Felton v. Polles

• Decision Date: 17 December 2002
• Docket Number: No. 01-60104.,01-60104.
• Citation: 315 F.3d 470
• Parties: Ceasar FELTON, Etc.; et al., Plaintiffs, Lyndell Carter, On behalf of himself and as representative of a class of all others similarly situated, Plaintiff-Appellee, v. Sam POLLES, Etc.; et al., Defendants, Randall Miller, Colonel; Terry Thomas, Lieutenant, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

315 F.3d 470

Ceasar FELTON, Etc.; et al., Plaintiffs Lyndell Carter, On behalf of himself and as representative of a class of all others similarly situated, Plaintiff-Appellee, v. Sam POLLES, Etc.; et al., Defendants Randall Miller, Colonel; Terry Thomas, Lieutenant, Defendants-Appellants.

No. 01-60104.

United States Court of Appeals, Fifth Circuit.

December 17, 2002.

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Marc L. Boutwell (argued), The Law Offices of Boutwell & Gowan, Lexington, MS, for Carter.

Rickey T. Moore (argued), Jackson, MS, for Defendants-Appellants.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JOLLY, JONES and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For the alleged racially discriminatory conduct in state employment extending through 15 years, the numerous issues in this interlocutory appeal from a qualified immunity denial underscore the importance of exacting application of each of the two parts comprising the long-established test for ruling on such immunity: (1) under existing law, does the plaintiff allege a violation of an actual, clearly established constitutional or federal statutory right; and (2) if so, was the defendant's conduct objectively unreasonable in the light of clearly established law at the time of that conduct. The two principal issues at hand concern the first prong.

First, can a state employee assert a claim against his supervisor, in his individual capacity, for violation of 42 U.S.C. § 1981 (proscribes racial discrimination in "mak[ing] and enforce[ment]" of contracts, including their "performance" and "enjoyment of all benefits ... and conditions of the contractual relationship"), when that § 1981 right has not been asserted through 42 U.S.C. § 1983 (creating action against person who, under color of state law, deprives another of constitutional or federal statutory right)?

Second, in determining whether, under existing law, a plaintiff has alleged the deprivation of a clearly established constitutional or federal statutory right, what consideration is to be accorded alleged unlawful conduct that occurred outside the applicable limitations period?

Lyndell Carter's supervisors, Lieutenant Terry Thomas and Colonel Randall Miller, contend that Carter fails each prong of qualified immunity analysis: that he does not state the deprivation of a § 1981 or Fourteenth Amendment right against racial discrimination in his state employment; and that he does not show their conduct was objectively unreasonable.

This appeal is a classic example of the interplay — sometimes conflicting — between Title VII, § 1981, § 1983, and, most especially, qualified immunity in a racial discrimination action brought by a state employee against his co-state employees and his state employer. Likewise, it is a classic example of the care that must be taken in framing and pursuing such an action employing multiple theories of recovery. It is hoped this opinion's extensive treatment of this interplay will clear up some of the confusion surrounding such actions.

Based upon our analysis of the numerous issues at hand, we hold that Thomas and Miller, in their individual capacities, are entitled to qualified immunity from Carter's §§ 1981 and 1983 claims. REVERSED and REMANDED.

I.

Carter has been an employee of the Mississippi Department of Wildlife, Fisheries, and Parks since 1985. Presenting federal and state law claims, he and three others began this action in 1999 against, among others, Thomas and Miller (official and individual capacities), and the Department. The federal claims — essentially for race discrimination — were brought under: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; and §§ 1981 and 1983.

Because of the multiple parties and claims in this action, it is necessary to identify those involved in this interlocutory appeal. It involves only Carter, Thomas, and Miller. It concerns only the summary judgment denial of qualified immunity from the §§ 1981 and 1983 claims against Thomas and Miller in their individual capacities. (Although one of the three federal claims is pursuant to Title VII, it is not at issue now.) In addition to the numerous sub-issues pertaining here to qualified immunity vel non, and the limitations on our jurisdiction because this is an interlocutory appeal, this appeal is framed by quite a few factors present in this action: numerous parties, claims, and district court rulings; and, most especially, the 15-year period between the first of many alleged acts of discrimination and this action's being filed. In order to address qualified immunity, these numerous factors must be discussed.

