Blackwell v. St Charles Parish ( 2008 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    April 24, 2008
    No. 07-30184                   Charles R. Fulbruge III
    Clerk
    GWENDOLYN BLACKWELL; DEMONA HARRISON; OPHELIA WILSON
    WALKER
    Plaintiffs-Appellees
    v.
    ALBERT LAQUE, St. Charles Parish President
    Defendant-Appellant
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:05-CV-2105
    Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Gwendolyn Blackwell, Demona Harrison, and Ophelia Wilson Walker
    (“Plaintiffs”) brought due process, First Amendment, and various discrimination
    claims, along with a state law claim, against the St. Charles Parish and Parish
    President Albert Laque. All claims were related to Plaintiffs’ employment with
    the Parish’s Department of Community Services. Both defendants moved for
    summary judgment and Laque asserted that he was entitled to qualified
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    No. 07-30184
    immunity. Although the district court granted that motion in part and dismissed
    several claims, it concluded that Laque was not entitled to qualified immunity
    on Plaintiffs’ race discrimination, due process, and First Amendment claims.
    Laque appeals, arguing that he is entitled to qualified immunity.
    I.
    Plaintiffs, who are African-American females, were employed by St.
    Charles Parish in the Department of Community Services (“DCS”) until June
    2004. During Plaintiffs’ employment, DCS employees were not part of the
    Louisiana civil service system.1 In 2002, Plaintiffs and other DCS employees,
    with help from a Parish councilwoman, sought to have the DCS included in the
    civil service. Proponents of this effort contended that the St. Charles Parish
    Home Rule Charter made DCS employees eligible for inclusion in the civil
    service.
    The Parish appears to have been ambivalent, or even opposed, to the
    proposal to include DCS employees in the civil service. For example, the Parish
    required proponents to seek the Louisiana Attorney General’s opinion on
    whether DCS employees were eligible for civil service membership, and after the
    Attorney General confirmed their eligibility, the Parish commissioned an
    independent evaluation of the DCS. That evaluation resulted in a report
    recommending that three DCS staff positions be eliminated.
    The report was issued in May 2004, and Laque authorized Plaintiffs’
    terminations the next month. Shortly after Plaintiffs’ terminations, the Civil
    Service Board held a meeting on July 6, 2004, where it classified the remaining
    DCS workers as members of the civil service. Thereafter, Plaintiffs brought suit
    1
    The purpose of the Louisiana civil service system is “to secure adequate protection to
    career public employees from political discrimination.” Owen v. City of Shreveport, 
    705 So. 2d 795
    , 797 (La. Ct. App. 1998). “[A]n employee who has gained classified permanent civil service
    status has an entitlement to his position, since he has already received the position, and
    applicable law guarantees him continued employment, save for some exceptions.” Bell v. Dep’t
    of Health & Human Res., 
    483 So. 2d 945
    , 949 (La. 1986).
    2
    No. 07-30184
    against the Parish and Parish President Albert Laque, asserting claims of race,
    gender, age, and national origin discrimination under Title VII of the Civil
    Rights Act of 1964; similar claims under 
    42 U.S.C. §§ 1981
     and 1983; claims for
    First Amendment retaliation; claims for Fifth and Fourteenth Amendment due
    process violations; and a state law claim for intentional infliction of emotional
    distress. Both defendants moved for summary judgment and Laque additionally
    asserted that he was entitled to qualified immunity. The district court granted
    summary judgment to the defendants in part, dismissing Plaintiffs’ age and
    national origin discrimination claims and their state law emotional distress
    claim. The district court denied the summary judgment motion on Plaintiffs’
    remaining claims and held that Laque was not entitled to qualified immunity.2
    In this interlocutory appeal, Laque appeals the denial of qualified immunity.
    II.
