                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-2044
                        ___________________________

                                   Gary V. Austin

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

 Fletcher Long, in his individual and official capacity as Prosecuting Attorney for
                the First Judicial District for the State of Arkansas

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the Eastern District of Arkansas - Helena
                                  ____________

                           Submitted: January 14, 2015
                            Filed: February 23, 2015
                                 ____________

Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
                          ____________

MURPHY, Circuit Judge.

       Gary Austin brought this employment discrimination suit under 42 U.S.C.
§§ 1981 and 1983 against Fletcher Long, the head prosecutor for an Arkansas judicial
district. Austin is an African American who alleges that Long fired him because of
his race. Long moved for summary judgment based on qualified immunity. The
district court1 denied the motion, concluding that the undisputed summary judgment
record gave rise to disputes of material fact over whether Long's stated reasons for
firing Austin were a pretext for racial discrimination. Long appeals, and we affirm.

       Long is the elected head prosecutor for the first judicial district of Arkansas.
He supervises deputy prosecutors who represent the state in each of the district's six
counties. In January 2006, Long hired Austin as the second deputy prosecutor for
Phillips County. The prosecutor Long had previously hired for that position was
African American, as was the prosecutor Long eventually hired to replace Austin. As
a deputy Austin handled misdemeanor cases and assisted with felony cases for Long
and Todd Murray, the county's senior deputy prosecutor.

       The undisputed record establishes that Austin and Murray disagreed over how
they should allocate the county funds they received to cover their operation expenses.
The county provided both prosecutors with a monthly check for expenses. Long and
Murray agreed that Austin should contribute his expense check to Murray, who
would then pay the office expenses. Austin failed to contribute any operating
expenses for four separate months, however, even after Long expressly told him to
follow Murray's directions regarding the funds.

       According to Long, Murray reported several other problems with Austin's job
performance, all of which Austin disputes. Long asserts that Murray and other court
personnel had trouble contacting Austin during business hours, that Austin deviated
from office policy on felony bond reduction orders and expungement orders, and that
Austin incurred extraordinary expenses without prior approval. In addition, an
Arkansas judge was said to have reportedly contacted Long to ask why Austin had
failed to appear in court.


      1
        The Honorable Robert T. Dawson, United States District Judge for the
Eastern District of Arkansas.

                                         -2-
       Austin contends that Long never provided him with a formal evaluation
outlining any of these problems in either oral or written form. Austin had met with
Long in August 2011, and Long reportedly asked him about the problems Murray had
identified. After Austin offered no explanation, Long fired him. Austin contends that
Long never explained to him why he was fired.

       Austin filed an employment discrimination action against Long under 42
U.S.C. §§ 1981 and 1983, seeking money damages and reinstatement. He alleges that
Long fired him because of his race and treated him more harshly than two similarly
situated white prosecutors. One of those prosecutors had been convicted of driving
while intoxicated, and the other had been sanctioned by the Arkansas professional
conduct committee for an ethical violation in his private practice. Long had not fired
either of those prosecutors despite their violations.

      Long moved for summary judgment based on qualified immunity, arguing that
no reasonable jury could find a constitutional violation and that no reasonable official
in Long's position would have known that his actions violated Austin's right to be free
from racial discrimination. The district court denied Long qualified immunity, and
Long filed this interlocutory appeal.

        We must "first address our jurisdiction" to review an interlocutory appeal from
the denial of a motion for summary judgment. White v. McKinley, 519 F.3d 806, 812
(8th Cir. 2008). Summary judgment "determinations are appealable when they
resolve a dispute concerning an abstract issue of law relating to qualified
immunity—typically, the issue whether the federal right allegedly infringed was
clearly established." Behrens v. Pelletier, 516 U.S. 299, 313 (1996). A district court's
summary judgment order denying qualified immunity may not be appealed "insofar
as [it] determines whether or not the pretrial record sets forth a genuine issue of fact
for trial." Johnson v. Jones, 515 U.S. 304, 319–20 (1995). This court does not have
jurisdiction to consider the appeal if "at the heart of the argument is a dispute of fact."

