                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 9 1999
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    LOUELLA WATKINS,

                Plaintiff-Appellee,

    v.                                                 No. 98-1063
                                                   (D.C. No. 97-Z-1306)
    COLORADO DEPARTMENT OF                               (D. Colo.)
    CORRECTIONS; ARISTEDES
    ZAVARAS, in his official capacity,

                Defendants,

          and

    RICHARD MARR, individually
    and in his official capacity;
    JOSEPH PAOLINO, individually,

                Defendants-Appellants.




                              ORDER AND JUDGMENT        *




Before BRORBY , EBEL , and BRISCOE , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
       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.

       Defendants-appellants Richard Marr and Joseph Paolino (hereafter

defendants) appeal the district court’s denial of their motion to dismiss certain of

plaintiff’s claims against them in their individual capacities, based on the defense

of qualified immunity from suit.     Defendants also ask us to review the district

court’s refusal to dismiss plaintiff’s pendant state law claims against them.

We have jurisdiction to review the district court’s denial of qualified immunity.

See Tonkovich v. Kansas Bd. of Regents        , 159 F.3d 504, 515 (10th Cir. 1998).

We decline to exercise pendant appellate jurisdiction over the district court’s

denial of defendants’ motion to dismiss plaintiff’s state law claims.     See United

Transp. Union Local 1745 v. City of Albuquerque        , Nos. 97-2394, 97-2400,

1999 WL 343918, at *3 (10th Cir. May 28, 1999) (holding court’s exercise of

pendent appellate jurisdiction is discretionary). “[T]he exercise of pendent

appellate jurisdiction ‘is generally disfavored.’”    Armijo ex rel. Chavez v. Wagon

Mound Pub. Schs. , 159 F.3d 1253, 1264 (10th Cir. 1998) (further quotation

omitted).




                                             -2-
       We review the denial of defendants’ Rule 12(b)(6) motion de novo,

applying the same standard as did the district court.      See Breidenbach v. Bolish ,

126 F.3d 1288, 1291 (10th Cir. 1997). Accepting the well-pleaded allegations of

the complaint as true and construing them in the light most favorable to the

plaintiff, the district court may appropriately dismiss a complaint only when it

appears that plaintiff can prove no set of facts in support of her claims that would

entitle her to relief.     See Yoder v. Honeywell, Inc. , 104 F.3d 1215, 1224

(10th Cir. 1997).        The standard is somewhat different when the basis for dismissal

is qualified immunity,       see Breidenbach , 126 F.3d at 1291, because once the

defense of qualified immunity is raised, the plaintiff must demonstrate “both that

the defendant[s’] alleged conduct violated the law and that that law was clearly

established when the alleged violation occurred.”        See Workman v. Jordan ,

32 F.3d 475, 479 (10th Cir. 1994) (quotation omitted).

       Plaintiff must demonstrate that the defendants’ conduct violated the law.

To this end, she must show facts which, if true, would establish the violation.

See Taylor v. Meacham , 82 F.3d 1556, 1559 (10th Cir. 1996). Here, defendants

contend that plaintiff has failed to set forth specific facts sufficient to defeat their

claims of qualified immunity. They also argue that the district court failed to

describe with particularity the factual allegations supporting relevant claims in

plaintiff’s second amended complaint that demonstrate constitutional violations.


                                              -3-
While the district court might have better elaborated on the basis for its decision,

we think the court’s determination that plaintiff’s second amended complaint met

her heightened burden of pleading under     Workman is adequate. We therefore

need not consider whether this standard was modified by     Crawford-El v. Britton ,

118 S. Ct. 1584 (1998).

       Because the defense of qualified immunity was raised in the context of

a Fed. R. Civ. P. 12(b)(6) motion to dismiss, review of the qualified immunity

defense is limited to the pleadings, and we construe the allegations in the

amended complaint and any reasonable inferences to be drawn therefrom in

plaintiff’s favor.   See Dill v. City of Edmond , 155 F.3d 1193, 1203 (10th Cir.

