## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 9 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

KAREN S. BRASKO,

Plaintiff-Appellee,

v. CITY OF CANEY, KANSAS; BILL JAMISON; RICK PELL; MONTE LILBURN, Defendants, and JEFF ATZENHOFER; O.J. BRIDENSTINE; DON FUQUA; BOBBY HAWTHORNE; RAY STELFOX; LAURIE JAMISON; STEVE BUSTER; DAVID ESTES; GENE VAUGHAN; CHAD BRADFORD; MIKE HINES,

Defendants-Appellants.

_______________________________ DARLA LEA CLELAND,

Plaintiff-Appellee,

v. CITY OF CANEY, KANSAS; BILL JAMISON; RICK PELL; MONTE LILBURN, Defendants, No. 97-3027 (D.C. No. 96-2258-GTV) (D. Kan.)

97-3029 (D.C. No. 96-2338-GTV) (D. Kan.)-2-

and JEFF ATZENHOFER; O.J. BRIDENSTINE; DON FUQUA; BOBBY HAWTHORNE; RAY STELFOX; LAURIE JAMISON; STEVE BUSTER; DAVID ESTES; GENE VAUGHAN; CHAD BRADFORD; MIKE HINES,

Defendants-Appellants.

_______________________________ KAREN S. BRASKO,

Plaintiff-Appellee,

v. CITY OF CANEY, KANSAS; RICK PELL; MONTE LILBURN; JEFF ATZENHOFER; O.J. BRIDENSTINE; DON FUQUA; BOBBY HAWTHORNE; RAY STELFOX; LAURIE JAMISON; STEVE BUSTER; DAVID ESTES; GENE VAUGHAN; CHAD BRADFORD; MIKE HINES,

Defendants, and BILL JAMISON,

Defendant-Appellant.

_______________________________ DARLA LEA CLELAND, 97-3046 (D.C. No. 96-2258-GTV) (D. Kan.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -3- Plaintiff-Appellee,

v. CITY OF CANEY, KANSAS; RICK PELL; MONTE LILBURN; JEFF ATZENHOFER; O.J. BRIDENSTINE; DON FUQUA; BOBBY HAWTHORNE; RAY STELFOX; LAURIE JAMISON; STEVE BUSTER; DAVID ESTES; GENE VAUGHAN; CHAD BRADFORD; MIKE HINES,

Defendants, and BILL JAMISON,

Defendant-Appellant. 97-3047 (D.C. No. 96-2338-GTV) (D. Kan.)

ORDER AND JUDGMENT *

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges

.1 Additionally, plaintiffs sought relief under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e through 2000e-17; 42 U. S.C. § 1981a; the Kansas Acts Against Discrimination, Kan. Stat. Ann. § 44-1 009(a)(1), (7); and common law. Also, plaintiffs sought relief against the Ci ty of Caney, mayor of Caney, and chief of police of Caney under the above authoritie s and § 1983. -4- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument. Defendants-appellants, former and current city coun cil members of the City of Caney, Kansas, and Bill Jamison, a city police o fficer, appeal the district court’s denials of their motions to dismiss based o n qualified immunity. We reverse as to the individual city council members a nd vacate and remand as to Officer Jamison. Plaintiffs-appellees Karen S. Brasko and Darla Lea Cleland commenced actions in the district court against, among others , the current and former city council members and Officer Jamison, in their indiv idual capacities, alleging, as is relevant for purposes of this appeal, violation of their equal protection rights under 42 U.S.C. § 1983 as a result of sexual discri mination and later retaliation for making charges of sexual discrimination. 1 The complaints set forth the following facts. Plai ntiffs are employed by the City of Caney as dispatchers/emergency medical tech nicians. They alleged that-5-

during their employment they were subjected to unwe lcome sexual remarks and actions from Officer Jamison and the mayor of the C ity of Caney. Plaintiffs and other female employees complained at city council m eetings about Officer Jamison’s and the mayor’s conduct and requested that they be disciplined and that policies be put into place to protect plaintiffs’ r ights. The city council did not take any timely or appropriate action regarding the complaints. Plaintiffs thus believe the city council ratified or approved of Of ficer Jamison’s and the mayor’s actions. The city council members moved to dismiss the claim s against them in their individual capacities based on qualified immunity. The district court denied qualified immunity, finding that the law was clearl y established that the city council members as employers should have understoodthat their conduct could violate plaintiffs’ constitutional rights. Also, t he district court pointed to plaintiffs’ particularized allegations that they co mplained to city council members about the sexual harassment, but the city council m embers took no action to stop any sexual harassment to protect plaintiffs or to p revent sexual harassment in the workplace. The city council members appealed. (No s. 97-3027, 97-3029.) Officer Jamison filed a motion to dismiss alleging that plaintiffs failed to state a claim upon which relief may be granted beca use he was not a supervisor or, alternatively, that he is entitled to qualified immunity. Recognizing that-6-

plaintiffs alleged that Officer Jamison acted undercolor of state law, the district court determined that if they could establish that he acted under actual or de facto authority over them they may be able to recover. T he district court accordingly concluded plaintiffs’ complaints did state claims f or relief. Also, the district court concluded that because the law concerning sex ual harassment was clearly established in the Tenth Circuit, Officer Jamison w as not entitled to qualified immunity. Officer Jamison appealed. (Nos. 97-3046 , 97-3047.) The district court’s denials of qualified immunity are immediately appealable as final judgments. See Walter v. Morton , 33 F.3d 1240, 1242 (10th Cir. 1994). We review the denials de novo. See id.

