*1 crime), especially suspicious (pre- cent not Brigitte WRIGHT,
tending pay telephone) Appellee; to use the or not Plaintiff — supported by an articulated reason for sus- movement). picion (turning COUNTY, ROLETTE Defendant; example, though Bailey
For even was present high-crime in a neighborhood at Tony Sims, County E. Sheriff, Rolette a.m., gas 1:00 he was not alone. The in his capacity, individual and official addition, open busy. station In was ppellant; Def endant— A pay telephone Bailey using was relatively bright located close to overhead Moors; Eldon E. Joseph Baker; S. Ken lights gas pumps, above the as well as the Brien; neth F. Laducer; Michael W. lights gas of the station convenience store. Leonard, Robert E. Rolette Although government argues that Bai- Commissioners, in their individual ley general description matched the capacities, and official Defendants. carjackers, station Shell who were de- twenties, scribed as black males in their No. 04-2766. matching description predomi- in the United States Court Appeals, nately African-American Walnut Park Eighth Circuit. neighborhood meaningful.
West is not many “Too fit people description for it Submitted: Feb. 2005. justify suspicion a reasonable of crimi- Aug. Filed: 2005. activity.” nal Eustaquio, United States v. (8th Cir.1999). Even Rehearing and En Rehearing Banc reasonably if Bailey Wells believed that Sept. Denied pretending pay telephone, use the such conduct not criminal. As to Bai-
ley’s turning away approached, as Wells did point any
Wells not facts supporting Bailey’s
a conclusion that movement was suggestive
furtive evasive or of criminal
activity. view, my had a hunch Wells
Bailey engaged in criminal activity. However, stop cannot be validated
“ ” ‘what it up.’ turns United States v.
Yousif, 308 F.3d States, Wong Sun v. United
U.S. 83 S.Ct. L.Ed.2d (1963)). An unparticularized “inchoate and ”
suspicion or ‘hunch’ enough is not for the Ohio,
Fourth Terry Amendment.
U.S.
(1968). Thus, I dissent. *3 BYE, HEANEY, MELLOY,
Before Judges. Circuit MELLOY, Judge. Circuit (“Wright”) brought this Brigitte Wright under section 1983 for sexual action harassment, work environ- alleging hostile discharge against and constructive ment (“Sims”). Tony E. Sims Sheriff summary judgment based on moved for *4 immunity. The district court de- immunity, and Sims now nied af- brings interlocutory appeal. We part. part firm in and reverse
I. Facts facts, light taken in the most favor- The below. plaintiff, able to the are described perma- a citizen with Wright is Canadian in the United States. nent resident status 2000 to September From October she worked in the Rolette Sheriffs deputy. During as an office Department time, was the Sheriff of Rolette Sims official and County. He was an elected Wright’s supervisor. vulgar, language at the Use of sexist daily was a occurrence. Sheriffs Office in the office During employment, her men Wright “big-breasted a Canadian called bitch,” and secretary,” “dizzy “Canadian and embar- Wright bacon.” was offended calling. admits rassed this name Sims he did it in calling to this name and admits occasion, front of others. On one Sims Wright referred to as “Canadian bacon” meeting, Association a Peace Officer’s the comment. all attendance heard made comments repeatedly Sims also Wright cam” when returned “potty about argument on be- presented Counsel who from the restroom. These comments em- half of was Ronald F. Fisch- appellant point that she Wright to the barrassed Forks, er of North Dakota. Grand intended for fe- began using the restroom incident, inmates. In another Sims argument on be- male presented Counsel who job” after Wright R. Mon- told he could use a “blow appellee half of the was Patricia police train- hearing explain her some Fargo, son of North Dakota. ing investigate she had received allowed her to knock to the claim. Wright was somebody out one with blow. placed paid on during leave the investiga- tion. investigation The completed on Sims made other comments to or about June 2002. Morley concluded “rubbing paper” about tits with toilet [her] comments, that the though inappropriate, vagina “snapper.” and referred to her as a were not unwelcome. adminis- Sims also stroked his mustache while tell- terminated, trative leave was ing Wright he “clearing off her seat.” returned to July work on 2002. On admits to making this comment to 25, 2002, Wright October quit job, other women the office several times. claiming Sims also made comments to about activity. lesbian belaboring Without II. Procedure point, Sims