* District Judge of the Southern District of Texas, sitting by

designation.

1 42 U.S.C. § 2000e et seq.

1

United States Court of Appeals,

Fifth Circuit.

No. 95-20821.

Sherry SOUTHARD, et al., Plaintiffs,

Sherry Southard; Tammy Leis; Teresa Pankey; Helen Minter;

Patricia Anne Maimb ourg; Tammy Wells and Linda Fleming,

Plaintiffs-Appellees,

v.

The TEXAS BOARD OF CRIMINAL JUSTICE, et al., Defendants,

James A. Collins, Director, Texas Department of Criminal Justice,

Institutional Division, And Oscar Strain, Defendants-Appellants.

June 13, 1997.

Appeals from the United States District Court for the Southern

District of Texas.

Before KING and PARKER, Circuit Judges, a nd ROSENTHAL *

, District

Judge.

ROSENTHAL, District Judge:

Eight female correctional officers sued the former executive

director of the Texas Department of Criminal Justice-Institutional

Division ("TDCJ-ID") and a captain, asserting that the captain had

sexually harassed them and subjected them to a hostile work

environment. Three of the plaintiffs asserted Title VII claims

against the TDCJ as wel l as 42 U.S.C. §§ 1983 and 1985(3) claims

against the individual director and captain. Two plaintiffs tried

their Title VII claims against the TDCJ to a jury; 1 the plaintiffs

did not prevail. Asserting qualified immunity, the executive2

director moved for dismissal of all the section 1983 and 1985(3)

claims; the captain filed similar motions as to two of the

plaintiffs. The trial judge denied those motions.

The executive director and the captain appeal from the denial

of their qual ified immunity dispositive motions. This court

reverses and remands for further proceedings consistent with this

opinion.

I. BACKGROUND

Oscar Strain began working for the TDCJ-ID as a correctional

officer in the late 1970s and bec ame a captain in July 1984.

Strain worked in different TDCJ-ID units during the relevant

period, including the Coffield Unit from July 1984 to August 1992,

and the Michael Unit from August 1992 to February 1993. On March

1, 1993, Strain was transferred to the Robertson Unit. Beginning in

1991, female employees began to complain that Strain sexually

harassed them.

Under TDCJ's employee grievance procedure, complaints alleging

discriminatory conduct by TDCJ employees and officers are referred

for investigation to the TDCJ internal Equal Employment Opportunity

("EEO") office. The TDCJ EEO office is staffed and functions

independently of other TDCJ divisions. Complaints filed with the

EEO office proceed according to the three-step process applicable

to all TDCJ employee grievances. The first step is the submission

of the grievance to the un it warden for review, attempted

resolution, and response. The second step is an appeal to the

regional director's office. The third and final step is an appeal2 The EEO investigation found that Strain wrote the reprimand

on the same day that Raines went to the unit warden to complain

about Strain. The report concluded that, because Raines did not

return to work after she made her complaint to the warden, Strain

could not have issued the reprimand after learning of Raines's

complaint.

3 The EEO investigati on report was forwarded to Collins, but

there is no signature or date stamp on the forwarding letter to

reflect that either Collins or his office received the report or

file.

3 to the institutional division director's office.

In February 1991, Belinda Raines, a clerk at the Coffield

Unit, filed a written grievance against Strain. In her grievance,

Raines accused Str a in of making sexually suggestive comments;

addressing he r with curses and profanities; and retaliating

against her with a written reprimand when she complained. The EEO

office investigated Raines's allegations of sexual harassment and

issued a written report conclud ing that there was insufficient

evidence to sustain them. The EEO office also found no evidence

that the reprimand was motivated by retaliation. 2

On March 15, 1991, Artis B. Mosely, Jr., the TDCJ-ID Assistant

Director for Personnel and Training, forwarded a copy of Raines's

EEO file to the office of James A. Collins, the executive director

of TDCJ-ID. It is unclear whether Collins himself saw this

complaint or the EEO report. 3

On May 19, 1992, LaDonna Hull, a correctional officer in the

Coffield Unit, filed a complaint agai nst Strain with the unit

warden, who ref erred it to TDCJ's EEO office. The EEO office

investigated, interviewing five employees in addition to Hull and

Strain. Hull told the EEO investigators that she had been in an4 Neither Belinda Raines nor LaDonna Hull filed a lawsuit and

neither is a party to this case.

4 intimate relationship with Strain from January to May 1992. Hull

alleged that after she ended the relationship, Strain insisted on

continuing to see her. Hull told the EEO investigators that at

work, Strain sought her out; gave her personal notes; called her;

threatened to retaliate against her superiors for assigning her to

posts where his a ccess to her would be limited; threatened to

retaliate against coworkers if Hull associated with them;

threatened to deny Hull's leave requests; and discussed sensitive

information about inmates and employees with her.

The EEO office conclu ded that Hull's charges of sexual

harassment could not be sustained because Hull and Strain both

admitted to having a consensual sexual relationship; the decisions

as to shift assignments and leave allowance were not made by

Strain; and there was no evidence to support the allegations that

Strain made threats. The EEO file on the Hull complaint included

a written report from the warden of the Coffield Unit, stating that

she had talked to Strain abo ut his behavior but "could not make

[Strain] understand the seriousness of his action." The EEO report

concluded by noting that "[a]lthough the charge of sexual

harassment could not be sustained, Captain Strain admitted to

having a sexual relatio nship with one of his subordinates.

Therefore, the potential for sexual harassment does exist." 4

On June 29, 1992, Collins completed the third step of the

grievance procedure on Hull's com plaint. Collins signed a5 Southard's allegations included the following: during a

lunch break, Strain told her that "he was hungry" and that she had

an obligation to take care of him; as Strain attempted to unlock

a door for Southard, he said "I can't get it in"; Strain asked

Southard personal questions and stated that he wanted to get to

know her better; Strain talked to Southard about Strain's past

marriages; Strain stared in a sexually suggestive manner; Strain

made sexual statements to her; Strain asked Southard if she knew

how to speak Spanish and, when she replied that "no" means the same

in English and Spanish, Strain said that the word "no" never

stopped him; Strain came up behind Southard and rubbed against

5 statement rejecting Hull's claim on the basis that a review showed

insufficient evidence to support Hull's allegations . However,

Collins wrote a note to the TDCJ-ID regional director, Wayne Scott,

to "call me about this case."

In fall 1992, plaintiff Sherry Southard, a correctional

officer at the Michael Unit, filed a written grievance against

Strain that was referred to the EEO office. Southard asserted that

beginning in September 1992, Strain harassed her and gave her

instructions that violated TDCJ rules and proce dures. Southard

complained that when she refused to cooperate, Strain retaliated

against her with unfavorable duty assignments.

