                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          March 30, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JANE DOE, minor; ANGELA
HARRISON, Jane Doe’s mother, as next
friend,

      Plaintiffs - Appellees,
                                                            No. 17-3070
v.                                              (D.C. No. 2:16-CV-02801-JWL-GLR)
                                                              (D. Kan.)
BROCK HUTCHINSON,

      Defendant - Appellant,

and

USD 237, THE SMITH CENTER
SCHOOL DISTRICT,

      Defendant.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, KELLY, and MATHESON, Circuit Judges.
                  _________________________________

      Brock Hutchinson appeals the district court’s denial of his motion to dismiss

based on qualified immunity. We conclude that Jane Doe adequately pled a violation

of her equal protection rights, and that the law regarding hostile school environment

claims was sufficiently clear as to put any reasonable teacher on notice that the


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
alleged conduct was a violation. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                           I

      We draw the following facts from the complaint. Hutchinson is a teacher and

football coach at Smith Center High School, located in Smith Center, Kansas. Doe

began attending the school in Fall 2013. She alleges that Hutchinson routinely and

openly spoke to and about female students in sexualized terms. She claims that

Hutchinson’s conduct had been ongoing for several years, and that it was common

knowledge among school employees that Hutchinson had been involved in an

inappropriate relationship with an underage student prior to Doe’s enrollment at the

school.

      Doe cites several examples of Hutchinson’s misconduct. Beginning in

December 2014, Hutchinson began asking Doe’s boyfriend, while in the presence of

other students, what sexual acts Doe performed. He continued making such inquiries

throughout the year. During a gym class, a ball rolled toward Doe. Hutchinson

announced to the class, “Don’t worry about [Doe], she’s used to having balls between

her legs.” Hutchinson requested that another female student in his gym class “twerk”

while she was doing a handstand. He boasted about having talked female students

into removing their shirts and engaging in activities in only their sports bras. Even

after Doe complained to school officials, Hutchinson continued making sexual

comments in front of Doe and other students, and spoke to students about his own

sexual acts.

                                           2
      Doe alleges that Hutchinson engaged in other forms of harassing behavior as

well. He began calling Doe “dumb” in class. Hutchinson discouraged Doe from

attending school sporting events, glared at her in public, and on one occasion sat on

her feet in an effort to get her to exit a wrestling match. He told the father of Doe’s

boyfriend to keep his son away from Doe because she was a “troublemaker.” He also

stated to a male student who made a crude comment to Doe, “You’re going to have

her mom riding my ass again.” Doe claims she was excluded from a school track

meet by a different coach because of her complaints, and that she suffered retaliation

and bullying from other students after Hutchinson told them he might be fired. As a

result of this harassment, Doe withdrew from the school in October 2016.

      Doe and her mother, as next friend, filed suit against Hutchinson and his

employer, USD 237, advancing claims under Title IX of the Education Amendments

of 1972, and 42 U.S.C. § 1983 for violation of Doe’s due process and equal

protection rights. Hutchinson moved to dismiss the claims asserted against him,

arguing that he is entitled to qualified immunity. The district court granted the

motion as to Doe’s due process claim, but denied qualified immunity on her equal

protection claim. Hutchinson filed a timely notice of appeal.

                                           II

      A “district court’s order rejecting qualified immunity at the motion-to-dismiss

stage of a proceeding is a ‘final decision’ within the meaning of § 1291.” Ashcroft v.

Iqbal, 556 U.S. 662, 672 (2009). This rule flows from the doctrine that qualified

immunity protects from trial, not just from judgment, and would thus be lost if an

                                            3
interlocutory appeal were not permitted. Mitchell v. Forsyth, 472 U.S. 511, 525-526

(1985). In deciding interlocutory qualified immunity appeals we are limited to

purely legal issues and may not review factual disputes. Ortiz v. Jordan, 562 U.S.

180, 188 (2001). We review a district court’s determination as to qualified immunity

de novo. Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir. 2002). To determine

whether a defendant is entitled to qualified immunity, the court must answer two

questions: (1) whether a defendant’s conduct violated plaintiff’s constitutional

rights; and (2) whether the right at issue was clearly established. Roska ex rel. Roska

v. Peterson, 328 F.3d 1230, 1239 (10th Cir. 2003).

