Auriemma v. Rice

• Decision Date: 20 August 1990
• Docket Number: No. 89-1479,89-1479
• Citation: 910 F.2d 1449
• Parties: 53 Fair Empl.Prac.Cas. 1276, 54 Empl. Prac. Dec. P 40,154, 59 USLW 2160, 5 Indiv.Empl.Rts.Cas. 1758 John AURIEMMA, Daniel Coll, Marshall Consadine, Renaldo Cozzi, Kenneth Curin, Russell Ditusa, Thomas Faragoi, Lawrence Forberg, John Hinchy, Kathryn Kajari, George Marcin, Patrick McDonough, Walter Murphy, John Rafter, Dominic Rizzi, James Stampnick, Thomas Walton, and Roger Whalen, Plaintiffs-Appellees, v. Fred RICE, Defendant-Appellant, and City of Chicago, Defendant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1449

910 F.2d 1449

53 Fair Empl.Prac.Cas. 1276,

54 Empl. Prac. Dec. P 40,154, 59 USLW 2160,

5 Indiv.Empl.Rts.Cas. 1758

John AURIEMMA, Daniel Coll, Marshall Consadine, Renaldo Cozzi, Kenneth Curin, Russell Ditusa, Thomas Faragoi Lawrence Forberg, John Hinchy, Kathryn Kajari, George Marcin, Patrick McDonough, Walter Murphy, John Rafter Dominic Rizzi, James Stampnick, Thomas Walton, and Roger Whalen, Plaintiffs-Appellees, v. Fred RICE, Defendant-Appellant and City of Chicago, Defendant.

No. 89-1479.

United States Court of Appeals Seventh Circuit.

Argued Sept. 11, 1989.

Reargued En Banc May 30, 1990.

Decided Aug. 20, 1990.

John L. Gubbins, Gubbins & Associates, Chicago, Ill., for plaintiffs-appellees.

Judson H. Miner, Office of the Corp. Counsel, Ruth M. Moscovitch, Asst. Corp. Counsel, Office of the Corp. Counsel, Appeals Div., Frederick S. Rhine, Asst. Corp. Counsel, James D. Montgomery, Corp. Counsel, Office of the Corp. Counsel, Matthew J. Piers, Gessler, Flynn, Fleischmann, Hughes & Socol, Phillip H. Snelling, Asst. Corp. Counsel, Office of the Corp. Counsel, Langdon D. Neal and Earl L. Neal, Neal & Associates, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.

WOOD, Jr., Circuit Judge, ¹ joined by CUMMINGS, POSNER, COFFEY, EASTERBROOK, RIPPLE and MANION, Circuit Judges.

This case was brought by eighteen white officers of the Chicago police department who were demoted by defendant Fred Rice, a black former superintendent of the Chicago police department. Plaintiffs claim they were demoted because of their race in violation of the equal protection clause of the fourteenth amendment and 42 U.S.C. Secs. 1981, 1983, and 1985(3).

In the original and now-vacated opinion, a divided panel relied on the doctrine of qualified immunity to reverse the district court and enter summary judgment in favor of defendant Fred Rice. See Auriemma v. Rice, 895 F.2d 338 (7th Cir.1990). Now, a divided en banc court affirms the district court denying Rice qualified immunity on counts III and V and reverses on count IV where the district court had denied him qualified immunity.

I.

The late Mayor Harold Washington in August 1983 appointed Fred Rice superintendent of the Chicago police department. On December 2, 1983, Rice reorganized the top management ("exempt rank") positions of the police department. The exempt rank officers are the highest level managers of the Chicago police department; they create and execute police policy in the supervision and direction of over 15,000 police employees. As part of that reorganization, Rice reassigned or demoted twenty-five white officers from the exempt ranks, demoted no black officers, but promoted thirteen black officers to the exempt ranks. ² It is argued that some reorganization is customarily expected from new superintendents, but it is not argued that it is customary to do so on this allegedly racial basis, at least in the absence of an affirmative action plan. Rice, however, absolutely denies his reorganization decision was based on race. Rather, he explains, it was done only to advance people who embodied "his philosophy" and "accepted his management style."

