Montague Minnifield v. Heath Boackle ( 2019 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12778
________________________
D.C. Docket No. 2:16-cv-00196-MHH
MONTAGUE MINNIFIELD,
Plaintiff - Appellee,
versus
CITY OF BIRMINGHAM DEPARTMENT OF POLICE, et al.,
Defendants,
HEATH BOACKLE,
in his official and individual Capacity,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(October 30, 2019)
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Before MARCUS, JULIE CARNES and KELLY, * Circuit Judges.
PER CURIAM:
Defendant-Appellant Sergeant Heath Boackle, a supervisor in the
Birmingham Police Department (“BPD”) K-9 unit, appeals from the denial of
qualified immunity. Plaintiff-Appellee, Officer Montague Minnifield, an African-
American male, claims that he was not transferred to a K-9 patrol position because
of his race and in retaliation for filing complaints of discrimination. He faults
Sergeant Boackle for not recommending him and recommending white officers for
the position instead. We have jurisdiction to consider the denial of qualified
immunity to the extent that resolution turns on issues of law, rather than
evidentiary sufficiency. Johnson v. Jones, 515 U.S. 304, 317 (1995). Because the
law did not clearly establish that an adverse employment action included a failure
to recommend an applicant for a position that paid the same and offered no
materially improved work conditions (other than prestige), we reverse.
I
Officer Minnifield joined the BPD in 1997 as a police officer. In 2009, he
applied to transfer to the Tactical Unit, which comprises specialized units
including motorscouts, patrol K-9, and airport K-9 teams. Officer Minnifield’s
*
Honorable Paul J. Kelly, Jr., United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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application was initially denied, but he was later transferred after he filed a
grievance with the Jefferson County Personnel Board. Officer Minnifield
indicated his preference for a K-9 or motorscout position, but was assigned to the
Freeway Unit. After further dispute and another complaint, Officer Minnifield
succeeded in becoming a motorscout, which entitled him to a 5% pay increase.
In 2012 and 2013, the BPD posted K-9 vacancies and Officer Minnifield
applied. Sergeant Boackle sent BPD Chief Roper a memo recommending five
officers, not including Officer Minnifield, for the open patrol K-9 position. All of
the officers recommended were white, as were the ones selected.
Officer Minnifield filed an EEOC charge based upon Sergeant Boackle’s
failure to recommend him to Chief Roper for the 2013 patrol K-9 vacancy. In
2014, Officer Minnifield sustained injuries in a motorcycle accident that limited
him to performing administrative duties until he retired in 2015. Later that year,
the EEOC sent Officer Minnifield a right-to-sue letter on his 2013 claims. 1
Officer Minnifield sued the City of Birmingham under a variety of statutes
including 42 U.S.C. § 1981, Title VII, and 42 U.S.C. § 1983, including Sergeant
Boackle in a § 1983 claim. The Defendants moved for summary judgment, which
the district court granted in part and denied in part. Minnifield v. City of
1
42 U.S.C. § 1981 does not require claimants to go through the EEOC administrative
process as a prerequisite of suit. Officer Minnifield brought his § 1981 claim together with
Title VII claims that did require him to take this administrative step.
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Birmingham, 325 F.R.D. 450, 471 (N.D. Ala. 2018). In pertinent part, the district
court denied summary judgment on “the § 1983 claims for disparate treatment and
retaliation in violation of § 1981 against [Sergeant] Boackle in his individual
capacity, to the extent the claims are based on the failure to promote Officer
Minnifield to a 2013 Patrol K–9 position.” Id. Defendants then moved to alter or
amend the judgment, Fed. R. Civ. P. 59(e), contending that the district court
overlooked Sergeant Boackle’s qualified immunity defense.
In response, the district court denied qualified immunity. The district court
held that Officer Minnifield had a clearly established right to be free of retaliation
and racial discrimination at work, that Sergeant Boackle’s actions violated that
right, and that a reasonable officer in Sergeant Boackle’s position would have
known it. III Aplt. App. 170–171. On appeal, Sergeant Boackle argues that he is
entitled to qualified immunity because he acted within his discretionary authority
and no clearly established law provided that (1) he could be held liable when he
was not Officer Minnifield’s employer or supervisor, (2) his failure to recommend
constituted an adverse employment action, or (3) that his actions could be
construed as the but-for cause of retaliation.
II
Because a qualified immunity inquiry presents a “pure question of law,” we
review de novo a district court’s denial of summary judgment based on qualified
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immunity and view the evidence in a light most favorable to the non-movant.
Elder v. Holloway, 510 U.S. 510, 516 (1994); Gray ex rel. Alexander v. Bostic,
458 F.3d 1295, 1303 (11th Cir. 2006). Ordinarily, we take the facts the district
court assumed as given. See Johnson, 515 U.S. at 319.
