344 F.3d 1325 | 11th Cir. | 2003
Lead Opinion
Thomas Snider, John Ponder, Tommy Diltz, and Benny Gilcrest (“Plaintiffs”), se
Plaintiffs alleged that between 1983 and July 1998, they and other male employees were the victims of same-sex sexual harassment committed by their supervisor, William Shelnutt.
Defendants moved to dismiss the complaint based on, among other things, qualified immunity grounds. The district court assumed, for purposes of evaluating the quahfied-immunity defense, that Plaintiffs stated a cognizable constitutional claim. The district court concluded that, at the time of the alleged violations, it was not clearly established that same-sex sexual harassment violated the Equal Protection clause and that Defendants were entitled to qualified immunity. The district court therefore granted the motion to dismiss.
On appeal, Plaintiffs assert that sufficient case law existed to establish the contours of their right to be free from same-sex sexual harassment under the Equal Protection Clause and that the district court erred by granting Defendants qualified immunity.
The defense of qualified immunity may be raised and addressed on a motion to dismiss and will be granted if the “complaint fails to allege the violation of a clearly established constitutional right.” Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir.2001) (quoting Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir.1997)). Whether the complaint alleges the violation of a clearly established right is a question of law which we review de novo, accepting the facts alleged as true and drawing all reasonable inferences therefrom in plaintiffs favor. Id.
Qualified immunity protects government officials performing discretionary functions from liability if their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002) (citation omitted). The burden rests on the plaintiff to show that qualified immunity is not appropriate. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002).
We recently — long after the events underlying the present case — declared that the Equal Protection Clause protects against same-sex discrimination. See Downing v. Bd. of Trustees of the Univ. of Ala., 321 F.3d 1017, 1024 (11th Cir.2003). Accepting Plaintiffs’ allegations as true— that Defendants knew or should have known that Shelnutt constantly touched Plaintiffs and other male employees in the Security Department in a sexually inappropriate manner and constantly made sexual remarks and gestures to Plaintiffs and other male employees — such conduct would violate the Equal Protection Clause.
Officials are entitled to fair warning from the preexisting law that their alleged acts, at the time the acts occurred, were unconstitutional. Hope, 122 S.Ct. at 2515. For a constitutional right to be clearly established in a given case, the right’s contours must be so clear that every, objectively reasonable official must understand that what the defendant, in the context of the circumstances of the case, is doing clearly violates the right. See Vinyard v. Wilson, 311 F.3d 1340, 1353 (11th Cir.2002). That the very act (or something materially similar to it) in question has previously been held unlawful by a court is not always necessary. But in the light of preexisting law, the unlawfulness must be apparent: plain, clear, obvious. Unless the government official’s act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent official or one who was knowingly violating the law would have committed the act, the official is entitled to qualified immunity. See Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 1096-97, 89 L.Ed.2d 271 (1986). ‘When case law is needed to ‘clearly establish’ the law applicable to the pertinent circumstances, we look to decisions of the U.S. Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state.” Marsh v. Butler County, Ala., 268 F.3d 1014, 1032-33 n. 10 (11th Cir.2001) (en banc).
Although this Court (1997) and the Supreme Court (1998) — during the time in which the alleged harassment was occurring — had concluded that a same-sex sexual harassment claim was actionable under Title VII against a private employer, this precedent could not fairly put Defendants on notice that their alleged conduct clearly violated a federal constitutional right. See generally Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 1001-02, 140 L.Ed.2d 201 (1998) (concluding that same-sex sexual harassment is actionable under Title VII); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir.1997) (same).
Title VII originally was created to reach conduct that the Constitution did not reach; and the statute and Constitution are not always concurrent. See Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976) (in disparate impact context stating “We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today”); see also Bass v. Bd. of County Comm’rs, Orange County, Fla., 256 F.3d 1095, 1103 (11th Cir.2001) (noting that, although the analyses for Title VII and Equal Protection claims are closely related, the Supreme Court in Johnson v.
