Locke v. Haessig

• Citation: 788 F.3d 662
• Decision Date: 05 June 2015
• Docket Number: No. 13–1857.,13–1857.
• Parties: Adam A. LOCKE, Plaintiff–Appellee, v. Mya HAESSIG, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

788 F.3d 662

Adam A. LOCKE, Plaintiff–Appellee

v.Mya HAESSIG, Defendant–Appellant.

No. 13–1857.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 31, 2014.

Decided June 5, 2015.

Andrew P. Legrand, Attorney, Russell Harris Falconer, Attorney, Gibson Dunn & Crutcher LLP, Dallas, TX, for Plaintiff–Appellee.

John J. Glinski, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendant–Appellant.

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

Opinion

HAMILTON, Circuit Judge.

Plaintiff Adam Locke sued defendant Mya Haessig, a state official, under 42 U.S.C. § 1983 for violating the Equal Protection Clause of the Fourteenth Amendment. Locke alleges Haessig is liable because of how she responded to his complaint that her subordinate, a parole officer, was sexually harassing Locke, a parolee. Locke has provided evidence that Haessig was told of the harassment, failed to intervene or investigate, and then threatened to retaliate against Locke for complaining.

The district court denied Haessig's motion for summary judgment on the basis of qualified immunity. Haessig brought this interlocutory appeal, arguing that even Locke's version of the facts shows that she lacked the required intent to discriminate. Haessig contends that because the facts show only that she failed to intervene to stop her subordinate from sexually harassing Locke, she could not have intended to discriminate and therefore could not have violated the Equal Protection Clause as a matter of law.

We affirm the denial of qualified immunity. Accepting Locke's version of the facts, we conclude that a reasonable jury could return a verdict for Locke. Haessig was told of Locke's complaints of sexual harassment but never met with him to discuss the allegations or tried to protect him from further harassment. According to Locke, after hearing of his complaint, Haessig expressed anger toward Locke and said he would never get off of his electronic ankle monitor until he was discharged from parole. A reasonable jury could infer from these facts—which show not only a failure to intervene but also a threat of retaliation in response to the complaint—that Haessig was acting with the intent to discriminate. This is sufficient for liability under current law and was clearly established law in 2008 when these events took place. Haessig had reasonable notice that her alleged actions were unlawful and so is not entitled to qualified immunity.

I. Factual and Procedural History

Because this is an interlocutory appeal from the district court's denial of qualified immunity, we have appellate jurisdiction over only legal questions. Whitlock v. Brueggemann, 682 F.3d 567, 573 (7th Cir.2012). We do not have jurisdiction to consider record issues such as whether the record sets forth a genuine issue of fact for trial. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (district court's determination that summary judgment record raised a genuine issue of fact concerning defendants' involvement in the alleged beating of plaintiff “was not a ‘final decision’ within the meaning of the relevant statute”); Whitlock, 682 F.3d at 573.

For purposes of this appeal, then, we accept the district court's account of plaintiff's version of the facts to frame our review of the purely legal question presented: whether a reasonable jury could infer from Haessig's alleged actions that she had the intent to discriminate on the basis of sex. See, e.g., White v. Gerardot, 509 F.3d 829, 833 (7th Cir.2007) (appellate court may look to the plaintiff's version of the facts or the facts the district court assumed as the source of undisputed facts for a qualified immunity appeal).¹

A. Locke's Complaint of Sexual Harassment

Plaintiff Adam Locke was under the supervision of the Wisconsin Department of Corrections from 2007 to 2009, some of the time as a prisoner in custody and some of the time as a parolee. Locke's primary parole agent during this period was Wendy Schwartz, but another agent, defendant Anthony Flores, occasionally filled in for Schwartz. Flores sexually harassed Locke while supervising his parole from May 2007 to the summer of 2009. Flores propositioned Locke for sex, made unwanted physical advances, and offered to release him from electronic monitoring if he would allow Flores to take nude photos of him.

Locke complained to Agent Schwartz about the harassment when she visited him in jail sometime between December 2007 and February 2008. Schwartz told her supervisor, defendant Mya Haessig, about Locke's complaint. Haessig in turn called the regional office and told a regional chief about the complaint. The regional chief directed Haessig to have Agent Schwartz obtain a written statement from Locke.

