Filed: Jun. 13, 1997
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals, Fifth Circuit. No. 95-20821. Sherry SOUTHARD, et al., Plaintiffs, Sherry Southard; Tammy Leis; Teresa Pankey; Helen Minter; Patricia Anne Maimbourg; Tammy Wells and Linda Fleming, Plaintiffs-Appellees, v. The TEXAS BOARD OF CRIMINAL JUSTICE, et al., Defendants, James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division, And Oscar Strain, Defendants-Appellants. June 13, 1997. Appeals from the United States District Court for the Southe
Summary: United States Court of Appeals, Fifth Circuit. No. 95-20821. Sherry SOUTHARD, et al., Plaintiffs, Sherry Southard; Tammy Leis; Teresa Pankey; Helen Minter; Patricia Anne Maimbourg; Tammy Wells and Linda Fleming, Plaintiffs-Appellees, v. The TEXAS BOARD OF CRIMINAL JUSTICE, et al., Defendants, James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division, And Oscar Strain, Defendants-Appellants. June 13, 1997. Appeals from the United States District Court for the Souther..
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United States Court of Appeals,
Fifth Circuit.
No. 95-20821.
Sherry SOUTHARD, et al., Plaintiffs,
Sherry Southard; Tammy Leis; Teresa Pankey; Helen Minter;
Patricia Anne Maimbourg; Tammy Wells and Linda Fleming,
Plaintiffs-Appellees,
v.
The TEXAS BOARD OF CRIMINAL JUSTICE, et al., Defendants,
James A. Collins, Director, Texas Department of Criminal Justice,
Institutional Division, And Oscar Strain, Defendants-Appellants.
June 13, 1997.
Appeals from the United States District Court for the Southern
District of Texas.
Before KING and PARKER, Circuit Judges, and ROSENTHAL*, District
Judge.
ROSENTHAL, District Judge:
Eight female correctional officers sued the former executive
director of the Texas Department of Criminal Justice-Institutional
Division ("TDCJ-ID") and a captain, asserting that the captain had
sexually harassed them and subjected them to a hostile work
environment. Three of the plaintiffs asserted Title VII claims
against the TDCJ as well as 42 U.S.C. §§ 1983 and 1985(3) claims
against the individual director and captain. Two plaintiffs tried
their Title VII claims against the TDCJ to a jury;1 the plaintiffs
did not prevail. Asserting qualified immunity, the executive
*
District Judge of the Southern District of Texas, sitting by
designation.
1
42 U.S.C. § 2000e et seq.
1
director moved for dismissal of all the section 1983 and 1985(3)
claims; the captain filed similar motions as to two of the
plaintiffs. The trial judge denied those motions.
The executive director and the captain appeal from the denial
of their qualified immunity dispositive motions. This court
reverses and remands for further proceedings consistent with this
opinion.
I. BACKGROUND
Oscar Strain began working for the TDCJ-ID as a correctional
officer in the late 1970s and became a captain in July 1984.
Strain worked in different TDCJ-ID units during the relevant
period, including the Coffield Unit from July 1984 to August 1992,
and the Michael Unit from August 1992 to February 1993. On March
1, 1993, Strain was transferred to the Robertson Unit. Beginning in
1991, female employees began to complain that Strain sexually
harassed them.
Under TDCJ's employee grievance procedure, complaints alleging
discriminatory conduct by TDCJ employees and officers are referred
for investigation to the TDCJ internal Equal Employment Opportunity
("EEO") office. The TDCJ EEO office is staffed and functions
independently of other TDCJ divisions. Complaints filed with the
EEO office proceed according to the three-step process applicable
to all TDCJ employee grievances. The first step is the submission
of the grievance to the unit warden for review, attempted
resolution, and response. The second step is an appeal to the
regional director's office. The third and final step is an appeal
2
to the institutional division director's office.
In February 1991, Belinda Raines, a clerk at the Coffield
Unit, filed a written grievance against Strain. In her grievance,
Raines accused Strain of making sexually suggestive comments;
addressing her with curses and profanities; and retaliating
against her with a written reprimand when she complained. The EEO
office investigated Raines's allegations of sexual harassment and
issued a written report concluding that there was insufficient
evidence to sustain them. The EEO office also found no evidence
that the reprimand was motivated by retaliation.2
On March 15, 1991, Artis B. Mosely, Jr., the TDCJ-ID Assistant
Director for Personnel and Training, forwarded a copy of Raines's
EEO file to the office of James A. Collins, the executive director
of TDCJ-ID. It is unclear whether Collins himself saw this
complaint or the EEO report.3
On May 19, 1992, LaDonna Hull, a correctional officer in the
Coffield Unit, filed a complaint against Strain with the unit
warden, who referred it to TDCJ's EEO office. The EEO office
investigated, interviewing five employees in addition to Hull and
Strain. Hull told the EEO investigators that she had been in an
2
The EEO investigation found that Strain wrote the reprimand
on the same day that Raines went to the unit warden to complain
about Strain. The report concluded that, because Raines did not
return to work after she made her complaint to the warden, Strain
could not have issued the reprimand after learning of Raines's
complaint.
3
The EEO investigation report was forwarded to Collins, but
there is no signature or date stamp on the forwarding letter to
reflect that either Collins or his office received the report or
file.
3
intimate relationship with Strain from January to May 1992. Hull
alleged that after she ended the relationship, Strain insisted on
continuing to see her. Hull told the EEO investigators that at
work, Strain sought her out; gave her personal notes; called her;
threatened to retaliate against her superiors for assigning her to
posts where his access to her would be limited; threatened to
retaliate against coworkers if Hull associated with them;
threatened to deny Hull's leave requests; and discussed sensitive
information about inmates and employees with her.
The EEO office concluded that Hull's charges of sexual
harassment could not be sustained because Hull and Strain both
admitted to having a consensual sexual relationship; the decisions
as to shift assignments and leave allowance were not made by
Strain; and there was no evidence to support the allegations that
Strain made threats. The EEO file on the Hull complaint included
a written report from the warden of the Coffield Unit, stating that
she had talked to Strain about his behavior but "could not make
[Strain] understand the seriousness of his action." The EEO report
concluded by noting that "[a]lthough the charge of sexual
harassment could not be sustained, Captain Strain admitted to
having a sexual relationship with one of his subordinates.
Therefore, the potential for sexual harassment does exist."4
On June 29, 1992, Collins completed the third step of the
grievance procedure on Hull's complaint. Collins signed a
4
Neither Belinda Raines nor LaDonna Hull filed a lawsuit and
neither is a party to this case.
4
statement rejecting Hull's claim on the basis that a review showed
insufficient evidence to support Hull's allegations. However,
Collins wrote a note to the TDCJ-ID regional director, Wayne Scott,
to "call me about this case."
