                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 11-2894
                                  ___________

Charvette Williams,                     *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Rodney Herron, in his official and      *
individual capacity,                    *
                                        *
                                        *
             Appellant.                 *
                                   ___________

                            Submitted: February 16, 2012
                               Filed: August 3, 2012
                                ___________

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
                          ___________

SHEPHERD, Circuit Judge.

       Charvette Williams brought suit under 42 U.S.C. § 1983 against the County of
Dakota, Nebraska, and former county official Rodney Herron. She alleged
defendants committed gender discrimination in violation of her Fourteenth
Amendment rights. Herron appeals the district court’s1 denial of summary judgment,
asserting that he was entitled to qualified immunity. We affirm.

      1
       The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
                                   I. Background

      In January 2007, then Dakota County Chief Deputy Sheriff Rodney Herron
hired Charvette Williams as a correctional officer at the Dakota County Jail (DCJ).2
Herron possessed direct authority over DCJ employees until January 2008, when he
ceased serving as jail administrator. After that time, he retained authority over DCJ
employees by virtue of sheriff department hierarchy, meaning that Williams could not
disregard his direct orders. Herron maintained a constant presence at DCJ, as he
worked from an office there. In April or May 2008, Williams and Herron began a
sexual relationship, which continued until early August 2008. The relationship began
to sour in June; a June 23 email from Williams to Herron expressed Williams’s
discontent, stating,

      I know you don’t like me and I know you dont want to be with me other
      than sex if even that anymore. I just need closure. . . . As for me I have
      never felt so unwanted in my life and I am tired of it and tired of you
      blowing me off. I can just not talk to you with out telling you how I feel
      because then I will keep on thinking that maybe you will come around.
      I am done now. This is my closure.

       Williams explained in response to interrogatories that by July she “wanted
out,” and “the touching, groping and sex was no longer consensual.” However, the
relationship continued because Williams feared she would lose her job if she ended
it. She had heard rumors of other DCJ employees who lost their jobs after ending
sexual relationships with Herron. When she asked Herron whether she could be fired
for “messing around with [him],” Herron assured her that she would not lose her job.
Williams claimed that Herron committed the following unwelcome harassment in July

      2
       For the purposes of this appeal, we take as true those facts the district court
found or likely assumed as true—so long as they are not blatantly contradicted by the
record—and make all reasonable inferences in favor of the plaintiff regarding any
unresolved factual questions. See infra, part II.A.

                                         -2-
2008: after she suggested that they should end their relationship, he walked by her
workstation all day making sad “puppy dog faces”; he waited for her where
employees clock out, and when she arrived he grabbed her, hugged her, and
complimented the smell of her hair; and on another occasion, he began hugging and
kissing her while she was in his office, and then had intercourse with her.

       The relationship ended in early August 2008. Soon thereafter, Williams
learned she was pregnant by Herron, but she induced a miscarriage by taking
ibuprofen in a suicide attempt. When Herron learned of the pregnancy and
miscarriage, he became angry and told Williams that she would cost him a local
sheriff’s election. (Herron was a candidate for Dakota County Sheriff at that time.)
In early September 2008, Herron asked Williams if they could continue as friends.
She avoided him and asked a fellow employee to tell him to leave her alone. In
October she transferred to the night shift to avoid seeing Herron at work. She did not
desire the transfer, as it made her home life significantly more difficult.

       Williams claimed that she received special treatment while continuing her
sexual relationship with Herron, including the ability to take paid leave at his request.
She also provided evidence that (1) Herron had carried on sexual relationships with
at least two other female DCJ employees, he aggressively pursued a relationship with
a third employee after having two sexual encounters with her, and those women all
either quit or were fired; (2) Herron rewarded the women who gave in to him with
workplace benefits; (3) Herron told one of those women that he would fire her if she
did not do what he wanted; and (4) other DCJ superiors had engaged in similar
conduct with female employees.

       Williams brought suit against Herron and Dakota County in June 2009. In her
second amended complaint, she alleged that Herron sexually harassed her by creating
and fostering a hostile work environment, in violation of her Fourteenth Amendment
rights. Acting in his individual capacity, Herron moved for summary judgment in

                                           -3-
April 2011, arguing that he was entitled to qualified immunity. The district court
denied the motion. First, it concluded that an employee’s right to be free from gender
discrimination was clearly established under the Fourteenth Amendment. Second, it
concluded that genuine questions of material fact existed as to whether Herron
violated Williams’s constitutional rights, including whether Herron committed
widespread sexual favoritism at DCJ and whether his conduct towards Williams was
sufficiently severe or pervasive as to affect a term or condition of employment. Based
on the district court’s statements that genuine questions of material fact existed as to
whether Herron violated Williams’s constitutional rights, we conclude that the district
court also found Williams showed a constitutional violation when viewing the facts
in the light most favorable to her.

