Fye v. Oklahoma Corp. Commission

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 6, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
PAMELA D. FYE,
Plaintiff-Appellee,
v. No. 04-6363
(D.C. No. 03-CV-1477-C)
OKLAHOMA CORPORATION (W.D. Okla.)
COMMISSION; BOB ANTHONY,
individually; JEFF CLOUD,
individually; R. CLARK MUSSER,
individually,
Defendants,
and
DENISE A. BODE; TOM DAXON,
individually,
Defendants-Appellants.
ORDER AND JUDGMENT *
*
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(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before LUCERO, EBEL, and MURPHY, Circuit Judges.
Appellants bring this interlocutory appeal from the district court’s denial of
qualified immunity. Qualified immunity generally shields government officials
“from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Although
plaintiff disputes our jurisdiction over this appeal, we conclude that jurisdiction is
proper pursuant to 28 U.S.C. § 1291 and AFFIRM.
I. Background 1
During the time relevant to this case, Plaintiff Pamela D. Fye worked for
defendant Oklahoma Corporation Commission (OCC), a state agency, as the
Director of the Administrative Division. Defendant Denise A. Bode was an
Oklahoma Corporation Commissioner. Defendant Tom Daxon became the OCC’s
acting General Administrator on February 3, 2003, and Fye reported directly to
him. 2 In response to Daxon’s inquiry whether discrimination or sexual
harassment was an issue within the OCC, Bode referred him to Fye because Fye
1
Although some of the facts in this case are disputed, we accept Fye’s
version of them as true for purposes of this appeal only.
2
Fye’s claims against the other defendants are not at issue in this appeal.
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had complained about sexual harassment by a former General Administrator, Jay
Edwards, in 1999. Bode had responded promptly to that complaint.
Fye alleges that Daxon persistently and repeatedly asked her for specific
details about Edwards’ conduct over the course of several weeks in February
2003. Fye declined to answer Daxon’s questions about Edwards, telling him on at
least two occasions that she was uncomfortable discussing it. Fye contends that
she told Bode about Daxon’s behavior on February 24, 2003, but Bode never
investigated her complaint.
In her role as Alternate Grievance Manager, Fye received complaints about
Daxon from other employees, including Karen DePue. Among other things,
DePue told Fye that Daxon said viewing pornography on his home computer had
aroused him, and he compared her to the women that he viewed.
On March 4, Fye delivered a letter to Daxon’s office in which she asked
that he stop asking about the Edwards matter and requested that another employee
be present whenever the two of them had to discuss work matters. The letter
reinforced Daxon’s concern that friction between Fye and other employees was
adversely affecting the functioning of the office. Daxon decided to terminate
Fye’s employment because he felt the situation was beyond repair. He completed
a termination letter that was delivered to Fye on March 6, effective immediately.
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In her amended complaint in this action, Fye raised a number of claims, two
of which are pertinent to this appeal, (i) a sexual harassment claim against the
OCC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17, and (ii) a claim pursuant to 42 U.S.C. § 1983 that Daxon and Bode
violated her right to equal protection under the Fourteenth Amendment. The
district court denied the OCC’s motion for summary judgment as to the Title VII
claim, finding that Daxon’s repeated attempts to obtain specific details about the
Edwards matter could be construed as an “effort to force Fye to recount all the
salacious details of her encounters with Edwards for Daxon’s personal sexual
satisfaction.” Aplt. App. II at 613. The court considered its interpretation
reasonable in light of the allegation in DePue’s affidavit concerning Daxon’s
statements about viewing pornography on the internet and comparing DePue to
the women he viewed there. Considering Fye’s contention that Daxon questioned
her “almost daily,” the court concluded that a reasonable juror could find that
“daily questioning about such a sensitive subject is sufficiently pervasive to
interfere with a reasonable person’s work performance.” Id. at 614.
In addressing the motion for summary judgment as to the § 1983 claim
against Daxon, the court referenced the findings in its Title VII analysis and
concluded that, because it was clearly established at the time of Daxon’s conduct
that sexual harassment under color of state law violates the Equal Protection
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Clause, he was not entitled to qualified immunity. The court also concluded that
Bode was not entitled to qualified immunity because, at the time of her alleged
failure to act on Fye’s complaint, it was clearly established that a supervisor may
be liable under § 1983 if she had actual knowledge of sexual harassment and
failed to take action. This appeal followed.
