United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2896

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Alana Crutcher-Sanchez, *

formerly known as Alana Smith, *

*

Plaintiff-Appellee, *

*

 v. *

* Appeal from the United States

County of Dakota, Nebraska, * District Court for the

* District of Nebraska.

Defendant, *

*

James L. Wagner, in his official *

and individual capacity, *

*

Defendant-Appellant, *

*

Rodney Herron, in his official and *

individual capacity; Joe Ramirez, in *

his official and individual capacity, *

*

Defendants. *

* 

___________ *

No. 11-2897

___________

Alana Crutcher-Sanchez, *

formerly known as Alana Smith, *

*

Plaintiff-Appellee, *
 v. *

*

County of Dakota, Nebraska, *

James L. Wagner, in his official *

and individual capacity, *

*

Defendants, *

*

Rodney Herron, in his official and *

individual capacity, *

*

Defendant-Appellant, *

*

Joe Ramirez, in his official and *

individual capacity, *

*

Defendant. *

* 

___________ *

No. 11-2898

___________

Alana Crutcher-Sanchez, *

formerly known as Alana Smith, *

*

Plaintiff-Appellee, *

*

 v. *

*

County of Dakota, Nebraska, *

James L. Wagner, in his official *

and individual capacity, *

Rodney Herron, in his official and *

individual capacity, *

*

Defendants, *

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*

Joe Ramirez, in his official and *

individual capacity, *

*

Defendant-Appellant. *

___________

Submitted: May 16, 2012

 Filed: August 3, 2012

___________

Before MURPHY, BENTON and SHEPHERD, Circuit Judges.

___________

BENTON, Circuit Judge. 

Alana Lynn Crutcher-Sanchez, then known as Alana Lynn Smith, sued her

former employer, Dakota County, Nebraska, under 42 U.S.C. §§ 1983 and 1985. She

also sued Sheriff James L. Wagner, her supervisor Chief Deputy Rodney G. Herron,

and Sergeant Joseph Ramirez. She claims Herron and Wagner created or fostered a

sexually hostile work environment, and Herron and Ramirez conspired to deprive her

of her civil rights. The defendants moved for summary judgment based on qualified 1

immunity, which the district court denied. The defendants appeal. Having

jurisdiction under 28 U.S.C. § 1291, this court affirms the denial of summary

judgment to Herron, reverses the denial of summary judgment as to Wagner and

Ramirez, and dismisses all other claims.

Crutcher-Sanchez asserts this court lacks jurisdiction because the appeal

involvesfactual disputes. A denial of qualified immunity isimmediately appealable. 

Crutcher-Sanchez abandoned her claim of race discrimination in violation of 1

42 U.S.C. § 1981. She also dropped her claim for sexual harassment against Ramirez

and her claim for conspiracy against Wagner. 

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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 resolves any factual disputes in

Crutcher-Sanchez’s favor, and reviews the denial of qualified immunity as a pure

question of law. Tuggle v. Mangan, 348 F.3d 714, 719 (8th Cir. 2003). In this case,

the defendants “principally challenge[] the district court's application of qualified

immunity principles to the established summary judgment facts. Because this raises

a legal issue that does not ‘require us to resolve any disputed issues of evidentiary

sufficiency,’ we have jurisdiction.” Jones, 675 F.3d at 1161.

I. 

Crutcher-Sanchez, a correctional officer, worked at the Dakota County jail

from October 2, 2006, until terminated on January 19, 2007. She was a probationary

employee at all times. Crutcher-Sanchez attended new employee orientation, but

never received the employee handbook with the county’s sexual harassment policy,

or any other instruction about sexual harassment in the workplace. 

As the elected sheriff, Wagner had authority over the jail and its operations. 

He delegated much of his authority to Chief Deputy Herron. Wagner asked CrutcherSanchez out several times. (She estimates between five and ten times, but recalls only

two specific instances.) Once, in his office, Wagner asked her to dinner; when she

declined, he told her he “could not buy her a diamond ring, but could buy her a box

of chocolates.” She replied she did not like chocolate and had enough diamond rings. 

Later, Wagner called her at the jail to ask her out; she again declined. CrutcherSanchez complained to Herron about the sheriff’s advances. She said Wagner never

said anything sexually explicit and did not act inappropriately toward her, other than

asking her out.

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Herron began pursuing Crutcher-Sanchez soon after she started at the jail. He

called her at the jail to tell her she looked good in her uniform. He “looked her up

and down,” assigned her to the day shift ahead of more senior employees, and called

her from the parking lot of her second job at a retail store on several occasions. 

