David v. Baniszewski

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 23 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DOROTHY MONICA DAVID,
Plaintiff-Appellant,
v. No. 97-1462
(D.C. No. 90-S-62)
STANLEY BANISZEWSKI and (D. Colo.)
JOHN R. JOHNSON,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff, Denver Police Officer Dorothy Monica David, appeals an order of
the district court granting defendants ’ motion for summary judgment. We affirm.
Officer David commenced this action pursuant to 42 U.S.C. § 1983 and
Title VII claiming that, as a result of rejecting defendant Officer Baniszewski’s
sexual advances, he had her off-duty employment terminated. The district court
granted summary judgment to defendants . On appeal, we affirmed the district
court on all issues except her § 1983 claim. See David v. City & County of
Denver , 101 F.3d 1344 (10th Cir. 19 96). We held that the § 1983 color of state
law requirement can apply to the conduct of off-duty police officers and directed
the district court to determine whether Officer David could show that defendants
had been acting in an official capacity or exercising official responsibilities when
the alleged acts occurred. See id. at 1352, 1354. We also held that
nonsupervisory co-employees could be held liable for sexual harassment under
§ 1983 if they had exercised state authority over the victim at the time of the
alleged acts. See id. at 1354. On remand, the court held that Officer David had
presented no evidence which would permit recovery under § 1983 .
On appeal, Officer David argues that the district court erred in granting
summary judgment on the issue of whether the defendants exercised supervisory
authority over her and in granting defendants qualified immunity. “ We review
the entry of summary judgment de novo, drawing all reasonable inferences in
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favor of the nonmovants.” Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.
1994). Summary judgment may be granted only if the moving party can show no
genuine issue as to any material fact and that it is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c).
Our review of the record supports the district court’s determination that
Officer David made no showing that defendants had exercised any authority over
her. All parties are police officers with the Denver Police Department and hold
the same rank. Further, the district court correctly read our prior cases as to the
issues governing the grant of qualified immunity.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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