Woodward v. City of Worland
| Decision Date | 19 October 1992 |
| Docket Number | No. 91-8034,91-8034 |
| Citation | 977 F.2d 1392 |
| Parties | 61 Fair Empl.Prac.Cas. (BNA) 21, 60 Empl. Prac. Dec. P 41,834 Lee WOODWARD, Trustee in bankruptcy, for the estate of Janice Butler; Melinda Molina; Beverly Desomber, Plaintiffs-Appellees, v. The CITY OF WORLAND, Wyoming Washakie County, Wyoming Joint Powers Board, Defendants, and Ralph Seghetti, personally and in his capacity as Sheriff of Washakie County; Allen Tolley, personally and in his capacity as Chief of Police for the City of Worland; Andy Williams, personally and in his capacity as an officer for the City of Worland Police Department; R.D. Sackett, personally and in his capacity as Undersheriff for Washakie County; Gary Mitchell, personally and in his capacity as a Sergeant with the Washakie County Sheriff's Department, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Terry L. Armitage, Senior Asst. Atty. Gen., State of Wyo., Cheyenne, Wyo., for defendants-appellants.
Kathryn A. Jenkins of Kline & Jenkins, Cheyenne, Wyo., for plaintiffs-appellees.
Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, * and HUNTER, Senior District Judge. **
This is an appeal from a denial of the Defendants-Appellants' motion for summary judgment on the ground of qualified immunity in a suit under 42 U.S.C. § 1983. We affirm in part and reverse in part.
The City of Worland, Wyoming Washakie County, Wyoming Joint Powers Board (the "JPB") is a joint communications facility for the Worland Police Department and the Washakie County Sheriff's Department. The three Plaintiffs were dispatchers for the JPB since 1985. Their job entailed dispatching police and sheriff's officers.
While at work, the Plaintiffs allege that they were subjected to sexual harassment by Defendant Williams, a police officer, and Defendant Sackett, an undersheriff (collectively, the "Officers"). 1 Specifically, the Plaintiffs allege that the Officers touched them offensively and made offensive comments toward them. The Plaintiffs further allege that Defendant Tolley, the Chief of Police, and Defendant Seghetti, the Sheriff (collectively, the "Supervisors"), 2 knew about this sexual harassment and nevertheless failed to curb it. When Plaintiffs Molina and Butler formally complained about this harassment, they alleged that the Defendants 3 retaliated against them for their complaints. The allegations of each plaintiff are discussed in more detail below.
Plaintiff Butler testified in her deposition that in December 1985 she was driving in a patrol car with Williams when he stopped the car and reached over to pull her toward him. Butler objected and Williams ceased his advance. She reported this incident to one of the other officers but asked him not to pass it on to the supervisors or higher authorities. Butler also testified that Williams
Butler Depo. at 20, in App. of Defendants/Appellants. Several other colleagues testified that they overheard Williams making explicit sexual overtures to Butler
Butler stated that Sackett was "always coming in giving you a neck massage or trying to look down your shirt when you're sitting down." Id. at 22. Butler testified that she told Sackett this contact was unwelcome.
On March 11, 1987, Butler's attorney wrote a letter to the Worland City Attorney complaining about "physical touchings and verbal abuse" that Butler had received from Williams. However, there is no indication that any of the Supervisors were specifically made aware of Sackett's conduct. On March 20, 1987, the City Attorney wrote back requesting that Butler file a formal complaint against Williams so that the City could take action against him. That same night the City adopted a resolution that sexual harassment would constitute cause for termination. Butler did not file a formal complaint until two months later, and by that time she had resigned from the JPB. The Worland Police Commission scheduled a hearing on her complaint for June 1987. Butler, who had moved to New York, received notice of the hearing but did not appear. In the absence of a complaining witness, no final action was taken with regard to these allegations.
Plaintiff Molina testified in her deposition that Williams would frequently make offensive and explicit sexual comments to her, including invitations for sex. Molina also testified that Williams "would grab her around the neck ... [w]ith a hand" and "lean up real close" to her while she was sitting. Molina Depo. at 20, in App. of Defendants/Appellants. Molina also testified that on August 22, 1989, Williams blew up at her and cursed her profanely because he thought she had misplaced a bill. She was distraught at the lack of respect indicated by this blow-up, but she did not view this incident as sexual harassment.
