                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 11-2467
                                  ___________

Toni Duncan,                              *
                                          *
      Plaintiff-Appellee,                 *
                                          *
     v.                                   *
                                          *
County of Dakota, Nebraska;               *
James L. Wagner, Dakota County            * Appeal from the United States
Sheriff in his official capacity and      * District Court for the
personally,                               * District of Nebraska.
                                          *
      Defendants,                         *
                                          *
Rodney Herron, in his official capacity *
and personally,                           *
                                          *
              Appellant.                  *
                                     ___________

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

Before GRUENDER, BENTON and SHEPHERD, Circuit Judges.
                          ___________

BENTON, Circuit Judge.

      Toni Marie Duncan sued her former employer, Dakota County, Nebraska, under
42 U.S.C. § 1983 for hostile-work-environment sexual harassment and constructive
discharge in violation of the Equal Protection Clause of the Fourteenth Amendment.
She also sued Sheriff James L. Wagner and her supervisor, Chief Deputy Rodney G.
Herron, in their individual capacities. The defendants moved for summary judgment.
The district court granted summary judgment to Wagner, dismissing all claims against
him. The district court denied the motions for summary judgment by the county and
Herron on the basis of qualified immunity. Herron appeals. Having jurisdiction under
28 U.S.C. § 1291, this court reverses and remands.

       Duncan asserts this court lacks jurisdiction of this appeal because it involves
factual disputes. A denial of qualified immunity is immediately appealable. Jones
v. McNeese, 675 F.3d. 1158, 1160 (8th Cir. 2012), citing Scott v. Harris, 550 U.S.
372, 376 n.2 (2007). A defendant may appeal a denial of qualified immunity only “to
the extent that it turns on an issue of law.” Fields v. Abbott, 652 F.3d 886, 889-90 (8th
Cir. 2011). On appeal, this court will “resolve any factual disputes in [Duncan’s]
favor, and review the district court’s denial of [Herron’s] assertion of qualified
immunity as a pure question of law.” Tuggle v. Mangan, 384 F.3d 714, 719 (8th Cir.
2003). This court reviews such a denial de novo, viewing the evidence in the light
most favorable to the nonmoving party. Fields, 652 F.3d at 890.

      Duncan, a correctional officer, worked at the Dakota County jail from August
7, 2006 until November 4, 2007. She alleges that Herron – the chief deputy and jail
administrator during her employment – created an “openly sexually charged
environment.” She claims Herron engaged in widespread sexual favoritism, had
sexual relationships with subordinates, and allowed his favorites to come in late for
work, sleep on the job, or get promoted.

      Duncan knew that Herron had a child with one woman who worked at the jail
and that another employee had become pregnant by him. She also knew that several
other employees had sex with Herron: Alana Crutcher-Sanchez and Diana
Moctezuma. According to Duncan, Herron harassed and intimidated employees who
were not in his favor by ordering deputies to follow them and “set them up for arrest.”

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       To support her claim of sexual favoritism, Duncan points to testimony and
affidavits of several other female employees. Heather Skow stated that Herron
attempted to kiss her and touched her inappropriately. She said Herron promised her
an easier work schedule in exchange for stripping for him at work. Moctezuma said
Herron made it clear she would receive benefits if she dated him and that he would
retaliate against her if she did not comply. Herron admits having sex with Moctezuma
and promoting her within two weeks after she was hired.

       On her first day of work, Herron asked Duncan if she were married. When she
said no, he told her to get a ring, because otherwise, “sheriff [Wagner] would be
making advances on her.” Wagner did ask Duncan to spend time with him outside of
work four times; each time she declined and reported the proposition to Herron.
(Duncan eventually requested that the court dismiss her complaint against Wagner in
his individual capacity.) Herron, however, never asked Duncan out or to have sex
with him.

      Duncan claims that explicit emails, pornography, and sexual jokes were
pervasive in the workplace. She never received explicit emails, but a female co-worker
showed her a pornographic image once. She said her coworkers knew she
disapproved of the emails and jokes. According to Duncan, employees who tolerated
the sexual innuendo, pornography, and inappropriate emails received favorable
treatment, or at least were not subject to retaliation.

