United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2894

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Charvette Williams, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Rodney Herron, in his official and *

individual capacity, *

*

*

Appellant. *

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Submitted: February 16, 2012

Filed: August 3, 2012

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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Charvette Williams brought suit under 42 U.S.C. § 1983 against the County of

Dakota, Nebraska, and former county official Rodney Herron. She alleged

defendants committed gender discrimination in violation of her Fourteenth

Amendment rights. Herron appeals the district court’s denial ofsummary judgment, 1

asserting that he was entitled to qualified immunity. We affirm.

The Honorable Joseph F. Bataillon, United States District Judge for the

1

District of Nebraska.
I. Background

In January 2007, then Dakota County Chief Deputy Sheriff Rodney Herron

hired Charvette Williams as a correctional officer at the Dakota County Jail (DCJ).2

Herron possessed direct authority over DCJ employees until January 2008, when he

ceased serving as jail administrator. After that time, he retained authority over DCJ

employees by virtue ofsheriff department hierarchy, meaning thatWilliams could not

disregard his direct orders. Herron maintained a constant presence at DCJ, as he

worked from an office there. In April or May 2008, Williams and Herron began a

sexualrelationship, which continued until earlyAugust 2008. The relationship began

to sour in June; a June 23 email from Williams to Herron expressed Williams’s

discontent, stating,

I know you don’t like me and I know you dont want to be with me other

than sex if even that anymore. I just need closure. . . . As for me I have

never felt so unwanted in my life and I am tired of it and tired of you

blowing me off. I can just not talk to you with out telling you how I feel

because then I will keep on thinking that maybe you will come around. 

I am done now. This is my closure.

Williams explained in response to interrogatories that by July she “wanted

out,” and “the touching, groping and sex was no longer consensual.” However, the

relationship continued because Williams feared she would lose her job if she ended

it. She had heard rumors of other DCJ employees who lost their jobs after ending

sexual relationships with Herron. When she asked Herron whether she could be fired

for “messing around with [him],” Herron assured her thatshe would not lose her job. 

Williams claimed that Herron committed the following unwelcome harassment in July

For the purposes of this appeal, we take as true those facts the district court

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found or likely assumed astrue—so long asthey are not blatantly contradicted by the

record—and make all reasonable inferences in favor of the plaintiff regarding any

unresolved factual questions. See infra, part II.A.

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2008: after she suggested that they should end their relationship, he walked by her

workstation all day making sad “puppy dog faces”; he waited for her where

employees clock out, and when she arrived he grabbed her, hugged her, and

complimented the smell of her hair; and on another occasion, he began hugging and

kissing her while she was in his office, and then had intercourse with her.

The relationship ended in early August 2008. Soon thereafter, Williams

learned she was pregnant by Herron, but she induced a miscarriage by taking

ibuprofen in a suicide attempt. When Herron learned of the pregnancy and

miscarriage, he became angry and told Williams that she would cost him a local

sheriff’s election. (Herron was a candidate for Dakota County Sheriff at that time.) 

In early September 2008, Herron asked Williams if they could continue as friends. 

She avoided him and asked a fellow employee to tell him to leave her alone. In

October she transferred to the night shift to avoid seeing Herron at work. She did not

desire the transfer, as it made her home life significantly more difficult.

Williams claimed that she received special treatment while continuing her

sexualrelationship with Herron, including the ability to take paid leave at his request. 

She also provided evidence that (1) Herron had carried on sexual relationships with

at least two other female DCJ employees, he aggressively pursued a relationship with

a third employee after having two sexual encounters with her, and those women all

either quit or were fired; (2) Herron rewarded the women who gave in to him with

workplace benefits; (3) Herron told one of those women that he would fire her if she

did not do what he wanted; and (4) other DCJ superiors had engaged in similar

conduct with female employees.

Williams brought suit against Herron and Dakota County in June 2009. In her

second amended complaint, she alleged that Herron sexually harassed her by creating

and fostering a hostile work environment, in violation of her Fourteenth Amendment

rights. Acting in his individual capacity, Herron moved for summary judgment in

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April 2011, arguing that he was entitled to qualified immunity. The district court

denied the motion. First, it concluded that an employee’s right to be free from gender

discrimination was clearly established under the Fourteenth Amendment. Second, it

concluded that genuine questions of material fact existed as to whether Herron

violated Williams’s constitutional rights, including whether Herron committed

widespread sexual favoritism at DCJ and whether his conduct towards Williams was

sufficiently severe or pervasive asto affect a termor condition of employment. Based

on the district court’s statements that genuine questions of material fact existed as to

whether Herron violatedWilliams’s constitutionalrights, we conclude that the district

court also found Williams showed a constitutional violation when viewing the facts

in the light most favorable to her.

