Filed: Aug. 11, 1997
Latest Update: Feb. 22, 2020
Summary: appeal to this court.discriminatory intent, precluded summary judgment.district court's order. Johnson, 115 S. Ct.Carter v. Rhode Island, 68 F.3d 9, 13 (1st Cir. 1995) (citing cases).things of which Tang complains.on alleged factual disputes about intent;cannot be reviewed on interlocutory appeal.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2320
RHODA TANG,
Plaintiff, Appellee,
v.
STATE OF RHODE ISLAND, DEPARTMENT OF ELDERLY AFFAIRS
and MAUREEN MAIGRET and SUSAN SWEET, in their individual and
official capacities,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
Rebecca Tedford Partington, Assistant Attorney General, with whom
Jeffrey B. Pine, Attorney General, was on brief for appellants.
Dennis J. Roberts II with whom Law Offices of Dennis J. Roberts
II was on brief for appellee.
August 11, 1997
BOUDIN, Circuit Judge. In the district court, Maureen
Maigret and Susan Sweet moved for summary judgment, arguing
that Rhoda Tang's claim against them under 42 U.S.C. 1983
was barred by qualified immunity. The district court held
that factual disputes precluded summary judgment on this
issue, and Maigret and Sweet have taken an interlocutory
appeal to this court. Under governing Supreme Court
precedent, we are obliged to dismiss the appeal on procedural
grounds.
Tang, an Asian American, has worked as a public health
nutritionist at the Rhode Island Department of Elderly
Affairs since 1974. In her view, the Department has
discriminated against her for many years, in various
respects, primarily on account of her race. The history of
litigation includes a formal administrative charge by Tang of
employment discrimination and a settlement of the matter in
1987, and Tang's 1989 discharge and 1992 reinstatement, which
followed union-initiated arbitration.
In 1996, Tang filed the present action in district court
against the Department, Maigret (former director of the
Department), and Sweet (then the associate director). Tang
charged that she had been discriminated against for racial
and other reasons in the conditions of her employment and
also had been subjected to retaliation on account of her
prior complaint. Her claims were based on Title VII, 42
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U.S.C. 2000e-2 and 3, on 42 U.S.C. 1981 and 1983, and
on counterpart provisions of Rhode Island law.
After some preliminary skirmishing, Maigret and Sweet
moved for summary judgment as to the section 1983 claim
against them on grounds of qualified immunity. They conceded
that there was a clearly established right to be free from
racial discrimination. But, relying upon Harlow v.
Fitzgerald, 457 U.S. 800, 819 (1982), and Anderson v.
Creighton, 483 U.S. 635, 638-39 (1987), they argued that an
objectively reasonable person would not think that the
conduct attributed to them by Tang violated that right.
Some of the incidents cited by Tang as examples of
racial discrimination or retaliation would strike many people
as tame (for example, that she was given too many clerical
tasks); others might be more serious. But Maigret and Sweet
sought to narrow the focus by asserting that each was
directly linked only to one or two incidents. Tang answered
that factual issues, including the defendants' alleged
discriminatory intent, precluded summary judgment.
In October 1996, the district court filed a memorandum
and order concluding that "the [individual] defendants'
motion for qualified immunity must be and is hereby deferred
until completion of the trial of the plaintiff's case." The
court declined to "detai[l] the allegations the parties have
made" but explained: "It suffices to say that I agree with
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plaintiff's counsel that the vast majority of the facts are
in dispute." This appeal followed.
Although Tang defends the district court's order on the
merits, she also says that we have no authority to review the
district court's order. The objection, couched in language
taken from a recent Supreme Court case, is that "a defendant
entitled to invoke a qualified immunity defense may not
appeal a district court summary judgment order insofar as
that order determines whether or not the pretrial record sets
forth a `genuine issue of fact for trial.'" See Johnson v.
Jones, 115 S. Ct. 2151, 2159 (1995).
The Supreme Court had earlier held in Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985), that despite the ordinary
requirement of finality, a denial of qualified immunity on
legal grounds is immediately appealable under the collateral
order doctrine. But in Johnson, it narrowed this opportunity
by saying that an interlocutory appeal from a denial of
immunity would not be permitted where the district court
found that a genuine issue of material fact precluded an
immediate grant of qualified immunity. 115 S. Ct. at 2156-
58. Accord Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996).
In construing these cases, this court has spelled out
what is implicit in Johnson, namely, that it does not help
the official appealing a denial of immunity to argue that the
district court erred in finding a material issue of fact.
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Diaz v. Diaz Martinez, 112 F.3d 1, 4-5 (1st Cir. 1997);
Stella v. Kelley, 63 F.3d 71, 77-78 (1st Cir. 1995). True,
such an error can be described as an error of law. But, as
the Supreme Court made clear, Johnson's limitation on
immediate review rests primarily on a prudential desire to
avoid bringing evidentiary disputes to the appeals court
except as part of a final judgment. Johnson, 115 S. Ct. at
2156-58.
In this case, the district court did not identify
specific factual issues or explain its ruling, but its
reasoning probably lay along one or both of two different
lines: that disputed incidents trivial in themselves might
add up to something more sinister as part of a pattern, or
that some of the incidents (such as the later withdrawn
discharge of Tang in 1989) might not be so trivial at all.