      Duncan testified that she believed promotions were based on something other
than merit. In her deposition, she said she decided not to pursue an available
promotion.

      Q: Were you on occasion asked if you were interested in advancement
      by your supervisors?



                                         -3-
      Duncan: Sheriff Wagner did say to me once . . . . by the way, Toni, Rod
      [Herron] and I were talking. We both agree we would like to see you in
      a supervisory position in the near future.

      I just left and didn’t say anything and never pursued it after that. There
      was one other occasion when the new jail was opening. John Gilles had
      been appointed sergeant for the day shift and in charge of getting
      operations up and running for the new facility. He told me that he would
      like to – that he was considering me to be his assistant on that shift, and
      I told him that I really wasn’t interested in doing so, because I didn’t feel
      it would be in my best interest.

      Q: And why not?

      Duncan: Again, my reputation was important to me. I know that a lot
      of people were aware that promotions were given for less than reputable
      reasons. I didn’t want to be considered to be that type of person.

      Q: So you were concerned that if you took or accepted a promotion that
      people in the jail would view you as being part of the crowd that partied?

      Duncan: Or that I had done something inappropriate in order to receive
      it.

       Qualified immunity “protects ‘government officials performing discretionary
functions . . . 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.’” Clegg v. Arkansas Dep’t of Corr., 496 F.3d 922, 931 (8th Cir.
2007), citing Cox v. Sugg, 484 F.3d 1062, 1065 (8th Cir.2007) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)) (alteration in original). A qualified immunity
analysis involves two questions: first, whether the facts demonstrate that Herron
violated Duncan’s statutory or constitutional rights. Tuggle, 348 F.3d at 720. If the
facts, viewed most favorably to Duncan, show a violation of her statutory or
constitutional rights, this court asks if the right violated was clearly established at the
time. Id.

                                           -4-
       Denying Herron qualified immunity, the district court found that he “has a long
history of conduct with employees that could be characterized as harassment. There
is evidence from which a jury could infer that other employees received preferential
treatment for engaging in sexual relationships with defendant Herron . . . [and that
Duncan] was adversely affected by the favoritism.”

       Duncan argues that Herron’s acts either amounted to widespread sexual
favoritism, or created a sexually hostile work environment. This court has twice
recognized the possibility of a sex-discrimination claim based on widespread sexual
favoritism (but never found liability for it). In McGinnis v. Union Pac. R., 496 F.3d
868, 874 (8th Cir. 2007), this court dismissed a claim of sexual favoritism when there
was only a single allegation against a non-decisionmaker. In Tenge v. Phillips
Modern Ag Co., this court indicated its “general agreement” with the EEOC’s
statement that widespread sexual favoritism in the workplace may establish a hostile-
work environment claim. 446 F.3d 903, 908-09 (8th Cir. 2006), citing EEOC Policy
Guidance on Employer Liability Under Title VII for Sexual Favoritism, EEOC
Notice No. 915-048 (Feb. 15, 1990). The EEOC’s statement says that, to prove a
sexual-favoritism claim, the conduct must be “sufficiently severe or pervasive ‘to alter
the conditions of [their] employment and create an abusive working environment.’”
Id., quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986).

      To prove a hostile-work-environment claim, Duncan must show (1) she was a
member of a protected group; (2) she was subject to unwelcome harassment; (3) the
harassment was based on sex; (4) that it “affected a term, condition, or privilege of
employment;” and (5) that her employer knew or should have known of the
harassment and failed to take appropriate remedial action. Sutherland v. Missouri
Dep’t of Corr., 580 F.3d 748, 751 (8th Cir. 2009), citing Alagna v. Smithville R-II
Sch. Dist., 324 F.3d 975, 979 (8th Cir. 2003).



