Jantz v. Muci

• Decision Date: 09 October 1992
• Docket Number: No. 91-3245,91-3245
• Parties: 62 Fair Empl.Prac.Cas. (BNA) 1633, 60 Empl. Prac. Dec. P 41,816, 61 USLW 2209, 77 Ed. Law Rep. 1127 Vernon R. JANTZ, Plaintiff-Appellee, v. Cleofas F. MUCI, Defendant-Appellant. Lambda Legal Defense and Education Fund, Inc.; American Civil Liberties Union Foundation and American Civil Liberties Union of Kansas; National Conference of Gay and Lesbian Elected Officials, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 623

976 F.2d 623

62 Fair Empl.Prac.Cas. (BNA) 1633,

60 Empl. Prac. Dec. P 41,816, 61 USLW 2209,

77 Ed. Law Rep. 1127

Vernon R. JANTZ, Plaintiff-Appellee, v. Cleofas F. MUCI, Defendant-Appellant.

Lambda Legal Defense and Education Fund, Inc.; American

Civil Liberties Union Foundation and American Civil

Liberties Union of Kansas; National Conference of Gay and

Lesbian Elected Officials, Amici Curiae.

No. 91-3245.

United States Court of Appeals, Tenth Circuit.

Oct. 9, 1992.

Rehearing Denied Dec. 14, 1992.

David M. Rapp of Hinkle, Eberhart & Elkouri, Wichita, Kan., for defendant-appellant.

James S. Phillips, Jr. of Phillips & Phillips, Wichita, Kan., for plaintiff-appellee.

Stephen V. Bomse, Clyde J. Wadsworth of Heller, Ehrman, White & McAuliffe, San Francisco, Cal., and Mary Newcombe, Los Angeles, Cal., for amicus curiae Lambda Legal Defense and Educ. Fund, Inc.

Eric E. Davis of Saperstein, Mayeda, Larkin & Goldstein, Los Angeles, Cal., for amicus curiae National Conference of Gay and Lesbian Elected Officials.

William B. Rubenstein, Matt Coles, Ruth E. Harlow of American Civil Liberties Foundation, New York City, and David J. Waxse of Shook, Hardy & Bacon, Overland Park, Kan., for amicus curiae American Civil Liberties Union Foundation and the American Civil Liberties Union of Kansas.

Before BALDOCK and BARRETT, Circuit Judges, and PARKER, District Judge. ^*

BALDOCK, Circuit Judge.

Plaintiff-appellee Vernon R. Jantz brought this 42 U.S.C. § 1983 action against Defendant-appellant Cleofas F. Muci, the former principal of Wichita North High School (Wichita North), Unified School District No. 259 (District 259), in Wichita, Kansas. Plaintiff alleges that Defendant violated his Fourteenth Amendment equal protection rights under color of state law by denying him full-time employment as a social studies teacher/coach at Wichita North because of what Defendant perceived as Plaintiff's "homosexual tendencies." Plaintiff brought the action against Defendant in both Defendant's individual and official capacities. Defendant moved for summary judgment, claiming that Plaintiff had failed to place material facts in issue and that he was entitled to judgment as a matter of law. The district court refused to grant summary judgment, and Defendant appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, see Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir.1988), and we reverse. The case is remanded for entry of summary judgment in favor of Defendant.

I.

Plaintiff has taught continuously since early 1987 in various District 259 schools, including some work as a substitute teacher at Wichita North. He has twice been rejected, however, for full-time District 259 high school teaching positions. This case arises from his attempt to obtain a full-time position at Wichita North for the 1988-89 school year. Because of the merger of District 259 Ninth Graders into high school that year, the District created a new social studies teacher/coach position. Plaintiff interviewed for the position but was rejected in favor of Matthew Silverthorne, a recent college graduate who had student taught and coached at Wichita North. Defendant, the Wichita North principal, recommended that the District hire Mr. Silverthorne. It is undisputed on appeal that Jane Ware, Director of Secondary Personnel in District 259, actually made the employment offer to Mr. Silverthorne, but the district court found that Plaintiff had established on summary judgment that Defendant's decision not to recommend Plaintiff was an exercise of de facto hiring authority.