       Because this appeal stems from the denial of a motion to dismiss, we accept as

true all well-pled factual allegations in the complaint and view them in the light most

favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.

2009). “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal,

556 U.S. at 678 (quotation omitted). This standard “does not require detailed factual

allegations, but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. (quotation omitted). “[I]n examining a complaint under

Rule 12(b)(6), we will disregard conclusory statements and look only to whether the

remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v.

United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).




                                             4
                                            A

      We agree with the district court that Doe has adequately pled a constitutional

violation. “Denials of equal protection by a municipal entity or any other person

acting under color of state law are actionable under 42 U.S.C. § 1983.” Murrell v.

Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1249 (10th Cir. 1999). “It is well

established in this circuit that sexual harassment by a state actor can constitute a

violation of the equal protection clause.” Id.; see also Starrett v. Wadley, 876 F.2d

808, 814 (10th Cir. 1989) (holding that “sexual harassment of the sort alleged by

plaintiff can violate the Fourteenth Amendment right to equal protection of the

laws”).

      One form of actionable sexual harassment is “hostile environment

harassment.” Escue v. N. Okla. Coll., 450 F.3d 1146, 1157 (10th Cir. 2006)

(quotation omitted). To prevail on such a claim, a plaintiff must show that the

defendant’s “conduct was sufficiently severe or pervasive as to interfere

unreasonably with her school performance and create a hostile or abusive educational

environment.” Id. The severe or pervasive inquiry “should be judged from the

perspective of a reasonable person in the plaintiff’s position, considering all the

circumstances.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)

(quotation omitted).1 Accordingly, the analysis “depends on a constellation of



      1
        As explained further infra, we consider employment cases as well as
educational cases as relevant to the hostile environment standard because “sexual
harassment which gives rise to a violation of equal protection in the employment
                                            5
surrounding circumstances, expectations, and relationships which are not fully

captured by a simple recitation of the words used or the physical acts performed.”

Oncale, 523 U.S. at 82. Two such considerations are “the ages of the harasser and

the victim.” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629,

651 (1999).

       Hutchinson contends the complaint is insufficient to establish a violation

because Doe alleges only a single explicitly gender-based comment that was directed

toward her. This argument rests on three mistaken premises. First, “[f]acially

neutral abusive conduct can support a finding of gender animus sufficient to sustain a

hostile . . . environment claim when that conduct is viewed in the context of other,

overtly gender-discriminatory conduct.” O’Shea v. Yellow Tech. Servs., Inc., 185

F.3d 1093, 1097 (10th Cir. 1999). “This is because what is important in a hostile

environment claim is the environment, and gender-neutral harassment makes up an

important part of the relevant . . . environment.” Chavez v. New Mexico, 397 F.3d

826, 833 (10th Cir. 2005).

       Second, “incidents of sexual harassment directed at [students] other than the

plaintiff can be used as proof of the plaintiff’s claim of a hostile . . . environment.”

Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987); see also Nieto v.

Kapoor, 268 F.3d 1208, 1219 n.7 (10th Cir. 2001) (“A finding of pervasiveness or

severity need not rest solely on actions aimed directly at a plaintiff, however, but


context will also do so in the teacher-on-student context.” Sh.A. ex rel. J.A. v.
Tucumcari Mun. Schs., 321 F.3d 1285, 1289 (10th Cir. 2003).
                                            6
may also consider harassment of others . . . .”). Doe may rely on evidence that

Hutchinson directed gender-based comments to other students to help establish a

general atmosphere of harassment “provided she was aware of such conduct.”

Hirase-Doi v. U.S. W. Commc’ns, Inc., 61 F.3d 777, 782 (10th Cir. 1995), abrogated

on other grounds by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher

v. City of Boca Raton, 524 U.S. 775 (1998).

