                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 05-15856                ELEVENTH CIRCUIT
                                                              MAY 12, 2006
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                   D. C. Docket No. 03-00096-CV-WLS-1

RODERICK B. JOLIVETTE,

                                                      Plaintiff-Appellee,

                                   versus

JAMES ARROWOOD, Individually and in his official
capacity as Chief of City of Albany Fire
Department,
JAMES CARSWELL, Individually and in his official
capacity as Deputy Chief of City of Albany Fire
Department,
ARTHUR DYER, Individually and in his official
capacity as Battalion Chief of City of Albany Fire
Department,
CITY OF ALBANY, GA,

                                                      Defendants-Appellants.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________

                                (May 12, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:

      Albany, Georgia Fire Chief James Arrowood, Assistant Fire Chief James

Carswell, and Battalion Chief Arthur Dyer appeal the district court’s denial of

their motion for summary judgment based on its finding that they were not entitled

to qualified immunity. The issues on appeal are whether we have jurisdiction to

review the denial of qualified immunity, and if so, whether qualified immunity

was properly denied.

                                         I.

      Roderick Jolivette filed a lawsuit pursuant to Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et. seq., 42 U.S.C. §§ 1981, 1983 against the City

of Albany and his supervisors in the City of Albany Fire Department. Relevant to

this appeal, Jolivette alleged race discrimination for failure to promote and

retaliation stemming from his written complaint of discrimination to his superiors

which was followed by a formal Equal Employment Opportunity Commission

charge of discrimination against the City and his supervisors. The defendants filed

a motion for summary judgment as to all claims, which the district court granted in

part and denied in part. Relevant to this appeal, the district court denied summary

judgment to the defendants on Jolivette’s claims of: (1) race discrimination for

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failure to promote asserted pursuant to Title VII and § 1983 and (2) retaliation

asserted pursuant to § 1983.

      The district court denied summary judgment on Jolivette’s race

discrimination claim because: (1) genuine issues of material fact as to whether

Jolivette was qualified for a promotion to Battalion Chief precluded summary

judgment and (2) the defendants’ proffered inconsistent reasons for the failure to

promote created a genuine issue of material fact regarding pretext. As to the

retaliation claim, the district court reasoned that because Jolivette stated a prima

facie case of retaliation and the defendants only proffered legitimate

nondiscriminatory reasons for some, but not all of their actions, genuine issues of

material fact precluded summary judgment as to the affirmative defense.

      The district court granted Arrowood, Carswell and Dyer’s (defendant

supervisors) motion to dismiss the race discrimination claim asserted against them

pursuant to Title VII, because individuals cannot be held liable under Title VII,

and that part of the judgment is not at issue in this appeal. In the same order, the

district court denied qualified immunity to the defendant supervisors as to the

remaining claims against them—race discrimination and retaliation claims brought

pursuant to § 1983.

      Analyzing the qualified immunity defense, the district court found that “[a]s

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discussed previously . . . it cannot be said as a matter of law Plaintiff did not suffer

from racial discrimination in the promotional process and retaliation.” Sept. 30,

2005 Order at 22. The court restated Jolivette’s allegations that the defendant

supervisors “denied him the opportunity to properly qualify for promotion by not

allowing him to obtain the necessary courses and building a record of adverse

disciplinary actions which they could then use to justify not promoting him.” Id.

It then found that the evidence taken in the light most favorable to Jolivette

showed that the defendant supervisors “allowed white employees to take

certification courses at the same time they denied him access” and “issued him

punishments of more heightened severity and frequency than those issued white

employees for similar conduct.” Id. at 22–23. The court stated: “The right to be

free from racial discrimination is a fundamental right” and “if the allegations

prove true, then Defendants’ actions violated this right. Because of this finding,

there is no reason to analyze the qualified immunity issue further. Likewise, the

right to be free from racial discrimination in one’s employment is so ‘clearly

established’ that it is axiomatic.” Id. at 23. The district court denied summary

judgment holding that the defendant supervisors were not entitled to qualified

immunity from the § 1983 race discrimination and retaliation claims. This is the

interlocutory appeal from that ruling.

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                                         II.

      “Qualified immunity offers complete protection for government officials

sued in their individual capacities if their conduct ‘does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). We

review a district court’s denial of a motion for summary judgment based on

qualified immunity de novo, construing the facts in the light most favorable to the

plaintiff. Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1266–67

(11th Cir. 2003).

                                          A.

      The denial of a motion for summary judgment based on qualified immunity

“is an immediately appealable collateral order, provided that it concerns solely the

pure legal decision of (1) whether the implicated federal constitutional right was

clearly established and (2) whether the alleged acts violated that law” under the

“core qualified immunity analysis.” Koch v. Rugg, 221 F.3d 1283, 1294–95 (11th

Cir. 2000) (emphasis and internal quotation marks omitted). The appeal “must

present a legal question concerning a clearly established federal right that can be

decided apart from considering sufficiency of the evidence relative to the

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correctness of the plaintiff’s alleged facts.” Id. at 1294. If the defendant

“challenges only sufficiency of the evidence relative to a ‘predicate factual

element of the underlying constitutional tort,’” we have no jurisdiction. Id. at

1296 (quoting Dolihite v. Maughon ex rel. Videon, 74 F.3d 1027, 1033 n.3 (11th

Cir. 1996)). Factual sufficiency issues are not immediately appealable because

they “involve the determination of ‘facts a party may, or may not, be able to prove

at trial.’” Id. (quoting Johnson v. Jones, 515 U.S. 304, 313, 115 S. Ct. 2151, 2156

(1995)). Thus, we may answer questions of law about whether a constitutional

right was “clearly established” and whether the alleged acts violate that law, but

we may not entertain challenges to the sufficiency of the evidence.

