                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                  FOR THE FOURTH CIRCUIT


PEGGY H. RILEY,                          
                   Plaintiff-Appellee,
                  v.
JOSEPH MOODY BUCKNER,
individually and in his official
capacity as Chief District Judge of
North Carolina Judicial District                  No. 00-1048
15B,
                Defendant-Appellant,
                  and
STATE OF NORTH CAROLINA,
                       Defendant.
                                         
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
               Frank W. Bullock, Jr., District Judge.
                         (CA-98-1088-1)

                        Argued: December 7, 2000

                        Decided: January 8, 2001

Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge, and
James C. CACHERIS, Senior United States District Judge for the
       Eastern District of Virginia, sitting by designation.



Affirmed by unpublished per curiam opinion.
2                          RILEY v. BUCKNER
                             COUNSEL

ARGUED: Lars Franklin Nance, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellant. Larry Stephen McDevitt, William Carleton
Metcalf, VAN WINKLE, BUCK, WALL, STARNES & DAVIS,
P.A., Asheville, North Carolina, for Appellee. ON BRIEF: Michael
F. Easley, North Carolina Attorney General, Valerie L. Bateman,
Assistant Attorney General, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellant.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Peggy H. Riley brought this action against Joseph Moody Buckner,
a North Carolina state judge, alleging that Buckner violated her rights
under the Equal Protection Clause of the Fourteenth Amendment by
sexually harassing her. See 42 U.S.C.A. § 1983 (West Supp. 2000).
The district court denied Buckner’s motion to dismiss based on quali-
fied immunity. We affirm and remand this action for further proceed-
ings.

                                   I.

   In reviewing the district court’s denial of a motion to dismiss prem-
ised on qualified immunity, we confine our review of the facts to
those alleged in Riley’s complaint, accepting such facts as true and
viewing them in a light most favorable to Riley. See Jenkins v. Med-
ford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc). Riley began
working for Buckner shortly after he was elected as judge for Judicial
District 15B, Orange County, North Carolina in 1994. According to
the complaint, Buckner created a "work environment and atmosphere
                           RILEY v. BUCKNER                             3
saturated with sexual suggestion, innuendo, and proposition." Riley
alleged several general examples of how Buckner accomplished this:
Buckner allegedly "made sexually suggestive and other inappropriate
comments about female employees and attorneys who had appeared
in his court or chambers"; he "made sexually suggestive and other
inappropriate comments to certain female employees that were veiled
propositions for sexual relations"; he "kept sexually explicit materials,
including magazines and calendars, in his chambers . . . in plain view
of [Riley] and other female employees and staff members"; and he
"constantly communicated to [Riley] with profanity and suggestive
and sexually explicit language."

   In addition to these broad allegations, the complaint includes a spe-
cific example in support of Riley’s claim against Buckner. According
to Riley, in April 1997, Buckner became infuriated with his computer
and Riley suggested to Buckner that he "use his Dictaphone instead
of the computer to create documents that she could then transcribe for
his use." In response, Buckner, who had been seated at his desk, "ran
around his desk, placed both hands on his genitals, while fully
clothed, and exclaimed, ‘I’ll show you a [expletive deleted] Dicta-
phone!’" Riley viewed this incident as the last straw, and she tendered
her resignation.

   Riley filed this action against Buckner individually and in his offi-
cial capacity, asserting that Buckner sexually harassed her in violation
of section 1983 and Title VII, see 42 U.S.C.A. § 2000e-2 (West
1994). Riley also asserted claims under state law for intentional and
negligent infliction of emotional distress. Buckner’s motion to dis-
miss all of Riley’s claims was referred to a magistrate judge for a rec-
ommendation to the district court. In the end, the district court
permitted Riley to go forward only on her section 1983 claim against
Buckner in his individual capacity and her intentional infliction of
emotional distress claim. Only the section 1983 claim is at issue on
appeal.

   Buckner moved to dismiss Riley’s section 1983 claim on qualified
immunity grounds. The heart of Buckner’s argument was that Riley
failed to allege facts sufficient to support a claim that she had been
deprived of a federal right, i.e., that Riley failed to make out a hostile
work environment claim. The district court adopted the magistrate
4                          RILEY v. BUCKNER
judge’s recommendation that Buckner was not entitled to qualified
immunity as to Riley’s section 1983 claim. Buckner moved, in the
alternative, for a more definite statement of the "specific acts and
words" of Buckner that created a hostile working environment. The
district court denied this motion on the recommendation of the magis-
trate judge, who explained that although Riley’s complaint was
"somewhat general," it "provide[d] [Buckner] with sufficient notice of
the nature and basis of [Riley’s] claims to allow them to file a respon-
sive pleading."

    On appeal, Buckner makes a two-fold argument that he is entitled
to qualified immunity. First, he contends that Riley’s allegations, even
if true, do not state a constitutional claim under section 1983. Second,
Buckner contends that a reasonable judge under the same circum-
stances would not have known that the alleged conduct rose to the
level of a constitutional violation. We disagree on both counts and
return the action for further development in district court.

                                  II.