In November 1992, the EEO office concluded that Sou thard's

initial complaints were not of sexual harassment but rather of

violations of security or unit procedures. The unit warden

conducted an investigation, including interviews with two witnesses

besides Southard and Strain, and found insufficient ev idence to

support Southard's allegations.

Southard continued to press her grievance. She supplied

additional information, including specific details of alleged

incidents of sexual harassment. 5 The EEO received similarher; Strain attempted to maneuver her to isolated areas; after

Southard failed to respond to Strain's advances, Strain called her

several times to ask if she liked her job assignment, which

Southard believed she had been given as punishment; and Strain

gave her v arious work assignments and job instructions that

violated TDCJ procedures and rules.

6 Theresa Pankey claimed that on August 4, 1992, Strain talked

to her about being his secretary, saying "I get what I want around

here, and I want you"; that Strain slammed the door as he entered

her office; and that on one occasion, Strain followed her from the

copy room to her office in an intimidating manner. Pankey

subsequently filed a written complaint with her warden.

6 gri evances from other employees and investigated the complaints

alleging sexual harassment. During the investigation, EEO

investigators interviewed sixteen employees besides Strain and

Southard. The interviews resulted in verbal complaints against

Strain from other employees. Theresa Pankey, a clerk at the

Michael Unit, told the EEO investig ators that in August 1992,

Strain made a sexually suggestive comment to her. 6 Terri Wells, a

f ormer correctional officer at the Coffield Unit, told th e

investigators that in Dec ember 1984, Strain made a comment about

her body.

The EEO office concluded that Southard's complaint of sexual

harassment, and the complaints received from Pankey and Wells, were

unsustainable. The EEO report analyzed each incident of

inappropriate and harassing behavior that Southard alleged. The

EEO report detailed the interviews of the witnesses to the acts of

misconduct and the interviews of other possible victims. The EEO

report concluded in part as follows:

Ms. Southard and others have made several allegations

concerning inappropriate comments, sexually suggestive looks,

and offensive touching by Captain Strain. None of the7

allegations were supported by witness corroboration....

Normally conversations with co-workers about an incident

shortly after it occurs could be used to strengthen the

allegation that it had occurred . None of Ms. Southard's

direct witnesses verified Ms. Southard's allegations. Steven

Quick's reporting [that] he had been told by Ms. Southard of

the October 11 incident is the only support provided by any of

Ms. Southard's witnesses

... . it is the opinion of this

investigator that Officer Quick's objectivity should be

questioned.

As has been stated throughout this r eport, Captains [sic]

Strain's piercing glare/stare is a management tool he readily

admitted to. He admitted using it in lieu of words....

Although his intent is not to intimidate it is the opinion of

this investigator that it has had that effect.... The fact

that Captain Strain uses a "look" with both men and women, is

therefore, without question. However, whether a reasonable

woman would have perceived the look t o contain sexual

implications is questioned.

Captain Strain's arrival on the Michael Unit was preceded by

negative rumors which destroyed his opportunity to establish

trust and respect from subordinates....

The EEO report summarized the negative rumo rs that had

preceded Strain's arrival at the Michael unit. These rumors

included that Strain was known as "Black Jesus" and known to "chase

white women," and that he was a "nigger from Coffield who is fixin'

[sic] to change things." Although the EEO report noted that its

i nvestigations did not normally consider a complainant's spouse,

Dennis Southard had taken an unusually active role in encouraging

his wife's complaint, and Dennis Southard had been disciplined at

another unit for racial harassment. The EEO report stated that

several women had been "approached by members of the union

soliciting complaints about Strain," and that according to several

supervisors, "there is a group of women who had historically been

given the assignments they wanted.... Strain rotated the women to8

positions they had not previously been required to work."

The EEO report summarized the basis of its conclusion:

It is the opinion of this investigator there was apprehension

on the Michael Unit anticipating Captain Strain 's arrival.

The CO's and their supervisors perpetuated negative

rumors....This investigator believes that since sexual

har assment was anticipated, every remark or mannerism which

c ould have been interpreted sexually was, whether it should

have been or not.

The EEO report concluded that there was "insufficient evidence to

sustain a charge of sexual harassment, harassment or retaliation or

malicious use of profane or abusive language." On March 15, 1993,

Collins completed the third step of the grievance procedure by

signing a statement affirming the EEO office's conclusion.

On November 24, 1992, Cathey Litton submitted a written

grievance against Strain to the unit warden at the Michael Unit,

who referred it to the EEO office. Litton, a correctional officer,

alleged that in November 1992, Strain had "set her up" by ordering

a cell search in whic h a letter believed to be written by Litton

was found, resulting in an internal investigation for corresponding

with an inmate; accused Litton of giving nude photos to an inmate;

assigned Litton to undesirable duties a s a tool of retaliation;

and accused her of excessive absenteeism and required her to submit

a written doctor's statement before returning to work. Litton

alleged that Strain retaliated against her because he did not like

her and because she had spoken to union representatives. In

December 1992 and January 1993, the EEO of fice investigated

Litton's complaint. During the investigation, the EEO

investigators received a complaint from a former employee, Terrie7 Terri Taylor alleged that Strain had told her that she had a

"large as s." Terri Taylor's complaint was included in the

investigative file for Litton's complaint, but was not summarized

in the EEO report.

9 Taylor, that in 1984, Strain had made her do personal work and had

made a negative comment about her body. 7

The EEO report summarized the emplo yee interviews and the

documents reviewed in the investigation into the Litton grievance.

The EEO o ffice concluded that there was insufficient evidence to

sustain Litton's charges of harassment and re taliation. The EEO

report noted that Strain had denied Litton's allegations;

interviews with other captains and a review of the shift rosters

confirmed that the job assignments were made on a rotational basis;

there were no witnesses or documentation to support Litton's other

allegations; and Strain's requirement of a doctor's excuse for

absences was justified by the fact that Litton often used sick days

and vacation days consecutively. The EEO did not examine the

allegations involving security issues, which were separately

investigated by the TDCJ internal affairs division.

On March 15, 1993, Collins signed a statement that a review of

t he file established insufficient evidence to support Litton's

allegations of retaliation and that Strain's requirement that

Litton have a doctor's note for an absence was "within management's

prerogative." However, Collins's signed statement acknowledged

that the "reason or need" for the requirement of excuses for

absentees was "unclear" and stated that Collins h ad asked the

regional director to look into the issue of sick leave and8 Leis alleged that Strain stated: "I've married a black and

a white. You're dark complected, do you have Mexican in you? The

next time I might try a Mexican."

10 physicians' state ments. Collins also stated that he had

"confirmed" that a written doctor's excuse would not be an ongoing

requirement. The record contains an interoffice communication from

Collins to Wayne Scott, the regional director, asking Scott to

discuss the proof of absenteeism requirement at the next regional

directors' meeting. The record also contains minutes from the

directors' meeting, reflecting that the issue was discussed.