In fall 1992, plaintiff Sherry Southard, a correctional
officer at the Michael Unit, filed a written grievance against
Strain that was referred to the EEO office. Southard asserted that
beginning in September 1992, Strain harassed her and gave her
instructions that violated TDCJ rules and procedures. Southard
complained that when she refused to cooperate, Strain retaliated
against her with unfavorable duty assignments.
In November 1992, the EEO office concluded that Southard's
initial complaints were not of sexual harassment but rather of
violations of security or unit procedures. The unit warden
conducted an investigation, including interviews with two witnesses
besides Southard and Strain, and found insufficient evidence to
support Southard's allegations.
Southard continued to press her grievance. She supplied
additional information, including specific details of alleged
incidents of sexual harassment.5 The EEO received similar
5
Southard's allegations included the following: during a
lunch break, Strain told her that "he was hungry" and that she had
an obligation to take care of him; as Strain attempted to unlock
a door for Southard, he said "I can't get it in"; Strain asked
Southard personal questions and stated that he wanted to get to
know her better; Strain talked to Southard about Strain's past
marriages; Strain stared in a sexually suggestive manner; Strain
made sexual statements to her; Strain asked Southard if she knew
how to speak Spanish and, when she replied that "no" means the same
in English and Spanish, Strain said that the word "no" never
stopped him; Strain came up behind Southard and rubbed against
5
grievances from other employees and investigated the complaints
alleging sexual harassment. During the investigation, EEO
investigators interviewed sixteen employees besides Strain and
Southard. The interviews resulted in verbal complaints against
Strain from other employees. Theresa Pankey, a clerk at the
Michael Unit, told the EEO investigators that in August 1992,
Strain made a sexually suggestive comment to her.6 Terri Wells, a
former correctional officer at the Coffield Unit, told the
investigators that in December 1984, Strain made a comment about
her body.
The EEO office concluded that Southard's complaint of sexual
harassment, and the complaints received from Pankey and Wells, were
unsustainable. The EEO report analyzed each incident of
inappropriate and harassing behavior that Southard alleged. The
EEO report detailed the interviews of the witnesses to the acts of
misconduct and the interviews of other possible victims. The EEO
report concluded in part as follows:
Ms. Southard and others have made several allegations
concerning inappropriate comments, sexually suggestive looks,
and offensive touching by Captain Strain. None of the
her; Strain attempted to maneuver her to isolated areas; after
Southard failed to respond to Strain's advances, Strain called her
several times to ask if she liked her job assignment, which
Southard believed she had been given as punishment; and Strain
gave her various work assignments and job instructions that
violated TDCJ procedures and rules.
6
Theresa Pankey claimed that on August 4, 1992, Strain talked
to her about being his secretary, saying "I get what I want around
here, and I want you"; that Strain slammed the door as he entered
her office; and that on one occasion, Strain followed her from the
copy room to her office in an intimidating manner. Pankey
subsequently filed a written complaint with her warden.
6
allegations were supported by witness corroboration....
Normally conversations with co-workers about an incident
shortly after it occurs could be used to strengthen the
allegation that it had occurred. None of Ms. Southard's
direct witnesses verified Ms. Southard's allegations. Steven
Quick's reporting [that] he had been told by Ms. Southard of
the October 11 incident is the only support provided by any of
Ms. Southard's witnesses .... it is the opinion of this
investigator that Officer Quick's objectivity should be
questioned.
As has been stated throughout this report, Captains [sic]
Strain's piercing glare/stare is a management tool he readily
admitted to. He admitted using it in lieu of words....
Although his intent is not to intimidate it is the opinion of
this investigator that it has had that effect.... The fact
that Captain Strain uses a "look" with both men and women, is
therefore, without question. However, whether a reasonable
woman would have perceived the look to contain sexual
implications is questioned.
Captain Strain's arrival on the Michael Unit was preceded by
negative rumors which destroyed his opportunity to establish
trust and respect from subordinates....
The EEO report summarized the negative rumors that had
preceded Strain's arrival at the Michael unit. These rumors
included that Strain was known as "Black Jesus" and known to "chase
white women," and that he was a "nigger from Coffield who is fixin'
[sic] to change things." Although the EEO report noted that its
investigations did not normally consider a complainant's spouse,
Dennis Southard had taken an unusually active role in encouraging
his wife's complaint, and Dennis Southard had been disciplined at
another unit for racial harassment. The EEO report stated that
several women had been "approached by members of the union
soliciting complaints about Strain," and that according to several
supervisors, "there is a group of women who had historically been
given the assignments they wanted.... Strain rotated the women to
7
positions they had not previously been required to work."
The EEO report summarized the basis of its conclusion:
It is the opinion of this investigator there was apprehension
on the Michael Unit anticipating Captain Strain's arrival.
The CO's and their supervisors perpetuated negative
rumors....This investigator believes that since sexual
harassment was anticipated, every remark or mannerism which
could have been interpreted sexually was, whether it should
have been or not.
The EEO report concluded that there was "insufficient evidence to
sustain a charge of sexual harassment, harassment or retaliation or
malicious use of profane or abusive language." On March 15, 1993,
Collins completed the third step of the grievance procedure by
signing a statement affirming the EEO office's conclusion.
On November 24, 1992, Cathey Litton submitted a written
grievance against Strain to the unit warden at the Michael Unit,
who referred it to the EEO office. Litton, a correctional officer,
alleged that in November 1992, Strain had "set her up" by ordering
a cell search in which a letter believed to be written by Litton
was found, resulting in an internal investigation for corresponding
with an inmate; accused Litton of giving nude photos to an inmate;
assigned Litton to undesirable duties as a tool of retaliation;
and accused her of excessive absenteeism and required her to submit
a written doctor's statement before returning to work. Litton
alleged that Strain retaliated against her because he did not like
her and because she had spoken to union representatives. In
December 1992 and January 1993, the EEO office investigated
Litton's complaint. During the investigation, the EEO
investigators received a complaint from a former employee, Terrie
8
Taylor, that in 1984, Strain had made her do personal work and had
made a negative comment about her body.7
The EEO report summarized the employee interviews and the
documents reviewed in the investigation into the Litton grievance.
The EEO office concluded that there was insufficient evidence to
sustain Litton's charges of harassment and retaliation. The EEO
report noted that Strain had denied Litton's allegations;
interviews with other captains and a review of the shift rosters
confirmed that the job assignments were made on a rotational basis;
there were no witnesses or documentation to support Litton's other
allegations; and Strain's requirement of a doctor's excuse for
absences was justified by the fact that Litton often used sick days
and vacation days consecutively. The EEO did not examine the
allegations involving security issues, which were separately
investigated by the TDCJ internal affairs division.
On March 15, 1993, Collins signed a statement that a review of
the file established insufficient evidence to support Litton's
allegations of retaliation and that Strain's requirement that
Litton have a doctor's note for an absence was "within management's
prerogative." However, Collins's signed statement acknowledged
that the "reason or need" for the requirement of excuses for
absentees was "unclear" and stated that Collins had asked the
regional director to look into the issue of sick leave and
7
Terri Taylor alleged that Strain had told her that she had a
"large ass." Terri Taylor's complaint was included in the
investigative file for Litton's complaint, but was not summarized
in the EEO report.
