Moniz v. City of Fort Lauderdale, 97-5347

• Decision Date: 09 July 1998
• Docket Number: No. 97-5347,97-5347
• Citation: 145 F.3d 1278
• Parties: 74 Empl. Prac. Dec. P 45,490, 11 Fla. L. Weekly Fed. C 1551 Michael MONIZ, Plaintiff-Appellee, v. CITY OF FORT LAUDERDALE, a Florida municipal corporation, Defendant, Joseph Donisi, Thomas McCarthy, Bruce Roberts, both in their official capacities as Acting Chief of Police and in their individual capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1278

145 F.3d 1278

74 Empl. Prac. Dec. P 45,490, 11 Fla. L.

Weekly Fed. C 1551

Michael MONIZ, Plaintiff-Appellee, v. CITY OF FORT LAUDERDALE, a Florida municipal corporation, Defendant Joseph Donisi, Thomas McCarthy, Bruce Roberts, both in their official capacities as Acting Chief of Police and in their individual capacities Defendants-Appellants.

No. 97-5347.

United States Court of Appeals Eleventh Circuit.

July 9, 1998.

Gordon D. Rogers, Kelly Cheary, Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A., Miami, FL, for Defendants-Appellants.

William R. Amlong, Amlong & Amlong, Ft. Lauderdale, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and BARKETT, Circuit Judges, and ALARCN ^*, Senior Circuit Judge.

BARKETT, Circuit Judge:

Joseph Donisi, Thomas McCarthy, and Bruce Roberts (collectively "appellants"), all current or former employees of the City of Ft. Lauderdale Police Department (the "Department"), appeal from the denial of their motion for summary judgment based on qualified immunity in a reverse discrimination suit filed against them by Ft. Lauderdale police officer Michael Moniz. Moniz is a white male police officer with the Department. Donisi, McCarthy, and Roberts each served as Acting Police Chief at various points during the relevant time period for purposes of this case.

Moniz's complaint derives from the Department's failure to promote him from the rank of patrol officer to sergeant, despite his eligibility for promotion pursuant to the Department's "rule of five scores" policy, at various points during the time period from January 1992 through January 1996. ¹ During this period, Moniz was among the top five scoring candidates on the Department's eligibility list on nine occasions when the City elected to fill a promotional vacancy. On each of those occasions, however, exercising his discretion to select the best qualified candidate among those officers with the top five scores, the Acting Police Chief at the time selected a candidate other than Moniz. Three of the candidates selected for promotion were African-American; the six remaining candidates who were promoted while Moniz was included on the certified list were white. Moniz contends that Acting Police Chief Donisi informed him that in filling two of the promotional vacancies he had selected African-American officers from the list of candidates with the top five scores in order to increase the number of African-American sergeants. ² Moniz subsequently filed suit against the City of Ft. Lauderdale and against Donisi, McCarthy, and Roberts, in both their individual and official capacities, alleging violations of Title VII, the Florida Civil Rights Act, and 42 U.S.C. §§ 1983 and 1985(3). Only the three counts of Moniz's complaint asserting a § 1983 claim are relevant for purposes of this appeal. In those counts, Moniz alleged that appellants were responsible for promoting the three African-American officers, and that the race-based decisions to promote the African-American officers instead of Moniz violated Moniz's right to equal protection under the Fourteenth Amendment. Appellants in their individual capacities asserted the affirmative defense of qualified immunity and subsequently moved for summary judgment on that basis. The district court summarily denied appellants' motion, stating only that:

The Defendants assert[ ] various reasons as to why Summary Judgment should be entered in [their] favor and that there exists no genuine issue of material fact.

Without elaborating specifically, the Court finds that there exist genuine issues of material fact which preclude the entry of Judgment as a matter of law.

Finding that appellants in their individual capacities are clearly entitled to summary judgment on their claims of qualified immunity, we reverse.

DISCUSSION

As an initial matter, we find no merit to Moniz's jurisdictional challenge to this appeal. Moniz argues that the district court's order denying summary judgment on qualified immunity grounds is not appealable interlocutorily under Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), because the district court's sole reason for denying summary judgment was the existence of genuine issues of material fact. It is true that the denial of qualified immunity at the summary judgment stage is not appealable interlocutorily when the appeal involves only a challenge to the district court's determination that material facts identified in the district court's order are genuinely in dispute. Such a challenge must await final disposition of the case. See Crawford-El v. Britton, --- U.S. ----, ----, 118 S.Ct. 1584, 1595, 140 L.Ed.2d 759 (1998) (remarking that the Court has "rejected the argument that the policies behind the immunity defense justify interlocutory appeals on questions of evidentiary sufficiency"); Johnson, 515 U.S. at 307-08, 115 S.Ct. 2151 (denial of summary judgment on qualified immunity grounds not immediately appealable where defendants' sole claim on appeal was that the record contained no evidence that defendants had participated in or been present during plaintiff's beating).

However, where, as here, the appeal is based on an assertion that, even on the plaintiff's version of the facts, the defendants are entitled to qualified immunity as a matter of law, we have jurisdiction to review the denial of summary judgment interlocutorily. See Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). The mere fact that the district court simply asserted that it based the denial of summary judgment on the existence of genuine issues of material fact does not render the summary judgment order automatically unappealable. Id. at 312-13, 116 S.Ct. 834. Rather, such a denial remains immediately appealable to the extent that it turns on "an 'abstract issu[e] of law' relating to qualified immunity--typically, the issue whether the federal right allegedly infringed was 'clearly established.' " See id. at 313, 116 S.Ct. 834 (internal citations omitted); Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This is so notwithstanding the district court's failure to identify the factual basis for its legal determination. See Behrens, 516 U.S. at 313, 116 S.Ct. 834. As Johnson recognizes, where the district court has not set forth the facts on which the denial of summary judgment is based, "[the] court of appeals may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed" in order to determine whether, on that set of facts, a violation of clearly established law occurred. Johnson, 515 U.S. at 319, 115 S.Ct. 2151; see also Behrens, 516 U.S. at 313, 116 S.Ct. 834.

In this case, notwithstanding that the district court's order recites that "there exist genuine issues of material fact which preclude the entry of Judgment as a matter of law," we have jurisdiction because the issue presented on appeal is the purely legal question whether, even on the facts construed in the light most favorable to Moniz, appellants are entitled to qualified immunity as a matter of law. ³ More specifically, the question on appeal is whether appellants should reasonably have known, based on prior clearly established law, that their consideration of race as a factor in selecting officers for promotion among the top five scoring candidates on the Department's eligibility list violated Moniz's right to equal protection. ⁴ As the Supreme Court has explained to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ..., but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (internal citation omitted).

We conclude that appellants could not have been on notice that the promotion decisions for which Moniz holds them responsible ⁵ would violate his rights under clearly established law. To the contrary, a reasonable government official in appellants' position could have believed that the actions alleged in Moniz's complaint were entirely consistent with clearly established law.

Since 1980, the City of Ft. Lauderdale has been operating pursuant to a consent decree that was entered in United States v. City of Fort Lauderdale, S.D. Fla. Case No. 80-6289-CIV-AHL. The consent decree requires the City to adopt the goal of selecting African-American and women candidates for promotion in the police and fire departments in proportion to their representation in the pool of those individuals who have successfully passed the applicable promotional examination. Specifically, the consent decree includes the following provisions concerning the promotion of African-American and female police officers and fire-fighters:

The City shall adopt and seek to achieve the goal of promoting blacks and women in the police and fire...