Carter v. State of R.I.

• Decision Date: 03 August 1995
• Docket Number: No. 95-1082,95-1082
• Parties: 67 Empl. Prac. Dec. P 43,763 Sheree A. CARTER, Plaintiff, Appellee, v. STATE OF RHODE ISLAND, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 9

68 F.3d 9

67 Empl. Prac. Dec. P 43,763

Sheree A. CARTER, Plaintiff, Appellee, v. STATE OF RHODE ISLAND, et al., Defendants, Appellants.

No. 95-1082.

United States Court of Appeals, First Circuit.

Heard Aug. 3, 1995.

Decided Oct. 18, 1995.

James R. Lee, Assistant Attorney General, with whom Jeffrey B. Pine, Attorney General, was on brief for appellants.

George Carvalho, with whom Patrick J. Quinlan and George E. Babcock were on brief, for appellee.

Before CYR, BOUDIN and LYNCH, Circuit Judges.

CYR, Circuit Judge.

Appellee Sheree A. Carter, a state prison guard, filed suit against the State of Rhode Island, eight of her supervisors or superior officers, and her union, alleging race and gender discrimination. Four individual defendants, among the eight individual defendants who initiated this interlocutory appeal, challenge a district court order disallowing their "qualified immunity" defenses at summary judgment. We dismiss their appeal, for lack of appellate jurisdiction.

I BACKGROUND ¹

The Rhode Island Department of Corrections hired Carter as a prison guard in October 1990. Her superior officers and supervisors embarked on a prolonged campaign of workplace harassment in April 1991. The work environment was marked by (i) several disciplinary measures against Carter based on infractions for which defendants had never disciplined white male guards, (ii) especially undesirable or dangerous work assignments made without regard to her seniority and class ranking, and failure to accord "serious consideration" to her application for promotion, (iii) repeated racial slurs and sexual threats anonymously directed against Carter in telephone calls at work and at her home, and in graffiti posted at or near her work station, (iv) failure to address her repeated complaints about ongoing harassment, amounting to implicit condonation, and (v) defamatory comments to the press relating to Carter's discrimination complaints.

Carter commenced suit in federal district court in August 1993, alleging, inter alia, that defendants violated 42 U.S.C. Sec. 1983 by infringing her constitutional right to be free from race and gender discrimination under the Fifth and Fourteenth Amendments to the United States Constitution. ² She sought injunctive relief, compensatory and punitive damages, and attorney fees. Defendants moved for summary judgment, contending that Carter had failed to state a claim upon which relief may be granted, see Fed.R.Civ.P. 12(b)(6), (c), and asserting "qualified immunity" from suit.

The district court categorized the eleven individual defendants in three groups:

"Union" Defendants: Rhode Island Brotherhood of Correctional Officers (Union) "Supervisory" Defendants: George A. Vose, Jr. (Director of Rhode Island Department of Corrections); Captain Walter Whitman (Warden; Carter's supervisor); Captain Thomas Partridge (Deputy Warden; Carter's supervisor); Barry Levin (the Department's Chief Supervisor of Employee Relations); and

William Bove (Union president); Kenneth Rivard (Union grievance chairman);

"Superior Officer" Defendants: Lieutenant Ronald Le Clerc; Captain Kenneth Ahearn; Captain Peter Germani and Captain Ronald Brodeur (Carter's superiors). ³

The first district court ruling pertinent to the present appeal dismissed the section 1983 claims against the "superior officer" defendants because Carter's alleged right to be free from undesirable or dangerous work assignments is not protected under the Fourteenth Amendment, and the actions charged against defendants could not support a reasonable inference of discriminatory intent. Carter v. State of Rhode Island, No. 93-0447B, slip op. at 23-24 (D.R.I. Nov. 9, 1994) (Report and Recommendation). And, as to defendant Le Clerc, who allegedly issued a public reprimand of Carter, the district court found that the allegation that white male prison guards were not subjected to similar reprimands did not provide an adequate foundation for an inference that Le Clerc was motivated by race or gender discrimination. Accordingly, the court dismissed the section 1983 claims against the four "superior officer" defendants. ⁴

Second, the court ruled that Carter had stated actionable section 1983 claims against the four "supervisory" defendants, by alleging that she caused copies of her complaints to be sent to each--thereby establishing that they knew about her allegations of ongoing race and gender harassment and disparate treatment--thus demonstrating a trialworthy dispute as to their intent in failing to redress her allegations. Id. at 23. Finally, the district court ruled that the four "supervisory" defendants were not entitled to qualified immunity from suit because the right to be free from race and gender discrimination by government officials had been "clearly established" long before 1990. Id. at 24-25. Thus, only the four "supervisory" defendants [hereinafter: "appellants"] presently challenge the district court summary judgment ruling rejecting their "qualified immunity" defenses. See supra notes 2 & 4.