9
physicians' statements. Collins also stated that he had
"confirmed" that a written doctor's excuse would not be an ongoing
requirement. The record contains an interoffice communication from
Collins to Wayne Scott, the regional director, asking Scott to
discuss the proof of absenteeism requirement at the next regional
directors' meeting. The record also contains minutes from the
directors' meeting, reflecting that the issue was discussed.
On December 8, 1992, plaintiff Tammy Leis, a correctional
officer at the Michael Unit, filed a written grievance against
Strain that was referred to the EEO office. Leis asserted that on
December 5, 1992, she told Strain that she did not like working in
a particular area because she feared for her safety and because she
did not want to do Strain's paperwork any longer. Leis alleged
that Strain responded by yelling profanities at her and blocking
her path as she left the office. She also alleged that on previous
occasions, Strain gave her personal material to type and made a
sexually suggestive comment to her.8 In December 1992 and January
1993, the EEO office investigated Leis' complaints, conducting
interviews of five employees besides Leis and Strain. The EEO
office concluded that there was insufficient evidence to sustain
Leis' claim of sexual harassment. The EEO office found that there
were "multiple inconsistencies" in Leis' version of the events;
there were no corroborating witnesses to confirm a sexual nature to
the conversations; the witnesses did not support Leis' description
8
Leis alleged that Strain stated: "I've married a black and
a white. You're dark complected, do you have Mexican in you? The
next time I might try a Mexican."
10
of the December 5, 1992 exchange; and Leis' perceptions were
affected by the rumors preceding Strain's arrival to the unit and
by her concern about reactions from coworkers if she worked for
Strain.
On March 29, 1993, the third step of the grievance procedure
was completed. Collins signed a statement dismissing the complaint
on the basis that the investigation showed insufficient evidence to
sustain Leis' allegations.
On January 7, 1993, plaintiff Helen Minter, a correctional
officer at the Michael Unit, filed a grievance against Strain that
was forwarded to the EEO office. Minter complained that in August
1992, Strain assigned her to office duty because he "wanted [her]
to be with him." Minter alleged that Strain made a sexual advance
toward her and later refused to assign her to a particular job that
she wanted. The EEO investigated and issued a report that
summarized the employee interviews it had conducted. The EEO
report concluded that Minter's allegations were unsustainable
because there were no corroborating witnesses and no other
supporting evidence. On May 7, 1993, the third step of the
grievance procedure was completed, and Collins signed a statement
affirming the EEO office's conclusion.9
On April 19, 1993, Carol Vance, the Chairman of the Board of
the TDCJ, wrote a letter to Collins. The letter stated:
I received the enclosed letter from Mike Graham [a union
representative for TDCJ employees]. If true, I think the
9
Collins initialed the draft version of the formal response.
11
Abilene Warden should let the Captain know he is aware of past
complaints. With such a history, we are also vulnerable to
future lawsuits as well as, of course, wanting to discourage
any female or other harassment at TDCJ.
The enclosed letter recounted that the author had heard sexual
harassment complaints against Strain. In response, Collins wrote
a note to Mosely, the Assistant Director of Personnel and Training,
asking him to "call me on this." Mosely received the letter, with
Collins's note, on April 25, 1993.
On April 29, 1993, Kristina L. Foster, a correctional officer
at the Michael Unit, filed a grievance against Strain that was
referred to the EEO office.10 Foster alleged that in September and
October 1992, Strain commented on her impending divorce and told
her that a good wife takes care of her husband and does her "wifely
duties." Foster also alleged that Strain had asked another
coworker if Foster would be willing to date Strain. The EEO
investigative report concluded that the allegation of harassment
was unsustainable, because the coworker had not exactly
corroborated Foster's allegations and there were no other
corroborating witnesses. Collins initialed the forwarding letter
accompanying the EEO report on August 3, 1993.
On May 5, 1993, plaintiff Patricia Maimbourg, a correctional
officer at the Robertson Unit, filed a written complaint against
Strain with the unit warden, who forwarded the complaint to the EEO
office. In her complaint, Maimbourg asserted that beginning in
March 1993, Strain had repeatedly brushed against her; had asked
10
Kristina Foster did not file a lawsuit and is not a party to
this proceeding.
12
her out on three occasions; called her at home for reasons
unrelated to work; on two occasions asked her to come to his home;
had told her that he "liked women of a lighter tan"; and asked her
to do various personal tasks. The EEO office investigated the
complaint in late May 1993. The EEO report summarized the
complaint and the results of the witness interviews and concluded
that Maimbourg's allegations were unsustainable. The EEO report
noted that Maimbourg had previously complained to other officers
that Strain had "hinted" that he wanted to go out with her, which
was inconsistent with her later allegations. The report also noted
that Maimbourg stated that she had heard rumors that Strain liked
"blond white women" and that Maimbourg may have "based her
perceptions on rumors" about Strain. The EEO office sent Collins
a copy of Maimbourg's EEO report; Collins initialed the forwarding
letter.
On July 22, 1993, Lori Palmer,11 a correctional officer at the
Robertson Unit, filed a grievance with the EEO office. Palmer
complained that Strain told her she would be at his "beck and
call," which Palmer interpreted to mean that Strain wanted her to
do typing and other work. Palmer also complained that Strain
changed her duty post and on one occasion told her to "waller [sic]
on down" to the copier room, which Palmer interpreted as a negative
reference to her weight.
During the EEO investigation into Palmer's complaint, the EEO
11
Lori Palmer did not file a lawsuit and is not a party to this
proceeding.
13
interviewer heard complaints from two other female employees at the
Robertson Unit. Sugako Nunn, an administrative technician,
complained that Strain had asked a coworker if Nunn was married;
this had made Nunn nervous because she had been "forewarned" of
Strain's liking for "blonde, white women." Nunn complained that
Strain stared at her in a sexually suggestive manner; told her
that she dressed provocatively; brushed against her
inappropriately; and retaliated against her for rejecting his
advances by calling her names and being uncooperative at work.
Laura Toland, a clerk, complained that Strain looked at her in a
sexually suggestive manner.
In its investigative report, the EEO office sustained the
allegations that Strain had stared at some females in a sexually
suggestive manner. However, the EEO report did not find sufficient
evidence to sustain complaints of sexual harassment. The EEO
report summarized the employee interviews and stated that rumors
preceding Strain's arrival at the Robertson Unit had "created a
heightened sense of concern on the part of the complainants."
Collins initialed the forwarding letter accompanying the EEO
report.