Qualified immunity protects government officials performing discretionary
functions so long as an official’s 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 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). The purpose of qualified immunity is to protect public
officials “from undue interference with their duties and from potentially disabling
threats of liability.” Holloway, 510 U.S. at 514 (quoting Harlow, 457 U.S. at 806).
Qualified immunity protects “all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
A defendant claiming qualified immunity must show that he acted “within
the scope of his discretionary authority when the allegedly wrongful acts
occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Courson
v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). If that showing is made,
then the question becomes whether plaintiff’s allegations, taken as true, establish
that the conduct (1) violated a constitutional or statutory right that (2) was clearly
established by law. Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir.
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2010) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts may approach
these elements in either order, though it may be beneficial to analyze them in
sequence. Pearson, 555 U.S. at 236–37. At the same time, it is not necessary to
decide both where it is plain that the law is not clearly established. Id.
Whether a defendant was acting within his or her discretionary authority
depends on whether the official was “(a) performing a legitimate job-related
function. . . (b) through means that were within his power to utilize” at the time the
conduct occurred. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265
(11th Cir. 2004). The question is not whether it was within the defendant’s
authority to commit an allegedly unconstitutional or unlawful act. See Harbert
Int’l Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998). Instead, we ask whether
the conduct served a proper purpose and “would be within, or reasonably related
to, the outer perimeter of an official’s discretionary duties.” Id. (quoting In re
Allen, 106 F.3d 582, 594 (4th Cir. 1997). Once this is established, the burden
shifts to the plaintiff to “show that qualified immunity is not appropriate.” Lee,
284 F.3d at 1194.
To defeat qualified immunity, a plaintiff must show that the conduct in
question violates clearly established law. Kisela v. Hughes, 584 U.S. __, __, 138
S. Ct. 1148, 1152 (2018). A plaintiff need not identify a case directly on point, but
“existing precedent must have placed the statutory or constitutional question
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beyond debate.” White v. Pauly, 580 U.S. __, __, 137 S. Ct. 548, 552 (2017) (per
curiam) (quoting Mullenix v. Luna, 577 U.S. __, __, 136 S. Ct. 305, 308 (2015)).
Clearly established law must not be identified with a “high level of generality.”
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). General legal propositions are not
enough. Doe v. Braddy, 673 F.3d 1313, 1318 (11th Cir. 2012). Rather, the clearly
established law must be “particularized” to the facts of the case. White, 580 U.S.
at __, 137 S. Ct. at 552. In this way, the test focuses “on whether the officer had
fair notice that [his] conduct was unlawful.” Brosseau v. Haugen, 543 U.S. 194,
198 (2004) (per curiam). “[P]re-existing law must dictate, that is, truly compel
(not just suggest or allow or raise a question about), the conclusion for every like-
situated reasonable government agent that what defendant is doing violates federal
law in the circumstances.” Gonzalez v. Lee Cty. Hous. Auth., 161 F.3d 1290,
1295 (11th Cir. 1998) (emphasis in original) (quoting Jenkins by Hall v. Talladega
City Bd. of Educ., 115 F.3d 821, 823 (11th Cir. 1997) (en banc)). This standard
does not require that the “very action in question has previously been held
unlawful,” but “the unlawfulness must be apparent” under then-existing law.
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Officer Minnifield’s claim against Sergeant Boackle arises under 42 U.S.C.
§ 1981, which prohibits racial discrimination and retaliation in employment. The
test for disparate treatment under that section, as enforced through 42 U.S.C. §
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1983, is the same as that used in Title VII cases. Lewis v. City of Union City, 934
F.3d 1169, 1185 (11th Cir. 2019). Both disparate treatment and retaliation require
a plaintiff to show an adverse employment action as part of his prima facie case.
Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1191–92 (11th Cir.
2016). “An adverse employment action is an ultimate employment decision, such
as discharge or failure to hire, or other conduct that ‘alters the employee’s
compensation, terms, conditions, or privileges of employment, deprives him or her
of employment opportunities, or adversely affects his or her status as an
employee.’” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000)
(quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997)),
overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006). For disparate treatment, an adverse employment action must
“impact the ‘terms, conditions, or privileges’ of the plaintiff’s job in a real and
demonstrable way.” Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir.
2001), overruled on other grounds by Burlington, 548 U.S. 53. Proof of “direct
economic consequences” is not required, but a plaintiff must show “a serious and
material change in the terms, conditions, or privileges of employment.” Id.
(emphasis in original). Retaliation claims have a relaxed standard requiring only a
showing of a materially adverse action that “might [] dissuade[] a reasonable
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worker from making or supporting a charge of discrimination.” Crawford v.
Carroll, 529 F.3d 961, 974 (11th Cir. 2008) (quoting Burlington, 548 U.S. at 68).
