Rebecca Lewis, Brenda Heath v. David McDade Individually and in His Official Capacity as District Attorney , 250 F.3d 1320 ( 2001 )

EDMONDSON and DUBINA, Circuit Judges,

concurring:

The chief reason for not taking this case en banc is that we have only recently heard another qualified immunity case en banc: Marsh v. Butler County, 225 F.3d 1243 (11th Cir.2000) (reheard en banc 6 Feb. 2001). The Marsh case — upon which we are still working — will allow all of the court’s judges ample opportunity to engage in the interplay of opinions and ideas on the subject of qualified immunity. En banc rehearings are costly to an appellate court in terms of consumption of its always limited resources of judicial time and energy. Relatively few cases can be heard en banc each year. It seems best to us not to go en banc on another qualified immunity case so soon, but to invest our en banc efforts in tackling other issues that the court’s judges have not yet had the occasion to consider en banc and to give the new issues the extra attention that en banc rehearings entail.

In addition, our estimate of the case at-hand is that it was decided accurately. Material facts exist in this case that are undisputed and that are not present in the cases relied on by the dissent: Plaintiffs actively participated in sexual games and conduct in the office.¹

Only unwanted sexual conduct can be harassing conduct. See Mentor Sav. Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 2406, 91 L.Ed.2d 49 (1986). The Constitution does not prohibit all boorish or rude behavior. See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283-84, 141 L.Ed.2d 662 (1998) (explaining that federal employment law creates no “general civility code.”); Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 118 S.Ct. 998, 1003, 140 L.Ed.2d 201 (1998) (noting that “simple teasing” in the workplace insufficient to support sexual harassment claim). Given these facts and the case law available at the time of the alleged incidents of sexual harassment,² we cannot say that every reasonable district attorney would have known that Defendant’s behavior, in this context, violated the Constitution: that is, would have known that this conduct was truly unwanted and, thus, unlawful. No party or judge has presented us with a materially similar case that would have put Defendant on clear notice that his behavior — in the light of the fact that the female employees (now Plaintiffs) willingly participated in the mutual teasing and joking that constituted the sexual conduct in the office — violated the Constitution. When, as here, the legal consequences of a set of facts is unclear under the preexisting law at the time of the event, qualified immunity applies.

1 . As in every qualified immunity case, the complete set of facts facing the defendant is of critical importance. In this case, female employees dressed as prostitutes, gave Defendant a photo album with sexually charged com-merits and photographs, gave Defendant an ice sculpture of breasts, and prepared a tape recording of sexual comments and innuendos for Defendant. At the same time, Plaintiffs praised Defendant as a wonderful employer.

2 . Plaintiffs and the dissent rely on Cross v. Alabama, 49 F.3d 1490 (11th Cir.1995). Of course, Cross was decided after the alleged acts of sexual harassment occurred. So Cross could not have put Defendant on notice in 1994 that his acts might violate the Constitution.