On April 26, 1993, plaintiff Linda Fleming, a correctional
officer at the Robertson Unit, filed a grievance against Strain
with the EEO office, alleging age discrimination. In her
complaint, Fleming asserted that Strain assigned younger women to
the "better jobs," such as desk and utility, while placing older
women in the "pickets," and alleged that Strain had retaliated
14
against her by requiring her to bring in a doctor's excuse for sick
leave. The EEO office investigated the complaint in May 1993 and
determined that the lack of supporting witnesses and the shift
rosters, which showed that the assignments were rotated, prevented
a finding of age discrimination. The EEO report also noted that
Fleming took a large amount of sick leave in April 1993 and that
there was no basis for finding the requirement of a doctor's excuse
retaliatory. The EEO report also noted that Fleming had heard that
Strain had a "preference" for "young white women" before she made
her complaint, leading to an "environment conducive to the
manifestation of discriminatory perceptions." Collins initialed
the forwarding letter accompanying the EEO report.
On February 4, 1994, plaintiff Sherry Southard filed suit in
the United States District Court for the Southern District of Texas
against the TDCJ, Collins, and Strain.12 Southard alleged that
Strain subjected her to sexual harassment and to a hostile work
environment, in violation of Title VII (as to the TDCJ) and
sections 1983 and 1985(3) (as to Strain and Collins). Correctional
officers Tammy Leis and Cathey Litton also sued Strain, Collins,
and the TDCJ, asserting similar claims. Plaintiffs Helen Minter,
Theresa Pankey, Patricia Maimbourg, Tammy Wells, and Linda Fleming
also filed suits against Collins and Strain under 42 U.S.C. §§ 1983
and 1985(3). These suits were consolidated into Southard's action.
On July 21, 1994, the parties consented to proceed before
12
Southard, et al. v. Texas Board Criminal Justice, et al., 94-
CV-0396.
15
United States Magistrate Judge Calvin Botley. In mid-1995, the
trial court severed Leis', Litton's, and Southard's Title VII
claims against the TDCJ from the section 1983 and 1985(3) claims
they asserted against the individual defendants. On September 26,
1995, Southard and Leis tried their Title VII claims against the
TDCJ.13 The jury returned a verdict in the TDCJ's favor.
Collins filed a motion to dismiss or, alternatively, for
summary judgment, as to the section 1983 and 1985(3) claims against
him. Collins argued that the section 1983 and 1985(3) claims were
preempted by Title VII, and, alternatively, that as a matter of
law, he was entitled to qualified immunity against the supervisory
liability claims. The trial court denied Collins's motion. Strain
also filed motions to dismiss or, alternatively, for summary
judgment, but only as to the claims asserted against him by Teresa
Pankey and Linda Fleming. Strain asserted that he was entitled to
qualified immunity because the facts alleged failed to state
violations of clearly established constitutional rights. The court
denied those motions.
Collins appeals the district court's denial of his motion to
dismiss or, alternatively, for summary judgment, against all
appellees. Strain appeals the district court's denial of his
motion for summary judgment against two of the appellees. These
are interlocutory appeals, affecting only pieces of this
quilted-together litigation, based on the denial of the individual
defendants' qualified immunity motions. This court's review is
13
Litton nonsuited her Title VII claims before trial.
16
accordingly limited.
II. STANDARD OF REVIEW
This court reviews de novo the denial of a public official's
motion for summary judgment predicated on qualified immunity.
Johnston v. City of Houston, Tx., 14 F.3d 1056, 1059 (5th
Cir.1994).
III. DISCUSSION
A. JURISDICTION
In this interlocutory appeal, the first issue is whether the
trial court's denials of the motions for summary judgment based on
qualified immunity are immediately appealable orders. In Mitchell
v. Forsyth,14 the Supreme Court held that "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."15 The Court allowed an interlocutory appeal in Mitchell
because "the issue appealed concerned, not which fact the parties
might be able to prove, but rather, whether or not certain given
facts showed a violation of "clearly established' law."16
In Johnson v. Jones,17 the Supreme Court held that a district
court's determination that the summary judgment record in a
qualified immunity case raised a genuine issue of fact was not
14
472 U.S. 511,
105 S. Ct. 2806,
86 L. Ed. 2d 411 (1985).
15
Id. at 530, 105 S.Ct. at
2817-18, 86 L. Ed. 2d at 427-28.
16
Id.
17
--- U.S. ----,
115 S. Ct. 2151,
132 L. Ed. 2d 238 (1995).
17
immediately appealable, because it rested on a question of
"evidence sufficiency."18 The Supreme Court has since clarified
that Johnson "permits [a defendant] to claim on appeal that all of
the conduct which the District Court deemed sufficiently supported
for purposes of summary judgment met the Harlow [v. Fitzgerald ]19
standard of "objective legal reasonableness.' "20 In Behrens v.
Pelletier, the Supreme Court held that the district court's
determination that "[m]aterial issues of fact remain" did not
preclude appellate review.21 A court cannot review whether the
evidence "could support a finding that particular conduct
occurred,"22 but can "take, as given, the facts that the district
court assumed when it denied summary judgment" and determine
whether those facts state a claim under clearly established law.
Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir.1996); Nerren v.
Livingston Police Dept.,
86 F.3d 469, 472 (5th Cir.1996).
In this case, this court has interlocutory jurisdiction to
determine whether appellees' summary judgment facts, taken as
given, state a claim against Collins and Strain under clearly
established law. "Taking the plaintiffs' allegations as true,"
this court can decide whether the defendants are entitled to
18
Id.
19
457 U.S. 800,
102 S. Ct. 2727,
73 L. Ed. 2d 396 (1982).
20
Behrens v. Pelletier, --- U.S. ----, ----, 116 S. Ct. 834,
842,
133 L. Ed. 2d 773 (1996).
21
Id.
22
Id.
18
qualified immunity. Cantu, 77 F.3d at 805.
B. THE INTERSECTION OF 42 U.S.C. § 1983 AND TITLE VII
Collins contends that the claims under 42 U.S.C. §§ 1983 and
1983(5) are precluded because Title VII provides the exclusive
remedy in this federal employment discrimination suit. Collins
asserts that the trial judge erred as a matter of law in allowing
plaintiffs to assert both Title VII and section 1983 claims, based
on the same underlying facts. Jackson v. City of Atlanta, Tx., 73
F.3d 60, 62 (5th Cir.), cert. denied, --- U.S. ----,
117 S. Ct. 70,
136 L. Ed. 2d 30 (1996).
In Johnston v. Harris County Flood Control Dist., 869 F.2d
1565, 1573 (5th Cir.1989), cert. denied,
493 U.S. 1019,
110 S. Ct.
718,
107 L. Ed. 2d 738 (1990), this court carefully analyzed the
relationship between Title VII and section 1983. Johnston, a
former county employee, was terminated after he testified in
support of a coworker's discrimination allegations at an Equal
Employment Opportunity hearing. Johnston sued the flood control
district and its individual directors for retaliation, alleging
violations of Title VII and section 1983. Following a trial, the
district court found the flood control district liable under both
Title VII and section 1983.
