                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         April 6, 2006
                          FOR THE TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court

    PAMELA D. FYE,

            Plaintiff-Appellee,

    v.                                                 No. 04-6363
                                                 (D.C. No. 03-CV-1477-C)
    OKLAHOMA CORPORATION                               (W.D. Okla.)
    COMMISSION; BOB ANTHONY,
    individually; JEFF CLOUD,
    individually; R. CLARK MUSSER,
    individually,

            Defendants,

         and

    DENISE A. BODE; TOM DAXON,
    individually,

            Defendants-Appellants.




                           ORDER AND JUDGMENT *




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Before LUCERO, EBEL, and MURPHY, Circuit Judges.



      Appellants bring this interlocutory appeal from the district court’s denial of

qualified immunity. Qualified immunity generally shields government officials

“from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Although

plaintiff disputes our jurisdiction over this appeal, we conclude that jurisdiction is

proper pursuant to 28 U.S.C. § 1291 and AFFIRM.

                                  I. Background 1

      During the time relevant to this case, Plaintiff Pamela D. Fye worked for

defendant Oklahoma Corporation Commission (OCC), a state agency, as the

Director of the Administrative Division. Defendant Denise A. Bode was an

Oklahoma Corporation Commissioner. Defendant Tom Daxon became the OCC’s

acting General Administrator on February 3, 2003, and Fye reported directly to

him. 2 In response to Daxon’s inquiry whether discrimination or sexual

harassment was an issue within the OCC, Bode referred him to Fye because Fye




1
      Although some of the facts in this case are disputed, we accept Fye’s
version of them as true for purposes of this appeal only.
2
      Fye’s claims against the other defendants are not at issue in this appeal.

                                         -2-
had complained about sexual harassment by a former General Administrator, Jay

Edwards, in 1999. Bode had responded promptly to that complaint.

      Fye alleges that Daxon persistently and repeatedly asked her for specific

details about Edwards’ conduct over the course of several weeks in February

2003. Fye declined to answer Daxon’s questions about Edwards, telling him on at

least two occasions that she was uncomfortable discussing it. Fye contends that

she told Bode about Daxon’s behavior on February 24, 2003, but Bode never

investigated her complaint.

      In her role as Alternate Grievance Manager, Fye received complaints about

Daxon from other employees, including Karen DePue. Among other things,

DePue told Fye that Daxon said viewing pornography on his home computer had

aroused him, and he compared her to the women that he viewed.

      On March 4, Fye delivered a letter to Daxon’s office in which she asked

that he stop asking about the Edwards matter and requested that another employee

be present whenever the two of them had to discuss work matters. The letter

reinforced Daxon’s concern that friction between Fye and other employees was

adversely affecting the functioning of the office. Daxon decided to terminate

Fye’s employment because he felt the situation was beyond repair. He completed

a termination letter that was delivered to Fye on March 6, effective immediately.




                                        -3-
      In her amended complaint in this action, Fye raised a number of claims, two

of which are pertinent to this appeal, (i) a sexual harassment claim against the

OCC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to

2000e-17, and (ii) a claim pursuant to 42 U.S.C. § 1983 that Daxon and Bode

violated her right to equal protection under the Fourteenth Amendment. The

district court denied the OCC’s motion for summary judgment as to the Title VII

claim, finding that Daxon’s repeated attempts to obtain specific details about the

Edwards matter could be construed as an “effort to force Fye to recount all the

salacious details of her encounters with Edwards for Daxon’s personal sexual

satisfaction.” Aplt. App. II at 613. The court considered its interpretation

reasonable in light of the allegation in DePue’s affidavit concerning Daxon’s

statements about viewing pornography on the internet and comparing DePue to

the women he viewed there. Considering Fye’s contention that Daxon questioned

her “almost daily,” the court concluded that a reasonable juror could find that

“daily questioning about such a sensitive subject is sufficiently pervasive to

interfere with a reasonable person’s work performance.” Id. at 614.

      In addressing the motion for summary judgment as to the § 1983 claim

against Daxon, the court referenced the findings in its Title VII analysis and

concluded that, because it was clearly established at the time of Daxon’s conduct

that sexual harassment under color of state law violates the Equal Protection


                                         -4-
Clause, he was not entitled to qualified immunity. The court also concluded that

Bode was not entitled to qualified immunity because, at the time of her alleged

failure to act on Fye’s complaint, it was clearly established that a supervisor may

be liable under § 1983 if she had actual knowledge of sexual harassment and

failed to take action. This appeal followed.