About a month into her employment, Herron metCrutcher-Sanchez at a bar where she

was drinking with friends. After the bar closed, he drove an intoxicated CrutcherSanchez to his house, where they began kissing. Crutcher-Sanchez testified she

protested that “he was her boss and she needed to get back to her friends.” Herron

told her not to worry about it. They had sex. The next morning, Herron told her she

could not tell anyone about the incident, because there would be trouble if Wagner

or anyone else found out. According to Crutcher-Sanchez, during the next two

months, the two had sex at least ten times. They also engaged in sexual activity in

county vehicles while driving back from transport trips. Crutcher-Sanchez initiated

some of the contacts. After one incident, Herron told her he loved her. CrutcherSanchez pretended to be asleep and did not respond. She acknowledged having sex

with Herron willingly, except to the extent she protested the first time.

Ramirez was also a correctional officer when Crutcher-Sanchez began work. 

He was promoted to sergeant in January 2007, becoming her supervisor. In

December 2006, Herron and Ramirez invited two other female correctional officers

to a local bar during the work day to celebrate Herron’s birthday. An intoxicated

Herron flirted with one female officer, who rejected his advances. Arriving at 11

p.m., Crutcher-Sanchez saw Herron dancing with a woman who was a former inmate

and a known drug addict. Herron asked Crutcher-Sanchez if she wanted to meet up

with himlater. The former inmate became jealous and toldCrutcher-Sanchez to leave

Herron alone. Crutcher-Sanchez left the bar and did not see Herron again that night. 

Afterthe birthday outing, Herron began telling his coworkers, including Ramirez,that

Crutcher-Sanchez was “stalking” him and that he needed to find a way to get rid of

her. Even so, Herron continued to have sex with Crutcher-Sanchez, and the two spent

Christmas day and New Year’s day together. 

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Ramirez, at Herron’s direction, issued Crutcher-Sanchez two disciplinary

notices on January 11, 2007. The first was a reprimand for failing to follow the chain

of command after she complained directly to Wagner that a female co-worker was

given authority to run the control roomdespite a lack of law enforcement experience. 

The second warning wasfor failing to return special keys to the jail (the “pink keys”). 

She took the keys with her when leaving work one day, but turned around and headed

back to the jail upon realizing she had them. This second warning said she would be

disciplined or terminated if she failed to improve. 

On January 15, Ramirez drafted a memo listing instances of her failures to

follow policy and procedure, and placed it in her file. He testified that Herron told

him to rephrase the letter because it was too vague. Ramirez did so. He concluded

the letter by explaining, “These are the reasons why I am writing this letter of

recommendation for termination of Officer Alana Smith.” Herron then recommended

Crutcher-Sanchez’s termination. The next day, Crutcher-Sanchez went out drinking

and spent the night at a male friend’s house. She noticed several sheriff’s vehicles

outside her friend’s house and suspected she would be followed and arrested if she

tried to drive home. She contacted Herron and asked if he was having her followed. 

He said no, but confronted her the next day and accused her of having sex with her

friend.

Two co-workers testified that they were with Ramirez when he received a call

from Herron. They said Herron instructed Ramirez to fire Crutcher-Sanchez, to

prepare a letter, and to copy Wagner’s signature onto it. Ramirez and Wagner

testified otherwise: that Wagner, not Ramirez, wrote the termination letter and that

Ramirez never forged the sheriff’s signature. Herron testified that he never saw the

termination letter and had no input into its language. On January 19, Ramirez handed

Crutcher-Sanchez the letter terminating her employment with the county, effective

January 22, 2007. 

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II. 

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: first, whether the facts alleged establish a violation of a

constitutional orstatutory right and second, whether thatright was clearly established

at the time of the alleged violation, such that a reasonable official would have known

that his actions were unlawful. Johnson v. Phillips, 664 F.3d 232, 236 (8th Cir.

2011), citing Pearson v. Callahan, 555 U.S. 223, 232 (2009). 

Denying qualified immunity, the district court ruled that “a reasonable juror

could draw inferences of discrimination, harassment, or conspiracy.” Regarding

2

Crutcher-Sanchez’s claim that Ramirez and Herron conspired to violate her

constitutional rights in violation of 42 U.S.C. § 1985(3), the district court found

issues of fact whether the defendants acted outside the scope of their employment for

personal reasons, and: “There is at least some evidence that suggests an agreement

among the defendants to deprive the plaintiff of rights.”

