Gallegos v. City and County of Denver

• Citation: 984 F.2d 358
• Decision Date: 20 January 1993
• Docket Number: No. 91-1169,91-1169
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 1567, 60 Empl. Prac. Dec. P 42,003 Patricia GALLEGOS, Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER; Federico Pena; William Roberts; David Miller; Kathy Archuleta; Allegra Haynes; Kevin Marchman; Larry Fullerton; John Mrozek; Ruth Rodriguez; Michael Musgrave; Randy Alexander; Ron Younger; George Doughty, Defendants-Appellants, King Harris, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 358

984 F.2d 358

63 Fair Empl.Prac.Cas. (BNA) 1567,

60 Empl. Prac. Dec. P 42,003

Patricia GALLEGOS, Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER; Federico Pena; William Roberts David Miller; Kathy Archuleta; Allegra Haynes; Kevin Marchman; Larry Fullerton; John Mrozek; Ruth Rodriguez Michael Musgrave; Randy Alexander; Ron Younger; George Doughty, Defendants-Appellants King Harris, Defendant.

No. 91-1169.

United States Court of Appeals Tenth Circuit.

Jan. 20, 1993.

Paul A. Baca, Denver, CO, for plaintiff-appellee.

Patricia L. Wells, City Atty., and Darlene M. Ebert, Asst. City Atty., Denver, CO, for defendants-appellants.

Before MOORE and TACHA, Circuit Judges, and SAFFELS, ^* Senior District Judge.

TACHA, Circuit Judge.

Plaintiff-appellee Patricia A. Gallegos was appointed by Denver Mayor Federico Pena as Director of Affirmative Action on January 5, 1987. She was a nontenured political appointee serving at the pleasure of the mayor. She held this position until January 1, 1988, at which time she was removed as Director of Affirmative Action and placed in the position of Deputy Manager of Public Works for Finance Administration, another nontenured appointment. Plaintiff held this position for three months until her termination by the mayor on April 11, 1988.

Following her termination, plaintiff brought this action ¹ against defendants-appellants City and County of Denver, Mayor Federico Pena, various city officials, and King Harris, a Denver businessman, claiming civil rights violations under 42 U.S.C. §§ 1981, 1983, 1985(3), and 2000d, as well as several state tort claims. In her first amended complaint, plaintiff claims that her termination was the result of discriminatory animus based on her sex and national origin; that at the time she was removed as Director of Affirmative Action, the mayor promised her that her new position would be made a Career Services Authority position with all the attendant benefits, including the job security not afforded by her appointed position; and that Mayor Pena, William Roberts, and King Harris entered into a conspiracy to terminate her and deny her the career services position.

In response, defendants claim that immediately following plaintiff's appointment, the mayor's office began to receive complaints regarding her inability to work with the minority community, her staff, and the minority contractors. Defendants contend, and plaintiff does not refute, that it was explained to her when she was appointed that a major requirement of the position was an ability to engage in good public relations with the community. In September 1987, the mayor confronted plaintiff regarding these complaints, and she was asked to respond to the complaints and to improve her relationship with the community within ninety days.

The complaints apparently continued and the problems escalated until December 1987, when the mayor removed plaintiff from the affirmative action position and transferred her to the public works position, allegedly promising to take the necessary steps to elevate the new position to Career Services Authority status. Defendants claim that in April 1988, plaintiff's sister, a Denver attorney, telephoned the mayor's office and threatened to "go to the press" if the alleged promise to create a career services position for plaintiff was not kept. It was at this point that the mayor terminated plaintiff.

Plaintiff claims that she heard from various people in the mayor's office that there was a "deal" among those close to the mayor, the mayor, and Mr. Harris to fire her in exchange for political support for the mayor's second-term candidacy. Mayor Pena, in his affidavit in support of defendants' motion for summary judgment, acknowledged that Roberts and Harris, as well as numerous other people, had complained to him about plaintiff's job performance and requested her removal, but denied any agreement or conspiracy to fire plaintiff or prevent her from obtaining a position secured by career services.

