Shaffer responded, "Be aggressive, that's fine, but given the circumstances I think we should be somewhat slower than I would normally be."

Shaffer cannot establish a claim of a hostile work environment because her responses to his texts reveal that his advances were welcomed by her, the document says.

In addition, Shaffer's claims should be dismissed because within the meaning of Title VII of the Civil Rights Act of 1964, Shaffer technically was a member of Gaither's personal staff, not one of his employees, and therefore not legally under the Civil Rights Act protections she is claiming, the document argues.

And even if the courts should uphold that Gaither can be sued as an individual, the document argues, he cannot be sued in his official capacity as district attorney – for which the state of North Carolina would have to pay damages – because the lawsuit against him alleges actions taken “in his individual capacity only to fulfill his personal, sexual needs and do not relate to his official duties.”