                                  II. Jurisdiction

      Under the collateral order doctrine, “a district court’s denial of a claim of

qualified immunity, to the extent that it turns on an issue of law, is an appealable

‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the

absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

However, this jurisdiction is limited to appeals challenging “not which facts the

parties might be able to prove, but, rather, whether or not certain given facts

showed a violation of ‘clearly established’ law.” Johnson v. Jones, 515 U.S. 304,

311 (1995) (quoting Mitchell, 472 U.S. at 528). Thus, “a defendant, entitled to

invoke a qualified immunity defense, may not appeal a district court’s summary

judgment order insofar as that order determines whether or not the pretrial record

sets forth a ‘genuine’ issue of fact for trial.” Id. at 319-20. Nevertheless, if a

defendant’s appeal of the denial of qualified immunity “is based on the argument

that, even under the plaintiff’s version of the facts, the defendant did not violate

clearly established law, then the district court’s summary judgment ruling is


                                         -5-
immediately appealable.” Johnson v. Martin, 195 F.3d 1208, 1214 (10th Cir.

1999).

         Here, Daxon and Bode maintain that they are entitled to qualified immunity

even under Fye’s version of the facts. Although they question those facts at some

points in their briefing, we have jurisdiction over their challenge to the denial of

qualified immunity to the extent it is limited to Fye’s version of the facts.

                                     III. Merits

         “We review the denial of a summary judgment motion raising qualified

immunity questions de novo.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.

2001). When a defendant raises the defense of qualified immunity, a plaintiff

must establish that the defendant’s conduct violated a federal constitutional or

statutory right and that the right was clearly established at the time of the

conduct. Id.

         Daxon contends that his conduct, as alleged by Fye, does not constitute

actionable sexual harassment. He argues that his conduct was not severe or

pervasive enough to rise to the level of a constitutional violation because it

consisted only of asking her about the Edwards matter on four separate occasions

and she never recounted the details. In other words, he argues that his conduct

did not create a hostile work environment. We disagree. “For sexual harassment

to be actionable, it must be sufficiently severe or pervasive ‘to alter the


                                          -6-
conditions of [the victim’s] employment and create an abusive working

environment.’” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)

(brackets in original) (quoting Henson v. City of Dundee, 682 F.2d 897, 904

(11th Cir. 1982)). The conduct must be severe or pervasive enough to create an

environment that is both subjectively and objectively hostile or abusive. Smith v.

Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997). Whether an

environment is hostile or abusive is determined by looking at the totality of the

circumstances. Id. Although the test is phrased in the disjunctive, severity and

pervasiveness are interdependent: The more severe the conduct, the less

pervasive it needs to be; the more pervasive, the less severe. Cf. Lockard v. Pizza

Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (rejecting the notion that a single

occurrence can never constitute sexual harassment).

      There is no question that Fye subjectively considered Daxon’s questioning

hostile or abusive. Based on the sensitive subject matter of his inquiries and the

frequency with which they occurred, a reasonable juror could conclude that

Daxon pursued his questioning of Fye for his own sexual gratification and that the

conduct was severe or pervasive enough to constitute a violation of Fye’s equal

protection rights. 3 DePue’s complaints about Daxon’s conduct support, but are


3
     Appellants contend that the record reflects Daxon questioned Fye about the
Edwards matter only four times, not “almost daily” as the district court found.
                                                                      (continued...)

                                         -7-
not essential to, this conclusion. Therefore, we decline appellants’ invitation to

exercise jurisdiction over the district court’s denial of their motion to strike

DePue’s affidavit. See Stewart v. Oklahoma, 292 F.3d 1257, 1260 (10th Cir.

2002) (explaining that this court will exercise pendent appellate jurisdiction in

interlocutory appeals where a matter is inextricably intertwined with, or necessary

to a meaningful review of, the appealable decision). We also disagree with

appellants that an important consideration is the fact Fye did not provide details

of the Edwards matter to Daxon; the harassment consists of the asking.

