Sh.A. Ex Rel. J.A. v. Tucumcari Municipal Schools

F I L E D
United States Court of Appeals
Tenth Circuit

MAR 11 2003
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT

SH.A., as Parent and Next Friend of
J.A., a minor child, and S.A., as Parent
and Next Friend of R.A., a minor
child,

Plaintiffs - Appellees,

v.

TUCUMCARI MUNICIPAL
SCHOOLS; THE BOARD OF
EDUCATION OF THE TUCUMCARI
MUNICIPAL SCHOOLS; FELIX R.
JIMENEZ, Superintendent of the
Board of Education of the Tucumcari
Municipal Schools; EDWARD
No. 02-2108
ENCINIAS; KELLY MCFARLAND;
JOAN DENTON; REX KIRKSEY;
MARCELLO VALVERDE, in their
capacity as members of the Board of
Education of the Tucumcari Municipal
Schools; ALLIE PELAYO,
individually and as Principal of
Granger Elementary School,

Defendants,

and

ERNEST F. DOMINGUEZ,

Defendant - Appellant.
 Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-00-727-JP/DJS)

Kevin M. Brown (Daniel J. Macke, with him on the briefs), of Brown & German,
Albuquerque, New Mexico, for Defendant-Appellant.

M. Clea Gutterson, of Civerolo, Gralow & Hill, Albuquerque, New Mexico, for
Plaintiffs-Appellees.

Before SEYMOUR, EBEL and BRISCOE, Circuit Judges.

SEYMOUR, Circuit Judge.

This is a civil rights action brought on behalf of two male children, J.A.

and R.A., against, inter alia, Ernest F. Dominguez, a teacher at their elementary

school. The district court denied Mr. Dominguez’ motion for summary judgment

based on qualified immunity. We affirm.

I

The facts underlying this litigation are essentially undisputed. The conduct

at issue began in the spring of 1997 and continued through the spring of 1998.

During the 1996-97 school year, plaintiff J.A. was a fifth grader and became a

student in Mr. Dominguez’ language arts class when Mr. Dominguez began

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teaching in the spring of 1997. In 1998 Mr. Dominguez tutored both J.A. and

R.A. in mathematics. During class and tutoring sessions, Mr. Dominguez put his

hand down the inside of the boys’ shirts and rubbed their chests and backs, and

put his hand under their shorts and rubbed their legs from mid-thigh almost up to

the point where their legs joined their bodies. This conduct occurred repeatedly

in J.A.’s class room with other children present and almost every time the boys

were tutored. Mr. Dominguez did not fondle their nipples, or touch their genitals

or buttocks. He did not say anything to the children, or threaten them or warn

them not to tell anyone about what he was doing. J.A. stopped attending the

tutoring sessions as a result of Mr. Dominguez’ conduct and ultimately told his

parents about it. R.A. stopped going to the sessions after his father walked in

while Mr. Dominguez was rubbing his son. R.A. stated that the touching on his

leg and down his shirt “felt bad,” Aplt. App. at 69, and both boys often pushed

Mr. Dominguez’ hand away from their bodies.

This lawsuit was filed against Mr. Dominguez as well as the Tucumcari

Municipal Schools, the Tucumcari Board of Education, the School Board

superintendent, the members of the School Board, and the principal of a

Tucumcari elementary school. The complaint asserts common law and federal

civil rights violations arising out of the alleged sexual molestation of the boys by

Mr. Dominguez. Plaintiffs allege state law claims against Mr. Dominguez for

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battery and infliction of emotional distress, and constitutional claims against him

for deprivation of due process and equal protection.

Mr. Dominguez moved for summary judgment on the ground that he was

entitled to immunity on all claims. He argued that the New Mexico Tort Claims

Act (TCA) does not waive immunity for claims of battery or infliction of

emotional distress in the instant circumstances, and that he was entitled to

qualified immunity on the constitutional claims because the facts alleged do not

rise to the level of a constitutional violation. The district court concluded that at

the time of the alleged molestation, Mr. Dominguez was acting within the scope

of his teaching duties as interpreted under the TCA and that he was therefore

immune from the state claims of battery and infliction of emotional distress.

