Lewis v. City of Ft. Collins

• Decision Date: 14 May 1990
• Docket Number: No. 89-1083,89-1083
• Citation: 903 F.2d 752
• Parties: 52 Fair Empl.Prac.Cas. 1566, 53 Empl. Prac. Dec. P 39,934 Verna LEWIS, Plaintiff-Appellee, v. CITY OF FT. COLLINS; Barbara Liebler, Defendants, Larry Estrada, Mayor; Steven Burkett; Richard Shannon; Kelly Ohlson; Barbara Rutstein; Jerry Horak; Ed Stoner; Susan Kirkpatrick, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 752

903 F.2d 752

52 Fair Empl.Prac.Cas. 1566,

53 Empl. Prac. Dec. P 39,934

Verna LEWIS, Plaintiff-Appellee, v. CITY OF FT. COLLINS; Barbara Liebler, Defendants Larry Estrada, Mayor; Steven Burkett; Richard Shannon Kelly Ohlson; Barbara Rutstein; Jerry Horak; Ed Stoner; Susan Kirkpatrick, Defendants-Appellants.

No. 89-1083.

United States Court of Appeals Tenth Circuit.

May 14, 1990.

Susan M. Lach of Frey, Lach & Michaels, P.C., Fort Collins, for plaintiff-appellee.

Kent N. Campbell of Anderson, Sommermeyer, Wich & Dow, Fort Collins, for defendants-appellants.

Before TACHA, and BRORBY, Circuit Judges, and VAN BEBBER, District Judge. ^*

BRORBY, Circuit Judge.

Appellants appeal the order of the United States District Court for the District of Colorado denying their motion for summary judgment based on qualified immunity.

Plaintiff-appellee Verna Lewis, a former Assistant City Manager of the City of Fort Collins, Colorado (the "City"), brought this action alleging employment discrimination against the City of Fort Collins and against appellants: several present and former City Council members, the present City Manager and the former Acting City Manager. Lewis, an Hispanic female over forty years of age, alleges in her complaint that she was wrongfully demoted from her position as Assistant City Manager and thereafter not considered for other upper level positions in City government on the basis of her age, sex and race in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et seq., the Equal Opportunity Act of 1972, Title VII, 42 U.S.C. Sec. 2000e, the Civil Rights Act, 42 U.S.C. Sec. 1981, respectively, and that she was deprived of due process and equal protection in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. Sec. 1983.

Lewis began a long career as an employee of the City in 1964 and thereafter served in the capacities of clerk, secretary and city clerk. In 1980, Lewis was named Assistant City Manager, with primary responsibility as liaison between the City Council and the citizens of Fort Collins. In 1985, Lewis was reassigned within the City Manager's office and given duties related to intergovernmental relations and lobbying efforts. In August 1986, four months after defendant Steven Burkett assumed the position of City Manager, Lewis was informed that the position of Assistant City Manager was to be abolished. Accordingly, Lewis was effectively laid off as Assistant City Manager November 1, 1986, and she accepted a transfer to the position of Health and Safety Manager.

In her complaint, Lewis alleges that between April and August 1986 appellants met "to discuss the creation and implementation of a policy ... to remove older, more senior employees from within the City Manager's office and other high level positions within the city government and replace those employees with younger male caucasian individuals." Lewis further alleges that she was demoted from her position and then not considered for other vacant high-level positions within City government in furtherance of this "policy."

Appellants filed a motion for summary judgment based on qualified immunity before the commencement of discovery. The district court heard the parties' arguments and denied appellants' motion in a ruling from the bench on March 2, 1989:

Well, the Court's of the view that there are sufficient indications in this record of disputes of material facts, and sufficient questions of how those facts affect the qualified immunity defense as well as other defenses, so that it would be error at this point in the case to grant summary judgment.

Furthermore, it seems too early to grant summary judgment because there hasn't been adequate opportunity for discovery to even establish what the facts are and put people under oath and see what they say under oath subject to the 10-year penalty for perjury, is what they have said on affidavits prepared by somebody else for them.

So the motion for summary judgment of the city is denied.