Plaintiff brought her §§ 1981 and 1983 claims against all of the named defendants. Plaintiff's § 1985(3) conspiracy claim was directed at defendants Pena, Roberts, and Harris. Defendants Alexander, Doughty, Fullerton, Haynes, Marchman, and Younger were in positions either subordinate to plaintiff or otherwise had no authority to make employment decisions regarding plaintiff. Plaintiff's contention that certain of the defendants enjoyed the mayor's confidence does not translate into employment decision authority. On appeal, plaintiff does not discuss, with any specificity, a majority of the individual defendants or their perceived culpability in her alleged wrongful termination.

The defendants filed a motion to dismiss plaintiff's complaint as failing to state a claim for relief under Fed.R.Civ.P. 12(b)(6), and claimed qualified immunity for the individual city officials. The district court denied defendants' motion to dismiss plaintiff's §§ 1983, 1985(3), and Title VI claims, but limited plaintiff on the § 1981 claim to presenting evidence as to whether she was prevented from obtaining a new position under the Career Services Authority. The court dismissed plaintiff's pendent state claims, except for her sixth claim insofar as it represented a restatement of plaintiff's § 1981 claim. The district court did not address the individual defendants' claims of qualified immunity, reasoning:

The Municipal Defendants have also raised additional issues such as employment-at-will and qualified immunity as grounds for their Motion to Dismiss. These defenses are necessarily related to facts not yet established at the pleading stage and cannot properly be decided on a motion to dismiss.

Appellants' App. at 27. ²

Defendants subsequently filed a motion for summary judgment, again claiming that the individual defendants were entitled to qualified immunity on the remaining claims. ³ Following a hearing, the district court dismissed all claims as to the City and County of Denver, and dismissed plaintiff's Title VI claim. ⁴ The district court denied summary judgment on plaintiff's §§ 1981, 1983, and 1985(3) claims. Again, the district court failed to address defendants' claim of qualified immunity, stating:

As far--well, and perhaps I should say for purposes of this order, I did not address the issue of qualified immunity, because I think there are factual issues remaining there, so as to the qualified immunity issue, I know you addressed that in your motion. I'm denying the motion with respect to the qualified immunity. Obviously, that goes only to the individual defendants. The city wouldn't have qualified immunity anyway.

Okay. So I'm not going to do anything with those individual defendants. I guess we sort them out at the conclusion of the plaintiff's case, but all I can say to the plaintiff is, she had better have some evidence at the time of trial as to these individual defendants, or she better drop them between now and trial if she can't produce any evidence. And Mr. Baca's a good lawyer and he knows what evidence it's going to take with respect to these individual defendants to overcome the qualified immunity doctrine, and we're all well familiar with the mandates of the cases on qualified immunity with respect to the fact that they must show--and I recognize the Court should look at that on summary judgment, but as far as the individual defendants, I'm just not inclined to sort out as to each individual defendant.

Appellants' App. at 358-59.

To withstand the defense of qualified immunity in a summary judgment motion, "plaintiff must produce facts 'sufficient to show both that the defendant's alleged conduct violated the law and that the law was clearly established when the alleged violation occurred.' " Bruning v. Pixler, 949 F.2d 352, 356 (10th Cir.1991) (quoting Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.1988)), cert. denied, --- U.S. ----, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). Only after plaintiff has met this initial burden does the burden shift to defendants to prove that no genuine issue of material fact exists. Losavio, 847 F.2d at 646.

This court has held that the question of whether the law was clearly established at the time of the alleged violation is a purely legal question, and cannot be avoided by "framing it as factual." Workman v. Jordan, 958 F.2d 332, 336 (10th Cir.1992); see also Siegert v. Gilley, --- U.S. ----, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) (a decision on the "purely legal question" of qualified immunity permits a defendant to avoid the expense and inconvenience of a trial on the merits). A successful claim of qualified immunity allows a public official to avoid the burdens of discovery and litigation, as well as liability. Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982). "The entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). Consequently, when the qualified immunity defense is raised in a summary judgment motion, the defendant should be spared the burden of going forward, unless and until the plaintiff is able to meet the burden of establishing that the defendant's alleged actions violated clearly established law. Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989).

Defendants' appeal in this case is not from an order of the district court denying summary judgment based on qualified immunity, but rather from an order denying summary judgment and postponing a decision on the qualified immunity question until trial. See Workman, 958 F.2d at 335. In essence, the district court in this case is requiring the defendants to go to trial before determining whether or not they are entitled to qualified immunity. This illustrates...