                                     II. Analysis

       On appeal, Herron argues that he was entitled to qualified immunity, and that
the district court should have granted him summary judgment on that basis. As an
initial matter, we must address whether this court has jurisdiction over Herron’s
appeal. If we find jurisdiction is proper, we will continue to discuss whether Herron
possessed qualified immunity.

                                   A. Jurisdiction

       We review questions of subject matter jurisdiction de novo. Cmty. Fin. Grp.,
Inc. v. Republic of Kenya, 663 F.3d 977, 980 (8th Cir. 2011). This court generally
lacks jurisdiction over interlocutory appeals challenging the denial of a summary
judgment motion. Krout v. Goemmer, 583 F.3d 557, 563-64 (8th Cir. 2009).
However, under the collateral-order doctrine, this court has jurisdiction over such an
appeal when it involves a denial of qualified immunity, so long as the appeal
challenges only abstract issues of law. Id. at 564. Review becomes more complicated
when, as here, an appellant challenges issues of both law and fact. In these

                                          -4-
circumstances, we apply de novo review; yet in doing so, we must take as true those
facts the district court found or likely assumed as true, Brown v. Fortner, 518 F.3d
552, 557-58 (8th Cir. 2008), so long as those facts are not blatantly contradicted by
the record, Scott v. Harris, 550 U.S. 372, 380 (2007). As to any unresolved factual
questions, we make all reasonable inferences in favor of the plaintiff. Brown, 518
F.3d at 558.

                               B. Qualified Immunity

       On summary judgment, government officials possess qualified immunity unless
(1) the facts plaintiff has shown amount to a violation of a constitutional right, and
(2) the right violated was clearly established when the alleged misconduct occurred.
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). A court may begin its analysis
with either prong. Id. For our purposes, we will first determine whether Williams has
shown that Herron violated her Fourteenth Amendment rights, looking to the facts in
the manner described above. If she has met her burden, we will then determine
whether the violation was clearly established at the time it occurred.

                   1. Did Herron Violate a Constitutional Right?

       To succeed on a Fourteenth Amendment hostile-work-environment claim for
sexual harassment, a plaintiff must show that (1) she belongs to a protected group, (2)
she was subjected to unwelcome sexual harassment, (3) the harassment was based on
sex, and (4) the harassment affected a term, condition, or privilege of employment.
Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003). “To be actionable, harassment
must be both objectively and subjectively offensive, such that a reasonable person
would consider it to be hostile or abusive . . . .” Erenberg v. Methodist Hosp., 357
F.3d 787, 792 (8th Cir. 2004).




                                          -5-
      On appeal, Herron contends that Williams did not sufficiently show the second
and fourth elements of her claim. We address each in turn.

      In regard to the second element, we find Williams presented sufficient evidence
to show she adequately communicated to Herron that his conduct was unwelcome.
See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986) (“The correct inquiry is
whether respondent by her conduct indicated that the alleged sexual advances were
unwelcome . . . .”). The harassing conduct alleged by Williams began in July 2008
and included Herron grabbing and hugging her while she was clocking out, making
pouty faces at her all day after she informed him she no longer wished to have sex
with him, and initiating a sexual encounter with her in his office. See id. (noting that
voluntary sexual activity may also be unwelcome harassment; question “turns largely
on credibility determinations committed to the trier of fact”); Quick v. Donaldson
Co., 90 F.3d 1372, 1377 (8th Cir. 1996) (“[S]exual harassment includes sexual
advances, requests for sexual favors, and other verbal or physical conduct of a sexual
nature.”).

       Williams informed Herron she was uncomfortable continuing their relationship
in late June 2008, and again in July—an instance that specifically prompted
workplace harassment from Herron. Williams also informed Herron of her concern
that she would lose her job if she ended their relationship, which she based on the
way his past relationships with DCJ employees had ended. See Quick, 90 F.3d at
1377-78 (harassing conduct is unwelcome if it was uninvited and offensive; proper
inquiry is whether plaintiff indicated by her conduct that harassment was
unwelcome). Therefore, we believe Williams supplied sufficient evidence that she
considered Herron’s conduct to be unwelcome harassment, that a reasonable person
would agree, and that she communicated to Herron that his conduct was unwelcome
in a way that a reasonable person would understand.