    A. Jurisdiction and Standard of Review
    The district court concluded that Laque is not entitled to qualified
    immunity. “An order denying qualified immunity, to the extent it turns on an
    issue of law, is immediately appealable.” Atteberry v. Nocona Gen. Hosp., 
    430 F.3d 245
    , 251 (5th Cir. 2005) (internal quotation marks omitted). However, our
    jurisdiction is limited to reviewing questions of law. Meadours v. Ermel, 
    483 F.3d 417
    , 422 (5th Cir. 2007). The district court’s finding that genuine factual
    disputes exist is a factual determination that we may not review in this
    interlocutory appeal, but the district court’s finding that a particular dispute is
    material is a legal determination that we may review. Foley v. Univ. of Houston,
    
    355 F.3d 333
    , 337 (5th Cir. 2003); see Meadours, 
    483 F.3d at 422
     (“[W]e may only
    review the district court’s conclusion that issues of fact are material (a legal
    2
    In ruling on Laque’s motion, the district court ordered “that Defendant Laque’s Motion
    For Summary Judgment on the First Amendment claims and qualified immunity are
    DENIED.” We find that this language was effective to reject Laque’s assertion of qualified
    immunity as to each of Plaintiffs’ claims.
    3
    No. 07-30184
    question), but we may not review the conclusion that those issues of fact are
    genuine (a fact question).”). We review the district court’s refusal to grant
    qualified immunity de novo. Atteberry, 430 F.3d at 252.
    As we explain in more detail below, the qualified immunity analysis
    requires us to consider whether an official’s conduct “is objectively reasonable in
    light of clearly established law.” Kinney v. Weaver, 
    367 F.3d 337
    , 346 (5th Cir.
    2004) (en banc). The legal determination involved in this analysis is whether “a
    certain course of conduct would, as a matter of law, be objectively unreasonable
    in light of clearly established law.” 
    Id.
     The factual determination involved is
    whether “a genuine issue of fact exists regarding whether the defendant(s) did,
    in fact, engage in such conduct.” 
    Id.
     When the district court finds that the
    evidence presented raises a genuine factual dispute “we accept the plaintiffs’
    version of the facts as true.” 
    Id. at 348
     (summary judgment case); see also
    Gonzales v. Dallas County, 
    249 F.3d 406
    , 411 (5th Cir. 2001) (“Consequently, on
    interlocutory appeal the public official must be prepared to concede the best view
    of the facts to the plaintiff and discuss only the legal issues raised by the
    appeal.”) (summary judgment case).
    B. Qualified Immunity
    The defense of qualified immunity shields government officials performing
    discretionary functions from civil liability “‘insofar as their conduct does not
    violate clearly established . . . constitutional rights of which a reasonable person
    would have known.’” Flores v. City of Palacios, 
    381 F.3d 391
    , 393-94 (5th Cir.
    2004) (quoting Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982)). Applying this
    standard, we view the facts in the light most favorable to the party asserting the
    injury and determine (1) whether the defendant’s conduct violated the plaintiff’s
    constitutional rights, and (2) “whether the defendant[’]s conduct was objectively
    reasonable in light of clearly established law.” Goodson v. City of Corpus Christi,
    
    202 F.3d 730
    , 736 (5th Cir. 2000) (internal quotation marks omitted); Scott v.
    4
    No. 07-30184
    Harris, 
    127 S. Ct. 1769
    , 1774 (2007). If the defendant’s conduct did not violate
    a plaintiff’s constitutional rights under the first prong, or his conduct was
    objectively reasonable under the second prong, he is entitled to qualified
    immunity. Once a defendant asserts a qualified immunity defense, the burden
    shifts to the plaintiff to show that the defense is inapplicable. Hathaway v.
    Bazany, 
    507 F.3d 312
    , 319 (5th Cir. 2007).
    The district court found that Laque was not entitled to qualified immunity
    on Plaintiffs’ remaining claims: (1) race discrimination, (2) due process violation,
    (3) First Amendment retaliation related to the “push for civil service” and (4)
    First Amendment retaliation related to Plaintiffs’ support for Laque’s political
    opponent. We examine each in turn.