made numerous other unwel- On or about April Wright filed come comments of a sexual nature charge verified of discrimination with the any would be offensive to per- reasonable North Department Dakota of Labor and son. Sims admits to making most of these Equal United States Employment Op- comments. protested claims she *5 portunity 19, Commission. On November activity, objections such ig- but her were 2002 the North Department Dakota of La- nored. bor notified Wright of the termination of In Wright passed December Cor- further proceedings on her charge of em- training. rectional Officer Basic ployment discrimination and that she had training police attended at the academy right the to bring a days lawsuit within 272 and learned that sexual harassment includ- of the February closure. On ed unwanted comments that were sexual § commenced this 1983 action report nature. did not the offen- against Sims, claiming sexual harassment sive immediately statements after her in the form of a hostile work environment training for fear of retaliation. and Sims moved January In Wright discussed the summary judgment for qualified based on situation County with Rolette Commission- immunity, and the district court denied the Moors, er Eldon who told her there was motion. brings Sims now this immediate nothing he could do it. about March appeal qualified on the issue of immunity. 2002, Wright reported the situation to Ro- County lette III. Discussion Attorney Mary States O’Don- Wright alleges nell. county the did Appellate A. Jurisdiction nothing remedy the situation. summary a denial judg While 29, 2002, Mallory On March Dr. Leon ment not generally is renewable on imme examined diagnosed and her with appeal, may diate we review a denial of high pressure, blood anxiety, depres- and summary judgment im qualified based on Celexa, sion. Her physician prescribed for munity on appeal immediate “to the extent depression, Xanax for anxiety panic that it turns on an issue of law.” Mitchell attacks, and Lotensin for high pres- blood Forsyth, v. 472 U.S. sure. (1985). “Beyond April Wright gave issue, On jurisdiction notice to narrow may we exercise County Rolette alleging only that Sims’ behav- inextricably over issues that are inter ior twined, created a hostile work meaning environment. issues that neces would Rolette Attorney Morley sarily hired Pat be resolved when we resolve the is right established whether immunity.” Schilcher qualified question of it be clear to reasonable Arkansas, whether would 387 F.3d v. Univ. of in the conduct was unlawful officer that his .2004) (internal and cita (8th quotations Cir 202, 121 Id. at he confronted.” situation omitted). tion S.Ct. 2151. Review B. Standard Environment D.Hostile Work “de the denial of review novo We a con- there a violation of Was summary based on judgment
a motion right? stitutional Ruoff, immunity.” Vaughn v. Cir.2001). (8th “At by 253 F.3d actors harassment state “Sexual judgment stage, we summary Amendment and the Fourteenth violate[s] light most favorable facts in Tuggle view the action.” establishes a section 1983 (8th ... party below nonmoving to ... Cir. Mangan, Ottman, those facts asserted at 756 2003); [the ‘take as true see also sup (‘We properly that are discrim nonmoving party] gender held intentional have ” v. Law by persons record.’ Wilson ported public employment in the ination in (8th 946, 951 Cir. County, acting under color of state law violates rence Serrell, 2001) Fourteenth Protection Clause of the Equal Tlamka “ Cir.2001)). sec there is and is actionable under ‘[I]f Amendment 1983.”). facts concerning predicate tion genuine dispute issue, immunity material to the argues ” summary judgment.’ no there can be prove higher must meet a standard *6 (8th Class, 413, 236 F.3d 417 Gregoire v. than harassment under section 1983 sexual Cir.2000) City v. Du Lambert of under Title VII. We find this required (8th Cir.1999)). mas, 931, 935 F.3d 187 of law. be an erroneous statement Sexual claims under section 1983 are harassment Qualified Immunity C. devel analyzed under the same standards per officials who “Government litigation and the ele oped Title VII discretionary functions are entitled form prima of a facie case are the same ments alleged immunity unless their qualified plaintiff statute the regardless of which clearly federal Moring conduct violated established v. Ark. uses to seek relief. See (8th Corr., 452, statutory rights of which 455 Cir. Dep’t constitutional or 243 F.3d of Minnesota, positions 2001); in their 244 person Genosky see also v. reasonable