Markham v. White
| Decision Date | 31 March 1999 |
| Docket Number | Nos. 97-3060,97-3086,s. 97-3060 |
| Citation | 172 F.3d 486 |
| Parties | 79 Fair Empl.Prac.Cas. (BNA) 859, 75 Empl. Prac. Dec. P 45,840 Denise MARKHAM, et al., Plaintiffs-Appellees, v. Francis E. WHITE, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
George F. Galland, Jr., Miner, Barnhill & Galland, Chicago, IL, for Plaintiffs-Appellees in docket No. 97-3060.
Jeffrey I. Cummings (argued), Miner, Barnhill & Galland, Chicago, IL, Sarah Siskind, Miner, Barnhill & Galland, Amy F. Scarr, Madison, WI, for Plaintiffs-Appellees.
William H. Theis (argued), Shellow, Shellow & Glynn, Milwaukee, WI, for Defendants-Appellants.
Beth J. Kushner, Milwaukee, WI, for Defendant-Appellant in docket No. 97-3060.
David P. Schippers, Schippers & Bailey, Chicago, IL, for Defendants-Appellants in docket No. 97-3086.
Before POSNER, Chief Judge, and CUMMINGS and DIANE P. WOOD, Circuit Judges.
This is an interlocutory appeal from the district court's decision to deny qualified immunity to a group of agents from the Drug Enforcement Administration ("DEA") in a suit claiming that the agents created a sexually hostile environment for police officer trainees, in violation of the plaintiffs' right to equal protection. Although the agents attack that decision on a number of grounds, their principal argument is that they would not have known at the time either that their behavior amounted to sexual harassment, or that the plaintiffs' right to a harassment-free environment extended to settings like the training program the DEA was conducting. We agree with the district court, however, that the agents have not at this point satisfied the requirements for qualified immunity, and we affirm.
Plaintiffs Denise Markham and Marion Morgan are police officers in the police department of the City of Madison, Wisconsin. They and many other police officers have attended training seminars conducted by the DEA that were geared to state and local narcotics officers. Among the instructors at those seminars were the five defendant DEA agents, Francis E. White, Melvin O. Schabilion, Michael Flanagan, Saul "Buddy" Weinstein, and Norbert Kuksta ("the agents"). In a complaint filed on behalf of a class of women trainees who attended these seminars, Markham and Morgan alleged that the agents created a sexually hostile atmosphere as they conducted the seminars, through acts like the following:
(1) beginning the seminar with the promise that male participants would go home that night and have aggressive sexual encounters with their wives;
(2) describing women in general as "bitches";
(3) interspersing instructional slides with pictures of nude or scantily clad women;
(4) referring in obscene terms to the United States Attorney General as a lesbian and as having a lesbian relationship with the First Lady;
(5) using sexual terms to describe law enforcement work, such as describing drug reconnaissance as "getting laid" or "getting her drunk and finding a hotel," talking about DEA agents getting "horny" if they were unable to kill people on a regular basis, talking regularly about male erections in terms such as "chubby," "woody," "johnson," and "pecker," among others;
(6) making sexual remarks to or about female participants, such as:
(a) one of the defendants, observing Markham prone on the rifle range, grabbing his genitals and yelling, "I'm getting a hard on," causing male participants to laugh;
(b) requesting the assistance of female participants during demonstrations because "[i]t's always more exciting to have a pretty girl here to look at";
(c) asking a female participant to turn sideways so that other participants could see her breasts;
(d) making repeated sexual references during demonstrations, such as asking a female participant to "use your hot little hands to get this reaction heated up"; and
(e) referring to female participants as "hon," "babe," "little girl," "blondie," and "sweet jeans."
The net result of this behavior, according to the complaint, was to create a hostile atmosphere at the training sessions that amounted to sexual harassment and a denial of equal protection. The women trainees brought their equal protection complaint as a Bivens action, see Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and they asserted a separate claim under 42 U.S.C. § 1985(3) for conspiracy to deny them equal protection. Because they were not DEA employees, they did not seek relief under Title VII.