                                          -6-
       In regard to the fourth element, Williams must show that Herron’s conduct was
“so severe or pervasive as to alter a term, condition, or privilege of [her]
employment.” Duncan v. Gen. Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002).
This element presents a high threshold, requiring a showing that “the workplace [was]
permeated with discriminatory intimidation, ridicule, and insult.” Id. (quoting Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (internal quotation marks omitted). It
includes both a subjective and objective inquiry. Id. To determine whether the
conduct complained of was sufficiently severe or pervasive, “we look to the totality
of the circumstances, including the ‘frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Id. (quoting Harris, 510 U.S. at 23).

        As evidenced by depositions of DCJ employees (including that of Williams),
Herron established a pervasive system of sexual coercion at DCJ, enticing women to
enter it with workplace benefits and securing their continued participation with the
threat of negative employment consequences. Before Williams, he pursued at least
three other DCJ employees in this manner, all of whom lost their jobs after ending
their relationships with him. Once Williams began viewing Herron’s conduct toward
her as unwelcome, her employment status became jeopardized, and her submission
to his conduct became a factor weighing on her continued DCJ employment. That
conduct included the continuation of her sexual relationship with him, as well as
unwelcome grabbing, hugging, and distractive behavior in the workplace, and an
unwelcome sexual encounter in his office. See Moring v. Ark. Dep’t of Corr., 243
F.3d 452, 456-57 (8th Cir. 2001) (one isolated incident may be sufficiently severe so
as to alter terms and conditions of employment; court found conduct was sufficiently
severe when supervisor entered plaintiff’s hotel room, sat on her bed, touched her leg,
and leaned in to kiss her). Herron’s conduct was rendered all the more severe and
coercive by the abusive workplace environment in which it occurred, an environment
that his prior relationships with DCJ employees had created. See, e.g., Sandoval v.

                                          -7-
Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009) (“When judging the
severity and pervasiveness of workplace sexual harassment, this court has long held
harassment directed towards other female employees is relevant and must be
considered.”). Williams explained that Herron’s conduct made her very distressed,
resulting in depression, anxiety, missed work, crying while on the job, and an
undesired shift change.

       Looking to the totality of the circumstances, we believe Williams showed she
considered Herron’s conduct to be severe enough to alter the terms, conditions, or
privileges of her employment, and that a reasonable person would consider it the
same. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 82 (1998) (“Common
sense, and an appropriate sensitivity to social context, will enable courts and juries
to distinguish between simple teasing or roughhousing . . . and conduct which a
reasonable person in the plaintiff’s position would find severely hostile or abusive.”).
Williams provided evidence that Herron’s conduct was severe, physically threatening,
and an unreasonable interference with her work performance. Therefore, we believe
Williams has sufficiently shown the fourth element of her hostile-work-environment
claim. See Howard v. Burns Bros., 149 F.3d 835, 840 (8th Cir. 1998) (“Once there
is evidence of improper conduct and subjective offense, the determination of whether
the conduct rose to the level of abuse is largely in the hands of the jury.”).

       Herron argues on appeal that the above analysis is not enough. Relying on
Anderson v. Creighton, 483 U.S. 635 (1987), he contends that to satisfy the first
qualified-immunity prong, Williams must support her claim using only those facts
known to Herron when the violation occurred. In Anderson, the Supreme Court held
that when courts analyze whether a violated right is clearly established, they must
conduct an objective inquiry looking to the particular facts of the case, ultimately
determining whether “a reasonable official would understand that what he is doing
violates” a constitutional or statutory right. Id. at 640. The Court further explained
that in the context of whether a police search was supported by probable cause or

                                          -8-
exigent circumstances, the analysis “will often require examination of the information
possessed by the searching officials.” Id. at 641. Herron contends that this same
examination must also apply to the second and fourth elements of Williams’s hostile-
work-environment claim, requiring her to show each using only those facts he knew
when the violation occurred.

       We reject Herron’s argument for the following reasons. First, in the twenty-
five years since Anderson was decided, we are unaware of any case that has applied
Anderson to sexual-harassment claims in the way Herron suggests. Cf. Wright v.
Rolette County, 417 F.3d 879, 884-86 (8th Cir. 2005) (court did not apply additional
knowledge requirement when conducting qualified-immunity analysis in sexual
harassment hostile-work-environment claim context). Second, to determine whether
a warrantless search was justified by probable cause or exigent circumstances, a court
must consider the information possessed by the officer when he conducted the search;
however, a defendant’s lack of subjective knowledge as to whether his advances were
unwelcome or were serious enough to affect a term or condition of employment is not
determinative for purposes of hostile-work-environment claims. Finally, Anderson
dealt only with the second prong of the qualified-immunity analysis, and does not
apply to whether a plaintiff has shown a constitutional violation occurred. See Okin
v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 433 n.11 (2d Cir. 2009)
(explaining that Anderson’s objectively reasonable inquiry applies only to the second
qualified-immunity prong; an officer may not avoid liability under the first prong by
claiming he possessed an objectively reasonable belief that his conduct was lawful).