1998). However, we also consider the “heightened pleading standard, [which

requires] the complaint to contain specific, non-conclusory allegations of fact

sufficient to allow the district court to determine that those facts, if proved,

demonstrate that the actions taken were not objectively reasonable in light of

clearly established law.”   See id. at 1204 (quotation omitted). Once the defense is

raised, a plaintiff may amend her complaint to include additional “specific,

non-conclusory allegations of fact” sufficient for the district court to determine if

defendants are entitled to qualified immunity.    See id. (quotation omitted). In this

case, plaintiff did amend her complaint.




                                            -4-
       Plaintiff also bears the burden of showing that defendants have violated

clearly established law. Here, plaintiff “‘must identify a clearly established

statutory or constitutional right of which a reasonable person would have known,

and then allege facts to show that the defendant’s conduct violated that right.’”

Breidenbach , 126 F.3d at 1291 (citing   Harlow v. Fitzgerald , 457 U.S. 800, 818

(1982)). We first ask what was the clearly established law with respect to

plaintiff’s constitutional rights at the time defendants allegedly violated them.

If the law was not clearly established, defendants are entitled to dismissal of

plaintiff’s claims against them.   See id. If the law was clearly established, we

then ask whether defendants’ conduct was objectively reasonable in light of this

clearly established law.   See id. Accordingly, we analyze this issue of qualified

immunity with respect to each cause of action against these defendants under

42 U.S.C. § 1983, i.e., the claim that defendants violated her First and Fourteenth

Amendment rights.     See Tonkovich , 159 F.3d at 517.

       As stated in the complaint, during the relevant time period, plaintiff was

employed by the Colorado Department of Corrections (DOC) as a correctional

officer at the Arkansas Valley Correctional Facility (AVCF). Defendant Paolino

was the assistant superintendent at AVCF through most of March 1996.

Defendant Marr was appointed superintendent at AVCF during 1996. Appellants’

App. at 33-36.


                                           -5-
                                  First Amendment Claim

       Plaintiff alleges that defendants have engaged in the continued violation of

her First Amendment rights to free speech and to petition the government for

redress of grievances.    See Appellants’ App. at 52. In her complaint, she alleges

that actions were taken against her for providing testimony concerning improper

governmental conduct aimed at a black female officer, providing information in

support of the officer’s discrimination complaints, and for reporting information

indicating defendant Paolino had asked an inmate to “set up” a white female

officer for disciplinary actions or criminal prosecution.      See id. at 53. She also

alleged defendant Paolino encouraged others to spy on her and branded her as a

“liar, a troublemaker, and a bitch.”     See id. She further claims defendant Paolino

encouraged defendant Marr to take disciplinary or corrective action or other

punitive sanctions against her to try to discredit her.     See id.

       She contended that her reporting of offensive behavior by defendants

concerning the production of a “sexually-charged skit,” which made fun of

“women, minorities, and people who file sexual harassment charges,”            id. at 36,

caused defendants to punish her and that defendant Marr allowed her office to be

searched, communicated to the Central Department of Corrections Office that she

was a troublemaker, and encouraged others to ostracize her,           see id. at 54-55. She

claims this retaliation was in response to her reporting of alleged illegal or

                                              -6-
inappropriate actions by high-ranking DOC Employees, for refusing to tolerate

alleged discrimination and harassment within the DOC, and for violating the

DOC’s “Code of Silence,” which plaintiff claims punishes individuals who stand

up against discrimination, harassment, or inappropriate actions within the DOC.

Id. at 30.

       Plaintiff alleges that defendants took these actions against her specifically

for speaking out in opposition to widespread sexual harassment perpetuated

against women and with the express purpose of silencing her and preventing her

from exercising her First Amendment rights.       See id. at 55. Taking her statements

as true, we conclude that at this stage of the proceedings, plaintiff has adequately

set forth sufficient facts showing the personal involvement of these defendants to

survive a motion to dismiss.   Moreover, plaintiff’s speech may be “‘fairly

characterized as constituting speech on a matter of public concern.’”    Prager v.

LaFaver , No. 98-3116, 1999 WL 390859, at *3 (10th Cir. June 15, 1999) (quoting

Connick v. Myers , 461 U.S. 138, 146 (1983));     see also Workman , 32 F.3d at 482

(“A sexist atmosphere within the [DOC] is a matter of concern for the

community.”).