Nos. 97-3027 and 97-3029 On appeal, the city council members argue that the district court erred in denying dismissal of any claims against them based upon qualified immunity because the law was not clearly established at the time of the alleged conduct that they had a legal obligation to act upon plaintiffs’ complaints of sexual discrimination. They contend that the only way the y individually can take action is by casting votes at city council meetings; they have no power to take action outside of the meetings, and they cannot undertake the management of the police department. Also, the individual city council memb ers argue that there is no law-7-

establishing the liability of an individual city co uncil member due to the council’s failure to vote on a claim of sexual discrimination

. Government officials are entitled to qualified immu nity when their “conduct does not violate clearly established statu tory or constitutional rights of which a reasonable person would have known.” Harlo w v. Fitzgerald , 457 U.S. 800, 818 (1982). To analyze a claim of qualified i mmunity, we use a two-part framework: “first we determine whether the plainti ff has asserted a violation of a constitutional or statutory right, and then we deci de whether that right was clearly established such that a reasonable person in the de fendant’s position would have known that [his or] her conduct violated the right. ” Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir. 1996) (citing Siegert v. Gill ey , 500 U.S. 226, 231 (1991)).

[T]he shield of qualified immunity is pierced if in light of preexisting law, the unlawfulness of the conduct is ap parent . . . . “This ordinarily means that there must be a Supreme Courtor Tenth Circuit opinion on point, or the clearly established weightof authority from other courts must have found the law to be as the p laintiff maintains.” Lawmaster v. Ward , 125 F.3d 1341, 1350 (10th Cir. 1997) (quoting Garramone , 94 F.3d at 1451). To show the law is clearly estab lished, the plaintiff must do more than make general allegations that the defenda nt’s conduct was unreasonable; rather, the plaintiff’s rights must b e sufficiently defined so that a “‘reasonable official would understand that what he is doing violates that right.’” Id. at 1350-51 (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987)); see-8-

also Walter , 33 F.3d at 1242 (placing burden on plaintiff to s how with “particularity” that facts and law establish infere nce that defendants violated constitutional right); Woodward v. City of Worland , 977 F.2d 1392, 1396 (10th Cir. 1992) (requiring plaintiff to “come forward wi th facts or allegations sufficient to show that the [defendant] violated th e clearly established law”). This court allows some degree of generality, howeve r, recognizing it is impracticable to require the plaintiff to cite to afactually identical case before this court will determine the law was clearly estab lished. See Lawmaster , 125 F.3d at 1351 (requiring some, but not precise, factual similarity in demanding officials to apply general well-developed legal pri nciples). The action in question need not have previously been held unlawful, but it s unlawfulness must be apparent in light of pre-existing law. See Mick v. Brewer , 76 F.3d 1127, 1134 (10th Cir. 1996). It is clearly established in this circuit that “[a] n allegation of sexual harassment is actionable under § 1983 as a violatio n of the Equal Protection Clause.” Noland v. McAdoo , 39 F.3d 269, 271 (10th Cir. 1994); see also Lankford v. City of Hobart , 27 F.3d 477, 480-81 (10th Cir. 1994) (citing Starrett v. Wadley , 876 F.2d 808, 814 (10th Cir. 1989)). As the city council members point out, however, the re is no factually identical authority establishing the liability of a n individual city council member-9-

for failure to act on a city employee’s claim of se xual discrimination. Thus, the question we must decide is whether it was clearly e stablished “within a sufficiently analogous factual setting” that the in dividual city council members would have understood that their failure to act wou ld violate plaintiffs’ rights. Medina v. City & County of Denver , 960 F.2d 1493, 1497 (10th Cir. 1992); see also Yvonne L., ex rel. Lewis v. New Mexico Dep’t of Hu man Servs. , 959 F.2d 883, 891 (10th Cir. 1992) (determining whether right was either clearly established or clearly implicit in existing case law). In denying the individual city council members qual ified immunity, the district court relied upon Hirschfeld v. New Mexico Corrections Department , 916 F.2d 572, 577 (10th Cir. 1990), a Title VII act ion, which held that an employer may be liable for hostile work environmentsexual harassment of an employee if the employer knew of or should have kno wn of and failed to prevent the hostile work environment. Employer liability f or actionable sexual harassment also has been recognized in § 1983 cases . In those cases, a supervisor’s or employer’s liability requires “‘all egations of . . . actual knowledge and acquiescence.’” Woodward , 977 F.2d at 1400, 1401 (quoting Andrews v. City of Philadelphia , 895 F.2d 1469, 1478 (3d Cir. 1990)). Also, in § 1983 actions, liability cannot be predicated upon mere n egligence; rather, it must be-10-