On appeal, this court rejected as "incomplete," and therefore
inaccurate, the defendant's argument that Title VII preempted a
section 1983 claim arising from the same facts. Judge Gee, writing
for the court, explained the relationship between the two statutes:
Title VII is the exclusive remedy for a violation of its own
terms, [but] when a public employer's conduct violates both
19
Title VII and a separate constitutional or statutory right,
the injured employee may pursue a remedy under § 1983 as well
as under Title VII.
Johnston, 869 F.2d at 1573.
In Johnston, the defendant's conduct violated Title VII and
violated the constitutional right to be free to testify without
retaliation. "Because the predicate for [plaintiff's] § 1983 claim
was a right independent of the right Title VII creates, Johnston
was entitled to pursue remedies under both statutes." Id. The
court based this holding on a thorough analysis of the prior case
law arising under Title VII, including Irby v. Sullivan,
737 F.2d
1418 (5th Cir.1984), holding that Title VII is the exclusive remedy
for a violation of its own terms; and of the legislative history
of Title VII, revealing that " "the remedies ... under Title VII
are co-extensive with the individual's right to sue under the
provisions of the Civil Rights Act of 1866 ... [and] the two
procedures augment each other and are not mutually exclusive.' "
Johnston, 869 F.2d at 1576. The court concluded:
Although Title VII supplements and overlaps § 1983, it remains
an exclusive remedy when a state or local employer violates
only Title VII. When, however, unlawful employment practices
encroach, not only on rights created by Title VII, but also on
rights that are independent of Title VII, Title VII ceases to
be exclusive. At this point, § 1983 and Title VII overlap,
providing supplemental remedies.
Id.
Collins cites Jackson v. City of Atlanta, Tx.,
73 F.3d 60 (5th
Cir.1996), cert. denied, --- U.S. ----,
117 S. Ct. 70,
136 L. Ed. 2d
30 (1996), in which the plaintiff sued his employer, a city, the
city manager, and several council members individually, asserting
20
employment discrimination based on race. Plaintiff alleged
violations of Title VII and section 1983 based on the same
allegedly discriminatory acts. In dismissing the section 1983
claim, this court recognized that under Johnston v. Harris County
Flood Control Dist., a plaintiff may pursue both section 1983 and
Title VII claims when the employer's conduct violates both Title
VII and a separate constitutional or statutory right. However,
because the plaintiff in Jackson used the same facts to pursue
claims under both Title VII and section 1983, this court found that
he was precluded from suing under both statutes. Id. at 63.
In Jackson, the court emphasized that plaintiffs alleged the
same conduct to support a claim under both statutes. 73 F.3d at
61. However, in Johnston v. Harris County Flood Control Dist., the
plaintiff's claims under both Title VII and section 1983 were also
based on identical facts and identical allegations. In Johnston,
this court found that because the allegedly discriminatory conduct
violated rights under Title VII and rights independent of Title
VII, the same facts created claims under both remedies. Jackson is
inconsistent with Johnston, and Johnston, as the earlier opinion,
controls our decision in this case.23
The Johnston result is consistent with that reached by other
circuits considering the question. These courts have found that a
public sector employee may assert claims of racially discriminatory
23
See, e.g., Smith v. Penrod Drilling Corp., 960 F.2d 456, 459
n. 2 (5th Cir.1992); United States v. Fields,
923 F.2d 358, 360 n.
4 (5th Cir.), cert. denied,
500 U.S. 937,
111 S. Ct. 2066,
114
L. Ed. 2d 470 (1991).
21
employment practices under both Title VII and section 1983, because
the Constitution provides a right independent of Title VII to be
free from race discrimination by a public employer. See, e.g.,
Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1079 (3d
Cir.1990); Roberts v. College of the Desert,
870 F.2d 1411, 1415
(9th Cir.1988); Brown v. Hartshorne Pub. School Dist. No. 1,
864
F.2d 680, 683 (10th Cir.1988); Keller v. Prince George's County,
827 F.2d 952, 962 (4th Cir.1987); Trigg v. Fort Wayne Community
Schools,
766 F.2d 299, 302 (7th Cir.1985); Grano v. Department of
Dev.,
637 F.2d 1073, 1082 (6th Cir.1980).
In this case, plaintiffs alleged sexual harassment and sex
discrimination by their public employer. Sex discrimination and
sexual harassment in public employment violate the Equal Protection
Clause of the Fourteenth Amendment. Meritor Savings Bank v.
Vinson, 477 U.S. 57, 67,
106 S. Ct. 2399, 2405,
91 L. Ed. 2d 49
(1986); Davis v. Passman,
442 U.S. 228, 234-35,
99 S. Ct. 2264,
2271,
60 L. Ed. 2d 846 (1979); Pontarelli v. Stone,
930 F.2d 104,
114 (1st Cir.1991) (sexual harassment is a deprivation of equal
protection and is actionable under 42 U.S.C. § 1983). The circuits
addressing the issue have allowed plaintiffs suing their public
employers for sexual harassment and sex discrimination to assert
claims under both Title VII and section 1983. See, e.g., Cross v.
State of Alabama,
49 F.3d 1490, 1503 (11th Cir.1995) (a state
employee may sue for sexual harassment under section 1983); Noland
v. McAdoo,
39 F.3d 269, 271 (10th Cir.1994) (a supervisor who
exercised state authority over an employee may be liable for sexual
22
harassment under section 1983); Beardsley v. Webb, 30 F.3d 524,
527 (4th Cir.1994) (a public sector employee may sue under both
Title VII and section 1983 for sexual harassment); Gierlinger v.
New York State Police,
15 F.3d 32, 34 (2d Cir.1994) (sexual
harassment and sex discrimination claims can be brought under both
section 1983 and Title VII); Bartunek v. Bubak,
941 F.2d 726, 727
(8th Cir.1991) (the plaintiffs were permitted to sue their public
sector employer for sexual harassment under section 1983); Bouman
v. Block,
940 F.2d 1211 (9th Cir.), cert. denied,
502 U.S. 1005,
112 S. Ct. 640,
116 L. Ed. 2d 658 (1991) (section 1983 and Title VII
sex discrimination claims can be brought in a single action);
Andrews v. City of Philadelphia,
895 F.2d 1469, 1480 (3d Cir.1990)
(sexual harassment violates a constitutional right); Volk v.
Coler,
845 F.2d 1422, 1431 (7th Cir.1988) (a hostile work
environment violates a constitutional right).24
Plaintiffs' allegations of sex discrimination and sexual
misconduct assert claims under sections 1983 and 1985(3) that are
not preempted by Title VII.
C. QUALIFIED IMMUNITY
To determine whether qualified immunity applies, a court must
first determine whether the plaintiff has asserted a violation of
a constitutional right. Siegert v. Gilley, 500 U.S. 226, 231,
111
S. Ct. 1789, 1793,
114 L. Ed. 2d 277 (1991). This determination is
24
One district court has held that Title VII is the exclusive
remedy for sexual harassment and preempts plaintiffs from filing
under § 1983. Marrero-Rivera v. Dept. of Justice, 800 F. Supp. 1024
(D.P.R.1992).