Accordingly, the court granted Mr. Dominguez’ motion as to those claims. The

court also concluded that Mr. Dominguez was entitled to qualified immunity with

respect to the claim that he violated the children’s constitutional right to

substantive due process. After reviewing the case law, the court determined that

such claims have only been sustained when the facts involved were “remarkably

more egregious than the facts of this case.” Aplt. App. at 152.

The court reached a different result with respect to the allegation that Mr.

Dominguez violated the children’s constitutional right to equal protection. The

court concluded that the standard of conduct required to state an equal protection

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claim is less demanding than the conscience-shocking standard applicable to a

substantive due process claim, and that to state an equal protection claim

plaintiffs’ evidence must tend to show that Mr. Dominguez’ conduct was an abuse

of his authority for the purpose of his own sexual gratification. The court

determined plaintiffs had made such a showing and that Mr. Dominguez was

therefore not entitled to qualified immunity on the equal protection claim. Mr.

Dominguez appeals.

II

We review the denial of qualified immunity on summary judgment de novo,

viewing the evidence in the light most favorable to the nonmoving party. See

Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998).

The framework for analyzing claims of qualified immunity on
summary judgment is well settled. Once a defendant pleads qualified
immunity, the plaintiff bears the burden of (1) coming forward with
sufficient facts to show that the defendant’s actions violated a federal
constitutional or statutory right and (2) demonstrating that the right
violated was clearly established at the time of the conduct at issue.

Id.

[T]he better approach to resolving cases in which the defense of
qualified immunity is raised is to determine first whether the plaintiff
has alleged a deprivation of a constitutional right at all. Normally, it
is only then that a court should ask whether the right allegedly
implicated was clearly established at the time of the events in
question.

County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998). See also Lybrook

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v. Members of the Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1337-38

(10th Cir. 2000). “In order to carry his burden, the plaintiff must do more than

identify in the abstract a clearly established right and allege that the defendant has

violated it. Rather, the plaintiff must articulate the clearly established

constitutional right and the defendant’s conduct which violated the right with

specificity. . . .” Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995) (citation

omitted).

For a right to be clearly established, “[t]he contours of the
right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Plaintiff is not
required to show that the very conduct in question has previously
been held unlawful. She is, however, required to demonstrate the
unlawfulness was “apparent” in light of established law. Generally,
this requires that the plaintiff demonstrate a “substantial
correspondence between the conduct in question and prior law
allegedly establishing that the defendant’s actions were clearly
prohibited.”

Baptiste, 147 F.3d at 1255-56 (citations omitted).

III

In denying Mr. Dominguez’ request for qualified immunity, the district

court held that

“the right of school children to be free from sexual harassment by
their teachers was firmly established in this circuit at the time of the
alleged violations, and that a violation of that right can be redressed
through the Equal Protection Clause of the Fourteenth Amendment of
the United States Constitution under 42 U.S.C. § 1983.”

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Aplt. App. at 197. The court further concluded that the severity of the conduct in

question rose to the level of a constitutional violation. In reaching this

conclusion, the court relied on Tenth Circuit authority holding that an official’s

abuse of authority for purposes of his own sexual gratification may violate the

Equal Protection Clause, citing Johnson v. Martin, 195 F.3d 1208, 1217-18 (10th

Cir. 1999).

Mr. Dominguez contends the district court erred in concluding that the

contours of an equal protection claim by a student on the basis of sexual

harassment by a teacher were clearly established in 1997 and 1998 when the

conduct at issue took place. Mr. Dominguez concedes, as he must, that the law

holding that sexual harassment is actionable as an equal protection violation has

long been clearly established. See, e.g., Starrett v. Wadley, 876 F.2d 808, 814

(10th Cir. 1989) (sexual harrassment equal protection claim upheld in

employment context). However, he maintains that the court erred in drawing

upon the standard set out in employment cases and applying it to teacher-on-

student sexual harassment. He argues that he is entitled to qualified immunity

because no opinion by the Tenth Circuit had announced the standard applicable to

this particular type of sexual harassment, nor had the weight of authority from

other circuits done so.

