Lindsey v. Shalmy, 92-15938

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 29 F.3d 1382
• Docket Number: No. 92-15938,92-15938
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 769 Jacquelin K. LINDSEY, Plaintiff-Appellee, v. Donald L. "Pat" SHALMY, Clark County Manager, et al., Defendant, and Cliff Rives, Defendant-Appellant.
• Decision Date: 14 July 1994

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29 F.3d 1382 65 Fair Empl.Prac.Cas. (BNA) 769 Jacquelin K. LINDSEY, Plaintiff-Appellee,
v.
Donald L. "Pat" SHALMY, Clark County Manager, et al., Defendant,
and
Cliff Rives, Defendant-Appellant. No. 92-15938. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Nov. 2, 1993.
Decided July 14, 1994.

Page 1383

Rex Bell, Deputy Dist. Atty., Las Vegas, NV, for defendant; Walter R. Cannon, Jennifer T. Crandell, Rawlings, Olson & Cannon, Las Vegas, NV, for defendant-appellant.

John J. Tofano, Las Vegas, NV, for plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: CHOY, CANBY and NOONAN, Circuit Judges.

CANBY, Circuit Judge:

Cliff Rives appeals the district court's denial of his motion for partial summary judgment on the ground of qualified immunity. We affirm. ¹

BACKGROUND

Jacquelin Lindsey initiated this action against Rives under 42 U.S.C. Secs. 1983 and

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1985(3), alleging that Rives deprived her of her federal rights by discriminating against her on the basis of gender. ² The claims arose out of events that took place from January 1988 to August 1990, when Rives, as Chief of Enforcement in the Clark County Department of Business License (DBL), exercised supervisory authority over Lindsey, a business licensing agent. During this period, Rives allegedly treated Lindsey with great hostility, prepared unfavorable performance evaluations of her work, denied her a promotion in favor of a male candidate and unfavorably altered her job responsibilities. Lindsey asserts that these actions were motivated by Rives's desire to impede her advancement in the department because she is a woman. Thus, she claims, Rives deprived her of a federal right to be free from gender discrimination. ³

Rives moved the district court for summary judgment on the ground of qualified immunity, and the district court denied the motion. We review that denial de novo. Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993).

DISCUSSION I

The doctrine of qualified immunity protects government officials performing discretionary functions from civil liability when 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. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Thus, we must determine whether a reasonable official in Rives's position in 1988 would have known that his conduct violated Lindsey's clearly established federal rights.

The parties engage in considerable skirmishing over the framing of this test. Rives seizes upon Harlow's emphasis on the "objective reasonableness" of the official's conduct. See id. at 819, 102 S.Ct. at 2738. He would consequently remove from the inquiry all reference to his subjective state of mind or his motivation. Rives contends, therefore, that he is entitled to immunity unless a reasonable official in his position would have known that it violated Lindsey's clearly established constitutional rights to refuse to promote her, or to give her unfavorable performance evaluations, or otherwise to treat her adversely in matters related to her employment. The problem with this formulation, of course, is that it is nonsensical in relation to a constitutional tort that depends upon a subjective element, an invidiously discriminatory intent, for its very viability. If that element is left out of the test, then the official will always be immune in cases of alleged invidious discrimination. See Martin v. District of Columbia Metro. Police Dep't, 812 F.2d 1425, 1433 (D.C.Cir.1987). Invariable immunity is not an acceptable result. See id.

It is clear, therefore, that some account must be taken of Rives's subjective intent in determining whether he is entitled to immunity. We conclude, then, that the proper threshold question is whether a reasonable official in Rives's position in 1988 would know that subjecting Lindsey to adverse employment actions because of her gender would violate Lindsey's clearly established federal statutory or constitutional rights. But we cannot stop there, for that formulation assumes the existence of the disputed motivation, and would send virtually every claim of unlawful discrimination to trial. If the presence of an element of intent too easily defeats a motion to dismiss or a motion for summary judgment, the purposes of qualified immunity that the Supreme Court sought to protect in Harlow, 457 U.S. at 816-17, 102 S.Ct. at 2737-38, will be frustrated. The question of immunity is not to be "routinely place[d] ... in the hands of the jury." Hunter v. Bryant, 502 U.S. 224, ----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991).

We have previously recognized the tension involved in applying Harlow's objective analysis

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to constitutional torts that embody an element of intent or motive. Branch v. Tunnell, 937 F.2d 1382, 1385...