Allstate Sweeping, LLC v. Black

• Decision Date: 07 February 2013
• Docket Number: No. 12–1027.,12–1027.
• Citation: 706 F.3d 1261
• Parties: ALLSTATE SWEEPING, LLC, a Colorado limited liability company, Plaintiff–Appellee, v. Calvin BLACK, Defendant–Appellant, and City and County of Denver, a municipal corporation; April Henderson; Steve Draper; Ruth Rodriguez, individually, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

706 F.3d 1261

ALLSTATE SWEEPING, LLC, a Colorado limited liability company, Plaintiff–Appellee,

v.Calvin BLACK, Defendant–Appellant,andCity and County of Denver, a municipal corporation; April Henderson; Steve Draper; Ruth Rodriguez, individually, Defendants.

No. 12–1027.

United States Court of Appeals,Tenth Circuit.

Feb. 7, 2013.

Cathy Havener Greer (William T. O'Connell, III and L. Michael Brooks, Jr., with her on the briefs), Wells, Anderson & Race, LLC, Denver, CO, for Defendant–Appellant.

Anne T. Sulton, Sulton Law Offices, Milwaukee, WI, for Plaintiff–Appellee.

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.

HARTZ, Circuit Judge.

Plaintiff Allstate Sweeping, LLC (Allstate) is owned and operated by two white women: Martha Krueger and Barbara Hollis. In January 2006 it began performing pressure-washing services at Denver International Airport (DIA) under a contract with the City and County of Denver (Denver). Although the contract term was through July 2008, it was terminated by Denver on July 1, 2007. Defendant Calvin Black, a contract-compliance technician at DIA, was assigned to monitor Allstate's contract. Black is an African–American male.

Allstate claims that it was subjected to gender- and race-based discrimination and to retaliation for its complaints of discrimination. It filed suit under 42 U.S.C. § 1983 in the United States District Court for the District of Colorado against Denver and four DIA employees, including Black, claiming violations of 42 U.S.C. § 1981, 42 U.S.C. § 2000d (Title VI) (alleged against Denver only), and the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment to all defendants except Black. It held that there were genuine issues of fact regarding whether Black was motivated by racial and gender bias and whether Black “created a hostile work environment vis-à-vis the plaintiff by acting in such a way as to make plaintiff's contract unprofitable and its owners miserable.” Aplt.App., Vol. V at 1333. It did not address Allstate's retaliation claim. Black appeals the denial of his motion for summary judgment, contending that he is entitled to qualified immunity and that we have jurisdiction to review the denial under the collateral-order doctrine.

We hold that we lack jurisdiction to review the district court's determinations that there was sufficient evidence that Black was motivated by racial and gender bias and that his actions made Allstate's contract unprofitable, because such sufficiency determinations are not reviewable under the collateral-order doctrine. We do, however, have jurisdiction to review the legal sufficiency of the claim that Black made Allstate's “owners miserable” and to review the sufficiency of the evidence of the retaliation claim (which the district court did not consider), and we reverse the denial of summary judgment on those claims.

I. BACKGROUND

In support of its claims that Black made it lose money under its contract, Allstate produced evidence that Black had directed Allstate to undertake tasks not included in its contract and forced Allstate employees to sit idle for hours, waiting to work in a particular area even though they could have performed tasks elsewhere. To support its hostile-work-environment claim, Allstate offered evidence that Black was unpleasant to work for; was “rude all the time,” id., Vol. I at 92, “pushy,” and “bossy” to Allstate employees, id., Vol. V at 1210; “babys[at]” them “24/7,” id. at 1232; and “nitpick [ed]” whatever tasks they were doing, id., Vol. I at 106. According to Allstate witnesses, on several occasions Black screamed at Allstate employees and called them “stupid,” id. at 91; he told some Allstate employees, who were white women, that because they were “a little overweight” they probably “couldn't move as fast as a man could,” id. at 93; and he spoke to Allstate's owners in a “demeaning” way, as if they were “child[ren]” rather than “equal adults,” id. at 104, even acting at meetings as if Krueger and Hollis were not in the room. Because of Black's behavior, Allstate employees were returning from work crying; some quit.

