                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                 November 15, 2005
                      _____________________
                                                         Charles R. Fulbruge III
                           No. 04-31115                          Clerk
                      ______________________


                           JO JO HOLDEN,

                                                Plaintiff - Appellee

                              versus

                       DAVID KNIGHT; ET AL,

                                                           Defendants

                   GARY ANGELO; ROBERT P. ROTH,

                                            Defendants - Appellants

_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                           2:03-CV-2347-C
_________________________________________________________________


Before DAVIS, SMITH and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:*

     Defendants–appellants Robert P. Roth (Roth) and Gary Angelo

(Angelo) challenge the district court’s order denying their

motion to dismiss claims filed against them by plaintiff–

appellee Jo Jo Holden (Holden).    For the reasons provided below,

the court affirms the district court’s order.

     *
      Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                   1
                              Background

     Holden, who is black, was employed with the Louisiana

Department of Transportation and Development (LADOTD) for twenty-

three years where he worked under the supervision of Roth and

Angelo, who are both white.    On October 16, 2001, David Knight

(Knight), a white LADOTD employee, and Holden had an altercation

at work, which Holden maintains Knight initiated.    Holden alleges

that, during an investigation of the incident, Roth and Angelo

learned that prior to the incident, Knight stated that he would

be leaving the LADOTD soon and taking someone with him.    Roth and

Angelo, purportedly acting in accordance with a zero tolerance

policy regarding workplace altercations, offered Holden the

choice of resigning or being fired.    Holden submitted a letter of

resignation but indicated that he disagreed with his supervisors’

methods and that the incident and subsequent termination were

racially motivated.   Holden later sued Roth, Angelo, Knight, and

LADOTD, alleging race discrimination under 42 U.S.C. § 1981,

denial of procedural due process under 42 U.S.C. § 1983, race

discrimination under LA. REV. STAT. ANN. § 23:332, and state law

claims of vicarious liability and battery.    Holden maintains that

Roth and Angelo should have refused to accept the letter of

resignation and instead should have proceeded with a

predeprivation proceeding that would have given him the

opportunity to make his case prior to being terminated.



                                  2
     Roth and Angelo moved to dismiss the claims against them

under FED. R. CIV. P. 12 (b)(6) on the grounds that Holden (1)

failed to state a claim under either § 1981 or § 1983, or in the

alternative, that they were entitled to qualified immunity; (2)

failed to state a claim under LA. REV. STAT. ANN. § 23:332; (3)

failed to state a claim of constructive discharge; and (4) made a

frivolous claim for injunctive relief that should be dismissed.

The district court denied the motion, determining that the claims

under §§ 1981 and 1983 were sufficient and that Roth and Angelo

were not entitled to dismissal on qualified immunity grounds,

that Holden had stated a claim under LA. REV. STAT. ANN. 23:332,

that the constructive discharge claim was moot because it was

never raised, and that the request for injunctive relief is not

frivolous because the discrimination claims remain.   Roth and

Angelo filed a timely notice of appeal to challenge the denial of

their motion on qualified immunity grounds.

                           Jurisdiction

     Ordinarily, this court does not have jurisdiction over

interlocutory orders such as ones denying Rule 12(b)(6) motions.1

Denials of motions to dismiss on qualified immunity grounds,

however, are appealable under the collateral order doctrine

because the qualified immunity defense is not only an immunity




     1
      Morin v. Caire, 77 F.3d 116, 119 (5th Cir. 1996).

                                 3
from liability, but also an immunity from litigation.2      Here,

Roth and Angelo challenge only the district court’s consideration

of Holden’s procedural due process claim under § 1983.3      Thus,

the court will consider the applicability of qualified immunity

to that claim.4

                       Standard of Review

     The court reviews the district court's decision de novo,

using the same standards applied by the district court.5      The

court liberally construes the complaint in favor of the plaintiff

assuming all pleaded facts as true.6   “In appraising the

sufficiency of the complaint [the court follows], of course, the

accepted rule that a complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which



     2
      See Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985)
(stating that a decision is appealable if the rights asserted in
the action are too important to be deferred until the entire case
is resolved).
     3
      Roth and Angelo do not advance an argument about the
applicability of qualified immunity to Holden’s race
discrimination claim under § 1981; therefore, they have waived
any such argument. See L & A Contracting v. S. Concrete
Services, 17 F.3d 106, 113 (5th Cir.1994) (stating that a party
waives an issue by failing to adequately brief it on appeal).
     4
      Morin, 77 F.3d at 119.
     5
      Id. at 120.
     6
      Capital Parks, Inc. v. Southeastern Adver. & Sales Sys., 30
F.3d 627, 629 (5th Cir. 1994).