Cir.2001) (8th 989, Ti City (analyzing v. would have known.” Ottman 993 Missouri, 751, gender 341 F.3d 756 tle and section 1983 discrimi Independence. VII (8th Cir.2003). analyze using im nation claims without different We Bacon, standard); First, Headley v. 828 F.2d steps. we ask munity issue in two (8th Cir.1987) (holding cause of action plain 1272 the facts as asserted whether and section 1983 identical a under Title VII tiff the officer’s conduct violated “show Katz, judicata); of res Cross v. purposes v. 533 for right.” Saucier constitutional (11th Alabama, 1490, 2151, 1508 Cir. L.Ed.2d 49 F.3d 150 U.S. 1995) (elements (2001). no, discrimination of sex grant If answer is we under sec of action are the same immunity. yes, If the answer is causes VII); Beardsley v. and Title right tion 1983 gowe on to determine “whether (4th Cir.1994) Webb, 30 F.3d Id. “The rele established.” (“Courts the standards devel- vant, determining may apply inquiry in dispositive oped litigation litiga Title VII to similar To prima make out a facie case 1983.”); § of sexual tion under Hardin harassment under Styn section prove: chcomb, (11th 691 F.2d 1369 n. 16 (1) Cir.1982) that she was a member of protect- (holding cause of action under ed group, same); Title VII and section 1983 the but (2) the occurrence of unwelcome Westchester, harass-
see Annis v. New ment, York, (2d Cir.1994) (3) a causal nexus between the (“While harass- we categori do not subscribe to a ment and her membership in pro- cal view sexual harassment equals sex group, tected discrimination, agree we do that harass (4) term, the harassment affected a coarse, ment that transcends hostile and condition, privilege or employment, boorish behavior can rise to the level of a tort.”). constitutional (5) that employer knew or should have known of the harassment and failed Sims further contends that his be prompt to take and effective remedial havior cannot constitute sexual harassment action. because allegation there is no that he Erenberg v. Methodist Hosp., 357 F.3d touched or made sexual advances (8th Cir.2004). To determine toward her. Our case law does not sup whether the term, harassment affected a port this contention. McGregor Burns v. condition, privilege of employment, we Indus., Inc., (8th Elec. frequency consider “the behavior, of the Cir.1993) (sexual harassment “can obvious severity, its whether threats are ly result from conduct other than sexual involved, and whether the behavior inter advances” and the need not be feres with performance on the (citation offensively”) omitted); “touched job.” Henthorn Capitol Communica Univ., see Smith v. St. Louis tions, Inc., Cir. 1261, 1267 (summary judg 2004). “Simple teasing, offhand com employer ment for reversed when *7 ments, (unless and isolated incidents ex pled harasser made sexist on comments serious) tremely will not amount to dis marriage, pregnancy, and ap criminatory changes in the terms and pearance, “babe”, and called her a but conditions of employment.” Breeding v. alleged physical no conduct nor sexual ad Co., Gallagher Arthur J. & vances). Further, § 29 C.F.R. 1604.11 (internal omitted). 1158 citations In or states, advances, “Unwelcome sexual re term, condition, der to affect the privi or quests for sexual and favors other verbal lege employment, the harassment must or conduct of a sexual nature sufficiently be pervasive severe or to cre constitute sexual harassment ... when ate an objectively hostile work environ such conduct purpose ment, addition, has the or effect of subjective and must be unreasonably interfering ly perceived by plaintiff with an individu the as abusive. Collins, Inc., Kratzer v. al’s work Rockwell performance or 398 creating an in (8th Cir.2005). F.3d hostile, timidating, or working offensive Thus, environment.” verbal harassment of alleged We find that the facts as a sexual nature which creates an offensive show the violation of constitution working regulation’s environment fits the rights al Equal under the Protection definition of sexual harassment. Clause. a protect- is member of a subject Sims, super- Wright to such treatment gal that her to group alleges
ed and Therefore, visor, highly in a sexualized not en- workplace. her the Sims is harassed made and ex- targeted qualified immunity summary He to way. titled about sexual comments tremely vulgar, judgment on the hostile work environment her, colleagues. front of her sometimes claim. harassment, which that the
Wright alleges
two-year period,
offended
place
took
over
Discharge
E. Constructive
‘simple
her.