    1. Race discrimination claim
    Plaintiffs brought race discrimination claims pursuant to Title VII of the
    Civil Rights Act of 1964 and under 
    42 U.S.C. §§ 1981
     and 1983 for alleged
    violations of the Equal Protection Clause.3 We will not consider Plaintiffs’ Title
    VII claim in this interlocutory appeal because “[i]ndividuals are not liable under
    Title VII in either their individual or official capacities.” Ackel v. Nat’l
    3
    We decline Laque’s invitation to find that Plaintiffs’ race discrimination and due
    process claims are waived. Laque argues that Plaintiffs failed to contest Laque’s assertion of
    qualified immunity in their Opposition to Laque’s motion for summary judgment. We recognize
    the well-established rule that “[i]f a party fails to assert a legal reason why summary judgment
    should not be granted, that ground is waived.” See Vaughner v. Pulito, 
    804 F.2d 873
    , 877 n.2
    (5th Cir. 1986); see also Grenier v. Cyanamid Plastics, Inc.,
    70 F.3d 667
    , 678 (1st Cir. 1995)
    (“Even an issue raised in the complaint but ignored at summary judgment may be deemed
    waived.”). Plaintiffs presented arguments relevant to Laque’s qualified immunity defense in
    their Opposition to Laque’s summary judgment motion, although those arguments did not
    appear in the section of Plaintiffs’ Opposition responding to Laque’s qualified immunity
    defense. However, Plaintiffs’ Opposition brief makes clear their contentions that race
    motivated the refusal to classify DCS employees as civil service and that their terminations
    violated their due process rights. Given Plaintiffs’ discussion of the claims and relevant legal
    arguments, it cannot be said that Plaintiffs “ignored” issues raised in their complaint, see
    Grenier,
    70 F.3d at 678
    , or that they failed to assert legal reasons why Laque’s qualified
    immunity defense fails. See Vaughner, 804 F.2d at 877 n.2.
    5
    No. 07-30184
    Commc’ns, Inc., 
    339 F.3d 376
    , 381 n.1 (5th Cir. 2003). However, this limitation
    does not extend to Plaintiffs’ other causes of action, which we presently consider.
    “[T]he inquiry into intentional discrimination is essentially the same for
    individual actions brought under sections 1981 and 1983, and Title VII.”
    Lauderdale v. Texas Dep’t of Criminal Justice, Institutional Div., 
    512 F.3d 157
    ,
    166 (5th Cir. 2007) (internal quotation marks omitted)); Foley, 355 F.3d at 340
    n.8. Thus, Plaintiffs are required to show that they were (1) members of a
    protected class, (2) qualified for the position at issue, (3) subject to an adverse
    employment action, and (4) that similarly situated individuals outside the
    protected class were treated more favorably. Okoye v. Univ. of Tex. Houston
    Health Sci. Ctr., 
    245 F.3d 507
    , 512-13 (5th Cir. 2001). If Plaintiffs establish a
    prima facie case, the burden of production shifts to defendants to provide a
    “legitimate, nondiscriminatory reason” for the action. 
    Id. at 512
    .
    The district court held that Plaintiffs established a prima facie case of race
    discrimination because (1) they are African-American, (2) they are qualified for
    the positions at issue, (3) they were subject to adverse employment actions in
    that they were denied civil service status and ultimately terminated, and (4)
    there is a material factual dispute about whether similarly situated white
    employees were treated more favorably.
    We agree that Plaintiffs have established a prima facie case of race
    discrimination for summary judgment purposes. There is no dispute on appeal
    that the first three elements are satisfied. Regarding the fourth element, the
    district court found that a genuine factual question exists regarding whether
    white employees were treated more favorably than Plaintiffs. We may not review
    that conclusion in this interlocutory appeal, and because that dispute is material
    to establishing a race discrimination claim, Plaintiffs have established a prima
    facie case. To the extent that Laque argues that Plaintiffs’ terminations were
    part of the typical process for converting the department into the civil service,
    6
    No. 07-30184
    and not the product of racial discrimination, the same genuine issue of fact cited
    by the district court—whether similarly situated white employees and Parish
    departments were treated more favorably—precludes qualified immunity at this
    stage of proceedings. See Kinney, 
    367 F.3d at 346-47
    . Recognizing that we may
    not review the district court’s finding that genuine issues of fact exist, we
    conclude that for purposes of this appeal Plaintiffs have established a
    constitutional violation under the first qualified immunity prong.