Neither Haessig nor Schwartz ever followed up with Locke to obtain a written statement. Haessig took no further action to address the complaint of sexual harassment. Haessig had the authority to transfer Locke to another facility away from Flores but did not do so. Haessig never documented the complaint in Locke's DOC file.²

Flores heard about Locke's complaint, probably from Agent Schwartz. Flores called Locke into his office and told him to be careful about what he said and to whom he said it. Flores continued to harass Locke sexually. After Locke had complained about harassment, Haessig was irritated with and negative toward him. Haessig told Locke he would never be released from his ankle monitor until he was discharged from parole. Agent Schwartz acknowledged to Locke that Haessig was targeting him for harassment.

Flores's harassment of Locke finally ended in the summer of 2009 when the Federal Bureau of Investigation investigated Flores in response to complaints from several other parolees. Haessig did not play a significant role in that investigation. Flores resigned from office in June 2010 in the midst of investigation.

B. Procedural History

Locke filed suit pro se against Flores in May 2010. The district court screened the complaint and found that it plausibly alleged that a state employee had sexually harassed Locke in violation of the Equal Protection Clause. Flores was served with the complaint but never appeared. The clerk of the court has entered a default against Flores, and the district court has said it intends to enter a default judgment against Flores after Locke has an opportunity to prove the amount of his damages.

The district court then allowed Locke to amend his complaint to add Haessig as a defendant. Locke also added two new claims against both Flores and Haessig, alleging that Flores's sexual harassment and Haessig's inadequate response amounted to cruel and unusual punishment in violation of the Eighth Amendment and a denial of substantive due process in violation of the Fourteenth Amendment. Haessig's motion for summary judgment on the equal protection claim based on qualified immunity was denied, and this interlocutory appeal followed.

II. Analysis

We review de novo a district court's denial of summary judgment based on qualified immunity. Levin v. Madigan, 692 F.3d 607, 622 (7th Cir.2012). We can affirm on any ground supported by the record so long as the issue was raised and the non-moving party had a fair opportunity to contest the issue in the district court. Hester v. Indiana State Dep't of Health, 726 F.3d 942, 946 (7th Cir.2013) ; Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir.2005).

The defense of qualified immunity “protects government officials ‘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.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In evaluating whether a state actor is entitled to summary judgment for qualified immunity, we consider (1) whether the facts, taken in the light most favorable to the plaintiff, show that the defendant violated a constitutional right; and (2) whether that constitutional right was clearly established at the time of the alleged violation. Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir.2009), citing Pearson, 555 U.S. at 232, 129 S.Ct. 808, and Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

We may address the two prongs of the qualified immunity inquiry in whichever order seems better for the case. See Whitlock v. Brueggemann, 682 F.3d at 580. Here we take the unusual step of beginning with the second prong because our discussion of the state of the law in 2007 and 2008 provides helpful context for analysis of later developments in the law.

A. Clearly Established Law in 2007 and 2008

If we accept the facts asserted by Locke, Haessig's actions violated clearly established law at time of the violation. In 2007 and 2008, when the events took place, it was well established that sexual harassment by a state actor under color of state law violated the Equal Protection Clause and was actionable under § 1983. Valentine v. City of Chicago, 452 F.3d 670, 682 (7th Cir.2006) ; Bohen v. City of East Chicago, 799 F.2d 1180, 1185–86 (7th Cir.1986). It was also clear that a supervisor could be held liable for a subordinate's sexual harassment if the plaintiff could show either intentional sex discrimination or a conscious failure to protect the plaintiff from abusive conditions created by subordinates amounting to intentional discrimination. Valentine, 452 F.3d at 683–84 ; Bohen, 799 F.2d at 1187 ; see also T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir.2010) (“At the time of the events at issue in this litigation [from 2001 to 2005], it was clearly established in this circuit that a supervisor could be held liable for participating in or deliberately turning a blind eye to the equal protection violation of her subordinate.”).

By 2007, we had recognized that males who were sexually harassed...