      In this case, the defendant supervisors contend that the district court “failed

to apply the appropriate analysis” because “rather than examining the

circumstances or inquiring as to whether a reasonable official could have believed

that Defendants’ conduct was lawful under the particular facts of this case, the

District Court jumped to the conclusion that Defendants were not entitled to

qualified immunity . . . based upon the generalized statement that ‘the right to be

free from racial discrimination is . . . ‘clearly established.’” Brief of Appellant at

39–40. To the extent that this is a contention that the right to be free from racial

discrimination is not clearly established, we have jurisdiction to entertain the

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question, but the defendants’ contention is incorrect. The right to be free from

racial discrimination in the employment context is clearly established. See e.g.

Alexander v. Fulton County, Ga., 207 F.3d 1303, 1313, 1321 (11th Cir. 2000)

(affirming a jury verdict of intentional employment discrimination by a black

sheriff who made race-based employment decisions concerning white officers with

respect to discipline, promotions, transfers, and reclassifications); Yeldell v.

Cooper Green Hosp., Inc., 956 F.2d 1056, 1064 (11th Cir. 1992) (holding that

illegality of intentionally discriminatory hiring and firing practices was a clearly

established violation of the Equal Protection Clause); Brown v. City of Fort

Lauderdale, 923 F.2d 1474, 1478 (11th Cir. 1991) (recognizing a right under the

Equal Protection Clause to be free from termination because of race).

      The court did not fail to apply the appropriate analysis, because no

reasonable official could believe that it is lawful to discriminate against an

employee on the basis of race in the way that Jolivette alleges. Taking the

evidence in the light most favorable to Jolivette, the district court found that the

defendant supervisors’ conduct violated the constitutional right to be free from

racial discrimination in the promotional process. Jolivette made out a prima facie

case of race discrimination in the promotional process. The only element of the

prima facie case in dispute was whether Jolivette was qualified for the position of

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Battalion Chief, and the district court concluded that a reasonable factfinder could

find from the evidence either that he was de facto qualified for the position or, if

he was not, that it was a result of defendant supervisors’ refusal to allow him to

take the requisite certification course. White employees were allowed to take the

certification courses. The evidence, viewed in the light most favorable to

Jolivette, also showed that the defendant supervisors “issued him punishments of

more heightened severity and frequency than those issued white employees for

similar conduct,” which he contends was an effort to sabotage his chance for a

promotion. Sept. 30, 2005 Order at 22–23. No reasonable official could believe

that it is lawful to take such racially discriminatory actions against a person in his

employment.

      The rest of the defendants supervisors’ arguments relate to the sufficiency

of the evidence supporting Jolivette’s claims. For example, defendant supervisors

simply disagree with the district court’s statement of the facts and make the factual

contentions that Jolivette: (1) “was not qualified for the promotion”; (2) “was not

subjected to racially discriminating discipline or scrutiny”; (3) “cannot establish

that he was subjected to an adverse employment action”; (4) “cannot establish that

Defendants treated similarly situated individuals outside his protected class more

favorably”; (5) and “cannot demonstrate that Defendants’ legitimate,

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nondiscriminatory reasons for taking the alleged employment actions are

pretextual.” Brief of Appellant at iv–vi. All of these are sufficiency of the

evidence contentions, and under our holding in Koch we lack interlocutory

appellate jurisdiction to examine the sufficiency of the evidence. 221 F.3d at

1296. For that reason, we dismiss for lack of jurisdiction the defendants

supervisors’ appeal from the denial of qualified immunity on the race

discrimination claim.

                                          B.

      Defendant supervisors also contend that the district court erred in denying

them summary judgment on qualified immunity grounds on Jolivette’s retaliation

claim. They are correct about that. We have held that “[t]he right to be free from

retaliation is clearly established as a first amendment right and as a statutory right

under Title VII; but no clearly established right exists under the equal protection

clause to be free from retaliation.” Ratliff v. DeKalb County, Ga., 62 F.3d 338,

340 (11th Cir. 1995).

      In this case, Jolivette contends that the defendant supervisors retaliated

against him in violation of the Equal Protection Clause. Because we have held

that no clearly established right exists under the Equal Protection Clause to be free

from retaliation, even if the facts are that retaliation occurred, Jolivette cannot

                                           9
demonstrate that the actions of the defendant supervisors violated that

constitutional guarantee. The district court erred in denying qualified immunity to

the defendant supervisors as to the § 1983 Equal Protection Clause retaliation

claim.

         We DISMISS the appeal as to the district court’s denial of qualified

immunity on the race discrimination claims, VACATE as to the denial of

qualified immunity with respect to the retaliation claims, and REMAND for

further proceedings consistent with this opinion.




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