   To determine whether Buckner is entitled to qualified immunity,
we follow a two-step analytical process. First, we must determine
whether Riley has alleged the deprivation of a constitutional right
under present-day standards. See Wilson v. Layne, 526 U.S. 603, 609
(1999). If so, we then proceed to determine whether Buckner is enti-
tled to qualified immunity, i.e., whether, at the time of the alleged
violation, the right was clearly established, see id., and "‘whether a
reasonable person in the official’s position would have known that his
conduct would violate that right,’" Taylor v. Waters, 81 F.3d 429, 433
(4th Cir. 1996) (quoting Gordon v. Kidd, 971 F.2d 1087, 1093 (4th
Cir. 1992)).

                                  A.

   Riley’s claim is that Buckner violated section 1983 by subjecting
her to sexual harassment in the workplace. Intentional sexual harass-
ment of a public employee by a supervisor constitutes gender discrim-
ination in violation of the Equal Protection Clause of the Fourteenth
Amendment and is actionable under section 1983. See Beardsley v.
Webb, 30 F.3d 524, 529 (4th Cir. 1994). Our precedent applies the
                           RILEY v. BUCKNER                             5
standards developed for hostile work environment claims under Title
VII to claims for sexual harassment under section 1983. See id. A sex-
ual harassment claim based on a hostile work environment requires
the plaintiff to prove: (1) unwelcome conduct; (2) that was based on
the plaintiff’s sex; (3) that "was sufficiently severe or pervasive to
alter the plaintiff’s conditions of employment and to create an abusive
work environment"; and (4) that was imputable to the employer.
Spicer v. Commonwealth of Va. Dep’t of Corrections, 66 F.3d 705,
709-10 (4th Cir. 1995) (en banc).

   Buckner argues that Riley’s allegations are insufficient to show
that Buckner’s conduct occurred "because of" Riley’s gender or that
the conduct was severe or pervasive enough to create a hostile work
environment. Buckner’s conduct, to qualify as actionable discrimina-
tion, must have occurred "because of" Riley’s gender; the conduct is
not "automatically discrimination because of sex merely because . . .
[there is] sexual content." Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998). And, even if Buckner’s conduct was directed
at Riley "because of" her gender, it must be sufficiently severe or per-
vasive from both a subjective and objective viewpoint. See Conner v.
Schrader-Bridgeport Int’l, Inc., 227 F.3d 179, 192 (4th Cir. 2000). In
considering the severity or pervasiveness of conduct alleged to have
created a hostile work environment, a number of circumstances are
relevant, including: "(1) the frequency of the discriminatory conduct;
(2) its severity; (3) whether it is physically threatening or humiliating,
or a mere offensive utterance; (4) whether the conduct unreasonably
interfered with the plaintiff’s work performance; and (5) what psy-
chological harm, if any, resulted." Id. at 193.

   We acknowledge that the specific factual allegations contained in
Riley’s complaint are thin; however, we disagree with Buckner that
the complaint contains, apart from the assertion of the "dictaphone"
incident, only conclusory allegations. Riley also alleged that Buckner
"constantly communicated to [Riley] with profanity and suggestive
and sexually explicit language," and that Buckner created a "work
environment and atmosphere saturated with sexual suggestion, innu-
endo, and proposition." The complaint also suggests that Buckner’s
conduct was directed at Riley and other female employees.

   We are simply not convinced that Riley "cannot prove any set of
facts in support of [her] claim entitling [her] to relief." Edwards v.
6                          RILEY v. BUCKNER
City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). If the allega-
tions are true, a reasonable fact finder could well conclude that Buck-
ner’s conduct (which Riley describes as "constant") occurred
"because of" Riley’s gender and that it was severe or pervasive. We
are satisfied that such allegations, coupled with a specific example —
the "dictaphone incident" — are sufficient, though barely, to state an
equal protection claim under section 1983 that survives a motion to
dismiss.

                                  B.

   Having concluded that Riley stated a claim that Buckner deprived
her of a federal right, we turn briefly to consider whether Buckner is
entitled to qualified immunity. To do so, we must decide whether, at
the time of the claimed violation, the right at issue was clearly estab-
lished and "whether a reasonable person in the official’s position
would have known that his conduct would violate that right," Taylor,
81 F.3d at 433. Citing Beardsley and a host of decisions from our sis-
ter circuits, Buckner concedes that at the time of his alleged conduct
it was clear that sexual harassment via a hostile work environment
generally violated equal protection principles under the Fourteenth
Amendment. See Beardsley, 30 F.3d at 529. Buckner contends, how-
ever, that it was not clear at the time Riley worked for him that the
specific conduct alleged in the complaint violated the Equal Protec-
tion Clause such that a reasonable judge in Buckner’s position would
have known his conduct was constitutionally impermissible. We dis-
agree. The exact conduct at issue need not have been held to be
unlawful in order for the law governing an official’s actions to be
clearly established, as long as the existing authority is such that the
unlawfulness of the alleged conduct is manifest. See Anderson v.
Creighton, 483 U.S. 635, 640 (1987). We believe that under Beards-
ley, which was issued prior to the relevant time frame in this case, it
was clear that a state official could create a hostile work environment
by "saturating" the office atmosphere with sexual suggestion and
proposition and by constantly using sexually suggestive and explicit
language in addressing only his female subordinates.

                                  III.

   In short, we conclude that qualified immunity is not appropriate at
this early stage of the proceedings. Accordingly, we affirm the deci-
                          RILEY v. BUCKNER                           7
sion of the district court to permit Riley to go forward on her section
1983 claim against Buckner.

                                                          AFFIRMED