II. Jurisdiction
Under the collateral order doctrine, “a district court’s denial of a claim of
qualified immunity, to the extent that it turns on an issue of law, is an appealable
‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the
absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
However, this jurisdiction is limited to appeals challenging “not which facts the
parties might be able to prove, but, rather, whether or not certain given facts
showed a violation of ‘clearly established’ law.” Johnson v. Jones, 515 U.S. 304,
311 (1995) (quoting Mitchell, 472 U.S. at 528). Thus, “a defendant, entitled to
invoke a qualified immunity defense, may not appeal a district court’s summary
judgment order insofar as that order determines whether or not the pretrial record
sets forth a ‘genuine’ issue of fact for trial.” Id. at 319-20. Nevertheless, if a
defendant’s appeal of the denial of qualified immunity “is based on the argument
that, even under the plaintiff’s version of the facts, the defendant did not violate
clearly established law, then the district court’s summary judgment ruling is
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immediately appealable.” Johnson v. Martin, 195 F.3d 1208, 1214 (10th Cir.
1999).
Here, Daxon and Bode maintain that they are entitled to qualified immunity
even under Fye’s version of the facts. Although they question those facts at some
points in their briefing, we have jurisdiction over their challenge to the denial of
qualified immunity to the extent it is limited to Fye’s version of the facts.
III. Merits
“We review the denial of a summary judgment motion raising qualified
immunity questions de novo.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.
2001). When a defendant raises the defense of qualified immunity, a plaintiff
must establish that the defendant’s conduct violated a federal constitutional or
statutory right and that the right was clearly established at the time of the
conduct. Id.Daxon contends that his conduct, as alleged by Fye, does not constitute
actionable sexual harassment. He argues that his conduct was not severe or
pervasive enough to rise to the level of a constitutional violation because it
consisted only of asking her about the Edwards matter on four separate occasions
and she never recounted the details. In other words, he argues that his conduct
did not create a hostile work environment. We disagree. “For sexual harassment
to be actionable, it must be sufficiently severe or pervasive ‘to alter the
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conditions of [the victim’s] employment and create an abusive working
environment.’” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)
(brackets in original) (quoting Henson v. City of Dundee, 682 F.2d 897, 904
(11th Cir. 1982)). The conduct must be severe or pervasive enough to create an
environment that is both subjectively and objectively hostile or abusive. Smith v.
Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997). Whether an
environment is hostile or abusive is determined by looking at the totality of the
circumstances. Id. Although the test is phrased in the disjunctive, severity and
pervasiveness are interdependent: The more severe the conduct, the less
pervasive it needs to be; the more pervasive, the less severe. Cf. Lockard v. Pizza
Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (rejecting the notion that a single
occurrence can never constitute sexual harassment).
There is no question that Fye subjectively considered Daxon’s questioning
hostile or abusive. Based on the sensitive subject matter of his inquiries and the
frequency with which they occurred, a reasonable juror could conclude that
Daxon pursued his questioning of Fye for his own sexual gratification and that the
conduct was severe or pervasive enough to constitute a violation of Fye’s equal
protection rights. 3 DePue’s complaints about Daxon’s conduct support, but are
3
Appellants contend that the record reflects Daxon questioned Fye about the
Edwards matter only four times, not “almost daily” as the district court found.
(continued...)
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not essential to, this conclusion. Therefore, we decline appellants’ invitation to
exercise jurisdiction over the district court’s denial of their motion to strike
DePue’s affidavit. See Stewart v. Oklahoma, 292 F.3d 1257, 1260 (10th Cir.
2002) (explaining that this court will exercise pendent appellate jurisdiction in
interlocutory appeals where a matter is inextricably intertwined with, or necessary
to a meaningful review of, the appealable decision). We also disagree with
appellants that an important consideration is the fact Fye did not provide details
of the Edwards matter to Daxon; the harassment consists of the asking.
