68 F.3d 9
67 Empl. Prac. Dec. P 43,763
Sheree A. CARTER, Plaintiff, Appellee,v.STATE OF RHODE ISLAND, et al., Defendants, Appellants.
No. 95-1082.
United States Court of Appeals,First Circuit.
Heard Aug. 3, 1995.Decided Oct. 18, 1995.

James R. Lee, Assistant Attorney General, with whom Jeffrey B. Pine, Attorney General, was on brief for appellants.
George Carvalho, with whom Patrick J. Quinlan and George E. Babcock were on brief, for appellee.
Before CYR, BOUDIN and LYNCH, Circuit Judges.
CYR, Circuit Judge.


1
Appellee Sheree A. Carter, a state prison guard, filed suit against the State of Rhode Island, eight of her supervisors or superior officers, and her union, alleging race and gender discrimination.  Four individual defendants, among the eight individual defendants who initiated this interlocutory appeal, challenge a district court order disallowing their "qualified immunity" defenses at summary judgment.  We dismiss their appeal, for lack of appellate jurisdiction.I

BACKGROUND1

2
The Rhode Island Department of Corrections hired Carter as a prison guard in October 1990.  Her superior officers and supervisors embarked on a prolonged campaign of workplace harassment in April 1991.  The work environment was marked by (i) several disciplinary measures against Carter based on infractions for which defendants had never disciplined white male guards, (ii) especially undesirable or dangerous work assignments made without regard to her seniority and class ranking, and failure to accord "serious consideration" to her application for promotion, (iii) repeated racial slurs and sexual threats anonymously directed against Carter in telephone calls at work and at her home, and in graffiti posted at or near her work station, (iv) failure to address her repeated complaints about ongoing harassment, amounting to implicit condonation, and (v) defamatory comments to the press relating to Carter's discrimination complaints.


3
Carter commenced suit in federal district court in August 1993, alleging, inter alia, that defendants violated 42 U.S.C. Sec. 1983 by infringing her constitutional right to be free from race and gender discrimination under the Fifth and Fourteenth Amendments to the United States Constitution.2  She sought injunctive relief, compensatory and punitive damages, and attorney fees.  Defendants moved for summary judgment, contending that Carter had failed to state a claim upon which relief may be granted, see Fed.R.Civ.P. 12(b)(6), (c), and asserting "qualified immunity" from suit.


4
The district court categorized the eleven individual defendants in three groups:


5
"Union" Defendants:  Rhode Island Brotherhood of Correctional Officers (Union); William Bove (Union president);  Kenneth Rivard (Union grievance chairman);


6
"Supervisory" Defendants:  George A. Vose, Jr.  (Director of Rhode Island Department of Corrections);  Captain Walter Whitman (Warden;  Carter's supervisor);  Captain Thomas Partridge (Deputy Warden;  Carter's supervisor);  Barry Levin (the Department's Chief Supervisor of Employee Relations);  and


7
"Superior Officer" Defendants:  Lieutenant Ronald Le Clerc;  Captain Kenneth Ahearn;  Captain Peter Germani and Captain Ronald Brodeur (Carter's superiors).3


8
The first district court ruling pertinent to the present appeal dismissed the section 1983 claims against the "superior officer" defendants because Carter's alleged right to be free from undesirable or dangerous work assignments is not protected under the Fourteenth Amendment, and the actions charged against defendants could not support a reasonable inference of discriminatory intent.  Carter v. State of Rhode Island, No. 93-0447B, slip op. at 23-24 (D.R.I. Nov. 9, 1994) (Report and Recommendation).  And, as to defendant Le Clerc, who allegedly issued a public reprimand of Carter, the district court found that the allegation that white male prison guards were not subjected to similar reprimands did not provide an adequate foundation for an inference that Le Clerc was motivated by race or gender discrimination.  Accordingly, the court dismissed the section 1983 claims against the four "superior officer" defendants.4


