UNPUBLISHED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  No. 00-1048 North Carolina Judicial District

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Affirmed by unpublished per curiam opinion.
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Unpublished opinions are not binding precedent in this circuit.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 qualified immunity. We affirm and remand this action for further proceedings. 

I.

In reviewing the district court’s denial of a motion to dismiss premised 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. Medford, 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

2 RILEY v. BUCKNER
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 specific 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] Dictaphone!’" Riley viewed this incident as the last straw, and she tendered

her resignation. 

Riley filed this action against Buckner individually and in his official 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 dismiss all of Riley’s claims was referred to a magistrate judge for a recommendation 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

RILEY v. BUCKNER 3
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 magistrate 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 responsive 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 circumstances 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 entitled 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 harassment of a public employee by a supervisor constitutes gender discrimination 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

4 RILEY v. BUCKNER
standards developed for hostile work environment claims under Title

VII to claims for sexual harassment under section 1983. See id. A sexual 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 discrimination, 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 pervasive 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 psychological 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, innuendo, 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.

RILEY v. BUCKNER 5
City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). If the allegations are true, a reasonable fact finder could well conclude that Buckner’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 established 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 sister 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, however, that it was not clear at the time Riley worked for him that the

specific conduct alleged in the complaint violated the Equal Protection Clause such that a reasonable judge in Buckner’s position would

have known his conduct was constitutionally impermissible. We disagree. 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 Beardsley, 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 deci6 RILEY v. BUCKNER
sion of the district court to permit Riley to go forward on her section

1983 claim against Buckner. 

AFFIRMED

RILEY v. BUCKNER 7