Hayes v. RI Dept. of Bus. Reg ( 1995 )

USCA1 Opinion

        December 4, 1995        [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





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        No. 95-1726



                                     SUSAN HAYES,



                                 Plaintiff, Appellee,



                                          v.



                     STATE OF RHODE ISLAND DEPARTMENT OF BUSINESS

                                     REGULATION,



                                 Defendant, Appellee.




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                                 MAURICE A. PARADIS,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND





                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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            Steven  E. Snow,  Thomas R.  Noel and  Partridge,  Snow &  Hahn on
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        brief for appellant.

            Amato  A.  DeLuca,  Miriam   Weizenbaum  and  Mandell,   DeLuca  &
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        Schwartz, Ltd. on brief for appellee, Susan Hayes.
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                      Per Curiam.  Defendant-appellant Maurice C. Paradis
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            has filed this interlocutory appeal from the district court's



            denial of his  motion for  summary judgment on  the issue  of



            qualified immunity that would shield him from damages in this



            sex  discrimination  suit.    Plaintiff-appellee  Susan Hayes



            argues that under Johnson v. Jones, ___  U.S. ___, 115 S. Ct.
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            2151 (1995), this court lacks appellate jurisdiction.



                      Paradis has raised two issues on appeal.  The first



            issue is  a  purely legal  one:   whether in  1991, when  the



            challenged conduct occurred, there was a clearly  established



            right  under  the  fourteenth  amendment's  equal  protection



            clause to be  free from sex discrimination  in the workplace.



            Under Johnson,  "a district  court's pretrial rejection  of a
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            proffered  qualified  immunity  defense  remains  immediately



            appealable  as a collateral order to the extent that it turns



            on a pure issue  of law . . .  ."  Stella v. Kelley,  No. 95-
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            1223, slip op.  at 10 (1st Cir.  Aug. 23, 1995).   Exercising



            this jurisdiction, we  summarily affirm the  district court's
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            purely  legal   determination  that,  at  the   time  of  the



            challenged conduct, there existed a clearly established right



            under the  fourteenth amendment's equal protection  clause to



            be  free from  sex  discrimination  in  the workplace.    See
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            Lipsett v.  University of Puerto  Rico, 864 F.2d  881, 884-85
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            (1st  Cir. 1988)  (holding  that sex-based  discrimination is











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            actionable under 42 U.S.C.   1983 as a violation of the equal



            protection clause).



                      Paradis' second  argument on appeal  is as follows:



            even if there was  a clearly established constitutional right



            to be  free from sex  discrimination in the  workplace, "[i]t



            cannot  be   said  that   Paradis'  action   was  objectively



            unreasonable    given    the   extraordinary    circumstances



            confronting him."   Although cloaked as a purely legal issue,



            this   argument  is  actually   fact-based.    The  objective



            reasonableness of Paradis' conduct (under clearly established



            law) will necessarily turn on an  issue of fact:  whether the



            conduct  was  motivated by  sex-based  animus.   See  Poe  v.
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            Haydon,  853 F.2d 418, 431 (6th Cir. 1988), cert. denied, 488
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            U.S.  1007  (1989).    Under  Johnson,  "a  district  court's
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            pretrial  rejection of  a qualified  immunity defense  is not



            immediately appealable to the extent that  it turns on . .  .



            an issue of fact . . . ."  Stella, supra, at 6-7.  Therefore,
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            we lack jurisdiction to  consider the second issue raised  by



            this appeal.



                      Affirmed in  part, dismissed in part,  and remanded
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            for further proceedings.  Costs to appellee.
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