Mr. Dominguez’ argument asks this court to require exact correspondence

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between prior cases and the instant facts. Significantly, we rejected a similar

argument made by the defendants in Johnson, the case relied upon by the district

court.

[W]e have recently recognized that the concept of clearly established
law should not be applied too literally. Thus, “[w]e have never said
that there must be a case presenting the exact fact situation at hand in
order to give parties notice of what constitutes actionable conduct.”
Instead, we merely require the parties to make a reasonable
application of existing law to their own circumstances.

Johnson, 195 F.3d at 1216 (citations omitted).

In Johnson, the plaintiffs, nonemployee citizens of a city, brought an equal

protection claim against the city’s building code director and other city officials

alleging that the director used his position to sexually harass them. The

defendants contended they were entitled to qualified immunity because the law

was not clearly established at the relevant time that a public official who used his

position to harass a nonemployee violated the Equal Protection Clause.

We disagreed with the defendants’ assertion that cases involving

harassment in the employment context could not provide the required clearly

established law with respect to a claim by a nonemployee. In so doing, we held

that even though the prior cases

all involve alleged sexual harassment in an employment setting, we
are not convinced that . . . the law was unclear as to whether a public
employee could be held liable for using governmental authority to
sexually harass a nonemployee. There is no indication in those
decisions that a public official’s abuse of governmental authority in

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 furtherance of sexual harassment in the employment setting is
fundamentally different than when the abuse of authority occurs
outside the workplace.

Id. at 1217. We pointed out the “obvious proposition that public officials

frequently exercise governmental authority in many ways not involving their

authority over subordinate employees,” and concluded that during the relevant

time period, which began in 1982 in that case, “a public official’s reasonable

application of the prevailing law would lead him to conclude that to abuse any

one of a number of kinds of authority for [the] purpose of one’s own sexual

gratification . . . would violate the Equal Protection Clause.” Id. at 1218. Our

conclusion in Johnson that cases in the employment context provide clearly

established law in the nonemployment context is equally applicable here.

Support for Johnson’s holding can be found in Franklin v. Gwinnett County

Pub. Sch., 503 U.S. 60 (1992), in which a high school student brought a Title IX

action for alleged gender-based discrimination arising from alleged sexual

harassment and abuse by a school sports coach and teacher. In holding that the

implied right of action under Title IX supported a claim for monetary damages,

the Supreme Court pointed out that “when a supervisor sexually harasses a

subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’on

the basis of sex.” Id. at 75 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S.

57, 64 (1986)). The Court then stated its belief that “the same rule should apply

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when a teacher sexually harasses and abuses a student.” Id. Thus the Court

clearly indicated in 1992 that the same sexual harrassment standards apply in both

the employment context at issue in Meritor and in the teacher-on-student sexual

harassment at issue in Franklin.

In light of Johnson and Franklin, we conclude that a reasonable teacher

would have known in the spring of 1997 that sexual harassment which gives rise

to a violation of equal protection in the employment context will also do so in the

teacher-on-student context. As Johnson sets out, it was then clearly established

that this standard is met by actions that amount to an abuse of governmental

authority for the purpose of one’s own sexual gratification. See Johnson, 195

F.3d at 1218. Mr. Dominquez does not argue that his conduct fails to meet that

standard; he contends instead that the lack of case law specifically addressing an

equal protection claim arising from sexual harassment in the schoolroom entitles

him to qualified immunity. Given clear authority holding sexual harassment

actionable in the workplace as a denial of equal protection and further holding

that employment cases provide clearly established law outside the workplace

environment, and with respect to teacher-on-student harassment in particular, his

argument is without merit. The district court appropriately denied qualified

immunity to Mr. Dominguez.

We AFFIRM.

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