Plaintiffs, the victims of Rice's reorganization, followed their demotions with their five-count complaint in this case. In count I, the plaintiffs alleged the demotions violated their fourteenth amendment rights to due process of law; plaintiffs subsequently dismissed this claim voluntarily. Count II alleged that the plaintiffs were demoted for "political reasons." The district court granted summary judgment on this claim finding that Rice was entitled to qualified immunity because "it's not a constitutional violation to make employment decisions based upon political affiliations when party affiliation is an appropriate requirement for effective performance of the public office involved." This ruling has not been appealed. In count III, plaintiffs allege under 42 U.S.C. Secs. 1981 and 1983 that race was "a substantial or motivating factor" in Rice's decision to demote them in violation of the fourteenth amendment. Plaintiffs contend that the white officers' demotions and the black officers' promotions were carried out pursuant to a nonaffirmative action plan, adopted by Rice, but nonetheless based on the officers' races. The district court denied summary judgment to Rice, finding that it was clearly established that a public official making decisions similar to Rice could not use race for making employment determinations. In count IV, plaintiffs allege that Rice engaged in a conspiracy to violate their civil rights in violation of 42 U.S.C. Sec. 1985(3). The district court likewise denied Rice qualified immunity on this count, holding that "the law was clear in 1983 that all racial discrimination ... was clearly covered by Section 1985(3)...." The plaintiffs finally claim, in count V of an amended complaint, violations of their first and fourteenth amendment rights for "harass[ment] and retaliat[ion] against police officers who have filed federal lawsuits against" Rice. On this final count, the district judge granted summary judgment on the basis of qualified immunity for Rice's acts up to and including June 11, 1984, when this court denied rehearing en banc in Altman v. Hurst, 734 F.2d 1240 (7th Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 385, 83 L.Ed.2d 320 (1984). Accordingly, Rice's motion for qualified immunity on count V was denied for all actions after June 11, 1984, "when it was clearly established [by Altman ] that retaliation for the filing of a civil lawsuit dealing with a matter of public concern was conduct protected by the First Amendment to the Constitution."

II.

The issue on appeal is whether Rice is entitled to summary judgment based on qualified immunity. Summary judgment is the proper manner to resolve a qualified immunity issue as soon as possible because it protects "government officials from the costs of trial and burdens of discovery, whenever possible...." Rakovich v. Wade, 850 F.2d 1180, 1205 (7th Cir.1988) (en banc ), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988); see also Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Under the doctrine of qualified immunity, public officials performing discretionary functions are protected against suits for damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Doe v. Bobbitt, 881 F.2d 510, 511 (7th Cir.1989) (citing Harlow, 457 U.S. at 818, 102 S.Ct. at 2738), cert. denied, --- U.S. ----, 110 S.Ct. 2560, 109 L.Ed.2d 742 (1990). Thus, "[t]he general rule of qualified immunity is intended to provide government officials with the ability 'reasonably [t]o anticipate when their conduct may give rise to liability for damages.' " Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984)). Correspondingly, the inherent purpose of qualified immunity is to protect government officials from nonmeritorious lawsuits. Were it not for the qualified immunity issue in this case, the disputed race factor in the reorganization would clearly not be appropriate for summary judgment.

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court enunciated the standard to be applied in qualified immunity cases. The Court held that the official's entitlement to qualified immunity "focuses on the objective legal reasonableness of an official's acts." Id. at 819, 102 S.Ct. at 2739. "In Harlow, the Supreme Court eliminated the subjective or good faith element from the qualified immunity analysis and held that 'government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Polenz v. Parrott, 883 F.2d 551, 553-54 (7th Cir.1989) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). In Rakovich, this court has also stated that "under Harlow an objective immunity analysis at the summary judgment stage prior to discovery does not include an evaluation of intent. This is because evaluating intent would be a factual analysis, whereas the objective inquiry is a legal question." Rakovich, 850 F.2d at 1210 (emphasis in original). Such an interpretation is consistent with Harlow's approval of deciding qualified immunity cases by summary judgment because "[a]n objective analysis is less fact bound than a subjective analysis, making summary judgment a practical and effective means of terminating unnecessary litigation." Id. at 1205. "Thus ... a qualified immunity analysis entails a purely objective inquiry to determine whether at the time of the alleged illegal act, the right asserted by the plaintiff was clearly established in the particular factual context presented." Polenz, 883 F.2d at 554 (citing Cleveland-Perdue v. Brutsche, 881 F.2d 427 (7th Cir.1989)), petition for cert. filed, 58 U.S.L.W. 3491 (U.S. Jan. 24, 1990). It is with such an objective approach in mind that we review this case.

In light of Harlow, however, we note that the Supreme Court has not yet fully explored a court's inquiry in applying an objective analysis to a claim that depends on the official's state of mind. See Benson v. Allphin, 786 F.2d 268, 276 n. 19 (7th Cir.1986), cert. denied, 479 U.S. 848, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986). This case presents such a dilemma, because alleged racial discrimination, violation of civil rights, and retaliation all inherently involve the intent of an official to discriminate. This court, however, has developed an analysis for the proper inquiry to be undertaken. We have...