Defendant argued below on summary judgment that he recommended Mr. Silverthorne because he was better qualified than Plaintiff. He also argued that he was qualifiedly immune from the claim brought against him in his personal capacity and that he did not have final policy decisionmaking authority so as to give rise to entity liability for the claim brought against him in his official capacity. Plaintiff countered with summary judgment evidence to support his allegation that Defendant's decision resulted from prejudice against homosexuals; this, even though the record shows that Plaintiff is married, has two children, and does not claim to be homosexual or bisexual. The summary judgment evidence came in the form of deposition testimony from Defendant's secretary, Sharon Fredin, and the director of social studies at Wichita North, William Jenkins. Ms. Fredin testified that she had remarked to Defendant sometime during the 1987-88 school year that Plaintiff reminded her of her former husband, whom she believed to be a homosexual. Mr. Jenkins testified that he knew and respected Plaintiff based on Plaintiff's substitute teaching experience and that he had recommended Plaintiff for the new position. He further testified that sometime during the fall of the 1988-89 school year he had inquired into why Plaintiff had not been hired and that Defendant had stated that it was because of Plaintiff's "homosexual tendencies." Defendant admitted in deposition testimony that he had conveyed Ms. Fredin's remark to Mr. Jenkins, but he denied that this was his reason for not recommending Plaintiff.

In denying Defendant's motion for summary judgment, the district court held that material issues of fact existed regarding whether Defendant had violated Plaintiff's Fourteenth Amendment equal protection rights by denying employment based on a perceived homosexual classification. The court broke new ground and held that, as of 1991, the date of the decision, homosexuals and those perceived as homosexuals are a suspect class deserving of heightened scrutiny in the equal protection context. 759 F.Supp. 1543, 1546-51. Nevertheless, the court recognized that this new suspect classification could not possibly have been clearly established in 1988 when Defendant allegedly discriminated against Plaintiff. Id. at 1552. Therefore, the court analyzed Plaintiff's qualified immunity defense under a rational basis test, holding that it was clearly established in 1988 that the government could not " 'discriminate [against homosexuals] for the sake of discrimination.' " Id. at 1552 (citing Swift v. United States, 649 F.Supp. 596 (D.D.C.1986)). Applying this precept as clearly established by one fellow district court, ¹ the court held that Defendant was not entitled to the qualified immunity defense because he did not offer a rational explanation for basing his hiring decision on a perception of "homosexual tendencies." Id. at 1553. Furthermore, the court rejected Defendant's argument with regard to the claim against him in his official capacity, noting only that Plaintiff had demonstrated on summary judgment that Defendant's failure to recommend Plaintiff for employment was consistent with an established District 259 policy of allowing school principals unchecked hiring authority and that Defendant had not adduced summary judgment evidence of the participation of any other official in the decision to reject Plaintiff. Id. at 1553 (citing Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)).

This appeal centers on the district court's treatment of the qualified immunity issue and Defendant's argument that he did not have final policy decisionmaking authority. We address each issue in turn.

II.

Qualified immunity shields government officials from the burdens of lawsuits stemming from the exercise of discretionary authority, yet it also allows for the vindication of constitutional rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Hannula v. City of Lakewood, 907 F.2d 129, 130-31 (10th Cir.1990). In striking a balance between these two competing goals, the Supreme Court has formulated a test based on the "objective reasonableness" of the conduct at issue as compared with the state of the law at the time of the alleged violation. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Snell v. Tunnell, 920 F.2d 673, 696 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991). Under this test, the burdens of a trial and personal liability may not be imposed on a government official for the exercise of discretionary authority unless his conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. This "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).

Qualified immunity differs from other affirmative defenses in that it protects the defendant from "the burdens associated with trial" as well as from personal liability. Pueblo Neighborhood Health Centers, 847 F.2d at 645; Hannula, 907 F.2d at 131. Therefore, our review of the district court's summary judgment determination differs from the norm. Hannula, 907 F.2d at 130. A defendant government official need only raise the qualified immunity defense to shift the summary judgment burden to the plaintiff. Id. This burden is quite heavy, id. at 131, for the plaintiff must do more than simply allege the violation of a general legal precept. Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987). The plaintiff must "instead demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant's actions were clearly prohibited." Hannula, 907 F.2d at 131. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. Clearly this standard does not require a precise factual analogy to pre-existing law; however, the plaintiff must demonstrate that the unlawfulness of the conduct was "apparent" in...