                                           -3-
Pace v. City of Des Moines, 201 F.3d 1050, 1053 (8th Cir. 2000). Even "if a
defendant frames an issue in terms of qualified immunity, we should determine
whether he is simply arguing that the plaintiff offered insufficient evidence to create
a material issue of fact." White, 519 F.3d at 813.

       Here, Long argues that "Austin did not put forth sufficient evidence to
demonstrate that Long’s decision to terminate his employment was motivated by any
racial animus," so the district court erred in finding a dispute of material fact over
whether Long's stated reasons for firing Austin were a pretext for racial
discrimination. By "challenging the district court's finding of the sufficiency of the
evidence," Long is "asking us to engage in the time-consuming task of reviewing a
factual controversy about intent." Thomas v. Talley, 251 F.3d 743, 746 (8th Cir.
2001). This is "precisely the type of controversy that the [Supreme] Court concluded
should not be subject to interlocutory appeal" because of unnecessary delay, the
"comparative expertise of trial and appellate courts, and wise use of appellate
resources." Id. (quoting Johnson, 515 U.S. at 317). We conclude that we lack
jurisdiction to consider Long's sufficiency of the evidence challenge to the district
court's findings on pretext. See id.

       To the extent that Long challenges the district court's interpretations of law, we
review them de novo. See Jones v. McNeese, 746 F.3d 887, 894 (8th Cir.), cert.
denied, 135 S. Ct. 688 (2014). Long is not entitled to qualified immunity if Austin
establishes that Long violated his clearly established constitutional rights. See
Nelson v. Shuffman, 603 F.3d 439, 446 (8th Cir. 2010). Austin asserts that Long
violated his clearly established right to be free from racial discrimination in the
workplace. Austin supports this assertion by offering evidence that Long treated him
differently from similarly situated coworkers, thus proving that Long's stated reasons
for firing him were a pretext for racial discrimination. See Bone v. G4S Youth
Servs., LLC, 686 F.3d 948, 955 (8th Cir. 2012).



                                          -4-
       Long argues that the district court erred in interpreting the law by focusing on
whether his decision to fire Austin was a pretext for racial discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). The district court
correctly stated, however, that Austin could demonstrate a triable issue of fact
concerning pretext by showing that he was treated differently than "other employees
[who] were similarly situated in all relevant respects." Ridout v. JBS USA, LLC, 716
F.3d 1079, 1085 (8th Cir. 2013). Long asserts that the employees here were not
similarly situated because their misconduct was of a different nature, but the
"similarly situated coworker inquiry is a search for a substantially similar employee,
not for a clone." Id. Coworkers can be similarly situated in all relevant respects if
their misconduct is comparable to or "more serious than that of the plaintiff." Id. The
district court did not err in concluding that the conduct of prosecutors who had been
convicted for driving under the influence and who had been formally sanctioned for
ethics violations was comparable to or more serious than Austin's failure to contribute
funds to his operational expense account—his only misconduct established by the
undisputed summary judgment record here. See id.

       Long also argues that Austin failed to allege the violation of a clearly
established constitutional right. We have observed, however, that the constitutional
right to be free from "invidious discrimination is so well established and so essential
to the preservation of our constitutional order that all public officials must be charged
with knowledge of it." Goodwin v. Circuit Court of St. Louis Cnty., 729 F.2d 541,
546 (8th Cir. 1984). The district court thus appropriately concluded that Austin had
alleged the violation of his clearly established constitutional right to be free from
employment discrimination, and it did not err in finding a triable issue of fact on
whether Long's stated reasons for firing Austin were a pretext for racial
discrimination.

      For these reasons we affirm the order of the district court.
                      ______________________________

                                          -5-