On December 8, 1992, p laintiff Tammy Leis, a correctional

officer at the Michael Unit, filed a written grievance against

Strain that was referred to the EEO office. Leis asserted that on

December 5, 1992, she told Strain that she did not like working in

a particular area because she feared for her safety and because she

did no t want to do Strain's paperwork any longer. Leis alleged

that Strain r esponded by yelling profanities at her and blocking

her path as she left the office. She also alleged that on previous

occasions, Strain gave her personal material to type and made a

sexually suggestive comment to her. 8 In December 1992 and January

1993, the EEO office investigated Leis' complaints, conducting

interviews of five employees besides Leis and Strain. The EEO

office concluded that there was insuf ficient evidence to sustain

Leis' claim of sexual harassment. The EEO office found that there

were "multiple inconsist encies" in Leis' version of the events;

there were no corroborating witnesses to confirm a sexual nature to

the conversations; the witnesses did not support Leis' description9 Collins initialed the draft version of the formal response.

11 of the December 5, 1992 exchange; and Leis' perceptions were

affected by the rumors preceding Strain's arrival to the unit and

by her concern about reactions from coworkers if she worked for

Strain.

On March 29, 1993, the third step of the grievance procedure

was completed. Collins signed a statement dismissing the complaint

on the basis that the investigation showed insufficient evidence to

sustain Leis' allegations.

On January 7, 1993, plaintiff Helen Minte r, a correctional

officer at the Michael Unit, filed a grievance against Strain that

was forwarded to the EEO office. Minter complained that in August

1992, Strain assigned her to office duty because he "wanted [her]

to be with him." Minter alleged that Strain made a sexual advance

toward her and later refused to assign her to a particular job that

she wanted. The EEO investigated and issued a report that

summarized the employee interviews it had conducted. The EEO

report concluded that Minter's allegations were unsustainable

because there were no corroborating witnesses and no other

supporting evi dence. On May 7, 1993, the third step of the

grievance procedure was completed, and Collins signed a statement

affirming the EEO office's conclusion. 9

On April 19, 1993, Carol Vance, the Chairman of the Board of

the TDCJ, wrote a letter to Collins. The letter stated:

I received the enclos ed letter from Mike Graham [a union

representative for TDCJ employees]. If true, I think the1 0 Kristina Foster did not file a lawsuit and is not a party to

this proceeding.

12 Abilene Warden should let the Captain know he is aware of past

complaints. With such a history, we are also vulnerable to

future lawsuits as well as, of course, wanting to discourage

any female or other harassment at TDCJ.

The enclosed letter recounted that the author had heard sexual

harassment complaints against Strain. In response, Collins wrote

a note to Mosely, the Assistant Director of Personnel and Training,

asking him to "call me on this." Mosely received the letter, with

Collins's note, on April 25, 1993.

On April 29, 1993, Kristina L. Foster, a correctional officer

at the Michael Unit, filed a grievance against Strain that was

referred to the EEO office. 10 Foster alleged that in September and

October 1992, Strai n commented on her impending divorce and told

her that a good wife takes care of her husband and does her "wifely

duties." Foster also alleged that Strain had asked another

cow orker if Foster would be willing to date Strain. The EEO

investigative report concluded that the allegation of harassment

was unsustainable, because the coworke r had not exactly

cor roborated Foster's allegations and there were no other

corroborating witnesses. Collins initialed the forwarding letter

accompanying the EEO report on August 3, 1993.

On May 5, 1993, plaintiff Patricia Maimbourg, a correctional

officer at the Robertson Unit, filed a written complaint ag ainst

Strain with the unit warden, who forwarded the complaint to the EEO

office. In her complaint, Maimbourg asserted that beginning in

March 1993, Strain had repeatedly brushed against her; had asked1 1 Lori Palmer did not file a lawsuit and is not a party to this

proceeding.

13 her out on three occasions; called her at home for reasons

unrelated to work; on two occasions asked her to come to his home;

had told her that he "liked women of a lighter tan"; and asked her

to do various personal tasks. The EEO office investigated the

complaint in late May 1993. The EEO report summarized the

complaint and the results of the witness interviews and concluded

that Maimbourg's allegations were unsustainable. The EEO report

noted that Maimbourg had previously complained to oth er officers

that Strain had "hinted" that he wanted to go out with her, which

was inconsistent with her later allegations. The report also noted

that Maimbourg stated that she had heard rumors that Strain liked

"blond white women" and that Maimbourg may have "ba sed her

perceptions on rumors" about Strain. The EEO office sent Collins

a copy of Maimbourg's EEO report; Collins initialed the forwarding

letter.

On July 22, 1993, Lori Palmer, 11 a correctional officer at the

Robertson Unit, filed a grievance with the EEO office. Palmer

complained that Strain told her she would be at his "beck and

call," which Palmer interpreted to mean that Strain wanted her to

do typing and other work. Palmer also complained that Strain

changed her duty post and on one occasion told her to "waller [sic]

on down" to the copier room, which Palmer interpreted as a negative

reference to her weight.

During the EEO investigation into Palmer's complaint, the EEO14

interviewer heard complaints from two other female employees at the

Robertson Unit. Sugako Nunn, an administrative technician,

complained that Strain had asked a coworker if Nunn was married;

this had made Nunn nervous because she had been "forewarned" of

Strain's liking for "blonde, white women." Nunn complained that

Strain stared at her in a sexually suggestive manner; told her

that she dressed provocatively; brushed against her

inappropriately; and retaliated against her for rejecting his

advances by calling her names and being uncooperative at work.

Laura Toland, a clerk, complained that Strain looked at her in a

sexually suggestive manner.

In its investigative re port, the EEO office sustained the

allegations that Strain had stared at some females in a sexually

suggestive manner. However, the EEO report did not find sufficient

evidence to sustain complaints of sexual harassment. The EEO

report summarized the employee interviews and stated that rumors

preceding Strain's arrival a t the Robertson Unit had "created a

heightened sens e of concern on the part of the complainants."

Collins initialed the forwarding letter accompanying the EEO

report.

On April 26, 1993, plai ntiff Linda Fleming, a correctional

officer at the Robertson Unit, filed a grievance against Strain

with the EEO office, alleging age discri mination. In her

complaint, Fleming asserted that Strain assigned younger women to

the "better jobs," such as desk and utility, while placing older

women in the "pickets," and alleged that Strain had retaliated1 2 Southard, et al. v. Texas Board Criminal Justice, et al., 94-

CV-0396.