On appeal, Crutcher-Sanchez also mentions a claim for quid pro quo sexual 2

harassment. She did not plead the claim in her Second Amended Complaint and

stated in her opposition to a motion to dismiss thatshe was not bringing such a claim. 

The district court did not address the claim, though it mentioned quid pro quo

harassment in the order denying summary judgment. This appeal does not consider

a claim of quid pro quo sexual harassment against Herron. 

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A. Sexual Harassment by Herron

“Sexual harassment by state actors violates the Fourteenth Amendment and

establishes a section 1983 action.” Tuggle, 348 F.3d at 720. To prove a hostilework-environment sexual harassment claim, Crutcher-Sanchez must show (1) she was

a member of a protected group; (2) she wassubject 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). On appeal, Herron contends that

Crutcher-Sanchez did not sufficiently show the second and fourth elements of her

claim.

In regard to the second element – whether Crutcher-Sanchez was subject to

unwelcome harassment – Herron argues that their relationship was consensual and

thus any harassment was welcome. He emphasizesthat Crutcher-Sanchez sometimes

initiated contact, spent Christmas day with him, engaged in mutual sexual activity in

police vehicles, and went to his house several timesto have sex. However, voluntary

sexual activity may also be unwelcome harassment, a question that in this case “turns

largely on credibility determinations committed to the trier of fact.” See Meritor Sav.

Bank v. Vinson, 477 U.S. 57, 68 (1986). Crutcher-Sanchez testified that the

harassing conduct began shortly after she started work at the jail and included Herron

“looking her up and down” during work, driving to the parking lot of her second job

while repeatedly calling her on the phone, subjecting her to constantsexual attention,

and asking her not to tell anyone about their sexual relationship. See Quick v.

Donaldson Co., 90 F.3d 1372, 1377 (8th Cir. 1996) (“[S]exual harassment includes

sexual advances, requests for sexual favors, and other verbal or physical conduct of

a sexual nature.”). Crutcher-Sanchez made a sufficient showing that Herron’s

conduct toward her was unwelcome harassment.

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For the fourth element, Crutcher-Sanchez must show harassment “sufficiently

severe or pervasive to alter the conditions of [the victim's] employment and create an

abusive working environment.” Tuggle, 348 at 720, citing Meritor, 477 U.S. at 67

(citation and quotation omitted). The Supreme Court has “made it clear that conduct

must be extreme to amount to a change in the terms and conditions of employment.” 

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Sexual harassment

“standards are demanding – to be actionable, conduct must be extreme and not merely

rude or unpleasant.” Alagna, 324 F.3d at 980. “More than a few isolated incidents

are required,” and the alleged harassment must be “so intimidating, offensive, or

hostile that it poisoned the work environment.” Scusa v. Nestle U.S.A. Co., 181 F.3d

958, 967 (8th Cir. 1999). 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 v. General

Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002), quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 23 (1993). 

Based on the facts the district court likely assumed, Herron’s acts created a

hostile work environment. Herron – chief deputy and jail administrator during

Crutcher-Sanchez’s employment – had supervisory authority over her. There is

evidence that:

• Crutcher-Sanchez hesitated and voiced her concern the first time she and

Herron had sex

• Herron asked her to keep their relationship a secret

• She was unaware of the county’s harassment policy or to whom to complain

• He took advantage of her when she was intoxicated and vulnerable

• She felt harassed by Herron’s leering and following her to her second job

• Her co-workers ridiculed her as Herron’s stalker, at his urging

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• She was subject to sexual attention by Herron during almost all her

employment with the county

• She was fired for ending her sexual relationship with Herron

Next, this court must determine whether the right Herron violated was clearly

established. “This second step is a fact-intensive inquiry and must be undertaken in

light of the specific context of the case, not as a broad general proposition.” Moore

v. Indehar, 514 F.3d 756, 759 (8th Cir. 2008), quoting Samuelson v. City of New

Ulm, 455 F.3d 871, 875 (8th Cir. 2006). This court looks to the state of the law at the

time of the incident. Shekleton v. Eichenberger, 677 F.3d 361, 367 (8th Cir. 2012). 

“Even in the complete absence of any decisions involving similar facts, a right can

be ‘clearly established’ if a reasonable public official would have known that the

conduct complained of was unlawful.” Turner v. Ark. Ins. Dep’t, 297 F.3d 751, 755

(8th Cir. 2002). 