      Based on the foregoing, we conclude Williams has met her burden to show that
Herron violated her Fourteenth Amendment right to be free from gender
discrimination.




                                         -9-
             2. Was the Right Herron Violated Clearly Established?

        Next, we must determine whether the right Herron violated was clearly
established. “A Government official’s conduct violates clearly established law when,
at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently
clear’ that every ‘reasonable official would have understood that what he is doing
violates that right.’” al-Kidd, 131 S. Ct. at 2083 (alterations in original) (quoting
Anderson, 483 U.S. at 640). This prong is a fact-intensive inquiry that looks to the
specific facts of the case, and is not satisfied by general pronouncements of law.
Moore v. Indehar, 514 F.3d 756, 759 (8th Cir. 2008). Thus, the question is whether
a reasonable official would have known that the specific conduct Herron engaged in
amounted to a constitutional violation. To answer it, “we look to the state of the law
at the time of the incident.” Shekleton v. Eichenberger, 677 F.3d 361, 367 (8th Cir.
2012). Even when no decision involves similar facts, “a right can be ‘clearly
established’ if a reasonable public official would have known that the conduct
complained of was unlawful.” Turner v. Ark. Ins. Dep’t, 297 F.3d 751, 755 (8th Cir.
2002).

       We find that the right Herron violated was clearly established. Hostile work
environments caused by sexual harassment have long been recognized as
constitutional violations. See, e.g., Moring, 243 F.3d at 455-56. It is also clearly
established that such claims can arise from relationships that were once consensual
but later became unwelcome. See, e.g., Mukaida v. Hawaii, 159 F. Supp. 2d 1211,
1231 (D. Haw. 2001) (enough evidence for hostile-work-environment claim where
only some of employer’s sexual conduct may have been unwelcome); Scelta v.
Delicatessen Support Servs., 89 F. Supp. 2d 1311, 1318 (M.D. Fla. 2000) (regarding
hostile-work-environment claims: “[t]here comes a point in time when consensual
sexual relations end and unwelcome sexual harassment begins”). Because prior court
decisions indicate that the specific facts of Williams’s claim support Herron’s liability



                                          -10-
for gender discrimination, we find that a reasonable public official would have known
Herron’s conduct was unlawful.

       Herron attempts to distinguish his case on appeal by arguing that we must limit
our clearly established right analysis to cases involving section 1983 and qualified
immunity; he further asserts that the type of claim brought by Williams has never
given rise to section 1983 liability. We have previously held that section 1983
sexual-harassment claims are treated the same as sexual-harassment claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Moore v.
Forrest City Sch. Dist., 524 F.3d 879, 883 (8th Cir. 2008); Weger v. City of Ladue,
500 F.3d 710, 717 n.4 (8th Cir. 2007); Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir.
2003); see also Wright, 417 F.3d at 884-85 (listing cases). It should be no surprise
that we apply the same treatment here, making Title VII sexual-harassment cases
relevant to our determination. As explained above, a qualified-immunity analysis
does not augment a plaintiff’s burden to show her hostile-work-environment claim.
Thus, because our claim analysis is the same regardless of whether qualified
immunity is implicated, we may rely on cases not involving qualified immunity when
determining whether a violation is clearly established.

                3. Herron Was Not Entitled to Qualified Immunity

       “Summary judgment should not be granted unless the moving party has
established the right to a judgment with such clarity as to leave no room for
controversy.” See Greer v. Shoop, 141 F.3d 824, 826 (8th Cir. 1998) (quoting Vacca
v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)) (internal
quotation marks omitted). Because we find that Williams has satisfied both prongs
of the qualified-immunity analysis, we agree with the district court that Herron was
not entitled to qualified immunity, and that he was therefore not entitled to summary
judgment on that basis.



                                         -11-
                                 III. Conclusion

       We agree with the district court’s denial of Herron’s summary judgment
motion. Taking the facts in the light most favorable to Williams, she sufficiently
showed that Herron’s conduct toward her was unwelcome harassment, and that it was
serious enough to alter a term or condition of her employment. In addition, she
showed that Herron’s conduct violated a clearly established right, based on the
particular facts of this case. Accordingly, we affirm.
                         ______________________________




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