Roderick B. Jolivette v. James Arrowood , 180 F. App'x 883 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-15856 ELEVENTH CIRCUIT
MAY 12, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-00096-CV-WLS-1
RODERICK B. JOLIVETTE,
Plaintiff-Appellee,
versus
JAMES ARROWOOD, Individually and in his official
capacity as Chief of City of Albany Fire
Department,
JAMES CARSWELL, Individually and in his official
capacity as Deputy Chief of City of Albany Fire
Department,
ARTHUR DYER, Individually and in his official
capacity as Battalion Chief of City of Albany Fire
Department,
CITY OF ALBANY, GA,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(May 12, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Albany, Georgia Fire Chief James Arrowood, Assistant Fire Chief James
Carswell, and Battalion Chief Arthur Dyer appeal the district court’s denial of
their motion for summary judgment based on its finding that they were not entitled
to qualified immunity. The issues on appeal are whether we have jurisdiction to
review the denial of qualified immunity, and if so, whether qualified immunity
was properly denied.
I.
Roderick Jolivette filed a lawsuit pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et. seq., 42 U.S.C. §§ 1981, 1983 against the City
of Albany and his supervisors in the City of Albany Fire Department. Relevant to
this appeal, Jolivette alleged race discrimination for failure to promote and
retaliation stemming from his written complaint of discrimination to his superiors
which was followed by a formal Equal Employment Opportunity Commission
charge of discrimination against the City and his supervisors. The defendants filed
a motion for summary judgment as to all claims, which the district court granted in
part and denied in part. Relevant to this appeal, the district court denied summary
judgment to the defendants on Jolivette’s claims of: (1) race discrimination for
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failure to promote asserted pursuant to Title VII and § 1983 and (2) retaliation
asserted pursuant to § 1983.
The district court denied summary judgment on Jolivette’s race
discrimination claim because: (1) genuine issues of material fact as to whether
Jolivette was qualified for a promotion to Battalion Chief precluded summary
judgment and (2) the defendants’ proffered inconsistent reasons for the failure to
promote created a genuine issue of material fact regarding pretext. As to the
retaliation claim, the district court reasoned that because Jolivette stated a prima
facie case of retaliation and the defendants only proffered legitimate
nondiscriminatory reasons for some, but not all of their actions, genuine issues of
material fact precluded summary judgment as to the affirmative defense.
The district court granted Arrowood, Carswell and Dyer’s (defendant
supervisors) motion to dismiss the race discrimination claim asserted against them
pursuant to Title VII, because individuals cannot be held liable under Title VII,
and that part of the judgment is not at issue in this appeal. In the same order, the
district court denied qualified immunity to the defendant supervisors as to the
remaining claims against them—race discrimination and retaliation claims brought
pursuant to § 1983.
Analyzing the qualified immunity defense, the district court found that “[a]s
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discussed previously . . . it cannot be said as a matter of law Plaintiff did not suffer
from racial discrimination in the promotional process and retaliation.” Sept. 30,
2005 Order at 22. The court restated Jolivette’s allegations that the defendant
supervisors “denied him the opportunity to properly qualify for promotion by not
allowing him to obtain the necessary courses and building a record of adverse
disciplinary actions which they could then use to justify not promoting him.” Id.
It then found that the evidence taken in the light most favorable to Jolivette
showed that the defendant supervisors “allowed white employees to take
certification courses at the same time they denied him access” and “issued him
punishments of more heightened severity and frequency than those issued white
employees for similar conduct.” Id. at 22–23. The court stated: “The right to be
free from racial discrimination is a fundamental right” and “if the allegations
prove true, then Defendants’ actions violated this right. Because of this finding,
there is no reason to analyze the qualified immunity issue further. Likewise, the
right to be free from racial discrimination in one’s employment is so ‘clearly
established’ that it is axiomatic.” Id. at 23. The district court denied summary
judgment holding that the defendant supervisors were not entitled to qualified
immunity from the § 1983 race discrimination and retaliation claims. This is the
interlocutory appeal from that ruling.
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II.
“Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). We
review a district court’s denial of a motion for summary judgment based on
qualified immunity de novo, construing the facts in the light most favorable to the
plaintiff. Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1266–67
(11th Cir. 2003).
A.
The denial of a motion for summary judgment based on qualified immunity
“is an immediately appealable collateral order, provided that it concerns solely the
pure legal decision of (1) whether the implicated federal constitutional right was
clearly established and (2) whether the alleged acts violated that law” under the
“core qualified immunity analysis.” Koch v. Rugg, 221 F.3d 1283, 1294–95 (11th
Cir. 2000) (emphasis and internal quotation marks omitted). The appeal “must
present a legal question concerning a clearly established federal right that can be
decided apart from considering sufficiency of the evidence relative to the
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correctness of the plaintiff’s alleged facts.” Id. at 1294. If the defendant
“challenges only sufficiency of the evidence relative to a ‘predicate factual
element of the underlying constitutional tort,’” we have no jurisdiction. Id. at
1296 (quoting Dolihite v. Maughon ex rel. Videon, 74 F.3d 1027, 1033 n.3 (11th
Cir. 1996)). Factual sufficiency issues are not immediately appealable because
they “involve the determination of ‘facts a party may, or may not, be able to prove
at trial.’” Id. (quoting Johnson v. Jones, 515 U.S. 304, 313, 115 S. Ct. 2151, 2156
(1995)). Thus, we may answer questions of law about whether a constitutional
right was “clearly established” and whether the alleged acts violate that law, but
we may not entertain challenges to the sufficiency of the evidence.