predicated upon a deliberate deprivation of the emp loyee’s constitutional rights.
See id. at 1399. This law, permitting liability of an employer for a n employee’s alleged wrongdoing, was not sufficiently particularized forindividual city council members to be held liable for the alleged sexual ha rassment by an employee, who apparently does not work directly for the city coun cil. No authority indicates an appropriate response by individual city council mem bers to an employee’s complaints to them of sexual harassment. Thus, it was not clear that reasonable city council members with knowledge of the alleged harassment would understand that their individual failure to act could violate plaintiffs’ equal protection rights such that they could be held individually liable. We conclude the district court erred in denying the individual city council member s’ motion to dismiss on the grounds of qualified immunity.

Nos. 97-3046 and 97-3047 On appeal, Officer Jamison argues the district court erred in holding he is not entitled to qualified immunity because prior to the time plaintiffs filed their complaints the law was not clearly established thata nonsupervisory co-worker’s alleged sexual harassment violated equal protection rights. Officer Jamison also argues that the district court erred in holding that plaintiffs sufficiently pleaded-11-

causes of action even though they failed to plead s pecific facts demonstrating that Officer Jamison acted under color of state law by e xercising authority over them. To establish state action to support a § 1983 claim of sexual harassment, the defendant must be the plaintiff’s supervisor orexercise state authority over the plaintiff. See Noland , 39 F.3d at 271 (holding defendant’s harassing con duct while he was plaintiff’s co-worker was not actionab le where there was no allegation defendant acted with state authority); s ee also Woodward , 977 F.2d at 1400-01 (typically requiring alleged sexual harasse r to have authority over plaintiffs because otherwise it is difficult to est ablish state action requirement; declining to decide whether co-worker could ever be liable for sexual harassment, where co-workers were not supervisors and had no co ntrol or authority over plaintiffs). At the time plaintiffs filed their co mplaints, this Tenth Circuit authority provided that sexual harassment by a pers on acting with some state authority is actionable under § 1983. Officer Jamison argues, however, that the law regar ding co-worker liability under § 1983 for sexual harassment did not become c learly established until this court’s decision in David v. City & County of Denve r , 101 F.3d 1344, 1354 (10th Cir. 1996), cert. denied , 118 S. Ct. 157 (1997). Although Daviddid not reach, because it was not asserted, the questions of quali fied immunity and whether the law was clearly established, see id. at 1354 n.1, it did cite to Woodwardand-12-

Nolandas authority for its decision that sexual harassme nt by a nonsupervisory co-worker could violate a plaintiff’s equal protect ion rights if the nonsupervisory co-worker in fact exercised authority over the plai ntiff, see id. at 1354. We agree with Officer Jamison that the law on co-wo rker liability, in and of itself, was not clearly established at all times relevant to this case. However, the law was clearly established that those who poss essed some authority over the victim could be liable. See Woodward , 977 F.2d at 1401. As the court noted in Woodward , liability is often predicated on authority the wr ongdoer has over the victim. See id. “Otherwise, it is difficult to establish that the abusive action was perpetrated ‘under color of state law’ rather than as an essentially private act of sexual harassment.” Id. Thus, denial of qualified immunity under the circumstances of these cases hinges on plaintiffs’ allegations and proof of Officer Jamison’s exercise of authority over them. Officer Jamison argues that plaintiffs failed to su fficiently plead causes of action against him because they failed to plead fac ts demonstrating that he had actual authority over them. In denying Officer Jam ison qualified immunity, the district court noted that plaintiffs alleged in the ir complaints that all defendants acted under color of state law. However, “‘plainti ff[s] must do more than identify in the abstract a clearly established right and all ege that the defendant has violated it.’” Walter , 33 F.3d at 1242 (quoting Pueblo Neighborhood Heal th-13-

Ctrs., Inc. v. Losavio , 847 F.2d 642, 645 (10th Cir. 1988)). Therefore, plaintiffs’ allegations that “all defendants acted under color of state law” are insufficient to meet the heightened pleading standards imposed whena defendant raises the qualified immunity defense. However, we agree with plaintiffs that after the defendant raises this defense they should be afford ed the opportunity to amend their complaints to satisfy this heightened require ment. Accordingly, the district court’s denials of qualif ied immunity to Officer Jamison must be vacated, and the cases must be remanded to the district court to allow plaintiffs to amend their complaints. The judgments of the United States District Court f or the District of Kansas in case Nos. 97-3027 and 97-3029 are REVERSED. The judgments in case Nos. 97-3046 and 97-3047 are VACATED, and the cases are REMANDED to the district court to allow plaintiffs to amend their c omplaints.

Entered for the Court

James E. Barrett Senior Circuit Judge