15 against her by requiring her to bring in a doctor's excuse for sick

leave. The EEO office investigated the complaint in May 1993 and

determined that the lack of supporting witnesses and the shift

rosters, which showed that the assignments were rotated, prevented

a finding of age discrimination. The EEO report also noted that

Fleming took a large amount of sick leave in April 1993 and that

there was no basis for finding the requirement of a doctor's excuse

retaliatory. The EEO report also noted that Fleming had heard that

Strain had a "preference" for "young white women" before she made

her complaint, leading to an "environment conducive to the

manifestation of discriminatory perceptions." Collins initialed

the forwarding letter accompanying the EEO report.

On February 4, 1994, plaintiff Sherry Southard filed suit in

the United States District Court for the Southern District of Texas

against the TDCJ, Collins, and Strain. 1 2 Southard alleged that

Strain subjected her to sexual harassment and to a hostile work

environment, in violation of Title VII (as to the TDCJ) and

sections 1983 and 1985(3) (as to Strain and Collins). Correctional

o fficers Tammy Leis and Cathey Litton also sued Strain, Collins,

and the TDCJ, asserting similar claims. Plaintiffs Helen Minter,

Theresa Pankey, Patricia Maimbourg, Tammy Wells, and Linda Fleming

also filed suits against Collins and Strain under 42 U.S.C. §§ 1983

and 1985(3). These suits were consolidated into Southard's action.

On July 21, 1994, the parties consented to proceed before13 Litton nonsuited her Title VII claims before trial.

16 Uni ted States Magistrate Judge Calvin Botley. In mid-1995, the

trial court severed Leis', Litton's, and Southard's Title VII

claims against the TDCJ from the section 1983 and 1985(3) claims

they asserted against the individual defendants. On September 26,

1995, Southard and Leis tried their Title VII claims against the

TDCJ. 13 The jury returned a verdict in the TDCJ's favor.

Collins filed a motion to dismiss or, alternatively, for

summary judgment, as to the section 1983 and 1985(3) claims against

him. Collins argued that the section 1983 and 1985(3) claims were

preempted by Title VII, and, alternatively, that as a matter of

law, he was entitled to qualified immunity against the supervisory

liability claims. The trial court denied Collins's motion. Strain

also filed motions to dismiss or, alternatively, for summary

judgment, but only as to the claims asserted against him by Teresa

Pankey and Linda Fleming. Strain asserted that he was entitled to

qualified immunity because the fa cts alleged failed to state

violations of clearly established constitutional rights. The court

denied those motions.

Collins appeals the district court's denial of his motion to

dismiss or, a lternatively, for summary judgment, against all

appellees. Strain appeals the district court's denial of his

motion for summary judgment against two of the appellees. These

are interlocutory appeals, affect ing only pieces of this

quilted-together litigation, based on the denial of the individual

defendant s' qualified immunity motions. This court's review is14 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

15 Id. at 530, 105 S.Ct. at 2817-18, 86 L.Ed.2d at 427-28.

16 Id.

17 --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

17 accordingly limited.

II. STANDARD OF REVIEW

This court reviews de novo the denial of a public official's

motion for summary judgment predicated on qualified immunity.

Johnston v. City of Houston, Tx., 14 F.3d 1056, 1059 (5th

Cir.1994).

III. DISCUSSION

A. JURISDICTION

In this interlocutory appeal, the first issue is whether the

trial court's denials of the motions for summary judgment based on

qualified immunity are immediately appealable orders. In M itchell

v. Forsyth, 14 the Supreme Court held that "a district court's denial

of a claim of qualified immunity, to the extent that it turns on an

issue of law, is an appealable "final decision' within the meaning

of 28 U.S.C. § 1291 notwithstanding the absence of a final

judgment." 15 The Court allowed an interlocutory appeal in M itchell

because "the issue appealed concerned, not which fact the parties

might be able to prove, but r ather, whether or not certain given

facts showed a violation of "clearly established' law." 16

In Johnson v. Jones, 17 the Supreme Court held that a district

court's determination that the summar y judgment record in a

qualified immunity case raised a genuine issue of fact was not18 Id.

19 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

2 0 Behrens v. Pelletier,

--- U.S. ----, ----, 116 S.Ct. 834,

842, 133 L.Ed.2d 773 (1996).

21 Id.

22 Id.

18 immediately appealable, because it rested on a questi on of

"evidence sufficiency." 18 The Supreme Court has since clarified

that Johnson "permits [a defendant] to claim on appeal that all of

the conduct which the District Court deemed sufficiently supported

for purposes of summary judgment met the Harlow [v. Fitzgerald ] 19

standard of "objective legal reasonableness.' " 20 In B ehrens v.

Pelletier, the Supreme Court held that the district c ourt's

determination that "[m]aterial issues of fact remain" did not

preclude appellate review. 21 A court cannot review whether the

evidence "could support a finding that particular c onduct

occurred ," 22 but can "take, as given, the facts that the district

court assumed when it denied summary judgment" and de termine

whether those facts state a claim under c learly established law.

Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir.199 6); N erren v.

Livingston Police Dept., 86 F.3d 469, 472 (5th Cir.1996).

In this case, this court has interlocutory ju risdiction to

determine whether appellees' summary judgment facts, taken as

given, state a claim against Collins and Strain under clearly

established law. "Taking the plaintiffs' allegations as true,"

this court ca n decide whether the defendants are entitled to19

qualified immunity. Cantu, 77 F.3d at 805.

B. THE INTERSECTION OF 42 U.S.C. § 1983 AND TITLE VII

Collins contends that the claims under 42 U.S.C. §§ 1983 and

198 3(5) are precluded because Title VII provides the exclusive

remedy in this federal em ployment discrimination suit. Collins

asserts that the trial judge erred as a matter of law in allowing

plaintiffs to assert both Title VII and section 1983 claims, based

on the same underlying facts. J ackson v. City of Atlanta, Tx., 73

F.3d 60, 62 (5th Cir.), cert. denied,

--- U.S. ----, 117 S.Ct. 70,

136 L.Ed.2d 30 (1996).

In Johnst on v. Harris County Flood Control Dist., 869 F.2d

1565, 1573 (5th Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct.

718, 107 L.Ed.2d 738 (1990), this court carefully analyzed the

relationship between Title VII and section 1983. Johnston, a

former county employee, was terminated after he testi fied in

support of a coworker's d iscrimination allegations at an Equal

Employment Opportunity hearing. Johnston sued the flood control

di strict and its individual directors for retaliation, alleging

violations of Title VII and section 1983. Following a trial, the

district court found the flood control district liable under both

Title VII and section 1983.

On appeal, this court rejected as "incomplete," and therefore

inaccurate, the defendant's argument that Title VII preempted a

section 1983 claim arising from the same facts. Judge Gee, writing

for the court, explained the relationship between the two statutes:

Title VII is the exclusive remedy for a violation of its own

terms, [but] when a public em ployer's conduct violates both20

Title VII and a separate constitutional or statutory right,

the injured employee may pursue a remedy under § 1983 as well

as under Title VII.