Daxon argues that his conduct falls far short of the conduct that was at
issue in a plethora of cases where a court held as a matter of law that there was no
hostile work environment. However, none of those cases presents a factual
situation analogous to the present one. Therefore, they are of little help in
gauging the severity or pervasiveness of the conduct at issue here.
Having determined that Daxon’s conduct, as alleged by Fye, violated a
federal constitutional right, we now turn to whether the right was clearly
established at the time of the conduct. “[I]n order for the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or
the clearly established weight of authority from other courts must have found the
3
(...continued)
The sufficiency of the district court’s factual finding is outside of the scope of
our jurisdiction under the collateral order doctrine. See Johnson, 515 U.S. at 313.
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law to be as the plaintiff maintains.” Medina v. City & County of Denver,
960 F.2d 1493, 1498 (10th Cir. 1992). The authoritative case need not present the
identical fact situation; rather, the parties need only “make a reasonable
application of existing law to their own circumstances.” Martin, 195 F.3d at
1216.
The district court relied on Woodward v. City of Worland, 977 F.2d 1392,
1397 (10th Cir. 1992), for the proposition that, at the time of Daxon’s conduct, it
was clearly established that sexual harassment committed under color of state law
is a violation of the Equal Protection Clause. Daxon argues that it is insufficient
to identify an abstract constitutional right such as a right to be free of sexual
harassment. Instead, Daxon urges us to undertake a more “particularized” review
of his actions. Essentially, Daxon asks us to determine that his conduct did not
violate a clearly established constitutional right because, at the time of his
conduct, there was no case factually similar enough to this case.
We think the general statement in Woodward is sufficient under the facts of
this case. A reasonable official should have known that repeatedly attempting to
force an employee to recount salacious details of sexual harassment by another
employee for the official’s own sexual gratification falls within the sexual
harassment proscribed by Woodward. Therefore, Daxon is not entitled to
qualified immunity.
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Any concern about a lack of particularity in Woodward is assuaged by our
decision in Martin, 195 F.3d 1208. Martin concerned the liability of a municipal
employee and his supervisors for the employee’s request for sexual favors from
non-employees in return for favorable decisions on permit applications. We held
that a public official’s “abuse of any one of a number of kinds of authority for
purpose of one’s own sexual gratification . . . would violate the Equal Protection
Clause.” Martin, 195 F.3d at 1218. We conclude that it is reasonable to apply the
holding of Martin to the circumstances of this case notwithstanding the factual
differences between the two. In his position as Fye’s superior, Daxon repeatedly
inquired about her past complaint of sexual harassment. Assuming he did this for
his own sexual gratification, he abused his authority and violated Fye’s equal
protection rights. Therefore, even if it is unreasonable to apply Woodward to the
facts of this case, Daxon is not entitled to qualified immunity under Martin.
Fye alleges that she told Bode about Daxon’s conduct and that Bode never
investigated it. “Such knowledge and subsequent inaction is sufficient to
establish supervisory liability under § 1983.” Martin, 195 F.3d at 1220. Bode’s
complete inaction in the face of actual knowledge, if proven, violated a
constitutional right that was, at the time, clearly established, and she is not
entitled to qualified immunity.
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Bode contends that she was merely negligent in failing to investigate the
complaint in the few days that elapsed between the day Fye complained
(February 24) and the day Daxon terminated her employment (March 6). Because
negligence is insufficient to establish supervisor liability under § 1983, see
Martin, 195 F.3d at 1219, Bode concludes that she is entitled to qualified
immunity. She also suggests that Fye sustained no compensable injuries after
voicing her complaint to Bode. We are not persuaded. Bode promptly
investigated Fye’s earlier complaint about Edwards, but did nothing to investigate
Fye’s complaint about Daxon. A reasonable juror could conclude that Bode’s
complete failure to investigate the complaint about Daxon was more than a
negligent delay. Whether Fye sustained any compensable injuries as a result of
Bode’s inaction is outside the scope of our review under the collateral order
doctrine.
The order of the district court denying appellants’ motion for summary
judgment on the defense of qualified immunity is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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