23
made using currently applicable constitutional standards. Nerren
v. Livingston Police Department, 86 F.3d at 473. If so, the court
must then decide if the defendant's conduct was objectively
reasonable, using the standards applicable at the time the events
occurred. Id; Johnston v. City of
Houston, 14 F.3d at 1059. If,
upon viewing the evidence in the light most favorable to the
nonmovant, reasonable public officials could differ on the
lawfulness of the defendant's actions, the defendant is entitled to
qualified immunity. Anderson v. Creighton,
483 U.S. 635, 639,
107
S. Ct. 3034, 3038,
97 L. Ed. 2d 523 (1987), citing Pfannstiel v. City
of Marion,
918 F.2d 1178, 1183 (5th Cir.1990).
1. James A. Collins
A supervisor cannot be held liable under section 1983 on the
basis of respondeat superior. Monell v. Dept. of Social Services,
436 U.S. 658, 694 n. 58,
98 S. Ct. 2018, 2037, n. 58,
56 L. Ed. 2d 611
(1978). Rather, the misconduct of the subordinate must be
affirmatively linked to the action or inaction of the supervisor.
In Doe v. Taylor Independent School District,
15 F.3d 443, 453 (5th
Cir.1994)(en banc), cert. denied sub nom, Lankford v. Doe,
513 U.S.
815,
115 S. Ct. 70,
130 L. Ed. 2d 25 (1994), this court noted the
close relationship between the elements of municipal liability and
an individual supervisor's liability:
The legal elements of an individual's supervisory liability
and a political subdivision's liability, however, are similar
enough that the same standards of fault and causation should
govern. A municipality, with its broad obligation to
supervise all of its employees, is liable under § 1983 if it
supervises its employees in a manner that manifests deliberate
indifference to the constitutional rights of citizens. We see
no principled reason why an individual to whom the
24
municipality has delegated responsibility to directly
supervise the employee should not be held liable under the
same standard.
15 F.3d at 453. The court concluded that a supervisory official
may be liable under section 1983 if that official, by action or
inaction, demonstrates a deliberate indifference to his or her
constitutionally protected rights.
Id. at 454.
Although the deliberate indifference standard arose from a
case alleging a violation of a substantive due process right, the
standard applies to other underlying constitutional violations as
well. Id., n. 8. The Supreme Court has recently reaffirmed that "
"deliberate indifference' is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his action." Board of the County
Commissioners of Bryan County, Oklahoma, v. Brown, --- U.S. ----,
----,
117 S. Ct. 1382, 1391, --- L.Ed.2d ---- (1997);25 see also,
Farmer v. Brennan,
511 U.S. 825, 834,
114 S. Ct. 1970, 1977,
128
L. Ed. 2d 811 (1994)(deliberate indifference is more than "more
blameworthy than negligence", but less than "acts or omissions for
the very purpose of causing harm or with knowledge that harm will
result"). The "deliberate indifference" standard permits courts to
separate omissions that "amount to an intentional choice" from
25
In Board of the County Commissioners of Bryan County,
Oklahoma, v. Brown, the Court held that Bryan County was not liable
for the sheriff's isolated decision to hire his nephew as a deputy,
without adequately reviewing his background, because the plaintiff
did not demonstrate that the sheriff's decision reflected a
conscious disregard for a high risk that the nephew would use
excessive force in violation of federally protected rights. ---
U.S. ----, ----, 117 S. Ct. 1382, 1391, --- L.Ed.2d ---- (1997).
25
those that are merely "unintentionally negligent oversight[s]."
Gonzalez v. Ysleta Independent School District, 996 F.2d 745, 756
(5th Cir.1993), quoting Rhyne v. Henderson County,
973 F.2d 386,
392 (5th Cir.1992).
Appellees assert that because Collins knew of the numerous,
similar complaints of sexual harassment against Strain, and failed
to stop the harassment, Collins was deliberately indifferent to
appellees' constitutional rights. Collins asserts that his receipt
of the EEO investigative reports cannot as a matter of law show
that he acted with deliberate indifference to appellees' rights,
because the EEO office conducted independent investigations and
concluded that none of the complaints was sustainable.
In Doe v. Taylor Independent School District, this court
considered whether a high school principal and superintendent of
schools were shielded by qualified immunity from the claims of a
high school student who had been sexually molested by a teacher.
This court found that the school principal did not have qualified
immunity for his failure to supervise the teacher, resulting in the
child's molestation. However, the superintendent of schools was
immune.
When the superintendent heard of the teacher's potential
misconduct, he instructed the principal, the teacher's direct
supervisor, to speak to the teacher. Several months later, the
superintendent was informed that the teacher had given alcohol to
students at an event and behaved inappropriately with Doe. The
superintendent contacted the parents of one of the allegedly
26
misbehaving students to discuss the report and was assured that
their child had not even attended the event. After intimately
inscribed photographs came to light, Doe's parents arranged to meet
with the superintendent. At that meeting, the superintendent
acknowledged his awareness of the rumors about the teacher and Doe;
talked to Doe; and warned the teacher to stay away from Doe. The
court concluded that the superintendent had notice of a pattern of
inappropriate sexual behavior. However, the superintendent was not
deliberately indifferent to that knowledge. He took some steps:
instructing the principal to talk to the teacher; checking on an
incident reported to him; and, later meeting with the principal
and teacher. "His actions were ineffective, but not deliberately
indifferent." 15 F.3d at 458.
Collins served as the director of the TDCJ-ID from January
1990 to April 1994. As director, Collins oversaw 108 prison units
and approximately 38,000 employees. Each prison unit organizes the
line of authority over its security personnel after a military
chain of command: wardens, assistant wardens, majors, captains,
lieutenants, sergeants, and correctional officers, in descending
hierarchical order. Each level of subordinate employee reports to
the next level up the chain of command. As director, Collins had
in place a written, formal system to receive and investigate
employee complaints of discrimination and harassment based on sex
and a written policy against such discrimination and harassment.26
26
The relevant Executive Directive provides:
It is the policy of the Texas Department of Criminal
27
Collins asserts in his affidavit that he did not personally
see the plaintiffs' EEO complaints, but rather that his office
staff would review the complaints for him. Because this court has
jurisdiction only to review the questions of law posed by the
district court's denial of summary judgment based on the defense of
qualified immunity, this court will "ignore the disputes of fact,
take those facts assumed by the district court in a light most
favorable to [plaintiffs], and determine whether those facts"
establish an exception to the qualified immunity defense. Nerren,
86 F.3d at 472;
Cantu, 77 F.3d at 805. In that light, the record
discloses that Collins received the EEO office investigative
reports into the complaints made by Hull, Southard, Pankey, Litton,
Leis, Minter, Foster, Maimbourg, Nunn, Toland, Palmer, and Fleming.