Johnston, 869 F.2d at 1573.

In Johnston, the defendant's conduct violated Ti tle VII and

violated the constitution al right to be free to testify without

retaliation. "Because the predicate for [plaintiff's] § 1983 claim

was a right independent of the right Title VII creates, Johnston

was entitled to pursue remedies under both statutes." I d. The

court based this holding on a thorough analysis of the prior case

law arising under Title VII, including Irby v. Sullivan, 737 F.2d

1418 (5th Cir.1984), holding that Title VII is the exclusive remedy

for a violation of its own terms; and of the legislative history

of Title VII, revealing that " "the remed ies ... under Title VII

are co-extensive with the individual's rig ht to sue under the

p rovisions of the Civil Rights Act of 1866

... [and] the two

procedures augment ea ch other and are not mutually exclusive.' "

Johnston, 869 F.2d at 1576. The court concluded:

Although Title VII supplements and overlaps § 1983, it remains

an exclusive remedy when a state or local employer viol ates

only Title VII. When, however, unlawful employment practices

encroach, not only on rights created by Title VII, but also on rights that are independent of Title VII, Title VII ceases to

be exclusive. At this point, § 1983 and Title VII overlap,

providing supplemental remedies.

Id.

Collins cites Jackson v. City of Atlanta, Tx., 73 F.3d 60 (5th

Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 70, 136 L.Ed.2d

30 (1996), in which the p laintiff sued his employer, a city, the

city manager, and several council members individually, asserting2 3 See, e.g., Smith v. Penrod Drilling Corp., 960 F.2d 456, 459

n. 2 (5th Cir.1992); U nited States v. Fields, 923 F.2d 358, 360 n.

4 (5th Cir.), cert. de nied, 500 U.S. 937, 111 S.Ct. 2066, 114

L.Ed.2d 470 (1991).

21 employment discrimination based on race. Plaintiff alleged

violations of Title VII and section 1983 based on the same

allegedly discriminatory ac ts. In dismissing the section 1983

claim, this court recognized that under Johnston v. Harris County

Flood Control Dist., a plaintiff may pursue both section 1983 and

Title VII claims when the employer's conduct violates both Title

VII and a separate constitutional or statutory right. However,

because the plaintiff in Jackson used the same facts to pursue

claims under both Title VII and section 1983, this court found that

he was precluded from suing under both statutes. Id. at 63.

In Jackson, the court emphasized that plaintiffs alleged the

same conduct to support a claim under both statutes. 73 F.3d at

61. However, in J ohnston v. Harris County Flood Control Dist., the

plaintiff's claims under both Title VII and section 1983 were also

based on identical facts and identical allegations. In Johnston,

this court found that because the allegedly discriminatory conduct

violated rights under Title VII and rights independent of Title

VII, the same facts created claims under both remedies. J ackson is

inconsistent with Johnston, and Johnston, as the earlier opinion,

controls our decision in this case. 23

The Johnston result is consistent with that reached by other

circuits considering the question. These courts have found that a

public sector employee may assert claims of racially discriminatory22

employment practices under both Title VII and section 1983, because

the Constitution provides a right independent of Title VII to be

free from race discrimination by a public employer. S ee, e.g.,

Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1079 (3d

Cir.1990); Roberts v. College of the Desert, 870 F.2d 1411, 1415

(9th Cir.1988); Brown v. Hartshorne Pub. School Dist. No. 1, 864

F.2d 680, 683 (10th Cir.1988); Keller v. Prince George's County,

827 F.2d 952, 962 (4th Cir.1987); T rigg v. Fort Wayn e Community

Schools, 766 F.2d 299, 302 (7th Cir.1985); G rano v. Department of

Dev., 637 F.2d 1073, 1082 (6th Cir.1980).

In this case, plaintiffs alleged sexual harassment and sex

discr imination by their public employer. Sex discrimination and

sexual harassment in public employment violate the Equal Protection

Clause of the Fourteenth Amendment. M eritor Savings Bank v.

V inson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.E d.2d 49

(1986); D avis v. Passman, 442 U.S. 228, 234-35, 99 S. Ct. 2264,

2271, 60 L.Ed.2d 846 (1979); P ontarelli v. Stone, 930 F. 2d 104,

11 4 (1st Cir.1991) (sexual harassment is a deprivation of equal

protection and is actionable under 42 U.S.C. § 1983). The circuits

addressing th e issue have allowed plaintiffs suing their public

employers for sexual harassment and sex discrimination to assert

claims under both Title VII and section 1983. S ee, e.g., Cross v.

State of Alabama, 49 F.3d 1490, 1503 (11th Cir.1995) (a state

employee may sue for sexual harassment under section 1983); N oland

v. McAdoo, 39 F.3d 269, 271 (10th Cir.1994) (a supervisor who

exercised state authority over an employee may be liable for sexual2 4 One district court has held that Title VII is the exclusive

remedy for sexual harassment and preempts plaintiffs from filing

under § 1983. M arrero-Rivera v. Dept. of Justice, 800 F.Supp. 1024

(D.P.R.1992).

23 harassment under section 1983); B eardsley v. Webb, 30 F.3d 524,

527 (4th Cir.1994) (a public sector employee may sue under both

Title VII and section 1983 for sexual harassment); Gierlinger v.

New York State Police, 15 F.3d 32, 34 (2d Cir.1994) (sexual

harassment and sex discrimination claims can be brought under both

section 1983 and Title VII); B artunek v. Bubak, 941 F.2d 726, 727

(8th Cir.1991) (the plaintiffs were permitted to sue their public

sector employer for sexual harassment under section 1983); B ouman

v. Block, 940 F.2d 1211 ( 9th Cir.), c ert. denied, 502 U.S. 1005,

112 S.Ct. 640, 116 L.Ed.2d 658 (1991) (section 1983 and Title VII

sex discrimination claims can be brought in a s ingle action);

Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990)

(sexual harassment violates a constitutional right); V olk v.

Coler, 845 F.2d 1422, 1431 (7th Cir.1988) (a hostile work

environment violates a constitutional right). 24

Plaintiffs' allegations of sex discrimination and sexual

misconduct assert claims under sections 1983 and 1985(3) that are

not preempted by Title VII.