      Daxon argues that his conduct falls far short of the conduct that was at

issue in a plethora of cases where a court held as a matter of law that there was no

hostile work environment. However, none of those cases presents a factual

situation analogous to the present one. Therefore, they are of little help in

gauging the severity or pervasiveness of the conduct at issue here.

      Having determined that Daxon’s conduct, as alleged by Fye, violated a

federal constitutional right, we now turn to whether the right was clearly

established at the time of the conduct. “[I]n order for the law to be clearly

established, there must be a Supreme Court or Tenth Circuit decision on point, or

the clearly established weight of authority from other courts must have found the


3
 (...continued)
The sufficiency of the district court’s factual finding is outside of the scope of
our jurisdiction under the collateral order doctrine. See Johnson, 515 U.S. at 313.

                                          -8-
law to be as the plaintiff maintains.” Medina v. City & County of Denver,

960 F.2d 1493, 1498 (10th Cir. 1992). The authoritative case need not present the

identical fact situation; rather, the parties need only “make a reasonable

application of existing law to their own circumstances.” Martin, 195 F.3d at

1216.

        The district court relied on Woodward v. City of Worland, 977 F.2d 1392,

1397 (10th Cir. 1992), for the proposition that, at the time of Daxon’s conduct, it

was clearly established that sexual harassment committed under color of state law

is a violation of the Equal Protection Clause. Daxon argues that it is insufficient

to identify an abstract constitutional right such as a right to be free of sexual

harassment. Instead, Daxon urges us to undertake a more “particularized” review

of his actions. Essentially, Daxon asks us to determine that his conduct did not

violate a clearly established constitutional right because, at the time of his

conduct, there was no case factually similar enough to this case.

        We think the general statement in Woodward is sufficient under the facts of

this case. A reasonable official should have known that repeatedly attempting to

force an employee to recount salacious details of sexual harassment by another

employee for the official’s own sexual gratification falls within the sexual

harassment proscribed by Woodward. Therefore, Daxon is not entitled to

qualified immunity.


                                          -9-
      Any concern about a lack of particularity in Woodward is assuaged by our

decision in Martin, 195 F.3d 1208. Martin concerned the liability of a municipal

employee and his supervisors for the employee’s request for sexual favors from

non-employees in return for favorable decisions on permit applications. We held

that a public official’s “abuse of any one of a number of kinds of authority for

purpose of one’s own sexual gratification . . . would violate the Equal Protection

Clause.” Martin, 195 F.3d at 1218. We conclude that it is reasonable to apply the

holding of Martin to the circumstances of this case notwithstanding the factual

differences between the two. In his position as Fye’s superior, Daxon repeatedly

inquired about her past complaint of sexual harassment. Assuming he did this for

his own sexual gratification, he abused his authority and violated Fye’s equal

protection rights. Therefore, even if it is unreasonable to apply Woodward to the

facts of this case, Daxon is not entitled to qualified immunity under Martin.

      Fye alleges that she told Bode about Daxon’s conduct and that Bode never

investigated it. “Such knowledge and subsequent inaction is sufficient to

establish supervisory liability under § 1983.” Martin, 195 F.3d at 1220. Bode’s

complete inaction in the face of actual knowledge, if proven, violated a

constitutional right that was, at the time, clearly established, and she is not

entitled to qualified immunity.




                                          -10-
      Bode contends that she was merely negligent in failing to investigate the

complaint in the few days that elapsed between the day Fye complained

(February 24) and the day Daxon terminated her employment (March 6). Because

negligence is insufficient to establish supervisor liability under § 1983, see

Martin, 195 F.3d at 1219, Bode concludes that she is entitled to qualified

immunity. She also suggests that Fye sustained no compensable injuries after

voicing her complaint to Bode. We are not persuaded. Bode promptly

investigated Fye’s earlier complaint about Edwards, but did nothing to investigate

Fye’s complaint about Daxon. A reasonable juror could conclude that Bode’s

complete failure to investigate the complaint about Daxon was more than a

negligent delay. Whether Fye sustained any compensable injuries as a result of

Bode’s inaction is outside the scope of our review under the collateral order

doctrine.

      The order of the district court denying appellants’ motion for summary

judgment on the defense of qualified immunity is AFFIRMED.

                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




                                         -11-