Collins initialed the forwarding letters for the EEO's reports into
the complaints filed by Maimbourg, Palmer, Foster, and Fleming, and
signed the formal response for the third stage of the grievance
process, rejecting the complaints filed by Hull, Southard, Litton,
Leis, and Minter. Like the superintendent in Doe, Collins was
aware of the complaints of inappropriate behavior. Collins also
knew that the EEO office investigated each complaint and found it
lacking. The issue is whether Collins's knowledge of the
allegations and of the EEO's investigation reports rejecting those
allegations creates a fact issue as to deliberate indifference.
Justice, that all employees should enjoy a working
environment free from all forms of discrimination,
including sexual harassment.... The Agency will treat
sexual harassment as any other form of employee
misconduct—it shall not be tolerated.
28
In Gonzalez v. Ysleta Independent School Dist., 996 F.2d 745
(5th Cir.1993),27 this court found that a school district board of
trustees was immune from liability for a teacher's molestation of
a student.
Id. at 762. When the board was informed of two
incidents of the teacher's inappropriate behavior, the board
transferred the teacher. After the transfer, the teacher molested
a first grader.
Id. at 746-49. This court determined that the
board of trustees had not acted with deliberate indifference in
failing to terminate the teacher after the first two complaints,
because, although the board's decision to transfer was "negligent"
and "inconsistent with the district's handling of other cases of
suspected sexual abuse," the board had not turned "a blind eye" to
the complaints, but had ordered an investigation and followed the
recommendation based on that investigation.
Id. In this case,
Collins knew that the EEO office independently investigated each
complaint and he followed the conclusions of the EEO office.
Plaintiffs rely on Gutierrez-Rodriguez v. Cartagena, 882 F.2d
553 (1st Cir.1989), to argue that there is a triable issue as to
whether Collins knew that the EEO investigations were wholly
inadequate. In Cartagena, a group of police officers from the
narcotics division of the Puerto Rico police department shot the
plaintiff. The plaintiff sued the police officers, the director of
27
See also, John Doe v. Hillsboro Independent School Dist., No.
94-50709, --- F.3d ---- (5th Cir. May 27, 1997) (en banc) (holding
that school superintendents and trustees were not liable under
section 1983 where the plaintiff could not demonstrate a nexus
between a failure to check the criminal background of a school
employee and the sexual assault of a student).
29
the narcotics division, and the superintendent of police, under
section 1983. The superintendent relied on internal investigations
rejecting use of force and other complaints against the officers,
and asserted immunity. The First Circuit upheld the jury's verdict
against the police superintendent because a reasonable jury could
have found callous indifference to the plaintiff's rights. The
court found that the investigations on which the superintendent
relied in deciding not to take action against the police officer,
despite a large number of similar complaints, had "glaring
inadequacies." Officers who were the subject of an internal
investigation could refuse to testify or give a statement to
investigating officers; witnesses had to come to the station house
to give sworn written statements; when a citizen withdrew his
complaint, the internal investigation ended, which caused officers
to intimidate witnesses; and immediate supervisors were not
involved. Id. at 565-66. Based on these findings, the court
concluded that:
[b]oth [the] failure to identify and take remedial action
concerning [the officer] and his employment of a disciplinary
system that was grossly deficient in a number of significant
areas made it highly likely that the police officers under his
command would engage in conduct that would deprive the
citizens of Puerto Rico of their constitutional rights.
Id. at 566.
In this case, by contrast, the record does not disclose that
the TDCJ EEO office procedures, as implemented in the reports
provided to Collins, showed the same systemic "glaring
inadequacies" that made the counterpart in Gutierrez-Rodriguez a
source of supervisory liability rather than a qualified immunity
30
shield.28
In Gutierrez-Rodriguez, the investigative process was an
integral part of the police department. In this case, by contrast,
the EEO office was independent of other TDCJ departments. The
grievance process required the accused officer to respond to the
complaints, allowed witnesses to give information through informal
interviews, and actively involved supervisors. The grievance
procedures encouraged employees to give interviews and statements
to investigators; provided that an employee's service as a witness
was "official business," for which the employee was to be released
on paid time during working hours; and provided protection against
reprisals for such service.
The EEO investigative reports that Collins received bore the
earmarks of a detailed investigation. The reports contained
detailed summaries of each employee's allegations against Strain,
providing specific information on the dates and circumstances of
the alleged harassment and retaliation. The reports listed the
28
Plaintiffs submitted the report of an expert witness who
found the EEO investigative procedure to be "seriously and
fundamentally flawed." The expert witness, a lawyer with
experience in employment discrimination cases, concluded that the
TDCJ EEO office investigative procedures had systemic flaws.
However, the expert's criticisms of the TDCJ EEO office
investigative procedure do not approach the "glaring inadequacies"
that characterized the internal investigation procedures used in
Cartagena. The lawyer's report provides an insufficient basis for
an inference that Collins subjectively knew that the EEO office
investigation procedure as applied to the complaints against Strain
was so flawed that he could not reasonably rely upon the EEO
office's conclusions. The record does not permit a conclusion by
this court that by relying on the EEO office investigation and
conclusions that the allegations of sexual harassment against
Strain could not be sustained, Collins was deliberately indifferent
to the rights of his employees to be free from such harassment.
31
witnesses interviewed;29 the results of those interviews; and the
contents of documents and records reviewed. Each report explained
why, although some of the allegations made by some of the grievants
were supported, the EEO office rejected the allegations of sexual
harassment and retaliation. The reports did not hide the fact that
Strain had received a number of similar complaints from female
correctional officers and clerks. Instead, the reports explained
why, despite the number of complaints, the EEO was unable to
sustain the allegations.
Moreover, unlike the police chief in Cartagena, and like the
superintendent in Doe v. Taylor Independent School District,
Collins did not simply ignore the complaints and dismiss the
charges. Instead, Collins took some steps, asking the regional
director and the director of personnel to investigate some
questions raised by the EEO investigation reports. Even if those
steps were "ineffectual," they do not demonstrate deliberate
indifference.
The evidence does not raise a fact issue that Collins
subjectively knew Strain was sexually harassing female employees or
knew that the EEO office's procedures for investigation into such
complaints were "glaringly inadequate." Collins did not act with
deliberate indifference to plaintiffs' federally protected rights.
He is entitled to qualified immunity.
29
While the reports generally included a complete list of
witnesses, the EEO investigation report of the investigation into
Litton's complaint omitted the complaint alleged by Terri Taylor,
which was contained in the EEO investigative file.
32
2. Oscar Strain and Linda Fleming
Strain contends that as a matter of law, he is entitled to
qualified immunity against Linda Fleming's claims. Fleming did not
allege acts of sexual harassment. Instead, in her EEO grievance
and her pleadings, she alleged that Strain gave her less favorable
work assignments because of a personal "animus" toward women and
because Fleming filed an age discrimination complaint against TDCJ.