For starters, three discrete time periods pertain to the §§ 1981 and 1983 claims: (1) 1985 to 1992, when Carter was under Thomas' supervision; (2) 1992 to 1995, when Carter was promoted and removed from Thomas' supervision; and (3) 1995 to 1997, when Carter was reassigned to Thomas' supervision. Again, this action was not filed until 1999. The following facts are from the summary judgment record.

In 1985, Carter began with the Department as a Conservation Officer in Grenada County; Thomas was his supervisor. At the end of Carter's mandatory one-year probationary period, Thomas recommended him for permanent employment status with the Department. Carter does not claim to have ever heard Thomas make a racial slur throughout Carter's state employment.

Nevertheless, Carter claims "racial opposition" by Thomas until 1992, when Carter was promoted. For example, Carter alleges: on his first day of employment in 1985, Thomas "[o]ccasionally ... would turn around and roll his eyes at [Carter] trying to intimidate [him]"; another supervisor told Carter "he knew there would be major problems with hiring a black officer in Thomas' district"; the division chief told Carter that Thomas "did not want a black officer working in his district"; another officer advised Carter that Thomas had ordered a background check performed on Carter and had said "in a meeting ... he did not want any `niggers' working in his district"; Appellant Miller, then a Hunter Safety Coordinator (became Department's Chief of Enforcement in 1993), told Carter "he knew some of the things that ... Thomas ha[d] said in [Miller's] presence were racially motivated"; Carter "believe[s] Thomas coordinated with a Highway Patrol Officer in Montgomery County" to stop Carter for speeding; Thomas told Carter's partner he "did not want any `niggers' at the funeral" of another officer's mother; and Thomas assigned Carter to "a remote area", without adequate backup, and refused to issue him new equipment. Each act of alleged discrimination occurred well outside the applicable three-year limitations period.

In 1992, Carter was promoted to Investigator, a position he held until 1995. Although Carter was not then under Thomas' supervision, Thomas allegedly informed Carter's new supervisor of "a complaint [against Carter] for stopping females in Montgomery County and harassing them". Again, this alleged incident is outside the limitations period.

In 1995, the Investigative Division was disbanded. Carter was reassigned to Grenada County, again under Thomas' supervision. Thomas maintains problems soon surfaced with Carter's work performance, stemming in part from a private business he had begun operating while in the Investigative Division.

Thomas states: Carter missed a day of work without permission in September 1995, apparently to attend an event for which his business had a contract; co-workers complained Carter was handling personal business while on duty; regularly, Thomas could not find Carter at his post on Grenada Lake; during November 1995, Carter put unusually high mileage on his vehicle, but wrote no hunting-violation tickets; co-workers did not see Carter during a scheduled duck-hunting detail on 2 December 1995; and, after reviewing the Time-Attendance-Leave (TAL) records for the officers under his command, Thomas discovered Carter had purchased a vehicle battery with his state-issued fuel card, without prior permission and despite, less than three months earlier, having purchased another battery.

According to Thomas, in the light of the battery incident and concerns over Carter's job performance, Thomas and Miller (Chief of Enforcement) agreed in January 1996 it would be appropriate to review Carter's credit card and TAL records. The review revealed 37 discrepancies concerning, in addition to the battery incident, misusing a state telephone card and falsifying TAL records. Thomas detailed the discrepancies in a 17 January 1996 memo to Miller; he forwarded it to the Department's legal counsel.

In July 1996, a hearing was held before the Department's Executive Director (a defendant granted qualified immunity by the district court). Carter admitted misusing his telephone card. He agreed to reimburse the State, received a written reprimand, and was suspended for five days without pay.

Carter believes the investigation and suspension were racially motivated. Concerning racial discrimination, he also states: Thomas denied him leave on 3-4 July 1995, although it had been approved by Carter's prior supervisor; in January 1996 (the month Carter's credit card and TAL records were reviewed), an officer overheard Thomas tell Miller, "I'm just about to get that nigger"; and Thomas denied Carter leave for 23-24 March 1996, after having approved it.

Carter also claims racial discrimination in the denial of his September 1996 application for a June 1997 Hunter Safety Coordinator vacancy. In support, Carter notes that he outscored the white applicant on the interview portion of the selection process. (As discussed infra, the white applicant received a higher total score, however, pursuant to the procedure utilized by the State Personnel Board.)

Finally, in March 1997, Thomas gave Carter a low performance...