According to Herron, there is no case in this jurisdiction where the harasser

was found liable under section 1983 for behavior like his. He argues that the right

to be free from sexual harassment is not specific enough to satisfy the Supreme

Court’s requirement of a particularized right in Anderson v. Creighton, 483 U.S. 635,

640 (1987) (“The contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right. This is not to say

that an official action is protected by qualified immunity unless the very action in

question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.” (citation omitted)). However, “the

right to be free from gender discrimination is clearly established.” Wright v. Rolette

Cnty,, 417 F.3d 879, 886 (8th Cir. 2005), quoting Peterson v. Scott Cnty., 406 F.3d

515, 526 (8th Cir. 2005). It was clearly established in 2007 that a supervisor’s

attempt to have sex with a subordinate violates the subordinate’s civil rights. See

Moring v. Ark. Dep’t of Corr., 234 F.3d 452, 456 (8th Cir. 2001) (affirming liability

against a supervisor when the sexual harassment consisted of his attempt to have sex

with the subordinate one time). 

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Based on the facts the district court likely assumed, the district court correctly

denied Herron summary judgment based on qualified immunity. 

B. Conspiracy by Ramirez and Herron

Crutcher-Sanchez alleges that Ramirez and Herron conspired to violate her

constitutional rights in violation of 42 U.S.C. § 1985(3). In order to show a civil

rights conspiracy under section 1985(3), she must prove: (1) that the defendants

conspired, (2) with the intent to deprive her of equal protection of the laws, or equal

privileges and immunities under the laws, (3) that one or more of the conspirators did,

or caused to be done, any act in furtherance of the object of the conspiracy, and (4)

that she was injured or deprived of having and exercising any right or privilege of a

citizen of the United States. See Larson ex rel. Larson v. Miller, 76 F.3d 1446, 1454

(8th Cir. 1996). 

Crutcher-Sanchez asserts that Ramirez and Herron conspired for personal

reasons to terminate her employment, depriving her of her constitutional right to

equal protection. Her claim is defeated by her own pleadings. 

Crutcher-Sanchez fails to demonstrate the first prong, the existence of a

conspiracy. “A conspiracy claim requires evidence of specific facts that show a

‘meeting ofthe minds’ among conspirators.” Barstad v. Murray Cnty., 420 F.3d 880,

887 (8th Cir. 2005), citing Rogers v. Bruntrager, 841 F.2d 853, 856 (8th Cir. 1988). 

A government entity cannot conspire with itself. Id., citing Cross v. General Motors

Corp., 721 F.2d 1152, 1156 (8th Cir. 1983). However, government agents may

conspire by acting beyond the scope of their authority or for their own benefit. See

Garza v. City of Omaha, 814 F.2d 553, 556 (8th Cir. 1987). Crutcher-Sanchez’s

pleadings defeat her claim that Herron and Ramirez were acting beyond the scope of

their authority or for their own benefit. She pleaded only that “Defendants Herron

and Ramirez commit the aforementioned torts while acting within the course and

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scope of their employment and while furthering the business of Dakota County.” A

plaintiff who pleads only that the government actor “acted in the course and scope of

‘[his] employment’ fail[s] to demonstrate the existence of a conspiracy.” Barstad,

420 F.3d at 887. The district court erred in denying Herron and Ramirez summary

judgment on the conspiracy claim. 

C. Sexual Harassment by Wagner

Crutcher-Sanchez alleges that Wagner subjected her to a sexually hostile

work environment by asking her out several times. The district court denied him

summary judgment, concluding there were genuine issues of material fact about

the severity and pervasiveness of Wagner’s conduct. Viewing the facts most

favorably to Crutcher-Sanchez, Wagner’s conduct was not sufficiently severe or

pervasive to create a sexually hostile work environment. The only allegations

against Wagner were that he offered her a box of chocolates and asked her out

several times. While inappropriate, his acts do not reach the high threshold of “so

intimidating, offensive, or hostile that it poisoned the work environment.” Scusa,

181 F.3d at 967. Crutcher-Sanchez fails to show that Wagner’s actions affected

her employment, as required to make a colorable claim of sexually hostile work

environment. See Sutherland, 580 F.3d at 751. The district court erred in

denying Wagner summary judgment. 

* * * * * * *

The judgment of the district court is affirmed in part, reversed in part, and the

case remanded for proceedings consistent with this opinion.

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