                                4
would entitle him to relief.”7

   Whether Roth and Angelo Are Entitled to Qualified Immunity

     “Government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.”8     To defeat qualified immunity, a plaintiff must meet a

bifurcated test.     The plaintiff must first allege a violation of

a clearly established constitutional right.9     “To be ‘clearly

established’ for purposes of qualified immunity, ‘[t]he contours

of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.’”10 In addition to alleging a violation of a clearly

established constitutional right, the plaintiff must also allege

facts that show the defendant’s conduct was not objectively

reasonable in the light of the law established at the time of the

incident.11     Thus, this court must first determine whether



     7
      Conley v. Gibson, 355 US 41, 45-6 (1957).
     8
      Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
     9
      Wilkerson v. Stalder, 329 F.3d 431, 434 (5th Cir. 2003);
Heitschmidt v. City of Houston, 161 F.3d 834, 836-37 (5th Cir.
1998).
     10
      Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
     11
          Heitschmidt, 161 F.3d at 836-37.

                                   5
Holden’s complaint alleges the violation of a clearly established

right.12

     Holden maintains that his termination without written

explanation or a predeprivation hearing denied him his right to

procedural due process.     “Procedural due process entitles a

public employee with a property right in his employment to notice

of the charges against the employee, an explanation of the

employer's evidence, and an opportunity to present his side of

the story.”13     “The essential requirements of procedural due

process under the Constitution are notice and an opportunity to

respond.”14     “The fundamental requirement . . . is the

opportunity to be heard ‘at a meaningful time and in a meaningful

manner.’”15     Public officials violate substantive due process

rights if they act arbitrarily or capriciously.”16

     In his complaint, Holden contends that LADOTD policy

requires employers to give employees a written notice of proposed

disciplinary action along with facts supporting this

recommendation and to grant employees an opportunity to be heard


     12
          See Wilkerson, 329 F.3d at 434-35.
     13
          Fowler v. Smith, 68 F.3d 124, 127 (5th Cir. 1995).
     14
      Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 562
(5th Cir. 2003).
     15
      Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
     16
          Finch, 333 F.3d at 562-63.

                                   6
prior to the disciplinary action.        Holden alleges that he was

forced to choose between resigning or being terminated, and that

he was not given a predeprivation hearing.        Thus, Holden has

alleged facts that indicate that he was not given the procedural

due process he was entitled to under LADOTD policy.

     A government employee alleging a due process claim in

connection with an employment action or termination must also

assert a property interest in continued employment.17       The

hallmark of a property interest “is an individual entitlement

grounded in state law, which cannot be removed except ‘for

cause.’”18      Such an interest does not exist merely because a

plaintiff is a government employee, but may be established

through operation of federal or state law, contractual

obligations, or policy.19      Holden must “point to some state or

local law, contract or understanding that creates a property

interest in his continued employment.”20

     In addition to the allegations about requiring written

notice of disciplinary action and a right to be heard, Holden

     17
      See Cabrol v. Town of Youngsville, 106 F.3d 101, 105 (5th
Cir. 1997) (stating that the Fourteenth Amendment’s due process
clause did not create a property interest in continued government
employment).
     18
      Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982)
(quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11
(1978)).
     19
          Cabrol, 106 F.3d at 105.
     20
          Id.

                                     7
alleges that LADOTD established a Compliance Section in response

to an employment discrimination lawsuit brought by the federal

government.     Holden alleges that the Compliance Section

investigates employee grievances and tracks LADOTD’s performance

in the area of equal opportunity for blacks.     Holden also alleges

that Roth and Angelo are career supervisory employees who have

been trained in the proper management of LADOTD employees and who

know how to carry out management functions in a racially neutral

manner.     If these allegations are true, Roth and Angelo’s

termination authority was constrained by LADOTD policy and Holden

could not be terminated without receiving notice and an

opportunity to be heard.     Thus, Holden has alleged a present

interest in continued employment.

     Roth and Angelo, however, maintain that there can be no due

process claim where the termination was voluntary.     They rely on

this court’s decision in Bury v. McIntosh,21 but ignore the

subsequent cases in which this court has amplified and clarified

the conditions under which a resignation may be involuntary.

This court has made clear that a plaintiff may make out a

cognizable claim when he alleges particular facts showing that he

found himself “between the Scylla of voluntary resignation and




     21
          Bury v. McIntosh, 540 F.2d 835 (5th Cir. 1976).

                                   8
the Charybdis of forced termination.”22     For example, in

Findeisen v. North East Ind. Sch. Dist., this court reversed a

summary judgment rendered on behalf of the school district where

a tenured teacher alleged that his resignation had been procured

under threat that he would otherwise be fired and as a means for

the school district to avoid the hearing procedure required for

civil service employees.23     Similarly, in Bueno v. City of Donna,

we held that employees who were forced to resign in order to

avoid involuntary discharge in retaliation for their political

affiliation stated a cause of action.24     Like the plaintiffs in

Findeisen and Bueno, Holden has alleged that Roth and Angelo

forced him to choose between “Scylla of voluntary resignation and

the Charybdis of forced termination.”