Similarly, the government official, defendants' motion for summary judgment based on qualified immunity, is denied, but without prejudice to renew. The existent fact, it's clear that there are no real disputes as to the facts, it appears to me on the face of it there are likely to be disputes and there are disputes as to material facts.

Appellants thereafter filed this appeal asserting that the district court improperly ordered discovery and that the district court erroneously determined that issues of material fact exist relative to appellants' entitlement to qualified immunity. We agree with appellants and reverse.

I. JURISDICTION

At the threshold, we must address whether the district court's denial, without prejudice to renew, of appellants' motion for summary judgment based on qualified immunity constitutes an appealable decision under 28 U.S.C. Sec. 1291.

This court has previously determined that appellate jurisdiction is invoked when a defendant asserting qualified immunity is faced with discovery that "exceed[s] that 'narrowly tailored' to the question of qualified immunity." Maxey v. Fulton, 890 F.2d 279, 283 (10th Cir.1989). As the Supreme Court explained in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the doctrine of qualified immunity not only protects government officials from the costs associated with trial, but also from "the other burdens of litigation," which include " 'the burdens of broad reaching discovery.' " 472 U.S. at 526, 105 S.Ct. at 2815 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Qualified immunity is not a shield from all discovery. Maxey, 890 F.2d at 282. In some cases, discovery may be necessary to determine whether the defendants' challenged conduct violated clearly established law and thus, whether defendants are entitled to qualified immunity. However, until the threshold immunity question is determined, discovery shall be limited to resolving that issue alone. Id. at 283; Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738.

Based on the record before us, the order of the district court does not limit discovery to the resolution of the qualified immunity issue. As such, defendants have been denied their entitlement to be free from the burden of overbroad discovery. Accordingly, we have jurisdiction over this appeal.

II. ANALYSIS

A. Objective Reasonableness

Government officials performing discretionary functions are entitled to qualified immunity insofar as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. Harlow crafted this "objective reasonableness" standard for determining the availability of the qualified immunity defense in order to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment." Id. However in some cases, the determination of the "objective" reasonableness of an official's conduct rests on establishing whether the defendant acted with an impermissible motive or intent--a highly "subjective" factual element. Such is the case here. For Lewis to succeed with any of her statutory claims of age, race and sex discrimination and with her constitutional equal protection claim brought under Sec. 1983, she must ultimately prove the essential element of intentional discrimination. ¹ Absent a discriminatory motive or intent, appellants' challenged conduct would not violate clearly established law.

Where a defendant's subjective intent is an element of plaintiff's claim and the defendant moves for summary judgment based on qualified immunity, the defendant must make a prima facie showing of the "objective reasonableness" of the challenged conduct. Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir.1988); Martin v. D.C. Metropolitan Police Dept., 812 F.2d 1425, 1434 (D.C.Cir.1987). In this regard, we have emphasized that the moving party has no burden to disprove any unsupported claims of his opponent, especially where, as here, " 'the reasons for swiftly terminating insubstantial lawsuits are particularly strong.' " Losavio, 847 F.2d at 649 (quoting Martin, 812 F.2d at 1434).

In support of their motion for summary judgment, defendants have submitted affidavits and attachments for the purpose of establishing the objective reasonableness of the decision to eliminate Ms. Lewis' former position of Assistant City Manager. Again, in light of the statutory and constitutional discrimination claims asserted, appellants' challenged course of conduct would be objectively reasonable if it was carried out for non-discriminatory purposes. The affidavit of City Manager Steven Burkett states that the City reorganized its staff and eliminated Ms. Lewis' position because the City faced a budget crisis in 1986. Burkett's affidavit sets forth the following description of the reorganization process and the decisions driving the changes made:

Upon my arrival as city manager in April, 1986, I was made aware that the city faced a severe financial crisis due to expenditures exceeding revenues, and a corresponding reduction in general fund reserves.

Further study by city financial staffers revealed that, due to accounting discrepancies, the projected shortfall in revenues was not as large as initially projected, however, it was recognized and brought to my attention that the city had incurred additional expenditures, particularly long-term expenditures, that were initially not taken in consideration in the projected budgets, including approximately $400,000.00 annual bond financing for the next several years to retire the debt on the city's golf course and approximately $300,000.00 annual debt reduction in connection with the Downtown Development Authority. The projected additional...