In an earlier motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), the district court narrowed the case somewhat in ways not directly relevant here. Later, on January 28, 1997, the court certified under Federal Rule of Civil Procedure 23(b)(3) a class of women law enforcement personnel who since April 1993 have attended DEA training seminars at which the defendants taught and who were subject to the same type of behavior as the amended complaint described. On March 11, 1997, the agents filed their motions for summary judgment--Weinstein filed on his own, and the remaining defendants filed jointly. In support of his motion, Weinstein also filed a statement of the undisputed facts that he believed entitled him to summary judgment, as required by Local General Rule 12(M) of the Northern District of Illinois, and the other defendants adopted Weinstein's 12(M) statement.
The defendants' motions addressed both the merits of the plaintiffs' claims and the defense of qualified immunity. The district court did not address the merits, and except insofar as they are indirectly a part of the qualified immunity argument, they are not before us at this time. With respect to qualified immunity, the district court noted a number of problems with the defendants' motions. First, the briefs in support of the motions and Weinstein's Rule 12(M) statement addressed qualified immunity only with respect to the named plaintiffs, ignoring the fact that the court had by then certified the class and had explicitly instructed the defendants to respond to the entire case. Second, Weinstein's initial Rule 12(M) statement failed to include record citations to the facts on which he was relying, in violation of the rule. After the plaintiffs pointed out this shortcoming, Weinstein filed a revised 12(M) statement that included record citations, but that deleted many of the substantive paragraphs the first had contained.
The plaintiffs then filed their response as required by Local General Rule 12(N). In this statement, they noted where they disagreed with the defendants' alleged undisputed facts and they set forth the additional facts that they believed required the denial of summary judgment. They supported their Rule 12(N) statement with citations to affidavits from both the named plaintiffs and other class members that described their observations of the defendants' conduct at the DEA seminars. They also relied upon other materials, including documents that the defendants and the Department of Justice had produced during discovery.
The district court found that all of the defendants had implicitly adopted Weinstein's revised 12(M) statement, even though they had never expressly so indicated. Nevertheless, this did not provide much help to any of the defendants, because the district court found that even the revised statement was inadequate for purposes of the qualified immunity argument. In the judge's words:
Weinstein's Revised Local Rule 12(M) Statement consists of six numbered paragraphs (down from seventeen in the original) that identify the parties, establish this Court's jurisdiction and venue, and identify the particular DEA seminar attended by each of the named plaintiffs. Each of its paragraphs is supported only by a citation to the plaintiffs' amended complaint.
Where are the facts that entitle the defendants to summary judgment on the grounds of qualified immunity? There are none in the Local Rule 12(M) Statement. Although both briefs in support of the motions for summary judgment cite repeatedly to the deposition testimony of the named plaintiffs as to their experiences with the defendants at the seminars they attended, none of that evidence found its way into the Local Rule 12(M) Statement.
Stating that it was entitled under Seventh Circuit law to require strict compliance with Local Rule 12(M), the court concluded that this was reason enough to deny the defendants' motion for summary judgment based on qualified immunity.
The court also found the defendants' motion defective in that it challenged only the individual plaintiffs' claims, even though the class was certified, the court had instructed them to address the class claims, and they never sought leave to proceed as they did. Qualified immunity, the court noted, requires a fact-specific inquiry, and the facts that the plaintiffs presented on behalf of the absent class members went well beyond the facts the defendants addressed with respect to the named plaintiffs. Thus, the court concluded, the defendants had admitted the truth of the facts relating to the absent class members for summary judgment purposes, but they did not discuss how those facts affect their entitlement to qualified immunity.
Finally, the court found that the defendants had one argument for qualified immunity that it could reach on the merits, because it did not depend on the record. The agents argued that in 1994, when the named plaintiffs attended the DEA seminars, there was no clearly established constitutional right to be free of sexual harassment in a short-term training program (as opposed to the workplace, over a longer term). They also argued that no one would have realized that harassment outside the employer-employee context violated anyone's rights. The district court ruled that it was clear in 1993 and 1994 that male and female participants in a...
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