    We next consider the second qualified immunity prong: whether Laque’s
    actions were objectively reasonable in light of clearly established law. See
    Goodson, 
    202 F.3d at 736
    . It was clearly established that the Equal Protection
    Clause of the Fourteenth Amendment prohibits racial discrimination of the sort
    alleged. Further, the district court found that a genuine dispute exists about
    whether white employees were treated more favorably. Viewing the facts in the
    light most favorable to the Plaintiffs, as we must, we cannot conclude that
    Laque’s actions were objectively reasonable under clearly established law. See
    Kinney, 
    367 F.3d at 348
    . Thus, Laque is not entitled to qualified immunity on
    this claim.
    2. Due process claim
    Plaintiffs allege that Laque violated their Fifth and Fourteenth
    Amendment due process rights by terminating them without following the
    procedures required for terminating civil service employees. To establish a viable
    due process claim, Plaintiffs must show that they had a property interest in
    continued employment. See Cabrol v. Town of Youngsville, 
    106 F.3d 101
    , 105
    (5th Cir. 1997) (“Absent a property interest, there is nothing subject to due
    process protections and our inquiry ends.”). There is no automatic property
    interest in continued government employment. 
    Id.
     However, “[i]n Louisiana, a
    permanent classified civil service employee has a protected property interest in
    her job.” Wallace v. Shreve Mem’l Library, 
    97 F.3d 746
    , 748 (5th Cir. 1996); Bell
    7
    No. 07-30184
    v. Dep’t Health and Human Res., 
    483 So. 2d 945
    , 949 (La. 1986) (“[C]lassified
    civil service status is a property right . . . .”).
    Plaintiffs contend that the Parish Home Rule Charter gave them a
    property interest in their positions because it made them “de facto” civil service
    employees. Laque argues that Plaintiffs had no property interest in continued
    employment because they were not actually members of the civil service. Laque
    points out that the Parish Home Rule Charter and the State Attorney General
    opinion merely provide that Plaintiffs are eligible for inclusion in the civil
    service. To prevail on the second qualified immunity prong, Plaintiffs must show
    that Laque’s conduct was not “objectively reasonable in light of clearly
    established law.” Goodson, 
    202 F.3d at 736
     (internal quotation marks omitted).
    We find that Plaintiffs have failed to make the required showing. Laque
    authorized Plaintiffs’ terminations without providing them the benefit of
    procedural protections, but the record makes clear that a reasonable person in
    Laque’s position would not have considered Plaintiffs to be entitled to those
    protections. See Freeman v. Gore, 
    483 F.3d 404
    , 411 (5th Cir. 2007) (“[T]he court
    applies an objective standard based on the viewpoint of a reasonable official in
    light of the information then available.”). Plaintiffs had never been recognized
    as part of the civil service and Plaintiffs’ novel theory that they were “de facto”
    members of the civil service was not, and is not, clearly established law. Stated
    another way, based on the information then available, a reasonable person
    would not have felt it necessary to afford Plaintiffs the protections entitled to
    civil service members. Thus, Plaintiffs have failed to establish that Laque’s
    actions were unreasonable in light of clearly established law and he is entitled
    to qualified immunity on this claim. See id.4
    4
    The district court also found that genuine issues of fact exist regarding Laque’s intent
    and involvement in the termination process. We find this dispute immaterial to Plaintiffs’ due
    process claim. Even if Laque intentionally deprived Plaintiffs of procedural protections and was
    involved in the termination process, we find that those actions were not objectively
    8
    No. 07-30184
    3. First Amendment claim related to Plaintiffs’ “push for civil service”
    Plaintiffs argue that they were terminated in retaliation for their
    involvement in the “push” to include the DCS in the civil service. In order to
    prevail on a § 1983 claim for First Amendment retaliation, Plaintiffs must show
    that (1) they “suffered an adverse employment decision,” (2) their “speech
    involved a matter of public concern,” (3) their “interest in commenting on
    matters of public concern outweighs [their] employer’s interest in promoting
    efficiency,” and (4) their “speech motivated the adverse employment decision.”
    Stotter v. Univ. of Tex. at San Antonio, 
    508 F.3d 812
    , 825 (5th Cir. 2007).