     Moreover, even if Bury v. McIntosh remained the controlling

precedent, Roth and Angelo fail to demonstrate that Bury applies

to the facts alleged by Holden.     In that case, the court

determined that Bury, a government employee, was not deprived due

process when given the choice of voluntarily resigning or

submitting to civil service termination proceedings.25        The court


     22
      Fowler v. Carrollton Public Library, 799 F.2d 976, 981
(5th Cir. 1986), rehearing denied, 803 F.2d 717 (5th Cir. 1986).
     23
      749 F.2d 234, 237-40 (5th Cir. 1984)), cert. denied, 471
U.S. 1125 (1985).
     24
          714 F.2d 484, 492-93 (5th Cir. 1983).
     25
          Bury, 540 F.2d at 836.

                                   9
explained that Bury turned down the opportunity to submit to a

predeprivation hearing, and that even if he had been told that he

would be fired as a result of the hearings, he did not have

reason to believe that the employer recommending termination

could influence the civil service board.26   But unlike Bury,

Holden has alleged that Roth and Angelo informed him that he

would be fired if he did not resign and he was not given the

opportunity for a predeprivation hearing.    Holden contends that

he did not resign voluntarily, but rather, made a decision when

faced with an ultimatum.   Under these circumstances, Holden would

not forfeit his right to due process.   Based on the factual

allegations in the complaint, Holden has alleged the deprivation

of a clearly established right.

      The court must next determine whether Holden alleged facts

showing that Roth and Angelo’s conduct was not objectively

reasonable in light of the circumstances.    Qualified immunity is

defeated if an official “‘knew or reasonably should have known

that the action he took within his sphere of official

responsibility would violate the constitutional rights of the

[plaintiff], or if he took the action with the malicious

intention to cause a deprivation of constitutional rights or




     26
          Id.

                                  10
other injury. . . .’”27

     In his complaint, Holden alleges that Roth and Angelo wanted

to get rid of him under circumstances in which he would have no

recourse about termination and that their actions were racially

motivated.   Holden further alleges that Roth and Angelo learned

that Knight stated that he would be leaving the company, that he

would be taking someone with him, and that he used a racial slur

in making these statements.   Holden further asserts that Roth and

Angelo learned that Holden acted in self-defense in response to a

deliberate, unprovoked attack by Knight.   Finally, Holden

contends that Roth and Angelo did not follow LADOTD policy

requiring written notice of proposed disciplinary action and an

opportunity to be heard prior to disciplinary action.   If

Holden’s allegations are true, Roth and Angelo should have known

that presenting Holden with an ultimatum would violate his right

to procedural due process.    If they disregarded Holden’s right to

a predeprivation hearing, they would have acted arbitrarily and

capriciously.   Under these circumstances, Roth and Angelo would

not have acted reasonably.

     The district court reached the same conclusion, specifically

stating, “[c]onstruing the record in a light most favorable to

the Plaintiff, the Court finds that the record at least gives

rise to a genuine issue of material fact regarding whether the

     27
      Harlow, 457 U.S. at 815 (quoting Wood v. Strickland, 420
U.S. 308, 322 (1975)).

                                 11
Defendants’s acted reasonably in denying Plaintiff his right to a

predeprivation proceeding.”        Roth and Angelo contend that this

language shows that the district court erroneously applied the

summary judgment standard rather than the legal principles

applicable to a motion to dismiss.        Although the district court

may have stated its conclusion in terms of a summary judgment

standard——a genuine issue of material fact——the court’s order

shows that the court applied the correct standards.        The court

accepted Holden’s allegations as true and determined that Holden

had alleged a set of facts that might entitle him to relief.        In

addition, Holden’s complaint shows that the facts that Roth and

Angelo rely on to support their qualified immunity defense are

disputed.     In their answers, Roth and Angelo denied that they

knew about Knight’s purported statements; that they learned that

Holden was the victim of a deliberate, unprovoked attack; and

that they failed to follow LADOTD policy.        When disputed issues

of material fact exist, which, if true, show that the defendants’

conduct was not objectively reasonable, the defense of qualified

immunity cannot apply.28

     For the reasons stated above we dismiss this appeal.

     APPEAL DISMISSED.




     28
          Morin, 77 F.3d at 119.

                                     12