      Third, Hutchinson’s argument fails to recognize that sexually charged

comments, even if not directly about gender, qualify as gender-related under our case

law. See O’Shea, 185 F.3d at 1099 (comments in which co-worker “compared his

wife to a Playboy magazine and described a dream about a naked woman jumping on

a trampoline” are related to “gender or sexual animus”); Penry v. Fed. Home Loan

Bank of Topeka, 155 F.3d 1257, 1263 (10th Cir. 1998) (comments comparing the

shape of a roof to breasts and a trip to a Hooters restaurant “have gender-related

implications”). Although we do not impose “a general civility code,” Oncale, 523

U.S. at 80, we include comments and actions that are inherently sexual in nature

under the rubric of “gender-related.”

      With these principles in mind, we conclude that the complaint sufficiently

alleges a pervasively hostile environment. Although Hutchinson argues that he

directed only a single gender-based comment toward Doe, the complaint contains

much more. It alleges that Hutchinson “routinely and openly” spoke to and about

female students in sexualized terms, and that he spoke about his own sexual acts in

front of students including Doe. Doe provides three examples: (1) Hutchinson’s

                                           7
crude statement, made in front of Doe’s gym class, that she was “used to having balls

between her legs”; (2) his request that another female gym student engage in a

sexually suggestive dance; and (3) his boasting that he frequently convinced female

students to remove their shirts and engage in activities only in their sports bras. In

addition, Hutchinson repeatedly encouraged Doe’s boyfriend to share details of

Doe’s sexual history with other students.2 He called her dumb, discouraged her from

attending events, sat on her feet in an effort to get her to leave an athletic event, and

disparaged her to her boyfriend’s father. Doe was subject to bullying and eventually

withdrew from the school.

       These allegations plausibly suggest a pervasively hostile environment and thus

suffice at the motion to dismiss stage. See Iqbal, 556 U.S. at 678; Escue, 450 F.3d at

1157. They provide far more than a “[t]hreadbare recital[] of the elements of a cause

of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. Doe’s

citation to numerous specific examples of Hutchinson’s alleged pattern of misconduct

provides the notice to Hutchinson required by Fed. R. Civ. P. 8.

       Moreover, in assessing the requisite degree of severity or pervasiveness to

support a hostile environment claim, we must be mindful of “surrounding

circumstances, expectations, and relationships,” Oncale, 523 U.S. at 81, including

      2
         Hutchinson claims that the inquiries into Doe’s sexual behavior cannot be
considered in the harassment calculus without prohibiting high school teachers from
conducting health classes or making private, appropriate inquiries out of concern for
students’ wellbeing. We disagree. Construing the complaint in the light most
favorable to Doe, see Smith, 561 F.3d at 1098, Hutchinson’s inquiries were made
either for his own prurient interest or in an effort to demean Doe in front of other
students.
                                            8
“the ages of the harasser and the victim,” Davis, 526 U.S. at 651. Hutchinson’s role

as high school teacher obviously requires greater sensitivity toward students than

would be required as between coworkers. See Oncale, 523 U.S. at 82 (“Common

sense, and an appropriate sensitivity to social context, will enable courts and juries to

distinguish between simple teasing or roughhousing among members of the same sex,

and conduct which a reasonable person in the plaintiff’s position would find severely

hostile or abusive.”). In light of all the circumstances as alleged in the complaint, we

conclude Doe has plausibly made out a § 1983 claim.

                                            B

      Hutchinson also appeals the district court’s conclusion on the second prong of

the qualified immunity analysis. For the law to be “clearly established,” there

ordinarily must be a Supreme Court or Tenth Circuit opinion on point or the clearly

established weight of authority from other circuits must point in one direction.

Medina v. City & Cty. of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) overruled on

other grounds by Morris v. Noe, 672 F.3d 1185, 1197 n.5 (10th Cir. 2012). “This is

not to say that an official action is protected by qualified immunity unless the very

action in question has previously been held unlawful, but it is to say that in light of

the pre-existing law the unlawfulness must be apparent.” Mimics, Inc. v. Vill. of

Angel Fire, 394 F.3d 836, 842 (10th Cir. 2005) (quotations omitted). “The relevant,

dispositive inquiry in determining whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct was unlawful in the situation.”



