Langley v. Adams County, Colo.

• Decision Date: 03 March 1993
• Docket Number: No. 92-1123,92-1123
• Citation: 987 F.2d 1473
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 451, 61 Empl. Prac. Dec. P 42,195 Linda LANGLEY, Plaintiff-Appellee, v. ADAMS COUNTY, COLORADO; Adams County Board of County Commissioners; Elaine T. Valente, individually and in her official capacity; James M. Nelms, individually and in his official capacity; Harold E. Kite, individually and in his official capacity; Randy Brodersen, individually and in his official capacity; Robert D. Millsap, individually and in his official capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1473

987 F.2d 1473

66 Fair Empl.Prac.Cas. (BNA) 451,

61 Empl. Prac. Dec. P 42,195

Linda LANGLEY, Plaintiff-Appellee, v. ADAMS COUNTY, COLORADO; Adams County Board of County Commissioners; Elaine T. Valente, individually and in her official capacity; James M. Nelms, individually and in his official capacity; Harold E. Kite, individually and in his official capacity; Randy Brodersen, individually and in his official capacity; Robert D. Millsap, individually and in his official capacity, Defendants-Appellants.

No. 92-1123.

United States Court of Appeals Tenth Circuit.

March 3, 1993.

Robert J. Loew, Adams County Atty., and Rita M. Harrell, Asst. County Atty., Brighton, CO, for defendants-appellants.

Darold W. Killmer, Gilbert M. Roman and Kevin W. Daley of Feiger, Collison & Killmer, Denver, CO, for plaintiff-appellee.

Before LOGAN and MOORE, Circuit Judges, and BELOT, ^* District Judge.

LOGAN, Circuit Judge.

Defendants appeal the district court's denial of their motion for summary judgment on the basis of qualified immunity. This action arises from the termination of plaintiff Linda Langley's employment with Adams County, Colorado, on June 18, 1991. Plaintiff worked for Adams County in the Human Relations Department for eleven years, including several years as assistant director and acting director. Plaintiff asserts that she was terminated because she had testified in support of another employee's wrongful termination claim and because she had brought additional claims of improper discrimination to her superiors' attention. Defendants assert that she was properly terminated for insubordination. ¹

Plaintiff pleads five claims for relief: (1) retaliation for exercise of her free speech rights, in violation of 42 U.S.C. § 1983; (2) deprivation of her property interests in continued employment without due process, also in violation of § 1983; (3) harassment and retaliation for her opposition to illegal discrimination, in violation of 42 U.S.C. §§ 2000e to 2000e-17; (4) conspiracy to retaliate against her for having testified in federal court, in violation of 42 U.S.C. § 1985(2); and (5) promissory estoppel. Defendants moved for summary judgment both on the merits of each of plaintiff's claims and on the basis of qualified immunity. The district court denied defendants' motion in total, and they filed a notice of interlocutory appeal on the basis of qualified immunity, see Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Plaintiff then filed a motion in the district court to have the individual defendants' appeal certified as frivolous so that the case could continue in the district court pending the appeal. See Stewart v. Donges, 915 F.2d 572, 577-78 (10th Cir.1990). The district court granted plaintiff's motion with respect to defendant Robert D. Millsap, but denied as to the other defendants.

In Patrick v. Miller, 953 F.2d 1240 (10th Cir.1992), we laid out the analysis applicable to an appeal of an order granting or denying qualified immunity. Once a defendant asserts the affirmative defense of qualified immunity,

"[t]he plaintiff carries the burden of convincing the court that the law was clearly established." [Pueblo Neighborhood Health Ctrs., Inc. v.] Losavio, 847 F.2d [642,] 645 [ (10th Cir.1988) ]. More specifically, the plaintiff must "come forward with facts or allegations sufficient to show both that the defendant's alleged conduct violated the law and that that law was clearly established when the alleged violation occurred." Id. at 646. Plaintiff's burden cannot be met merely by identifying in the abstract a clearly established right and then alleging defendant violated that right. Id. at 645. To satisfy his burden, the plaintiff must make a more particularized showing--"[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

Once plaintiff has identified the clearly established law and the conduct that violated the law with sufficient particularity, the defendant then bears the burden as a movant for summary judgment of showing no material issues of fact remain which would defeat the claim of qualified immunity. Losavio, 847 F.2d at 646; Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989). At this point we "consider in the light most favorable to the plaintiff all undisputed facts discernible from the pleadings and other materials submitted to supplement them by the time the motion for summary judgment is made." DeVargas v. Mason & Hangar-Silas Mason Co., 844 F.2d 714, 719 (10th Cir.1988) (footnote omitted).