Molina stated that Sackett would also make sexual remarks to her and would sometimes rub her neck. It is unclear whether Molina told either Williams or Sackett that their behavior was unwelcome.
On August 24, 1989, Molina sent a letter to the City of Worland against Williams, complaining both about the August 22, 1989 blow-up and about ongoing verbal abuse and sexual harassment from Williams, and suggesting that other dispatchers may also have suffered similar abuse. There is no indication that Molina complained about Sackett's conduct toward her. In response to her complaint about Williams, a letter of reprimand dated September 1989 was placed in Williams' file and a psychological evaluation was ordered on Williams. Additionally, on December 1, 1989, the JPB put out a memorandum to "All Personnel," warning that "improper language and suggestion of a sexual nature ... will not be permitted and appropriate steps will be instituted to correct the situation should it be found to be occurring in the future." DeSomber Depo.Ex. 1, in App. of Defendants/Appellants. After Williams was reprimanded, his sexually harassing conduct toward Molina ceased.
However, Molina testified that after she issued her complaint about Williams to the City of Worland that Williams would Molina Depo. at 43, in App. of Defendants/Appellants. Apparently, various conversations would stop when Molina walked into the room, and occasionally various parties would engage in hushed conversations in which she would overhear only the words "sexual harassment." JPB responded further by precluding police and sheriff officers from entering the area where the dispatchers sat unless they had a need to do so. Molina took this to be a further sign of retaliation because it had the effect of reducing her contact with some of the officers who were friendly to her. In May 1990 Molina resigned. She testified that she left because of the work environment at JPB, although she also
joined her husband who had obtained a job in Laramie.
Plaintiff DeSomber testified on deposition that she also was a victim of Williams' conduct of pretending to masturbate behind her, and that she too was a recipient of his explicit sexual remarks and requests for sex. However, she states that she never complained to a supervisor about his conduct.
DeSomber testified as to Sackett that once he asked her "something about going out back or 'You want to mess around?' " Id. at 48. She responded with a strongly worded no. She also alleges that on one occasion Sackett flagged her car down, apparently when she was off duty, and asked "May I kiss you?" Id. at 50. She said no. DeSomber admitted to having dated Sackett at one point, although not at this time. DeSomber acknowledged telling sexual jokes to the officers, and once at work in response to a sexual comment she bit Mitchell on his buttock.
Although DeSomber never complained about either Williams' or Sackett's alleged sexual harassment of her, she openly supported Molina's complaint. DeSomber testified that the Defendants and their supporters retaliated against her for supporting Molina as follows: Seghetti initiated a drug investigation against all the dispatchers; once she was stopped and charged with going 53 in a 30 mile zone and was asked where she had been; she was no longer invited to attend JPB meetings; Mitchell proposed disbanding the JPB, which she felt would be disadvantageous to her; and contact between the officers and the dispatchers was restricted following Molina's complaint. In May 1990 DeSomber resigned.
The Plaintiffs asserted the following claims under 42 U.S.C. § 1983: (1) the Officers' sexual harassment and the Superiors' failure to stop it violated their right to equal protection under the Fourteenth Amendment; (2) the harassment and the retaliation that followed their reporting of the harassment (or, in DeSomber's case, her support for Molina in reporting the harassment) was so intolerable as to constitute a constructive discharge in violation of their due process rights under the Fourteenth Amendment; and (3) the retaliation they received for speaking out against the sexual harassment violated their rights under the First Amendment.
After discovery, the Defendants moved for summary judgment on the ground of qualified immunity. The district court denied the Defendants' motion and the Defendants, with the exception of the JPB, 4 filed this interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985).
We limit our review to the question of whether the district court properly denied the Defendants' motion for qualified immunity. See Snell v. Tunnell, 920 F.2d 673, 676 (10th Cir.1990), cert. denied, ...
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