C. QUALIFIED IMMUNITY

To determine whether qualified immunity applies, a court must

first determine whether the plaintiff has asserted a violation of

a constitutional right. S iegert v. Gilley, 500 U.S. 226, 231, 111

S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). This determination is24

made using currently applicable constitutional standards. Nerren

v. Livingston Police Department, 86 F.3d at 473. If so, the court

must th en decide if the defendant's conduct was objectively

reasonable, using the standards applicable at the time the events

occurred. I d; Johnston v. City of Houston, 14 F.3d at 1059. If,

upon viewing the evidence in the light most favorable to the

nonmovant, reasonable public officials could differ on the

lawfulness of the defendant's actions, the defendant is entitled to

qualified immunity. A nderson v. Creighton, 483 U.S. 635, 639, 107

S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987), citing Pfannstiel v. City

of Marion, 918 F.2d 1178, 1183 (5th Cir.1990).

1. James A. Collins

A supervisor cannot be held liable under section 1983 on the

basis of respondeat superior. Monell v. Dept. of Social Services,

436 U.S. 658, 694 n. 58, 98 S.Ct. 2018, 2037, n. 58, 56 L.Ed.2d 611

(1978). Rather, the misconduct of the subordinate must be

affirmatively linked to the action or inaction of the supervisor.

In Doe v. Taylor Independent School District, 15 F.3d 443, 453 (5th

Cir.1994)(en banc), cert. denied sub nom, Lankford v. Doe, 513 U.S.

815, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994), this court noted the

close relationship between the elements of municipal liability and

an individual supervisor's liability:

T he legal elements of an individual's supervisory liability

and a political subdivision's liability, however, are similar

enough that the same standards of fault and causation should

govern . A municipality, with its broad obligation to

supervise all of its employees, is liable under § 1983 if it

supervises its employees in a manner that manifests deliberate

indifference to the constitutional rights of citizens. We see

no principled reason why an indiv idual to whom the2 5 In Boa rd of the County Commissioners of Bryan County,

Oklahoma, v. Brown, the Court held that Bryan County was not liable

for the sheriff's isolated decision to hire his nephew as a deputy,

without adequately reviewing his background, because the plaintiff

did not demonstrate that the sheriff's decision reflected a

conscious disregard for a high risk that the nephew would use

e xcessive force in violation of federally protected rights.

--- U.S. ----, ----, 117 S.Ct. 1382, 1391, --- L.Ed.2d ---- (1997).

25 municipality has delegated responsibility to directly

supervise the employe e should not be held liable under the

same standard.

1 5 F.3d at 453. The court concluded that a supervisory official

may be liable under section 1983 if that official, by action or

inaction, demonstrates a deliberate indif ference to his or her

constitutionally protected rights. Id. at 454.

Although the de liberate indifference standard arose from a

case alleging a violation of a substantive due process right, the

standard applies to other underlying constitutional violations as

well. I d., n. 8. The Supreme Court has recently reaffirmed that "

"deliberate indifference' is a stringent standard of fault,

requiring proof that a mu nicipal actor disregarded a known or

obvious consequence of his action." B oard of the County

Commissioners of Bryan County, Oklahoma, v. Brown, --- U.S. ----,

----, 117 S.Ct. 13 82, 1391, --- L.Ed.2d ---- (1997); 2 5 s ee also,

Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128

L.Ed.2d 811 (1994)(deliberate indiffe r ence is more than "more

blameworthy than negligence", but less than "acts or omissions for

the very purpose of causing harm or with knowledge that harm will

result"). The "deliberate indifference" standard permits courts to

separate omissions that "amou nt to an intentional choice" from26

those that are merely "unintentionally negligent oversight[s]."

Gonzalez v. Ysleta Independent School District, 996 F.2d 745, 756

( 5th Cir.1993), q uoting Rhyne v. Henderson County, 973 F.2d 386,

392 (5th Cir.1992).

Appellees assert that because Collins knew of the numerous,

similar complaints of sexual harassment against Strain, and failed

to stop the harassment, Collins was deliberately indifferent to

appellees' constitutional rights. Collins asserts that his receipt

of the EEO investigative reports cannot as a ma tter of law show

that he acted with deliberate indifference to appellees' rights,

because the EEO office conducted independent investigation s and

concluded that none of the complaints was sustainable.

In Doe v. Taylor Independent School District, this court

considered wh ether a high school principal and superintendent of

schools were shielded by qualified immunity from the claims of a

high school student who had been sexually molested by a teacher.

This court found that the school principal did not have qualified

immunity for his failure to supervise the teacher, resulting in the

c hild's molestation. However, the superintendent of schools was

immune.

W h en the superintendent heard of the teacher's potential

misconduct, he instructed the principal, the teac h er's direct

supervisor, to speak to the teacher. Several months later, the

superintendent was informed that the teacher had given alcohol to

students at an event and behaved inappropriately with Doe. The

superintenden t contacted the parents of one of the allegedly26 The relevant Executive Directive provides:

It is the policy of the Texas Department of Criminal

27 mis behaving students to discuss the report and was assured that

their child had not even attended the event. After intimately

inscribed photographs came to light, Doe's parents arranged to meet

with the superintendent. At that meeting, the superintendent

acknowledged his awareness of the rumors about the teacher and Doe;

talked to Doe; and warned the teacher to stay away from Doe. The

court concluded that the superintendent had notice of a pattern of

inappropriate sexual behavior. However, the superintendent was not

deliberately indifferent to that knowledge. He took some steps:

instructing the principal to talk to the teacher; checking on an

incident reported to him; and, later meeting with the principal

and teacher. "His actions were ineffective, but not deliberately

indifferent." 15 F.3d at 458.

Collins served as t he director of the TDCJ-ID from January

1990 to April 1994. As director, Collins oversaw 108 prison units

and approximately 38,000 employees. Each prison unit organizes the

line of authority over its security personnel after a military

chain of command: wardens, assistant wardens, majors, captains,

lieutenants, sergeants, and correctional officers, in descending

hierarchical order. Each level of subordinate employee reports to

the next level up the chain of command. As director, Collins had

in place a written, formal system to receive and investigate

employee complaints of discrimination and harassment based on sex

and a written policy against such discrimination and harassment. 26Justice, that all employees shoul d enjoy a working

environment free from all forms of discrimination,

including sexual harassment.... The Agency will treat

se xual harassment as any other form of employee

misconduct—it shall not be tolerated.

28 Collins asserts in his affidavit that he di d not personally

see the plaintiffs' EEO complaints, but rather that his office

staff would review the complaints for him. Because this court has

jurisdiction only to review the questions of law posed by the

district court's denial of summary judgment based on the defense of

qualified immunity, this court will "ignore the disputes of fact,

take those facts assumed by the district court in a lig ht most

favorable to [plaintiffs], and determine whether tho s e facts"

establish an exception to the qualified immunity defense. N erren,

86 F.3d at 472; C antu, 77 F.3d at 805. In that light, the record

discloses tha t Collins received the EEO office investigative

reports into the complaints made by Hull, Southard, Pankey, Litton,

Leis, Minter, Foster, Maimbourg, Nunn, Toland, Palmer, and Fleming.