Neither theory is impossible in the abstract. See, e.g.,
Carter v. Rhode Island, 68 F.3d 9, 13 (1st Cir. 1995).
Whether the evidence adduced by Tang created a material
issue of fact under summary judgment standards is a different
question; to decide it, we would have to describe in some
detail the events cited by Tang and the inferences as to
defendants' intent that might, or might not, be drawn from
the episodes alleged. But this is the very type of factual
dispute that Johnson holds to be premature so far as
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appellate review is concerned. Right or wrong, the district
court's ruling is not subject to immediate appeal.
The defendants counter by saying that subjective intent
is irrelevant to qualified immunity. They concede arguendo
each of the few incidents directly involving them (e.g.,
Maigret's allegedly inadequate investigation of Tang's
complaint that another department employee demanded to use
Tang's computer although other machines were available). But
drawing upon the Harlow-Anderson objective test of qualified
immunity, they say that no reasonable person could regard
these actions as unlawful discrimination.
We think that the Harlow-Anderson objective test does
not automatically resolve a qualified immunity defense in
favor of the defendant in a case of alleged racial
discrimination or retaliation. The essence of such claims,
or at least one standard version, is that official actions
that might otherwise be defended as reasonable become
illegitimate when taken out of racial bias or in revenge for
a prior complaint. See Alexis v. McDonald's Restaurants of
Mass., Inc., 67 F.3d 341, 354 (1st Cir. 1995) (citing cases).
To employ a wholly objective test would wipe out many, if not
most, of these claims.
The objective test focuses on the reasonableness of the
official's conduct independent of motive. It is rarely going
to be manifestly unreasonable, judged apart from motive, to
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assign particular tasks to an employee, move her file
cabinet, alter her parking arrangements or do most of the
things of which Tang complains. But because of special
constitutional or statutory protections, some motives can
convert relatively minor slights into causes of action. Cf.
Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 & n.8
(1990).
An unresolved tension exists between such specific-
intent torts and the objective Harlow-Anderson qualified
immunity test.1 That test was designed to meet, not claims
of racial bias or retaliation, but rather ill-founded
allegations that an official action was "malicious" or taken
"in bad faith"--characterizations that defeated qualified
immunity at common law. Prosser and Keeton on Torts 132,
at 1059-62 (5th ed. 1984). In all events, the circuit courts
have almost uniformly refused to apply a strictly objective
test of qualified immunity in racial and retaliation cases.
See Broderick v. Roache, 996 F.2d 1294, 1298 (1st Cir. 1993);
Crawford-El, 93 F.3d at 817 (citing cases).
The defendants strongly suggest that the failure to
allow an appeal now, in a case like this one, will undercut
the protection that qualified immunity is supposed to give to
1The Supreme Court may clarify matters next fall when it
confronts a qualified immunity defense offered to a charge of
retaliatory motive. Crawford-El v. Britton, 93 F.3d 813
(D.C. Cir. 1996) (en banc), cert. granted,
65 U.S.L.W. 3817
(1997).
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a government official in a weak case not only to avoid
liability but to avoid trial itself. Of course, nothing
prevents a district court from granting summary judgment for
the defendants where proof of a racial or retaliatory motive
is very thin. But this does not help government officials
seeking an early exit where the district court thinks that
factual issues remain, for, in that event, Johnson still bars
an immediate appeal.
Johnson involved a factual dispute about what occurred,
not an issue of motive, and its full implications for motive
cases may not have been entirely apparent. See Johnson, 115
S. Ct. at 2154, 2158. Given the policies set forth in
Harlow, 457 U.S. at 817-18, and
Anderson, 483 U.S. at 641,
officials arguably do need some special protection against
charges of improper motive, which are easily made and which
may be supported simply by an alleged remark of the defendant
made when only the plaintiff was present. The problem for
officials facing such lawsuits is very real.
In a few circuits, it appears that courts have responded
by squeezing Johnson a bit and effectively granting
interlocutory review of denials of qualified immunity based
on alleged factual disputes about intent; but this circuit
and a number of others have resisted that course.2 More
2Compare Walker v. Schwalbe, 112 F.3d 1127, 1131-32
(11th Cir. 1997) and Blue v. Koren, 72 F.3d 1075, 1083-84 &
n.6 (2d Cir. 1995) (exercising pendent jurisdiction) with
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inventively, the District of Columbia Circuit, which had
developed a heightened pleading standard for such motive
claims, recently abandoned it in favor of imposing a "clear
and convincing evidence" standard of proof. Crawford-El, 93
F.3d at 818, 823.
Because the Supreme Court has granted review in
Crawford-El, an answer to the quandary may be forthcoming,
but we need not hazard our own guess about the outcome. In
the present case, Maigret and Sweet did not ask for any
special evidentiary standard to be used in the district
court--but merely for summary judgment granting them
qualified immunity. The district court denied it because of
a perceived factual dispute, and under Johnson that ruling
cannot be reviewed on interlocutory appeal.
Appeal dismissed.
Berdec a-P rez v. Zayas-Green, 111 F.3d 183, 184 (1st Cir.
1995) and Chateaubriand v. Gaspard, 97 F.3d 1218, 1223-24
(9th Cir. 1996) and Shinault v. Cleveland County Bd., 82 F.3d
367, 370-71 (10th Cir. 1996), cert. denied, 117 S. Ct. 740
(1997).
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