“Neither
and embarrassed
con-
1.
there a violation of a
Was
comments,’
‘spo-
nor
teasing’ and ‘offhand
right?
stitutional
language, gender-re-
radic use of abusive
amount
jokes,
teasing’
occasional
lated
and
the
Wright also
that
claimed
changes in the terms and
discriminatory
to
harassment caused her to be constructive
or actionable
employment
conditions
discharged.
discharge
ly
“Constructive
County,
Peterson v. Scott
harassment.”
deliberately ren
employer
occurs when an
F.3d
2005 WL
*6
working
in
employee’s
ders the
conditions
2005).
However,
6,May
Sims’
Cir.
tolerable,
forcing
quit.”
thereby
to
simple
serious than
behavior was more
Co.,
&
F.3d
Baker
John Morrell
sporadic nor isolat-
teasing,
it was not
and
(8th Cir.2004).
prove
To
a case of
The
of the harassment was so
ed.
effect
discharge,
plaintiff
constructive
ultimately sought
serious that
(1)
in her
person
show:
“that a reasonable
depression, high
medical
treatment
working
situation would find the
conditions
anxiety
and
caused
pressure,
blood
(2)
“the
...
employer
intolerable” and
that
also
alleges
she
harassment.
quit.”
to
employee
intended
force the
county
complained to Sims
Inc.,
v. Gencorp
Gartman
to stop
was done
the behav-
nothing
(8th Cir.1997).
If the
cannot
facts,
true,
proven
if
to be
ior. These
intended
employer consciously
show
support a claim for sexual harassment.
quit,
her to
can still
on
prevail
she
“
discharge
claim if
‘the em
right
clearly
estab-
Was
...
ployer
reasonably
could have
foreseen
lished?
[quit]
that the
would
as a result
”
right
gender
free of
“The
be
Dakota,
Fenney
its
actions.’
Pe
discrimination is
established.”
Co.,
R.R.
Minnesota & Eastern
terson,
887
resigned in
specific
case,
until
she
October
context of the
not as a
general
admitted
Sims’ behavior dur- broad
proposition.” Tuggle v.
fact,
period
ing
improved.
Mangan,
Cir.2003)
this
720
Saucier,
harassing
there were no incidents of
be-
Fitzgerald, 457 U.S. IV. Conclusion (1982) (discussing the societal costs associated litigation with We find Sims is entitled to officials). against public immunity on discharge the constructive claim, words, but not entitled to immuni- In other because of the societal ty on the hostile work environment claim. costs litigation associated with against officials, id., We remand to the district court pro- public for we hold our officials ceedings opinion. consistent with this individually only liable transgressing for
bright constitutional lines. Crow Mont BYE, Judge, concurring. Circuit gomery, Hall, (citing Davis v. I concur majority with the as to the (8th Cir.2004)). Interestingly, in the hos alleged by facts as if Wright, proven Ms. tile work environment context we have true,' could a claim support for sexual “[tjhere stated, bright is no line between harassment, but not a claim for construc- sexual merely unpleasant harassment and tive I separately write in re- ” .... conduct Capitol Henthorn v. Com gards opinion, to section III.D.2 of the munications, Inc., which clearly discusses the established (8th Cir.2004) (quoting Hathaway v. Run prong of qualified immunity inquiry. (8th Cir.1997)). yon, 132 F.3d majority The declares right “[t]he to be statement, though This telling of the diffi gender free of discrimination clearly es- culty we face in analyzing hostile work hasty tablished.” This resolution of the cases, environment must not be taken lit clearly prong ignores established the Su- erally because our case law estab preme pronouncements Court’s lishes at least bright enough two lines
Anderson v. Creighton, 483 U.S.