Collins initialed the forwarding letters for the EEO's reports into

the complaints filed by Maimbourg, Palmer, Foster, and Fleming, and

signed the formal response for the third stage of the grievance

process, rejecting the complaints filed by Hull, Southard, Litton,

Leis, and Minter. Like the superintendent in D oe, Collins was

a ware of the complaints of inappropriate behavior. Collins also

knew that the EEO office investigated each complaint and found it

lacking. The issue is whether Collins's knowledge of the

allegations and of the EEO's investigation reports rejecting those

allegations creates a fact issue as to deliberate indifference.2 7 See also, John Doe v. Hillsboro Independent School Dist., No.

94-50709,

--- F.3d

---- (5th Cir. May 27, 1997) (en banc) (holding

that school superintendents and trustees were not liable under

section 1983 where the plaintiff could not demonstrate a nexus

between a failure to check the criminal background of a school

employee and the sexual assault of a student).

29 In Gonzalez v. Ysleta Independent School Dist., 996 F.2d 745

(5th Cir.1993), 27 this court found that a school district board of

trustees was immune from liability for a teacher's molestation of

a student. I d. at 762. When the board was informed of two

incidents of the teacher's inappropriate behavior, the board

transferred the teacher. After the transfer, the teacher molested

a first grader. I d. at 746-49. This court determined that the

board of t rustees had not acted with deliberate indifference in

failing to terminate the teacher after the first two complaints,

because, although the board's decision to transfer was "negligent"

and "inconsistent with the distri ct's handling of other cases of

suspected sexual abuse," the board had not turned "a blind eye" to

the complaints, but had ordered an investigation and followed the

recommendation based on that investigation. I d. In this case,

Collins knew that the EEO office independently in vestigated each

complaint and he followed the conclusions of the EEO office.

Plaintiffs rely on Gutierrez-Rodriguez v. Cartagena, 882 F.2d

553 (1st Cir.1989), to argue that there is a triable issue as to

whether Collins knew that the EEO investigations were wholly

inadequate. In C artagena, a group of police officers from the

narcotics division of the Puerto Rico police department shot the

plaintiff. The plaintiff sued the police officers, the director of30

the narcotics division, and the superintendent of police, under

section 1983. The superintendent relied on internal investigations

rejecting use of force and other complaints against the officers,

and asserted immunity. The First Circuit upheld the jury's verdict

against the police superintendent because a reasonable jury could

have found callous indifference to the plaintiff's rights. The

court found that the investigations on which the superintendent

relied in deciding not to take action against the police officer,

despite a large number of similar complai nts, had "glaring

inadequacies." Officers who were the subject of an internal

investigation could refuse to testify or give a statement to

investigating officers; witnesses had to come to the station house

to give sworn written statements; when a citizen withdrew his

complaint, the internal investigation ended, which caused officers

to intimidate witnesses; and immediate supervisors were not

involved. I d. at 565-66. Based on these findings, the court

concluded that:

[b]oth [the] failure to identify and take remedial ac tion

concerning [the officer] and his employment of a disciplinary

system that was grossly deficient in a number of significant

areas made it highly likely that the police officers under his

command would engage in conduct that would deprive the

citizens of Puerto Rico of their constitutional rights.

Id. at 566.

In this case, by contrast, the record does not disclose that

the TDCJ EEO off ice procedures, as implemented in the reports

provided to C o llins, showed the same systemic "glaring

inadequacie s" that made the counterpart in G utierrez-Rodriguez a

source of supervisory liability rather than a q ualified immunity2 8 Plaintiffs submitted the report of an expert witness who

found the EEO investigative procedure to be "seriously and

fundamentally flawed." The expert witness, a lawyer with

experience in employment discrimination cases, concluded that the

TDC J EEO office investigative procedures had systemic flaws.

However, the expert's criticisms of the TDCJ EEO office

investigative procedure do not approach the "glaring inadequacies"

that characterized the internal investigation procedures used in

Cartagena. The lawyer's report provides an insufficient basis for

an inference that Collins subjectively knew that the EEO office

investigation procedure as applied to the complaints against Strain

w as so flawed that he could not reasonably rely upon the EEO

office's conclusions. The record does not permit a conclusion by

this court that by relying on the EEO office investigation and

conclusions that the allegations of sexual harassment against

Strain could not be sustained, Collins was deliberately indifferent

to the rights of his employees to be free from such harassment.

31 shield. 28

In Gutierrez-Rodriguez, the investigative process was an

integral part of the police department. In this case, by contrast,

the EEO office was independent of other TDCJ departments. The

grievance process required the accused officer to respond to the

complaints, allowed witnesses to give information through informal

interviews, a n d actively involved supervisors. The grievance

procedures encouraged employees to give interviews and statements

to investigators; provided that an employee's service as a witness

was "official business," for which the employee was to be released

on paid time during working hours; and provided protection against

reprisals for such service.

The EEO investigative reports that Collins received bore the

earmarks of a detailed investigation. The reports contained

detailed summaries of each employee's allegations against Strain,

providing specific in formation on the dates and circumstances of

the alleged harassment and r etaliation. The reports listed the2 9 While the reports generally included a complete li st of

witnesses, the EEO investigation report of the investigation into

Litton's complaint omitted the complaint alleged by Terri Taylor,

which was contained in the EEO investigative file.

32 witnesses interviewed; 29 the results of those interviews; and the

contents of documents and records reviewed. Each report explained

why, although some of the allegations made by some of the grievants

were supported, the EEO office rejected the allegations of sexual

harassment and retaliation. The reports did not hide the fact that

Strain had received a number of similar complaints from female

correctional officers and clerks. Instead, the reports explained

why, despite the number of complaints, the EEO was unable to

sustain the allegations.

Moreover, unlike the police chief in Cartagena, and like the

superintenden t in D oe v. Taylor Independent School District,

Collins did not simply ignore the complaints and dism iss the

charge s. Instead, Collins took some steps, asking the regional

director and the di rector of personnel to investigate some

questions raised by the EEO investigation reports. Even if those

steps were "ineffectual," they do not demonstrate deliberate

indifference.

T he evidence does not raise a fact issue that Collins

subjectively knew Strain was sexually harassing female employees or

knew that the EEO office's procedures for investigation into such

complaints were "glaringly inadequate." Collins did not act with

deliberate indifference to plaintiffs' federally protected rights.

He is entitled to qualified immunity.33

2. Oscar Strain and Linda Fleming

Strain contends that as a matter of law, he is entitled to

qualified immunity against Linda Fleming's claims. Fleming did not

allege acts of sexual harassment. Instead, in her EEO grievance

and her pleadings, she alleged that Strain gave her less favorable

work assignments because of a personal "animu s" toward women and

because Fleming filed an age discrimination complaint against TDCJ.