                                            9
Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007) (en banc) (quotations

omitted).

      Hutchinson relies heavily on White v. Pauly, 137 S. Ct. 548 (2017), which

stated it was “again necessary to reiterate the longstanding principle that clearly

established law should not be defined at a high level of generality” but instead

“particularized to the facts of the case.” Id. at 552 (quotations omitted). That case

reversed a decision of this court denying qualified immunity to officers because it

“failed to identify a case where an officer acting under similar circumstances as

[defendants] was held to have violated the Fourth Amendment.” Id. It held that

“general statements of the law” are not sufficient to “create clearly established law

outside an obvious case.” Id. (quotation omitted).

      We have previously held “the law holding that sexual harassment is actionable

as an equal protection violation has long been clearly established.” Sh.A., 321 F.3d

at 1288. In Sh.A., defendant was a fifth-grade teacher who repeatedly touched two

boys in his class. He “put his hand down the inside of the boys’ shirts and rubbed

their chests and backs, and put his hand under their shorts and rubbed their legs from

mid-thigh almost up to the point where their legs joined their bodies.” Id. at 1286.

We rejected the defendant’s argument that he was entitled to qualified immunity

because “the contours of an equal protection claim by a student on the basis of sexual

harassment by a teacher were [not] clearly established in 1997 and 1998 when the

conduct at issue took place,” holding that “a reasonable teacher would have known in

the spring of 1997 that sexual harassment which gives rise to a violation of equal

                                           10
protection in the employment context will also do so in the teacher-on-student

context.” Id. at 1288-89.

       Hutchinson argues that because the facts alleged in the complaint differ from

those at issue in Sh.A., which involved physical touching, he is entitled to qualified

immunity under Pauly. But Sh.A. did more than hold that the facts presented

violated plaintiffs’ equal protection rights, it clearly established the proposition that

“sexual harassment which gives rise to a violation of equal protection in the

employment context will also do so in the teacher-on-student context.” Id. At the

time of Hutchinson’s alleged conduct, we had repeatedly held in the employment

context that sexual harassment was an actionable equal protection theory. See, e.g.,

Starrett, 876 F.2d at 814; Johnson v. Martin, 195 F.3d 1208, 1217 (10th Cir. 1999).

And we had applied that rule to hostile environment claims, explaining that “[t]he

law on discrimination arising from a hostile environment in the workplace is well

established,” having been fleshed out by numerous decisions from the Supreme Court

and this court with respect to § 1983 and Title VII. Nieto, 268 F.3d at 1217-18.

       Accordingly, the question is not whether the facts of Sh.A. were sufficiently

similar to those alleged in Doe’s complaint, but whether our case law would make it

clear to reasonable officials that Hutchinson’s alleged conduct created a hostile

environment. We have already concluded that Doe’s allegations sufficiently allege a

pervasively hostile environment. The law was clearly established that Hutchinson’s

full course of conduct may be considered, including statements that were not

explicitly gender-based and those made to others of which Doe was aware. See

                                            11
Chavez, 397 F.3d at 833; Hicks, 833 F.2d at 1415. As was the proposition that we

must consider context including “the ages of the harasser and the victim.” Davis, 526

U.S. at 651. Moreover, our hostile environment jurisprudence includes many cases

not involving physical contact. See, e.g., O’Shea, 185 F.3d at 1098-99 (defendant

made generalized derogatory comments about women, told others plaintiff was

incompetent, told coworkers about a sexual dream, and compared his wife to a

Playboy magazine); Bertsch v. Overstock.com, 684 F.3d 1023, 1025-26, 1028 (10th

Cir. 2012) (coworker said the department would be better if males were doing the

job, had a poster of a scantily clad woman in his cubicle, ridiculed plaintiff in

meetings, and refused to look at her).

      In light of the foregoing, we conclude that any reasonable high school teacher

would have understood that the conduct alleged created a hostile environment in

violation of Doe’s equal protection rights.

                                           III

      AFFIRMED.




                                              Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge




                                           12