       Defendants respond that plaintiff has failed to supply “numerous crucial

factual elements” needed to defeat their claim for qualified immunity.     See

Appellants’ Opening Br. at 25. For example, they fault plaintiff for not supplying


                                            -7-
the name of her fellow employee for whom plaintiff provided supporting

testimony about racially discriminatory allegations and attitudes at the facility.

See id. We fail to see how, at this point, this undercuts plaintiff’s factual

statement and renders it conclusory. Nor was plaintiff required to relate in her

complaint the content of the “sexually-charged” skit.      See id. at 27.

       Plaintiff must also satisfy the second prong of the qualified immunity test,

that her right to speak on matters of public concern was clearly established at the

time in question. Making “statements in opposition to alleged discriminatory

employment practices” has been protected speech since 1983.         See Langley v.

Adams County , 987 F.2d 1473, 1479 (10th Cir. 1993) (citing       Patrick v. Miller ,

953 F.2d 1240, 1247 (10th Cir. 1992)). Thus the district court correctly denied

defendants’ motion to dismiss as to the First Amendment Claim.


                             Fourteenth Amendment Claim

       Sexual harassment can violate the Fourteenth Amendment right to equal

protection of the law and state a cause of action under 42 U.S.C. § 1983.       See

Noland v. McAdoo , 39 F.3d 269, 271 (10th Cir. 1994). This has been clearly

established law in this circuit since May of 1989.      See Woodward v. City of

Worland , 977 F.2d 1392, 1400 (10th Cir. 1992) (citing      Starrett v. Wadley ,

876 F.2d 808, 814 (10th Cir. 1989));    Lankford v. City of Hobart , 27 F.3d 477,

480 (10th Cir. 1994).

                                            -8-
       Incidents of harassment and discrimination recited by plaintiff included

“degrading her, branding her as a bitch, untruthful, and a troublemaker,”

Appellants’ App. at 57, as well as participation in the March 1996 skit,

“demonstrating complete disregard for women, minorities and the issue of sexual

harassment at the AVCF,”     id. at 35. She states that as supervisors, defendants

“approved, condoned, and ratified the custom, practice, usage, and tradition”

of ridiculing female employees.     See id. at 36.

       Plaintiff also contends that defendants were “active participants in

concerted action and/or a conspiracy directed toward [her] to discredit her, cause

her harm, and discipline her,”    id. at 42, in an attempt to drive her from the

facility, see id. at 41. Although plaintiff eventually transferred to another facility,

a claim of sexual harassment under § 1983 need not result in discharge in order to

be actionable.   See Lankford , 27 F.3d at 480-81.

       Creating abusive conditions for female employees and not for male
       employees is discrimination . . . . Forcing women and not men to
       work in an environment of sexual harassment is no different than
       forcing women to work in a dirtier or more hazardous environment
       than men simply because they are women.

See Woodward , 977 F.2d at 1401 (quoting       Bohen v. City of East Chicago ,

799 F.2d 1180, 1185 (7th Cir. 1986)). Plaintiff has alleged defendants’ direct

participation in and/or conscious acquiescence in sexual harassment and a policy




                                            -9-
or custom of allowing such sexual harassment in the workplace.         See id. ; Noland ,

39 F.3d at 271.


                                  Pendent State Claims

       Finally, we will not review the denial of defendants’ motion to dismiss

plaintiff’s pendent state claims because those claim are not “inextricably

intertwined” with the appealable determination that defendants were not entitled

to dismissal of their federal claims on the grounds of qualified immunity.       See

Foote v. Spiegel , 118 F.3d 1416, 1423 (10th Cir. 1997) (quotation omitted);

Sevier v. City of Lawrence , 60 F.3d 695, 701 (10th Cir. 1995) (declining to

review state law claims not coterminous with or subsumed in claim on

interlocutory appeal).

       Because the record in this case presently contains no evidence, we express

no view as to plaintiff’s capacity to prove her allegations. Defendants are, of

course, free to raise the issue of qualified immunity on a motion for summary

judgment once the record is better developed.      See Prager , 1999 WL 390859,

at *6, n.6.




                                           -10-
      The district court’s order denying defendants’ motion to dismiss plaintiff’s

claims against them in their individual capacities is AFFIRMED.


                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




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