The Supreme Court has only considered the issue of same-sex sexual harassment in the context of a Title VII action against a private employer. See Oncale, 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201. In the pertinent 1998 decision, the Supreme Court pointed out that the state and federal courts had taken a “bewildering variety of stances” on same-sex sexual harassment under Title VII. Id. at 1002. The Supreme Court concluded that, although male-on-male sexual harassment in the workplace was “assuredly not the principal evil Congress was concerned with when it enacted Title VII ... statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.... ” Id. Because Oncale involved a Title VII action against a private employer, the issue of whether same-sex harassment also violated the Equal Protection Clause was not considered by the Supreme Court.
Although some people may well have reasonably guessed earlier that same-sex sexual harassment was a violation of the Equal Protection Clause, the answer was debatable, not free from cloudiness and truly settled, before our 2003 decision— with its six-page explaining opinion — in Downing, 321 F.3d 1017; and officials cannot be “expected to predict the future course of constitutional law.” Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 1701, 143 L.Ed.2d 818 (1999) (quoting Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 860, 55 L.Ed.2d 24 (1978)). Neither the Supreme Court’s decision in Oncale, 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201, nor our decision in Fredette, 112 F.3d 1503, provided clear notice to government officials that same-sex sexual harassment violated the Equal Protection Clause.
AFFIRMED.
. R.L. Drennan has since retired from JCSS.
. Although Shelnutt was named as a defendant he is not an appellee in this case.
.Although Plaintiffs allege that Shelnutt acted against male employees, we note that Plaintiffs do not specifically state that Shel-nutt did not make such advances against the female employees under his supervision. See
. We have written that "[w]hen section 1983 is used as a parallel remedy for violation of section 703 of Title VII [42 U.S.C. § 2000e-2], the elements of the two causes of action are the same.” Hardin v. Stynchcomb, 691 F.2d 1364, 1369 n. 16 (11th Cir.1982) (emphasis added). This observation, by itself however, would not compel every objectively reasonable government official to believe that, if his conduct violated Title VII, it would also necessarily violate the Constitution. Instead, it would only put the employer on notice that, if same-sex harassment was actionable under both the Equal Protection Clause and Title VII, the elements of the two causes of action would be the same.
. In a similar way, because Fredette, 112 F.3d 1503, also involved a Title VII action against a private employer, this Court did not consider whether same-sex harassment also violated the Equal Protection Clause.
. It was clearly established at the time of the alleged harassment here that, in the context of different-gender harassment, the Equal Protection Clause provided a right to be free from unlawful sexual harassment in public employment. See Cross, 49 F.3d at 1503. In Downing, we wrote in 2002 that Cross “held that the elements of the equal protection and Title VII claims were identical.” Downing, 321 F.3d at 1022. Even now accepting Downing's interpretation and application of Cross, we do not think that it was certain and clear in 1998 that Cross, in 1995, had decided that every act that violated Title VII necessarily violated the Constitution. The decision in Cross involved a male supervisor harassing his female subordinates and did not apply with obvious clarity to same-sex sexual harassment. ■ The Supreme Court’s observation in Oncale that the courts had taken a
Concurrence in Part
concurring in part and dissenting in part:
I agree with the majority that any claims based on facts occurring prior to May 1997 are due to be dismissed because, as explained in the majority opinion, qualified immunity would bar them. However, in May 1997 the relevant caselaw clarified that same-sex sexual harassment violated Title VII. Because, as more fully explained below, the law was also clearly established that there is no difference between the scope of Title VII and that of the Equal Protection Clause concerning intentional discrimination in the form of disparate treatment in the public workplace, I believe that the Defendants had adequate notice of the constitutional violation after May 1997.