Fleming alleged that Strain selected another officer for the
position of "grievance officer"; assigned Fleming to run three
gates simultaneously on several occasions; assigned Fleming
library duty; reprimanded Fleming within the hearing of inmates;
and on one occasion refused to allow her to have a water bottle at
her duty station.
To state a claim of sex discrimination under section 1983, a
plaintiff must show the following elements: 1) membership in a
protected class; 2) that the plaintiff was qualified for the
position at issue; 3) that the defendant made an adverse
employment decision despite the plaintiff's qualifications; and 4)
that the plaintiff was replaced with a person not a member of the
protected class. See McDonnell Douglas Corp. v. Green, 411 U.S.
792,
93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973); Cervantez v. Bexar
County Civil Service Commission,
99 F.3d 730, 734 (5th
Cir.1996)("we have on numerous occasions recognized that section
1983 and Title VII are parallel causes of action"); Wallace v.
Texas Tech. University, 80 F.3d 1042, 1047 (5th Cir.1996) (applying
the same prima facie test to discrimination claims under Title VII
33
and section 1983); Merwine v. Board of Trustees for State
Institutions of Higher Learning, 754 F.2d 631, 635, n. 3 (5th
Cir.1985) ("[w]hen a § 1983 claim is used as a parallel to a Title
VII claim under a given set of facts, the elements required to be
established for each claim are deemed the same under both
statutes").
To assert a cause of action for retaliation for the exercise
of a federally protected right, a plaintiff must show that she:
1) engaged in a protected activity;
2) an adverse employment action followed; and
3) there was a causal connection between the activity and the
adverse action.
Mattern v. Eastman Kodak, Co., 104 F.3d 702, 705 (5th Cir.1997);
Harrington v. Harris,
108 F.3d 598, 603 (5th Cir.1997) (a plaintiff
must show that he suffered an adverse employment action to state a
retaliation claim under section 1983); Pierce v. Texas Department
of Criminal Justice,
37 F.3d 1146, 1150 n. 1 (5th Cir.1994)
("[m]ore than a trivial act of retaliation [is required] to
establish constitutional harm" in a 1983 case).
Strain contends that he is entitled to qualified immunity
because Fleming failed to raise a fact issue that Strain's conduct,
objectively viewed, violated her clearly established rights.
Strain supervised Fleming for approximately three and one-half
months. Fleming testified in her deposition that none of the work
assignments Strain gave her was more difficult or burdensome than
the jobs she would have preferred; she enjoyed the library
assignment; none of the jobs were very difficult; she was rotated
34
among a number of jobs and did not know where other employees were
assigned; and that the only reason she complained about any of the
assignments was her belief that Strain was retaliating against her.
Not every negative employment decision or event is an adverse
employment action that can give rise to a discrimination or
retaliation cause of action under section 1983. Harrington, 108
F.3d at 604;
Pierce, 37 F.3d at 1149. Adverse employment actions
include discharges, demotions, refusals to hire, refusals to
promote, and reprimands. Id.; see also Dollis v. Rubin,
77 F.3d
777, 781-82 (5th Cir.1995). Undesirable work assignments are not
adverse employment actions.
Harrington, 108 F.3d at 604, citing
Dorsett v. Bd. of Trustees for State Colleges & Universities,
940
F.2d 121, 123 (5th Cir.1991).
Fleming's allegations and summary judgment proof do not raise
a fact issue that Strain's supervision, objectively viewed, clearly
violated her federally protected rights. As a matter of law,
Strain is entitled to qualified immunity as to Fleming's claims
under sections 1983 and 1985(3).
3. Oscar Strain and Teresa Pankey
Theresa Pankey alleged and provided summary judgment evidence
that Strain slammed the door when he came into her office, which
made her feel "uncomfortable"; Strain stared at her before asking
her to do a typing job that she felt she should not have to do;
Strain told her that she might be his personal secretary, and when
Pankey responded that she was not aware of such plans, Strain said,
"[l]et me tell you something. I get what I want around here, and
35
I want you." On another occasion, Pankey was in the copy room when
Strain came in, closed the door, and asked her why she was "mad at
him." Strain followed Pankey back to their office and was about to
slam the door when Pankey received a phone call. Later that day,
Strain came into her office and slammed the door so that Pankey and
another female employee were alone with Strain. Pankey told Strain
to open the door; another officer came in and Strain left.
Pankey alleged in her second amended complaint that Strain
told her in a "threatening, provocative manner she had to work with
him" and gave her "unreasonable work assignments." According to
Pankey, Strain's requests for typing were "unreasonable work
assignments," because Strain would ask her to drop her other work
to type for him. In her deposition, Pankey testified that when she
would inform Strain that she could not do the work immediately,
Strain would ask if she could do it later.
Strain asserts that Pankey's allegations and evidence fail to
raise a fact issue defeating qualified immunity, because Pankey has
not shown that the acts she complains about were based on her sex,
Ellert v. University of Texas, at Dallas, 52 F.3d 543, 545 (5th
Cir.1995), or that the conduct was sufficiently severe or pervasive
to alter the conditions of employment and create an abusive working
environment. Farpella-Crosby v. Horizon Health Care,
97 F.3d 803,
806 (5th Cir.1996); DeAngelis v. El Paso Mun. Police Officers
Assn.,
51 F.3d 591, 594 (5th Cir.1995), cert. denied, --- U.S. ----
,
116 S. Ct. 473,
133 L. Ed. 2d 403 (1995).
Pankey admitted that her job required her to type documents
36
for the ranking officers, and that Strain's door slamming and
stares were directed toward men as well as women. Pankey's
subjective interpretation of Strain's comments is insufficient to
raise a fact issue as to sexual harassment. See Burns-Toole v.
Byrne, 11 F.3d 1270, 1274 (5th Cir.), cert. denied,
512 U.S. 1207,
114 S. Ct. 2680,
129 L. Ed. 2d 814 (1994)("[a plaintiff] cannot
prevail [over the defense of qualified immunity] with mere
conclusory statements evidencing only a personal belief that the
defendants were motivated by an impermissible animus"). Even
assuming that Strain's comments and conduct were motivated by
Pankey's sex, they were not so severe or pervasive as to constitute
sexual harassment. DeAngelis, 51 F.3d at 594.
Strain has qualified immunity as to Pankey's claims against
him under section 1983 and section 1985(3).30
IV. CONCLUSION
For the reasons stated above, we REVERSE the district court's
order denying qualified immunity to defendant Collins as to all
plaintiffs, and to defendant Strain as to the claims of plaintiffs
Fleming and Pankey. This case is REMANDED for further proceedings
on the remaining plaintiffs' claims against Strain.
30
Because Pankey failed to state a constitutional violation,
her section 1985(3) claim fails as a matter of law.
37