    “Whether the speech at issue is on a matter of public concern is a question
    of law that must be determined by the court.” Salge v. Edna Indep. Sch. Dist.,
    
    411 F.3d 178
    , 184 (5th Cir. 2005). In making this determination, one approach
    is to consider whether the “public employee speaks not as a citizen upon matters
    of public concern, but instead as an employee upon matters only of personal
    interest.” Stotter, 
    508 F.3d at 825
     (quotation marks omitted). In such a case we
    typically conclude that the speech does not involve a matter of public concern.
    See 
    id.
     However, in cases “in which the employee speaks on a matter of public
    concern but also has a personal interest as well,” we examine the content,
    context, and form of the speech to determine whether it is predominantly private
    in nature. Id.5
    The district court found that Plaintiffs’ “support and participation in the
    cause to include DCS employees in civil service addressed a public concern.” The
    court reasoned that because Plaintiffs claimed that they were excluded from the
    civil service because of racial discrimination, their “push for civil service”
    unreasonable for the reasons stated above.
    5
    We have employed several approaches to analyzing mixed speech cases. See Stotter,
    
    508 F.3d at 825
    . Because these approaches “ultimately ask the same question,” 
    id.
     at 825 n.4,
    we find it unnecessary to discuss each approach here.
    9
    No. 07-30184
    involved a matter of public concern. Laque argues that the “push for civil service
    status” involved only matters of personal interest and did not involve a matter
    of public concern. See Teague v. City of Flower Mound, 
    179 F.3d 377
    , 381 (5th
    Cir. 1999) (“[W]e have held that speech concerning the conditions of one’s
    employment is a private matter.”).
    While Plaintiffs’ support for the “push for civil service” clearly furthered
    their personal interests, they have presented some evidence that they were
    excluded from the civil service system on the basis of race. We agree that this
    evidence indicates that Plaintiffs’ speech also involved the broader public
    interest of remedying alleged racial discrimination in Parish employment.6
    Further, we have held that speech related to racial discrimination “almost
    always involves matters of public concern.” Charles v. Grief, --- F.3d ----, No.
    07-50537, 
    2008 WL 788618
    , at *5 (5th Cir. Mar. 26, 2008); see Victor v.
    McElveen, 
    150 F.3d 451
    , 456 (5th Cir. 1998) (characterizing “a protest against
    racial discrimination” as “inherently of public concern”). Given the evidence
    suggesting that Plaintiffs’ speech was motivated, at least in part, by a desire to
    remedy racial discrimination, we conclude that Plaintiffs’ speech involved a
    matter of public concern.
    In addition, we reject Laque’s argument that Plaintiffs’ involvement in the
    “push for civil service” could not have motivated their terminations. On this
    point we must defer to the district court’s conclusion that genuine issues of fact
    exist “as to [whether] Plaintiffs were terminated as a result of their involvement
    in the civil service inclusion process.”7 Laque raises no argument concerning the
    remaining elements and we conclude that Plaintiffs have established, for
    summary judgment purposes, a valid First Amendment claim.
    6
    We note that Laque has not argued that Plaintiffs have failed to provide a “precise
    identification” of the speech at issue. See Foley, 355 F.3d at 342.
    7
    We express no opinion on the merits of Laque’s argument on this point.
    10
    No. 07-30184
    Further, we cannot find at this stage that Laque’s actions were objectively
    reasonable under clearly established law. See Goodson, 
    202 F.3d at 736
    . It has
    been clearly established for some time that a public employer may not retaliate
    against an employee because she exercised her right to engage in protected
    speech. Plaintiffs evidence, if believed, establishes just that. We conclude that
    Laque is not entitled to qualified immunity on this claim.
    4. First Amendment claim related to Plaintiffs’ political speech
    Plaintiffs also argue that they were terminated for supporting Laque’s
    political opponent, Darnell Abadie, in her campaign for Parish President.
    Plaintiffs supported Abadie’s campaign and at least one of them displayed
    Abadie’s political signs at her home. As mentioned, to prevail on a First
    Amendment claim Plaintiffs must establish that (1) they suffered an adverse
    employment decision, (2) their speech involved a matter of public concern, (3)
    their interest in commenting on matters of public concern outweighs their
    employer’s interest in promoting efficiency, and (4) their speech motivated the
    adverse employment action. Stotter, 
    508 F.3d at 825
    . If Plaintiffs establish these
    four elements, “the burden shifts to defendants to show by a preponderance of
    the evidence that they would have come to the same conclusion in the absence
    of the protected conduct.” Beattie v. Madison County Sch. Dist., 
    254 F.3d 595
    ,
    601 (5th Cir. 2001).