II. Analysis

On appeal, Herron argues that he was entitled to qualified immunity, and that

the district court should have granted him summary judgment on that basis. As an

initial matter, we must address whether this court has jurisdiction over Herron’s

appeal. If we find jurisdiction is proper, we will continue to discuss whether Herron

possessed qualified immunity.

A. Jurisdiction

We review questions of subject matter jurisdiction de novo. Cmty. Fin. Grp.,

Inc. v. Republic of Kenya, 663 F.3d 977, 980 (8th Cir. 2011). This court generally

lacks jurisdiction over interlocutory appeals challenging the denial of a summary

judgment motion. Krout v. Goemmer, 583 F.3d 557, 563-64 (8th Cir. 2009). 

However, under the collateral-order doctrine, this court has jurisdiction over such an

appeal when it involves a denial of qualified immunity, so long as the appeal

challenges only abstract issues oflaw. Id. at 564. Review becomes more complicated

when, as here, an appellant challenges issues of both law and fact. In these

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circumstances, we apply de novo review; yet in doing so, we must take as true those

facts the district court found or likely assumed as true, Brown v. Fortner, 518 F.3d

552, 557-58 (8th Cir. 2008), so long as those facts are not blatantly contradicted by

the record, Scott v. Harris, 550 U.S. 372, 380 (2007). As to any unresolved factual

questions, we make all reasonable inferences in favor of the plaintiff. Brown, 518

F.3d at 558.

B. Qualified Immunity

On summaryjudgment, government officials possess qualified immunity unless

(1) the facts plaintiff has shown amount to a violation of a constitutional right, and

(2) the right violated was clearly established when the alleged misconduct occurred. 

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). A court may begin its analysis

with either prong. Id. For our purposes, we will first determine whether Williams has

shown that Herron violated her Fourteenth Amendment rights, looking to the facts in

the manner described above. If she has met her burden, we will then determine

whether the violation was clearly established at the time it occurred.

1. Did Herron Violate a Constitutional Right?

To succeed on a Fourteenth Amendment hostile-work-environment claim for

sexual harassment, a plaintiff must show that (1) she belongs to a protected group, (2)

she wassubjected to unwelcome sexual harassment, (3) the harassment was based on

sex, and (4) the harassment affected a term, condition, or privilege of employment. 

Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003). “To be actionable, harassment

must be both objectively and subjectively offensive, such that a reasonable person

would consider it to be hostile or abusive . . . .” Erenberg v. Methodist Hosp., 357

F.3d 787, 792 (8th Cir. 2004). 

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On appeal, Herron contendsthat Williams did not sufficiently show the second

and fourth elements of her claim. We address each in turn.

In regard to the second element, we find Williams presented sufficient evidence

to show she adequately communicated to Herron that his conduct was unwelcome. 

See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986) (“The correct inquiry is

whether respondent by her conduct indicated that the alleged sexual advances were

unwelcome . . . .”). The harassing conduct alleged by Williams began in July 2008

and included Herron grabbing and hugging her while she was clocking out, making

pouty faces at her all day after she informed him she no longer wished to have sex

with him, and initiating a sexual encounter with her in his office. See id. (noting that

voluntary sexual activitymay also be unwelcome harassment; question “turns largely

on credibility determinations committed to the trier of fact”); 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.”).

Williams informed Herron she was uncomfortable continuing theirrelationship

in late June 2008, and again in July—an instance that specifically prompted

workplace harassment from Herron. Williams also informed Herron of her concern

that she would lose her job if she ended their relationship, which she based on the

way his past relationships with DCJ employees had ended. See Quick, 90 F.3d at

1377-78 (harassing conduct is unwelcome if it was uninvited and offensive; proper

inquiry is whether plaintiff indicated by her conduct that harassment was

unwelcome). Therefore, we believe Williams supplied sufficient evidence that she

considered Herron’s conduct to be unwelcome harassment, that a reasonable person

would agree, and that she communicated to Herron that his conduct was unwelcome

in a way that a reasonable person would understand.