III
Sergeant Boackle was acting within the scope of his discretionary authority
when he recommended officers for a vacant position within BPD. At the time he
made those recommendations, the law was not clearly established that failure to
recommend an employee for a lateral transfer to a position with the same pay
constitutes an adverse employment action under 42 U.S.C. § 1981.
A
As an initial matter, the parties appear to disagree about some aspects of the
K-9 positions. These issues prove immaterial, since even assuming their resolution
in Officer Minnifield’s favor does not change the conclusion that Sergeant Boackle
is entitled to qualified immunity. First, the parties dispute whether patrol K-9
officers received a 5% increase in pay. Sergeant Boackle initially admitted that
“K-9 patrol positions resulted in a 5% increase in wages.” Amended Complaint ¶
21, I Aplt. App. 29; Answer of Defendant Heath Boackle ¶ 21, I Aplt. App. 67.
However, in later pleadings and at oral argument, Sergeant Boackle maintained
that the 5% increase is in fact not available to patrol K-9 units. Defendants’ Brief
in Support of their Motion for Summary Judgment ¶ 18, I Aplt. App. 94 (“The 5%
(percent) pay increase is not available to patrol dog handlers.”); Oral Argument at
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4:24 (“Kelly, J.: Did [the patrol K-9 position] pay less [than the motorscout
position]? Counsel for Sergeant Boackle: That is the evidence your honor, yes it
is.”). We will assume that patrol K-9 positions did receive this increase. See
Holloway, 510 U.S. at 516. The parties do not dispute motorscouts also received
this increase. Thus, Officer Minnifield was “topped out” on the officer pay scale
and already receiving a 5% increase as a motorscout. Therefore, his pay would
have remained the same had he obtained a K-9 position. There is no evidence that
Officer Minnifield was denied an increase in pay because he did not receive either
a patrol or airport K-9 position. Our analysis therefore proceeds under the
assumption that Officer Minnifield was denied a recommendation for a position
that received the same pay as his motorscout position.
The parties also dispute whether patrol K-9 positions were more prestigious
than motorscout positions. The record is not entirely clear on this point. Be that as
it may, we assume that patrol K-9 positions were, in some measure, more
prestigious than motorscout positions. See id. Officer Minnifield’s claim therefore
reduces to Sergeant Boackle declining to recommend him for lateral transfer to a
position offering the same pay but more prestige.
B
We conclude that Sergeant Boackle was acting within his discretionary
authority when he recommended candidates for the vacant K-9 position. See Lee,
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284 F.3d at 1194. When he made the recommendations, Sergeant Boackle was the
supervising sergeant for the K-9 unit. Recommending candidates for vacant
positions is a typical function of any supervisor. In addition, Sergeant Boackle
testified that he regularly sent memos containing recommendations “up the chain
of command” for consideration by those with ultimate hiring authority. I Aplt.
App. 236. Recommending candidates for assignment therefore fell well within the
“outer perimeter” of Sergeant Boackle’s duties. See Harbert, 157 F.3d at 1282.
Officer Minnifield argues that Sergeant Boackle did not follow BPD rules
when making his recommendation, placing his actions outside the scope of his
discretionary authority. The parties disagree about whether Sergeant Boackle
applied the correct set of rules in selecting candidates for recommendation. Officer
Minnifield argues that Sergeant Boackle should have followed the Tactical Unit’s
rules, which set more stringent requirements that only Officer Minnifield met. On
the other hand, Sergeant Boackle contends that the lower standards set by the K-9
Unit’s rules were the appropriate measure. Even if the Tactical Unit’s rules should
have applied, we do not believe it places Sergeant Boackle’s actions outside the
scope of his discretionary authority. The fact that Sergeant Boackle may not have
followed internal policy to the letter does not negate his authority entirely. See
Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (district attorney acted within
his discretionary authority in filing probable cause affidavit though no such cause
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existed). Minor deviations from authority do not place an official’s otherwise
authorized actions beyond the “outer perimeter” of his or her duties.
C
Once it is shown that an official was acting within his discretionary
authority, qualified immunity applies unless the conduct alleged violates “clearly
established statutory or constitutional rights of which a reasonable person would
have known.” White, 580 U.S. at __, 137 S. Ct. at 551. A plaintiff must therefore
establish that (1) the conduct violated a statutory or constitutional right, and (2) the
right was clearly established in the law. Id. This case is easily resolved on the
second element, so it is unnecessary to resolve the first. See Pearson, 555 U.S. at
236.
The district court assumed that Officer Minnifield asserted the right to be
free from racial discrimination and retaliation in the workplace. However, this
formulation was too broad. Defining the law at this “high level of generality” for
qualified immunity purposes is discouraged by the Supreme Court. See Ashcroft,
563 U.S. at 742. The proper inquiry is whether it was clearly established law that
failing to recommend an employee for a lateral transfer to a position (offering the
same pay but more prestige) is an adverse employment action for purposes of
disparate treatment and retaliation claims. This formulation “particularizes” the
question to the circumstances and answers whether then-existing law put Sergeant
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Boackle on “fair notice” that his actions violated Officer Minnifield’s rights.