In this case, the defendant supervisors contend that the district court “failed
to apply the appropriate analysis” because “rather than examining the
circumstances or inquiring as to whether a reasonable official could have believed
that Defendants’ conduct was lawful under the particular facts of this case, the
District Court jumped to the conclusion that Defendants were not entitled to
qualified immunity . . . based upon the generalized statement that ‘the right to be
free from racial discrimination is . . . ‘clearly established.’” Brief of Appellant at
39–40. To the extent that this is a contention that the right to be free from racial
discrimination is not clearly established, we have jurisdiction to entertain the
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question, but the defendants’ contention is incorrect. The right to be free from
racial discrimination in the employment context is clearly established. See e.g.
Alexander v. Fulton County, Ga., 207 F.3d 1303, 1313, 1321 (11th Cir. 2000)
(affirming a jury verdict of intentional employment discrimination by a black
sheriff who made race-based employment decisions concerning white officers with
respect to discipline, promotions, transfers, and reclassifications); Yeldell v.
Cooper Green Hosp., Inc., 956 F.2d 1056, 1064 (11th Cir. 1992) (holding that
illegality of intentionally discriminatory hiring and firing practices was a clearly
established violation of the Equal Protection Clause); Brown v. City of Fort
Lauderdale, 923 F.2d 1474, 1478 (11th Cir. 1991) (recognizing a right under the
Equal Protection Clause to be free from termination because of race).
The court did not fail to apply the appropriate analysis, because no
reasonable official could believe that it is lawful to discriminate against an
employee on the basis of race in the way that Jolivette alleges. Taking the
evidence in the light most favorable to Jolivette, the district court found that the
defendant supervisors’ conduct violated the constitutional right to be free from
racial discrimination in the promotional process. Jolivette made out a prima facie
case of race discrimination in the promotional process. The only element of the
prima facie case in dispute was whether Jolivette was qualified for the position of
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Battalion Chief, and the district court concluded that a reasonable factfinder could
find from the evidence either that he was de facto qualified for the position or, if
he was not, that it was a result of defendant supervisors’ refusal to allow him to
take the requisite certification course. White employees were allowed to take the
certification courses. The evidence, viewed in the light most favorable to
Jolivette, also showed that the defendant supervisors “issued him punishments of
more heightened severity and frequency than those issued white employees for
similar conduct,” which he contends was an effort to sabotage his chance for a
promotion. Sept. 30, 2005 Order at 22–23. No reasonable official could believe
that it is lawful to take such racially discriminatory actions against a person in his
employment.
The rest of the defendants supervisors’ arguments relate to the sufficiency
of the evidence supporting Jolivette’s claims. For example, defendant supervisors
simply disagree with the district court’s statement of the facts and make the factual
contentions that Jolivette: (1) “was not qualified for the promotion”; (2) “was not
subjected to racially discriminating discipline or scrutiny”; (3) “cannot establish
that he was subjected to an adverse employment action”; (4) “cannot establish that
Defendants treated similarly situated individuals outside his protected class more
favorably”; (5) and “cannot demonstrate that Defendants’ legitimate,
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nondiscriminatory reasons for taking the alleged employment actions are
pretextual.” Brief of Appellant at iv–vi. All of these are sufficiency of the
evidence contentions, and under our holding in Koch we lack interlocutory
appellate jurisdiction to examine the sufficiency of the evidence. 221 F.3d at
1296. For that reason, we dismiss for lack of jurisdiction the defendants
supervisors’ appeal from the denial of qualified immunity on the race
discrimination claim.
B.
Defendant supervisors also contend that the district court erred in denying
them summary judgment on qualified immunity grounds on Jolivette’s retaliation
claim. They are correct about that. We have held that “[t]he right to be free from
retaliation is clearly established as a first amendment right and as a statutory right
under Title VII; but no clearly established right exists under the equal protection
clause to be free from retaliation.” Ratliff v. DeKalb County, Ga., 62 F.3d 338,
340 (11th Cir. 1995).
In this case, Jolivette contends that the defendant supervisors retaliated
against him in violation of the Equal Protection Clause. Because we have held
that no clearly established right exists under the Equal Protection Clause to be free
from retaliation, even if the facts are that retaliation occurred, Jolivette cannot
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demonstrate that the actions of the defendant supervisors violated that
constitutional guarantee. The district court erred in denying qualified immunity to
the defendant supervisors as to the § 1983 Equal Protection Clause retaliation
claim.
We DISMISS the appeal as to the district court’s denial of qualified
immunity on the race discrimination claims, VACATE as to the denial of
qualified immunity with respect to the retaliation claims, and REMAND for
further proceedings consistent with this opinion.
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