*9
officials such as Sheriff Sims to take no
3034,
(1987)
107 S.Ct.
888 clearly the bound- has crossed the sive sexual innuendo does cross innuendo
sexual
Henthorn,
ary
merely
at
conduct and
F.3d
1027 n. 3
between
offensive
359
line.
(“[W]e
sexual
to be actionable conduct
actionable
harassment.
have found
sexual innuendo
pervasive
involved
Wright complains
repetitive
Ms.
of no
touching.”); Baker
repetitive
and
offensive
but,
majority
touching,
as the
offensive
Co.,
&
828
v. John Morrell
out,
boundary
points
is not drawn
(8th Cir.2004) (same);
Eich
Bd. Re
of
repetitive
A harasser
touching.
offensive
(8th Cir.2003)
752, 755-56
gents,
may
frequently
cross the line without
banc)
(en
(finding
sufficiently
conduct
se
physically assaulting
victim.
See
frequently
was
where the victim
vere
Indus., Inc.,
McGregor
989
Burns v.
Elec.
ways
suggestive
in
and
touched
numerous
(8th Cir.1993) (“Sexual
F.2d
acts); Beard v.
subjected to
sex
simulated
place many
take
in
differ
harassment can
(8th
J., Inc.,
F.3d
Flying
merely
ways.”).
ent
The line
of
between
Cir.2001)
judgment
(affirming
plaintiff
fensive conduct and sexual harassment
frequently
where
another
crossed,
may
physical
even
con
be
without
brushed,
flicked plaintiffs
and
rubbed
tact,
person
pervasive
a
in
engages
where
crotch);
to
pointed
breasts
and
his
sexual
v. Arthur
Breeding
innuendo. See
Foods, Inc., 217
Henderson v. Simmons
Co.,
Gallagher
J.
&
F.3d
(8th Cir.2000)
(upholding
F.3d
616-17
(8th Cir.1999)
a
an
(finding situation where
jury
plaintiff
subject
a
verdict where
supervisor continuously fondled
employee’s
touching, obscene
physical
ges
to
hand
ed
genitals
his
in front of
and used lewd
tures,
barrage
a
and verbal
crude sexual
sexually inappropriate language
and
to be
Bailey
Runyon,
vulgarities);
a matter of
constitute
sufficient as
law to
(8th Cir.1999)
jury
(upholding
a
harassment).
sexual
Our case law
grabbed
male co-worker
verdict where
establishes sexual innuendo or discrimina
requested
opportuni
crotch and
tory
pervasive
when
conduct is
or abusive
plaintiff
sex on
three or
ty
perform
to
oral
id.;
it is
and
frequent
both
severe. See
week); Howard
four times a
v. Burns
Inc., 510
Sys.,
see also Harris v. Forklift
Inc.,
835, 840
Bros.
U.S.