White, 580 U.S. at __, 137 S. Ct. at 552; Brosseau, 543 U.S. at 198.
The law did not clearly establish that Sergeant Boackle’s conduct constituted
an adverse employment action, under either the disparate treatment or retaliation
standard. Existing law does not place the question of whether a supervisor’s refusal
to recommend someone for a lateral transfer, like the one at issue here, is an
adverse employment action “beyond debate.” See White, 580 U.S. at __, 137 S.
Ct. at 1152. Nor did the law “truly compel” the conclusion that it is. See
Gonzalez, 161 F.3d at 1295. Officer Minnifield clearly wanted a K-9 position,
pursued one tenaciously, and was unhappy that he was not successful. However,
even after assuming disputed facts in his favor, we are left with only prestige as a
material difference between the position he had and the position he sought. 2
Officer Minnifield has pointed us to no authority that clearly establishes that denial
of a transfer to a job that is materially similar in all respects but prestige is an
adverse employment action. Indeed, the cases relied upon by Officer Minnifield
illustrate the point. See Hinson v. Clinch Cty., Georgia Bd. of Educ., 231 F.3d
2
At oral argument, Officer Minnifield asserted that the adverse employment action is also
grounded on the fact that the job duties of a patrol K-9 officer are “completely different”
than those of a motorscout. But even the cases Officer Minnifield cites demonstrate that
identifying a mere difference in job duties — even a complete one — is not enough to
establish an adverse employment action. Some diminution of duties or responsibilities is
shown in each of these authorities. If a mere difference in duties were enough, then even a
promotion could be considered an adverse employment action.
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821, 830 (11th Cir. 2000) (reasonable factfinder could conclude that transferred
employee “suffered a loss of prestige and responsibility”) (emphasis added);
Collins v. Illinois, 830 F.2d 692, 704 (7th Cir. 1987) (adverse action where
employee was transferred to new department in a position with fewer
responsibilities, deprived of a telephone, delisted from professional publications,
and assigned to a desk in a receptionist’s area instead of a private office); de la
Cruz v. N.Y.C. Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 21 (2d Cir.
1996) (adverse action where employee was transferred “to a less prestigious unit
with little opportunity for professional growth”) (emphasis added); Torre v. Casio,
Inc., 42 F.3d 825, 831 n.7 (3d Cir. 1994) (adverse action could be established if
employee transferred to “dead-end job”). The law hardly points so clearly in favor
of Officer Minnifield’s position that Sergeant Boackle had “fair notice” that he was
violating the law by declining to recommend him for transfer. Brosseau, 543 U.S.
at 198.
The district court concluded that Officer Minnifield had shown an adverse
employment action by a “failure to promote” and the denial “of employment
opportunities.” Minnifield, 325 F.R.D. at 464. Officer Minnifield argues that
Sergeant Boackle’s refusal to recommend him for a patrol K-9 position was an
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adverse employment action because it prevented him from gaining the experience
that was a prerequisite to apply for an airport K-9 position. We disagree.
The connection here is too attenuated and speculative to support the
argument. Even if that were not the case, the argument would still fail because the
patrol and airport K-9 positions were similar in all material respects. The fact that
one was a prerequisite to apply for the other does not remedy the lack of materially
improved conditions or duties. This case does not involve a failure to promote —
that is the heart of the issue before us. The patrol K-9 position was a lateral
transfer. Officer Minnifield cannot argue that he suffered an adverse employment
action because Sergeant Boackle’s refusal to recommend him for a lateral transfer
foreclosed his opportunity to apply for yet another lateral transfer.
Officer Minnifield’s foreclosed opportunity argument rests on the
assumption that, even if the patrol K-9 position did not get a 5% increase in pay,
the airport K-9 position did. But we have already assumed that the patrol K-9
position received this same increase in pay, and concluded that Sergeant Boackle is
entitled to qualified immunity for failure to recommend under those facts. We are
left, again, with prestige and different — but not materially diminished — job
duties as grounds for finding an adverse employment action. See supra, n.2. The
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law did not clearly establish that these facts constitute an adverse employment
action.
IV
Sergeant Boackle was acting within his discretionary authority by
recommending, and declining to recommend, candidates for the patrol K-9
position. Officer Minnifield has failed to carry his burden of showing that
Sergeant Boackle violated a clearly established right by declining to recommend
him for transfer. Sergeant Boackle is entitled to qualified immunity.
We REVERSE the denial of qualified immunity and REMAND this case to
the district court for further proceedings consistent with this opinion.
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