                                          -5-
       Whether expressed as a sexual-favoritism claim or a hostile-work-environment
claim, at issue in this case is whether the complained-of conduct altered a term,
condition, or privilege of Duncan’s employment. Proving actionable harm is a high
threshold. Sutherland, 580 F.3d at 751, citing Duncan v. General Motors Corp., 300
F.3d 928, 934 (8th Cir. 2002). To determine whether the harassment affected a term,
condition, or privilege of employment, this court considers “the frequency of the
behavior, its severity, whether physical threats are involved, and whether the behavior
interferes with plaintiff's performance on the job.” Wright v. Rolette Cnty., 417 F.3d
879, 885 (8th Cir. 2005), citing Henthorn v. Capitol Communications, Inc., 359 F.3d
1021, 1026 (8th Cir. 2004). “Simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment.” Breeding v. Arthur J. Gallagher & Co., 164
F.3d 1151, 1158 (8th Cir. 1999) (internal citations omitted). This court examines the
totality of the circumstances to determine if the environment was sufficiently hostile.
Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th Cir. 2006). This
analysis includes examining 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.” Duncan,
300 F.3d at 934, quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

      Based on the record, Duncan subjectively perceived Herron’s conduct as
abusive. Even so, to create an objectively hostile work environment, the harassment
must be severe or pervasive. Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1047
(8th Cir. 2005). Duncan must show that “the workplace is permeated with
discriminatory intimidation, ridicule, and insult.” Sutherland, 580 F.3d at 751,
quoting Harris, 510 U.S. at 21. She must prove the conduct was “extreme in nature
and not merely rude or unpleasant.” Nitsche, 446 F.3d at 846.

       Duncan cannot show that Herron’s actions amounted to actionable harm that
affected her employment. She chose not to apply for a promotion because she feared

                                         -6-
damage to her reputation. Duncan has failed to identify any benefits or opportunities
Herron denied her. She does not allege that any promotion available to her went to
any employee who had a sexual relationship with Herron, or that the sergeant who was
considering her for a promotion was engaged in sexual harassment. Her choice not
to apply does not prove Herron’s harassment was objectively severe, extreme or
intimidating to alter a term, condition, or privilege of her employment. Although
Herron’s conduct was vile and inappropriate, it did not rise to the level of actionable
hostile-work-environment sexual harassment as to her. Herron’s conduct was not
physically threatening or humiliating to Duncan. It did not unreasonably interfere
with her work performance. This “conclusion is consistent with Duncan [v. General
Motors Corp.] and other recent circuit cases requiring hostile work environment
claims to satisfy the demanding standards established by the Supreme Court in order
to clear the high threshold for actionable harm.” Tuggle, 348 F.3d at 722, citing
Ottman v. City of Independence, 341 F.3d 751, 760 (8th Cir. 2003); Alagna, 324 F.3d
at 980; Duncan, 300 F.3d at 935; and Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 967
(8th Cir. 1999). As a matter of law, Duncan “did not show a sexually harassing
hostile environment sufficiently severe or pervasive so as to alter the conditions of her
employment, a failure that dooms Duncan's hostile work environment claim.”
Duncan, 300 F.3d at 935.

       Because Herron did not violate Duncan’s right to equal protection, this court
needs not address the other prong of the qualified-immunity analysis: whether the law
was clearly established that Herron’s conduct violated Duncan’s right to equal
protection when the actions occurred. See Fields, 652 F.3d at 894 (deciding not to
address the clearly established prong after concluding that the plaintiff’s rights had not
been violated); Avalos v. City of Glenwood, 382 F.3d 792, 801 (8th Cir. 2004)
(declining to address whether the rights asserted by the plaintiff were clearly
established at the time of the defendant’s conduct after concluding the defendant did
not violate the plaintiff’s substantive due process rights); Tuggle, 384 F.3d at 722
(finding the defendant’s conduct did not rise to the level of actionable hostile-work-

                                           -7-
environment sexual harassment in violation of the plaintiff’s constitutional rights, and
deciding not to address whether the law was clearly established). Herron is entitled
to qualified immunity on Duncan’s claim.

                                   * * * * * * *

      The judgment of the district court is reversed, and the case remanded for
proceedings consistent with this opinion.
                      ______________________________




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