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In regard to the fourth element, Williams must show that Herron’s conduct was

“so severe or pervasive as to alter a term, condition, or privilege of [her]

employment.” Duncan v. Gen. Motors Corp., 300 F.3d 928, 934 (8th Cir. 2002). 

This element presents a high threshold, requiring a showing that “the workplace [was]

permeated with discriminatory intimidation, ridicule, and insult.” Id. (quoting Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (internal quotation marks omitted). It

includes both a subjective and objective inquiry. Id. To determine whether the

conduct complained of was sufficiently severe or pervasive, “we look to the totality

of the circumstances, including 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.’” Id. (quoting Harris, 510 U.S. at 23).

As evidenced by depositions of DCJ employees (including that of Williams),

Herron established a pervasive system of sexual coercion at DCJ, enticing women to

enter it with workplace benefits and securing their continued participation with the

threat of negative employment consequences. Before Williams, he pursued at least

three other DCJ employees in this manner, all of whom lost their jobs after ending

their relationships with him. Once Williams began viewing Herron’s conduct toward

her as unwelcome, her employment status became jeopardized, and her submission

to his conduct became a factor weighing on her continued DCJ employment. That

conduct included the continuation of her sexual relationship with him, as well as

unwelcome grabbing, hugging, and distractive behavior in the workplace, and an

unwelcome sexual encounter in his office. See Moring v. Ark. Dep’t of Corr., 243

F.3d 452, 456-57 (8th Cir. 2001) (one isolated incident may be sufficiently severe so

as to alter terms and conditions of employment; court found conduct wassufficiently

severe when supervisor entered plaintiff’s hotel room, sat on her bed, touched her leg,

and leaned in to kiss her). Herron’s conduct was rendered all the more severe and

coercive by the abusive workplace environment in which it occurred, an environment

that his prior relationships with DCJ employees had created. See, e.g., Sandoval v.

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Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009) (“When judging the

severity and pervasiveness of workplace sexual harassment, this court has long held

harassment directed towards other female employees is relevant and must be

considered.”). Williams explained that Herron’s conduct made her very distressed,

resulting in depression, anxiety, missed work, crying while on the job, and an

undesired shift change.

Looking to the totality of the circumstances, we believe Williams showed she

considered Herron’s conduct to be severe enough to alter the terms, conditions, or

privileges of her employment, and that a reasonable person would consider it the

same. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 82 (1998) (“Common

sense, and an appropriate sensitivity to social context, will enable courts and juries

to distinguish between simple teasing or roughhousing . . . and conduct which a

reasonable person in the plaintiff’s position would find severely hostile or abusive.”). 

Williams provided evidence that Herron’s conduct wassevere, physically threatening,

and an unreasonable interference with her work performance. Therefore, we believe

Williams has sufficiently shown the fourth element of her hostile-work-environment

claim. See Howard v. Burns Bros., 149 F.3d 835, 840 (8th Cir. 1998) (“Once there

is evidence of improper conduct and subjective offense, the determination of whether

the conduct rose to the level of abuse is largely in the hands of the jury.”).

Herron argues on appeal that the above analysis is not enough. Relying on

Anderson v. Creighton, 483 U.S. 635 (1987), he contends that to satisfy the first

qualified-immunity prong, Williams must support her claim using only those facts

known to Herron when the violation occurred. In Anderson, the Supreme Court held

that when courts analyze whether a violated right is clearly established, they must

conduct an objective inquiry looking to the particular facts of the case, ultimately

determining whether “a reasonable official would understand that what he is doing

violates” a constitutional or statutory right. Id. at 640. The Court further explained

that in the context of whether a police search was supported by probable cause or

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exigent circumstances,the analysis “will often require examination ofthe information

possessed by the searching officials.” Id. at 641. Herron contends that this same

examination must also apply to the second and fourth elements of Williams’s hostilework-environment claim, requiring her to show each using only those facts he knew

when the violation occurred.

We reject Herron’s argument for the following reasons. First, in the twentyfive years since Anderson was decided, we are unaware of any case that has applied

Anderson to sexual-harassment claims in the way Herron suggests. Cf. Wright v.