    We agree that Plaintiffs’ terminations constitute an adverse employment
    decision, and that their political speech constitutes a matter of public concern.
    See Breaux v. City of Garland, 
    205 F.3d 150
    , 157 (5th Cir. 2000) (termination is
    an adverse employment action);8 Jordan v. Ector County, 
    516 F.3d 290
    , 297 n.24
    8
    We need not decide whether the adverse employment action standard articulated in
    Burlington Northern & Santa Fe Railway Co. v. White applies to First Amendment retaliation
    cases, see Laredo Fraternal Order of Police v. City of Laredo, No. L-04-134, 
    2008 WL 678698
    ,
    at *2 (S.D. Tex. March 12, 2008), because there is no dispute that termination constitutes an
    adverse employment action under any potentially applicable standard.
    11
    No. 07-30184
    (5th Cir. 2008) (citing, inter alia, Aucoin v. Haney, 
    306 F.3d 268
    , 274 (5th Cir.
    2002) (“There is no doubt that campaigning for a political candidate relates to
    a matter of public concern.”)). Also, no argument has been made that Laque’s
    interests in promoting efficiency outweigh Plaintiffs’ interest in commenting on
    matters of public concern.
    Turning to the final element, the district court found that genuine issues
    of fact exist regarding Laque’s intent. As mentioned, we may not review the
    district court’s conclusion that genuine issues of fact exist. Kinney, 
    367 F.3d at 347
    . Our review is limited to determining whether this issue is material. Laque’s
    intent is material because this First Amendment claim hinges on whether
    Plaintiffs’ political speech motivated Laque to terminate them. If Laque fired
    Plaintiffs in retaliation for their support of Abadie, as Plaintiffs’ evidence
    appears to indicate, then this element would be satisfied and he would have
    violated their constitutional rights.
    Regarding the second qualified immunity prong, Plaintiffs must establish
    that Laque’s actions were not objectively reasonable in light of clearly
    established law. See Goodson, 
    202 F.3d at 736
    . As mentioned, it was clearly
    established that the First Amendment generally prohibits a public employer
    from retaliating against an employee because she exercised her right to engage
    in protected speech. See Stotter, 
    508 F.3d at 825
    . Given the genuine factual
    dispute about Laque’s intent, we simply cannot conclude that Laque’s actions
    were objectively reasonable under clearly established law. See Kinney, 
    367 F.3d at 348
    .
    In affirming the district court’s order on this claim, we reject Laque’s
    argument that Plaintiffs have failed to show that their campaign support for
    Abadie motivated terminations that took place more than seven months later.
    The district court’s conclusion that Laque’s intent is genuinely disputed, leads
    us to reject this argument because Laque’s intent is central to determining what
    12
    No. 07-30184
    motivated the terminations. We also reject Laque’s contention that Plaintiffs
    would have been terminated regardless of their political speech. Based on the
    evidence presented, we cannot determine whether Laque would have terminated
    these particular Plaintiffs absent their political speech because that
    determination is intertwined with Laque’s subjective intent, a genuinely
    disputed fact issue.9 Given the genuine issues of material fact concerning
    Laque’s intent, we find that he is not entitled to qualified immunity on this
    claim.
    III.
    For the foregoing reasons we affirm the part of the district court’s order
    denying Laque’s motion for qualified immunity on Plaintiffs’ race discrimination
    claims and their First Amendment claims. We reverse the district court’s order
    to the extent it denied Laque qualified immunity on Plaintiffs’ due process claim.
    AFFIRMED IN PART, REVERSED IN PART.
    9
    Laque claims that he merely relied on recommendations from his staff in deciding to
    terminate Plaintiffs and that his reliance on those recommendations was objectively
    reasonable. However, the district court’s finding that genuine fact issues exist regarding
    Laque’s intent prevent us from accepting his subjective explanation of intent.
    13