jury
verdict where the victim
(upholding
(1993)
con
(listing the circumstances to be
subjected
sexual
to chronic
innuendo
determining
an envi
sidered
whether
contact);
and
Hatha
physical
unwanted
abusive, including:
or
ronment
is hostile
jury
way,
(upholding
to because distinguish of note to nothing There is from work fol- returned stopped” once she from Henderson. When this case complaint. of her lowing investigation to Rolette reported Sims’ misconduct slight- Sims’ behavior Ante at 9. While O’Donnell, Mary County Attorney State’s time, not tell the this does ly better for skepti- with complaint met the O’Donnell in to work story. Wright returned entire Wright com- cism and disbelief. When County conclud- the July of 2002 after County late to Rolette Commissioner plained wrongdoing Sims, on the no her that there was Moors told ed Eldon Moors about County] to return “All sorry, This forced but that part [the of Sims. he was budget,” has and “that’s that this court can do is control his an to environment 127.) Dep. at Fi- way (Wright the it is.” hostile, no prospect with found to be investigated the nally, County the when behavior. improvement Sims’ matter, depo- investigator it an whose used factually case of In similar the understanding had no sition reveals he Inc., 217 Foods. Henderson v. Simmons sexual harassment law. When even basic (8th Cir.2000), rejected our court investigator’s report concluded the Henderson, the argument. same re- engaged wrongdoing no with Sims subjected to a hostile work plaintiff was to return spect Wright, to she was forced stemming from coworkers’ environment office, supervi- with the same to the same vulgarities and harass- targeted sexual sor, acknowledgment an without even complained to plaintiff After the ment. experiencing indeed had been unlawful she offending coworkers supervisor, her the sexual harassment. harassment. discontinued their verbal if a different the We would have case however, coworker, offensive directed One conduct investigation had found that Sims’ the gestures plaintiff. hand at the When objectionable, if Wright was or toward did supervisor her plaintiff complained, County Wright that or the assured Eventually, the nothing further. improve upon would the environment successfully claimed she was resigned and case, not the however. As return. That is discharged. appeal, On constructively notes, majority atmosphere the verdict on con- argued defendant returned, Wright when she but better for discharge could not stand be- structive relatively long. for After a short res- not improved conditions cause the pre-complaint returned to his pite, Sims disagreed: complaints. after her We sexually explicit comments ways, making responses half-hearted to Simmons’s terms in using offensive complaints, Simmons’s Henderson’s majority opinion, I read the presence. As job, against Henderson’s Sim- threat again complain require it would investigation, poorly mons’s conducted engaged inappropriate be- when Sims to transfer either Simmons’s failure return, until upon her or to wait havior offending [the Henderson Sanchez past bench- conduct escalated his Sims’ to re- employee], and Simmons’s failure I not im- impropriety. would marks toward spond gestures investigation lewd con- pose Sanchez’s this demand. The found certainly Henderson demonstrates at the behest ducted County’s sexual harass- working envi- no violation of the existence of an intolerable Wright to return essentially policy, ment and forced ronment where an *12 that the district court to an environment objectively have found hos-
and this court gen- an though
tile.4 Even opportunity an
erally give employer resigning, problem before
correct Mo., City Springs. Blue
Campos v. of (8th Cir.2002), “an 550-51 where F.3d
employee quits reasonably because she be- treatment, no chance for fair
lieves there is discharge.” been a constructive
there has Works, Inc.,
Ogden v. Wax (8th Cir.2000); Dr. Delph accord Co., Bottling 356 &
Pepper (8th Cir.1997) (excusing
n. complain supervisors
failure to about his they
hostile environment where cre- work objectionable
ated and condoned the atmo- conduct, Sims’ and cor-
sphere). Whether atmosphere Wright,
respondingly, improved point to the that her con-
had discharge claim fails is
structive Thus, I of fact. would affirm the
question summary judg-
district court’s denial of
ment on this matter. America,
UNITED STATES Appellee,
Plaintiff —
Donny Ray GRAMLING, Defendant—
Appellant.
No. 04-1966. Appeals,
United States Court Circuit.
Eighth Nov. 2004.
Submitted: Aug. 2005.
Filed: (J.A. 159.) Inexplicably, report language, jokes." I also discounted or crude requirement Wright’s complaints in the law that a about Sims' conduct be- am aware no their is no evidence other than that victim of sexual harassment must have ”[t]here cause joined by any complaints others be- of Ms. that there was ever com- witnessed or teasing, they legitimate. plaint Sims about the fore are considered made to Sheriff