297 F.3d 751 (8th Cir. 2002), 01-3498, Turner v. Arkansas Ins. Dept.

Docket Nº:01-3498.
Citation:297 F.3d 751
Party Name:Derrick Dorrell TURNER, Appellee, v. ARKANSAS INSURANCE DEPARTMENT, Defendant, Page 752 Mike PICKENS, Appellant.
Case Date:July 22, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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297 F.3d 751 (8th Cir. 2002)

Derrick Dorrell TURNER, Appellee,



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Mike PICKENS, Appellant.

No. 01-3498.

United States Court of Appeals, Eighth Circuit

July 22, 2002

Submitted: May 16, 2002.

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Timothy G. Gauger, AAG, argued, Little Rock, AR, for appellant.

Robert A. Newbombh, argued, Little Rock, AR, for appellee.

Before BOWMAN, MAGILL, and BYE, Circuit Judges.

MAGILL, Circuit Judge.

Mike Pickens, the Insurance Commissioner for the State of Arkansas, appeals the district court's1 denial of his motion for summary judgment on qualified immunity grounds. The issue presented on appeal is a narrow one: Whether, for qualified immunity purposes, it was "clearly established" on September 23, 1999, that 42 U.S.C. § 1981 conferred upon an at-will employee the right to be free from discharge based on racial discrimination or in retaliation for exercising his rights. For the reasons set forth below, we conclude that such a right was clearly established as of the date in question and affirm.


Derrick Dorrell Turner, an African-American, is a former at-will employee of the Arkansas Insurance Commission (the "Commission"). In May of 1999, Turner applied for a promotion to the position of Assistant Manager of Financial Analysis.

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Much to his dismay, however, Turner was not selected to fill the position. Shortly thereafter, Turner filed a charge with the Equal Employment Opportunity Commission ("EEOC") on July 22, 1999, alleging that he was denied a promotion based on his race. About two months later, on September 23, 1999, Pickens terminated Turner. Pickens' proffered reason for terminating Turner was Turner's alleged misrepresentations to the Commission regarding his undergraduate degree. Subsequently, Turner amended his EEOC complaint. In doing so, Turner abandoned his failure to promote claim and sued Pickens in his individual capacity under Title VII and 42 U.S.C. §§ 1981 and 1983, claiming that he was terminated because of his race and/or in retaliation for filing his initial EEOC claim.

In the district court, Pickens moved for summary judgment arguing that he was entitled to qualified immunity for any claims based on § 1981. In particular, Pickens argued that as of September 23, 1999, the law was not clearly established that an at-will employee could bring a claim under § 1981 for race discrimination or retaliatory discharge. By order entered October 10, 2001, the district court denied Pickens' motion for summary judgment. Pickens timely appealed.


Under the collateral order doctrine, a district court's denial of a qualified immunity defense may be immediately appealed. Mettler v. Whitledge, 165 F.3d 1197, 1202 (8th Cir. 1999); see also Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). However, because this case comes to us on an interlocutory appeal, our jurisdiction is extremely limited. In fact, the only issue this court has jurisdiction to hear is whether Pickens is entitled to qualified immunity. Mettler, 165 F.3d at 1202 (citing Collins v. Bellinghausen, 153 F.3d 591, 595 (8th Cir. 1998)). Additionally, we review a district court's denial of summary judgment based on qualified immunity de novo. Vaughn v. Ruoff, 253 F.3d 1124, 1127 (8th Cir. 2001). As noted above, review is limited to issues of law, and this court does not review the merits of the case or the sufficiency of the evidence. Lyles v. City of Barling, 181 F.3d 914, 916-17 (8th Cir. 1999). Finally, whether the law at issue was "clearly established" at the time of the alleged violation is a pure question of law to be reviewed de novo. Winters v. Adams, 254 F.3d 758, 766 (8th Cir. 2001).


In reviewing qualified immunity cases, we must (1) determine whether there was a deprivation of a federal constitutional or statutory right and, if so, we must (2) determine whether the right was "clearly established" at the time of the alleged deprivation. County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). If either question is answered in the negative, the inquiry comes to an end and the public official is entitled to qualified immunity. Vaughn, 253 F.3d at 1128. If both questions are answered in the affirmative, however, a public official may avoid suit only if he meets his burden of establishing undisputed and material facts that demonstrate that his actions were reasonable under the circumstances. Id. If such facts are undisputed, then that is a question of law to be reviewed by a court; if not, then it is a question for a jury and summary judgment is improper. Id. In this case, Pickens does not dispute that Turner has been deprived of a right, nor does Pickens supply the court with any undisputed and material predicate facts to show that his actions were reasonable under the circumstances,

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but rather Pickens relies solely on the contention that the law was not "clearly established" at the time of the deprivation. See, e.g., Buckley v. Rogerson, 133 F.3d 1125,1131 (8th Cir. 1998).

To be "clearly established," the right's contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see also Hope v. Pelzer, — U.S. —, —, 122 S.Ct. 2508, 2515, — L.Ed.2d —, — (2002). There is no requirement, however, "that the very action in question has previously been held unlawful, but rather, in the light of pre-existing law the unlawfulness must be apparent." Vaughn, 253 F.3d at 1129 (internal quotations and citations omitted); see also Hope, — U.S. at —, 122 S.Ct. at 2515; id. at 2522 (Thomas, J., dissenting). In making this determination, "we subscribe to a broad view of the concept of clearly established law, and we look to all available decisional law, including decisions from other courts, federal and state, when there is no binding precedent in this circuit." Id. (internal quotations and citations omitted). That is, even in the complete absence of any decisions involving similar facts, a right can be "clearly established" if a reasonable public official would have known that the conduct complained of was unlawful. Id. (citing Tlamka v. Serrell, 244 F.3d 628, 634-35 (8th Cir. 2001)).

The determinative issue presented on appeal is whether it was "clearly established" prior to September 23, 1999, that an at-will employee could not be fired on the basis of his race or in retaliation for exercising his rights, either constitutional or statutory. Underlying this claim is the basic premise of whether an at-will employee, who can be fired for good cause or no cause at all, can bring an action under § 1981 for violation of a contractual right.2 For the purpose of our review, all case law, Supreme Court and otherwise, must have been "established" prior to September 23, 1999.


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