Id. at 1243 (alteration in original).

Although we view the evidence and draw all inferences in the light most favorable to the party opposing summary judgment, that party "must identify sufficient evidence which would require submission of the case to a jury." Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir.1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986)). "[A] movant need only point to those portions of the record which demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). When, as here, the nonmoving party will bear the burden of proof at trial, that party must go beyond the pleadings and through affidavits, deposition testimony, answers to interrogatories, and admissions, designate specific facts showing there is a genuine issue for trial. Id.; see also Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553; Fed.R.Civ.P. 56(e). The presence or absence of qualified immunity is a question of law, which we review de novo. Patrick, 953 F.2d at 1243.

I

Before we address the merits of the appeal, we must first ensure there is no confusion concerning the identity of the appellants and which of plaintiff's claims are subject to this appeal. The summary judgment motion and the notice of appeal were filed on behalf of all defendants including the individually named defendants in both their individual and official capacities. Qualified immunity, however, is available only to defendants sued in their individual capacities. Hafer v. Melo, --- U.S. ----, ----, 112 S.Ct. 358, 362, 116 L.Ed.2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). Thus, the only defendants who can assert a qualified immunity defense here, and thus the only proper appellants, are county commissioners Elaine T. Valente, James M. Nelms, and Harold E. Kite, and county employees Randy Brodersen and Robert D. Millsap in their individual capacities. ² The defendants named in their official capacities and defendants Adams County and the Adams County Board of County Commissioners are not proper appellants.

In her response brief, plaintiff asserts that Millsap is not an appellant because the district court certified his appeal as frivolous pursuant to Stewart, 915 F.2d at 577-78. Plaintiff misconstrues the purpose and effect of the Stewart certification procedure. In Stewart, we recognized that ordinarily the filing of a notice of appeal " 'divests the district court of its control over those aspects of the case involved in the appeal.' " 915 F.2d at 575 (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402, 74 L.Ed.2d 225 (1982)). "[A]n interlocutory appeal from an order refusing to dismiss on ... qualified immunity grounds relates to the entire action and, therefore, it divests the district court of jurisdiction to proceed with any part of the action against an appealing defendant." Id. at 576. Because this divestiture of jurisdiction is subject to abuse and can unreasonably delay trial, we recognized in Stewart a procedure by which a district court may maintain jurisdiction over a defendant if the court certifies that the defendant's appeal is frivolous. Id. at 576-78. Once a district court so certifies a qualified immunity appeal as frivolous and thus regains jurisdiction, that does not affect our jurisdiction. " 'Rather, both the district court and court of appeals shall have jurisdiction to proceed. Thus the defendant is entitled ultimately to appellate review.' " United States v. Hines, 689 F.2d 934, 937 (10th Cir.1982) (addressing the analogous issue of interlocutory appeals based on claims of double jeopardy and quoting United States v. Leppo, 634 F.2d 101, 105 (3d Cir.1980)). We therefore have jurisdiction over and address Millsap's appeal.

Finally, the individual defendants assert that they are entitled to qualified immunity on plaintiff's claim under Title VII of the Civil Rights Act of 1964 (codified at 42 U.S.C. §§ 2000e to 2000e-17). Plaintiff asserted her Title VII claim only against "Adams County and its Board of Commissioners" and not against the individual defendants. Appellants' App. at 8. This appeal therefore does not include plaintiff's Title VII claim.

II

Plaintiff worked in the Adams County Human Resources Department for eleven years, with her last position being the department's assistant director. In October 1990, she testified in support of a former Adams County employee's federal court action for wrongful termination against Adams County. The plaintiff in that case, William Sweeney, claimed that the county terminated him in violation of his First and Fourteenth Amendment rights. After plaintiff's testimony, Adams County settled with Sweeney for $425,000. Later, plaintiff, in her capacity as assistant director of human resources, gave Sweeney a positive job reference. In February 1991, defendant Millsap, who was plaintiff's supervisor, told her that the county attorney had told him that the county commissioners were upset with her for giving Sweeney the favorable reference....