Fleming alleg ed that Strain selected another officer for the

position of "grievance officer"; assigned Fleming to run three

gates simultaneously on several o ccasions; assigned Fleming

library duty; reprimanded Fleming within the hearing of inmates;

and on one occasion refused to allow her to have a water bottle at

her duty station.

To state a claim of sex discrimination under section 1983, a

plaintiff must show the following elements: 1) membership in a

protected class; 2) that the plaintiff was qualified for the

position at issue; 3) that the defendant made an adverse

employment decision despite the plaintiff's qualifications; and 4)

that the plaintiff was replaced with a person not a member of the

protected class. S ee McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2 d 668 (1973); C ervantez v. Bexar

County Civil Service Commission, 99 F.3d 730, 734 (5th

Cir.1996)("we hav e on numerous occasions recognized that section

1983 and Title VII are parallel cau ses of action"); W allace v.

Texas Tech. University, 80 F.3d 1042, 1047 (5th Cir.1996) (applying

the same prima facie test to discrimination claims under Title VII34

and section 1983); M erwine v. Board of Trustees for State

Institutions of Higher Learning, 754 F.2d 631, 635, n. 3 (5th

Cir.1985) ("[w]hen a § 1983 claim is used as a parallel to a Title

VII claim under a given set of facts, the elements required to be

establi shed for each claim are deemed the same under both

statutes").

To assert a cause of action for retaliation for the exercise

of a federally protected right, a plaintiff must show that she:

1) engaged in a protected activity;

2) an adverse employment action followed; and

3) there was a causal connection between the activity and the

adverse action.

Mattern v. Eastman Kodak, Co., 104 F.3d 702, 705 (5th Cir.1997);

Harrington v. Harris, 108 F.3d 598, 603 (5th Cir.1997) (a plaintiff

must show that he suffered an adverse employment action to state a

retaliation claim under section 1983); P ierce v. Texas Department

of Criminal Justice, 37 F.3d 1146, 1150 n. 1 (5th Cir.1994)

("[m]ore than a trivial act of retaliation [is required] to

establish constitutional harm" in a 1983 case).

Strain contends that he is entit led to qualified immunity

because Fleming failed to raise a fact issue that Strain's conduct,

objectively viewed, violated her clearly established rights.

Strain supervised Fleming for approximately three and o ne-half

months. Fleming testified in her deposition that none of the work

assignments Strain gave her was more difficult or burdensome than

the jobs she would have preferred; she enjoyed the library

assignment; none of the jobs were very difficult; she was rotated35

among a number of jobs and did not know where other employees were

assigned; and that the only reason she complained about any of the

assignments was her belief that Strain was retaliating against her.

Not every negative employment decision or event is an adverse

employment action that can give rise to a discrimination or

retaliation cause of action under section 198 3. H arrington, 108

F.3d at 604; P ierce, 37 F.3d at 1149. Adverse employment actions

include disch arges, demotions, refusals to hire, refusals to

promote, and reprimands. Id.; see also Dollis v. Rubin, 77 F.3d

777, 781-82 (5th Cir.1995). Undesirable work assignments are not

adverse employment actions. H arr ington, 108 F.3d at 604, citing

Dorsett v. Bd. of Trustees for State Colleges & Universities, 940

F.2d 121, 123 (5th Cir.1991).

Fleming's allegations and summary judgment proof do not raise

a fact issue that Strain's supervision, objectively viewed, clearly

violated her federally protected rights. As a matter of law,

Strain is entitled to qualif ied immunity as to Fleming's claims

under sections 1983 and 1985(3).

3. Oscar Strain and Teresa Pankey

Theresa Pankey alleged and provided summary judgment evidence

that Stra in slammed the door when he came into her office, which

made her feel "uncomfortable"; Strain stared at her before asking

her to do a typing job that she felt she should not have to do;

Strain told her that she might be his personal secretary, and when

Pankey responded that she was not aware of such plans, Strain said,

"[l]et me tell you something. I get what I want around here, and36

I want you." On another occasion, Pankey was in the copy room when

Strain came in, closed the door, and asked her why she was "mad at

him." Strain followed Pankey back to their office and was about to

slam the door when Pankey received a phone call. Later that day,

Strain came into her office and slammed the door so that Pankey and

another female employee were alone with Strain. Pankey told Strain

to open the door; another officer came in and Strain left.

Pankey alleged in her second amended complaint that Strain

told her in a "threatening, provocative manner she had to work with

h im" and gave her "unreasonable work assignments." According to

Pankey, Strai n's requests for typing were "unreasonable work

assignments," because Strain would ask her to drop her other work

to type for him. In her deposition, Pankey testified that when she

would inform Strain that she could not do the work immediately,

Strain would ask if she could do it later.

Strain asserts that Pankey's allegations and evidence fail to

raise a fact issue defeating qualified immunity, because Pankey has

not shown that the acts she complains about were based on her sex,

Ellert v. University of Texas, at Dalla s, 52 F.3d 543, 545 (5th

Cir.1995), or that the conduct was sufficiently severe or pervasive

to alter the conditions of employment and create an abusive working

environment. F arpella-Crosby v. Horizon Health Care, 97 F.3d 803,

806 (5th Cir.1996); D eAngelis v. El Paso Mun. Police Officers

Assn., 51 F.3d 591, 594 (5th Cir.1995), cert. denied,

--- U.S.

----

, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995).

Pankey admitted that her job required her to type documents3 0 Because Pankey failed to state a constitutional violation,

her section 1985(3) claim fails as a matter of law.

37 for the ranking officer s, and that Strain's door slamming and

stares were directed toward men as well as women. Pankey's

subjective interpretation of Strain's comments is insufficient to

raise a fact issue as to sexual harassment. S ee Bu rns-Toole v.

Byrne, 11 F.3d 1270, 1274 (5th Cir.), cert. denied, 512 U.S. 1207,

114 S.Ct. 2680, 129 L.Ed.2d 814 (1994)("[a plaintiff] cannot

prevail [over t he defense of qualified immunity] with mere

conclusory statements evidencing only a personal beli ef that the

defendants were motivated by an impermissible animus"). Even

assuming that Strain's comments and conduct were motivated by

Pankey's sex, they were not so severe or pervasive as to constitute

sexual harassment. DeAngelis, 51 F.3d at 594.

Stra in has qualified immunity as to Pankey's claims against

him under section 1983 and section 1985(3). 30

IV. CONCLUSION

For the reasons stated above, we REVERSE the district court's

order denying qualified immu nity to defendant Collins as to all

plaintiffs, and to defendant Strain as to the claims of plaintiffs

Fleming and Pankey. This case is REMANDED for further proceedings

on the remaining plaintiffs' claims against Strain.