To show that Black's conduct was motivated by discriminatory bias, Allstate pointed to evidence of race- and gender-based comments by Black: Black told Krueger that Allstate “probably didn't know what [it] was doing” because it was owned by women. Id., Vol. I at 93. After Allstate's contract with DIA was terminated, Black told an employee of another contractor several times that one of Allstate's owners was a “[c]razy bitch.” Id., Vol. V at 1209. And although there is no evidence that Black made racially disparaging remarks in front of Allstate's owners, an Allstate employee testified that when he asked Black why he would award a contract to an African–American–owned company “that didn't bid it to the specs,” Black responded that he was “just trying to help [his] bros.” Id. at 1208.

Allstate also alleges retaliation for its complaints of bias. It complained in several ways. Krueger contacted the mayor's office, DIA employees, and the Denver Civil Rights Division, and also complained to Black directly. At a meeting on May 16, 2007, Krueger informed April Henderson, a contract-compliance supervisor at DIA, that Allstate had “to be treated better” or she would “ask to be taken out of the contract.” Id., Vol. IV at 983. On May 23 Black and another DIA employee conducted a surprise inspection of Allstate's equipment and told Allstate to fix and replace some of it. In a letter sent to Henderson the following day, Hollis and Krueger again accused DIA employees of discriminating against their company. They said that if they were forced to purchase more equipment, Allstate would have to re-bid the contract. A week later, Denver informed Allstate that it was terminating Allstate's contract “for [the] convenience of the city.” Id. at 853 (capitalization omitted). The contract was officially terminated on July 1. After the termination DIA officials stated in internal documents and in at least one email to the City Council that Allstate had defaulted on its contract for lack of proper equipment and performance. And Allstate allegedly was not paid $4,000 for work it had performed.

Allstate filed this lawsuit against Denver and four DIA employees, including Black. Against Black, Allstate alleged discrimination (based on race) and retaliation in violation of 42 U.S.C. § 1981, and discrimination (based on race and sex) and retaliation in violation of the Equal Protection Clause. The district court granted the motions for summary judgment by all defendants except Black. Explaining its denial of Black's motion, the court wrote:

The Court finds that plaintiffs have come forward with evidence sufficient to establish the existence of a genuine dispute of material fact concerning whether (1) whether [sic] Mr. Black created a hostile work environment vis-à-vis the plaintiff by acting in such a way as to make plaintiff's contract unprofitable and its owners miserable, and (2) whether [sic] he was motivated by bias in favor of African–Americans and African–American owned businesses and/or prejudice against white females and a white female owned business....

With respect to the second prong of the qualified immunity test, the Court finds that it is clear to any reasonable person that discrimination by a City employee against a company working under a contract with the City on the basis of race or gender is unlawful.

Id., Vol. V at 1333–34.

Black appeals, arguing: (1) there was no evidence that he was motivated by racial or gender animus; (2) he had no authority to take the alleged discriminatory actions; (3) the law was not clearly established that Allstate could bring a discrimination claim based on the hostile work environment suffered by its owners and employees; and (4) he had no authority to take the alleged retaliatory actions.¹

II. DISCUSSIONA. 42 U.S.C. § 1981 and the Equal Protection Clause

Allstate's discrimination claims under § 1981 and the Equal Protection Clause have similar elements. “Section 1981 forbids all intentional racial discrimination in the making and enforcement of private or public contracts.” Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir.2004). See42 U.S.C. § 1981(a). It provides:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) “Make and enforce contracts” defined

For the purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

Id. § 1981(a)-(c). Independent contractors can state a discrimination claim under § 1981. See Bolden v. City of Topeka, 441 F.3d 1129, 1134–37 (10th Cir.2006) (ruling, however, that claim against municipality for violation of § 1981 must be brought under § 1983); Brown v. J. Kaz, Inc., 581 F.3d 175, 181 (3d Cir.2009) (“We ... agree with the decisions that hold that an independent contractor may bring a cause of action under section 1981 for discrimination occurring within the scope of the independent contractor relationship.”); Wortham v. Am. Family Ins. Group, 385 F.3d 1139, 1141 (8th Cir.2004) (“[The plaintiff's] status as an independent contractor ... does not preclude her from pursuing a claim under section 1981.”);...