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December 4, 1995 [NOT FOR PUBLICATION]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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