Since at least 1979 it has been established that the Equal Protection Clause provides “a constitutional right to be free from unlawful sex discrimination and sexual harassment in public employment.” Cross v. Ala. Dep’t of Mental Health & Mental Retardation, 49 F.3d 1490, 1507 (11th Cir.1995) (citing Davis v. Passman, 442 U.S. 228, 235, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)). And Title VII, which since 1972 has applied to public as well as private employers,
In Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir.1997), this Court held that same-sex sexual harassment is actionable discrimination under Title VII. See-id. at 1506 (concluding that “the weight of the case-law and the better reasoned cases support the viability” of such claims). Likewise, less than one year later, the Supreme Court unanimously held “that nothing in Title VII necessarily bars a claim of discrimination ‘because of ... sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Although not all violations of Title VII also violate the Constitution, see City of Boerne v. Flores, 521 U.S. 507, 518, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), significantly, there is no difference between the scope of Title VII and the scope of the Equal Protection Clause concerning intentional discrimination in the form of disparate treatment in the public workplace: when utilized as parallel remedies for such discrimination, the elements of a claim under each are identical. See, e.g., Richardson v. Leeds Police Dep’t, 71 F.3d 801, 805 (11th Cir.1995) (per curiam); Cross, 49 F.3d at 1508; Pearson v. Macon-Bibb County Hosp.
For this reason, once Title VII was clarified as proscribing intentional same-sex sexual harassment, a reasonable official was given fair notice that such conduct in the public workplace also violated the Equal Protection Clause. The body of law evidencing the connections between Title VII and the Equal Protection Clause specifically, that body concerning intentional discrimination in the form of disparate treatment in public employment, e.g., Richardson, 71 F.3d at 805; Cross, 49 F.3d at 1508; Pearson, 952 F.2d at 1281-provides the clearly established “state of the law”
Therefore, to the extent that the Plaintiffs’ claims are predicated on sexually harassing conduct that occurred prior to May 22, 1997 (the date we issued Fredette), I agree with the majority that the law at
. I agree with the majority that qualified immunity operates to insulate governmental officials performing discretionary functions from personal liability "insofar as their conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In order for a constitutional or statutory right to be deemed "clearly established,” "the contours of that right 'must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir.2003) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Further, I agree that "[t]hat the very act (or something materially similar to it) in question has previously been held unlawful by a court is not always necessary,” Majority Op. at 1328, but rather, the "salient question” is whether the "state of the law” gave the offi
. See, e.g., Bazemore v. Friday, 478 U.S. 385, 387 n. 1, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (per curiam) (noting March 24, 1972 as "the date Title VII was made applicable to public employers”).
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.
. I concur that this principle, “by itself .. would not compel every objectively reasonable government official” to conclude that a violation of Title VII "would also necessarily violate the Constitution.” Majority Op. at 1328 n. 4. However, the point remains that this principle does not stand "by itself,” but rather must be considered in the larger context of the "state of the law.” Hope, 536 U.S. at 741, 122 S.Ct. 2508. When properly considered in this manner, the Title VII-Equal Protection Clause nexus, along with the holding that intentional same-sex sexual harassment violated Title VII, constituted "fair warning” to a reasonable official that intentional same-sex sexual harassment in the public workplace also violated the Constitution.
. I am not persuaded otherwise by the Supreme Court’s statement in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 632, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), which is partially quoted in Bass v. Board of County Commissioners, 256 F.3d 1095, 1103 (2001), that "we do not regard as identical the constraints of Title VII and the Federal Constitution on voluntarily adopted affirmative action plans,” primarily because this case does not involve a "voluntarily adopted affirmative action plan[].” Rather, it involves Shelnutt's sexual harassment of males, but not females, in public employment.
. Hope, 536 U.S. at 739, 122 S.Ct. 2508.
. Recognizing the relevance of Title VII case-law to allegations of constitutional violations in the qualified immunity context is not without precedent. See Bator v. State of Hawaii, 39 F.3d 1021, 1028 & n. 7 (9th Cir.1994) (relying on Title VII caselaw to find it clearly established that sex discrimination in the public workplace violated the Equal Protection Clause because "Title VII and equal protection cases address the same wrong: discrimination,” and noting that the differences between Title VII and equal protection claims "do not affect what is prohibited; they affect who can be sued and how the wrong can be remedied”).
. The connection was expressed in Downing v. Board of Trustees of University of Alabama, 321 F.3d 1017 (11th Cir.2003), which relied explicitly on the earlier case of Cross in finding "no principled basis for holding that the Equal Protection Clause is implicated in a case of opposite-sex discrimination but not in a case of same-sex discrimination.” Id. at 1024.