II DISCUSSION

A government official is not entitled to qualified immunity from suit "if the right asserted by the plaintiff was 'clearly established' at the time of its alleged violation ... [and ] a reasonable official situated in the same circumstances should have understood that the challenged conduct violated that established right." Burns v. Loranger, 907 F.2d 233, 235-36 (1st Cir.1990) (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (emphasis added). The district court determined that "[t]he constitutional right to be free from [ ] invidious discrimination is so well established and so essential to the preservation of our constitutional order that all public officials must be charged with knowledge of it." Carter, No. 93-0447B, slip op. at 25 (D.R.I. Nov. 9, 1994).

Appellants contend in their opening brief that the district court should have proceeded to consider whether, as a matter of law, the particular conduct of each individual defendant was objectively reasonable. They rely heavily on an analogy to Harris v. Forklift Sys., Inc., --- U.S. ----, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), a Title VII case. Appellants argue that Harris prescribes minimum evidentiary standards for establishing While this interlocutory appeal was pending, the United States Supreme Court decided Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Displacing our longstanding precedents allowing interlocutory appeals from virtually all rulings denying qualified immunity defenses at summary judgment, see, e.g., Unwin v. Campbell, 863 F.2d 124, 128 (1st Cir.1988), the Supreme Court held that

the "objectively abusive" conduct needed to support a reasonable inference that a particular defendant harbored an invidious discriminatory intent. As they see it, the facially innocuous or objectively reasonable conduct in which appellants, as well as the "superior officer" defendants, are alleged to have engaged (e.g., defendants "glanc[ed]" at Carter during roll call; refused to let her drive an automobile without a license) falls far short of the "objectively abusive conduct" required under Harris (viz., repeated use of explicit gender-based insults, sexual innuendo, threats, and coercion against a subordinate). This is demonstrated, appellants say, by the district court ruling that the evidence is insufficient to support a reasonable inference that the four "superior officer" defendants harbored a discriminatory intent. See Carter, No. 93-0447B, slip op. at 23-24 (D.R.I. Nov. 9, 1994); see also supra note 4. Appellants therefore insist that they were entitled to qualified immunity because, viewing the disputed evidence most favorably to Carter, reasonable officials situated in their circumstances should not have understood that their conduct violated Carter's established right to be free from race or gender discrimination. See Burns, 907 F.2d at 235-36.

a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a 'genuine' issue of fact for trial.

Johnson, --- U.S. at ----, 115 S.Ct. at 2159. Recently, this court summarized the Johnson message:

Thus, on the one hand, a district court's pretrial rejection of a proffered qualified immunity defense remains immediately appealable as a collateral order to the extent that it turns on a pure issue of law, notwithstanding the absence of a final judgment. On the other hand, a district court's pretrial rejection of a qualified immunity defense is not immediately appealable to the extent that it turns on ... an issue of fact.... In such a situation, the movant must await the entry of final judgment before appealing the adverse ruling.

Stella v. Kelley, 63 F.3d 71, 73-74 (1st Cir.1995).

Johnson emphasized that routinely allocating fact-intensive inquiries to appellate courts entails significant delays and imprudent use of scarce judicial resources, since an appellate court may have to wade through a huge, underdeveloped pretrial record to resolve especially "nebulous" factual questions such as a defendant's "intent." Johnson, --- U.S. at ----, 115 S.Ct. at 2158 (emphasis added).

Appellants' first reaction to Johnson is to mischaracterize the summary judgment ruling in this case as a "law-based"--rather than a "fact-based"--denial of summary judgment. Johnson explicitly directs that "a district court's pretrial rejection of a qualified immunity defense is not immediately appealable to the extent that it turns on ... an issue of fact...." Stella, 63 F.3d at 74 (citing Johnson, --- U.S. at ----, 115 S.Ct. at 2159). Determining the presence or absence of discriminatory "intent" based on evidentiary proffers at summary judgment entails a quintessential factual assessment, see Broderick v. Roache, 996 F.2d 1294 (1st Cir.1993) (normally, Sec....