Rolette County, 417 F.3d 879, 884-86 (8th Cir. 2005) (court did not apply additional

knowledge requirement when conducting qualified-immunity analysis in sexual

harassment hostile-work-environment claim context). Second, to determine whether

a warrantlesssearch wasjustified by probable cause or exigent circumstances, a court

must consider the information possessed by the officer when he conducted the search;

however, a defendant’s lack ofsubjective knowledge asto whether his advances were

unwelcome or were serious enough to affect a term or condition of employment is not

determinative for purposes of hostile-work-environment claims. Finally, Anderson

dealt only with the second prong of the qualified-immunity analysis, and does not

apply to whether a plaintiff has shown a constitutional violation occurred. See Okin

v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 433 n.11 (2d Cir. 2009)

(explaining that Anderson’s objectively reasonable inquiry applies only to the second

qualified-immunity prong; an officer may not avoid liability under the first prong by

claiming he possessed an objectively reasonable belief that his conduct was lawful).

Based on the foregoing, we conclude Williams has met her burden to show that

Herron violated her Fourteenth Amendment right to be free from gender

discrimination.

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2. Was the Right Herron Violated Clearly Established?

Next, we must determine whether the right Herron violated was clearly

established. “A Government official’s conduct violates clearly established law when,

at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently

clear’ that every ‘reasonable official would have understood that what he is doing

violates that right.’” al-Kidd, 131 S. Ct. at 2083 (alterations in original) (quoting

Anderson, 483 U.S. at 640). This prong is a fact-intensive inquiry that looks to the

specific facts of the case, and is not satisfied by general pronouncements of law. 

Moore v. Indehar, 514 F.3d 756, 759 (8th Cir. 2008). Thus, the question is whether

a reasonable official would have known that the specific conduct Herron engaged in

amounted to a constitutional violation. To answer it, “we look to the state of the law

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

2012). Even when no decision involves 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). 

We find that the right Herron violated was clearly established. Hostile work

environments caused by sexual harassment have long been recognized as

constitutional violations. See, e.g., Moring, 243 F.3d at 455-56. It is also clearly

established that such claims can arise from relationships that were once consensual

but later became unwelcome. See, e.g., Mukaida v. Hawaii, 159 F. Supp. 2d 1211,

1231 (D. Haw. 2001) (enough evidence for hostile-work-environment claim where

only some of employer’s sexual conduct may have been unwelcome); Scelta v.

Delicatessen Support Servs., 89 F. Supp. 2d 1311, 1318 (M.D. Fla. 2000) (regarding

hostile-work-environment claims: “[t]here comes a point in time when consensual

sexualrelations end and unwelcome sexual harassment begins”). Because prior court

decisions indicate that the specific facts ofWilliams’s claimsupport Herron’s liability

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for gender discrimination, we find that a reasonable public official would have known

Herron’s conduct was unlawful.

Herron attempts to distinguish his case on appeal by arguing that we must limit

our clearly established right analysis to cases involving section 1983 and qualified

immunity; he further asserts that the type of claim brought by Williams has never

given rise to section 1983 liability. We have previously held that section 1983

sexual-harassment claims are treated the same as sexual-harassment claims under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Moore v.

Forrest City Sch. Dist., 524 F.3d 879, 883 (8th Cir. 2008); Weger v. City of Ladue,

500 F.3d 710, 717 n.4 (8th Cir. 2007); Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir.

2003); see also Wright, 417 F.3d at 884-85 (listing cases). It should be no surprise

that we apply the same treatment here, making Title VII sexual-harassment cases

relevant to our determination. As explained above, a qualified-immunity analysis

does not augment a plaintiff’s burden to show her hostile-work-environment claim. 

Thus, because our claim analysis is the same regardless of whether qualified

immunity isimplicated, we may rely on cases not involving qualified immunity when

determining whether a violation is clearly established.

3. Herron Was Not Entitled to Qualified Immunity

“Summary judgment should not be granted unless the moving party has

established the right to a judgment with such clarity as to leave no room for

controversy.” See Greer v. Shoop, 141 F.3d 824, 826 (8th Cir. 1998) (quoting Vacca

v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)) (internal

quotation marks omitted). Because we find that Williams has satisfied both prongs

of the qualified-immunity analysis, we agree with the district court that Herron was

not entitled to qualified immunity, and that he was therefore not entitled to summary

judgment on that basis.

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III. Conclusion

We agree with the district court’s denial of Herron’s summary judgment

motion. Taking the facts in the light most favorable to Williams, she sufficiently

showed that Herron’s conduct toward her was unwelcome harassment, and that it was

serious enough to alter a term or condition of her employment. In addition, she

showed that Herron’s conduct violated a clearly established right, based on the

particular facts of this case. Accordingly, we affirm.

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