9
Second, the court ruled that Carter had stated actionable section 1983 claims against the four "supervisory" defendants, by alleging that she caused copies of her complaints to be sent to each--thereby establishing that they knew about her allegations of ongoing race and gender harassment and disparate treatment--thus demonstrating a trialworthy dispute as to their intent in failing to redress her allegations.  Id. at 23.   Finally, the district court ruled that the four "supervisory" defendants were not entitled to qualified immunity from suit because the right to be free from race and gender discrimination by government officials had been "clearly established" long before 1990.  Id. at 24-25.   Thus, only the four "supervisory" defendants [hereinafter:  "appellants"] presently challenge the district court summary judgment ruling rejecting their "qualified immunity" defenses.  See supra notes 2 & 4.

II
DISCUSSION

10
A government official is not entitled to qualified immunity from suit "if the right asserted by the plaintiff was 'clearly established' at the time of its alleged violation ... [and ] a reasonable official situated in the same circumstances should have understood that the challenged conduct violated that established right."  Burns v. Loranger, 907 F.2d 233, 235-36 (1st Cir.1990) (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (emphasis added).  The district court determined that "[t]he 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."  Carter, No. 93-0447B, slip op. at 25 (D.R.I. Nov. 9, 1994).


11
Appellants contend in their opening brief that the district court should have proceeded to consider whether, as a matter of law, the particular conduct of each individual defendant was objectively reasonable.  They rely heavily on an analogy to Harris v. Forklift Sys., Inc., --- U.S. ----, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), a Title VII case.  Appellants argue that Harris prescribes minimum evidentiary standards for establishing the "objectively abusive" conduct needed to support a reasonable inference that a particular defendant harbored an invidious discriminatory intent.  As they see it, the facially innocuous or objectively reasonable conduct in which appellants, as well as the "superior officer" defendants, are alleged to have engaged (e.g., defendants "glanc[ed]" at Carter during roll call;  refused to let her drive an automobile without a license) falls far short of the "objectively abusive conduct" required under Harris (viz., repeated use of explicit gender-based insults, sexual innuendo, threats, and coercion against a subordinate).  This is demonstrated, appellants say, by the district court ruling that the evidence is insufficient to support a reasonable inference that the four "superior officer" defendants harbored a discriminatory intent.  See Carter, No. 93-0447B, slip op. at 23-24 (D.R.I. Nov. 9, 1994);  see also supra note 4.  Appellants therefore insist that they were entitled to qualified immunity because, viewing the disputed evidence most favorably to Carter, reasonable officials situated in their circumstances should not have understood that their conduct violated Carter's established right to be free from race or gender discrimination.  See Burns, 907 F.2d at 235-36.


12
While this interlocutory appeal was pending, the United States Supreme Court decided Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).  Displacing our longstanding precedents allowing interlocutory appeals from virtually all rulings denying qualified immunity defenses at summary judgment, see, e.g., Unwin v. Campbell, 863 F.2d 124, 128 (1st Cir.1988), the Supreme Court held that


13
a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a 'genuine' issue of fact for trial.


14
Johnson, --- U.S. at ----, 115 S.Ct. at 2159.   Recently, this court summarized the Johnson message:


15
Thus, on the one hand, a district court's pretrial rejection of a proffered qualified immunity defense remains immediately appealable as a collateral order to the extent that it turns on a pure issue of law, notwithstanding the absence of a final judgment.  On the other hand, a district court's pretrial rejection of a qualified immunity defense is not immediately appealable to the extent that it turns on ... an issue of fact....  In such a situation, the movant must await the entry of final judgment before appealing the adverse ruling.


16
Stella v. Kelley, 63 F.3d 71, 73-74 (1st Cir.1995).


17
Johnson emphasized that routinely allocating fact-intensive inquiries to appellate courts entails significant delays and imprudent use of scarce judicial resources, since an appellate court may have to wade through a huge, underdeveloped pretrial record to resolve especially "nebulous" factual questions such as a defendant's "intent."  Johnson, --- U.S. at ----, 115 S.Ct. at 2158 (emphasis added).


18
Appellants' first reaction to Johnson is to mischaracterize the summary judgment ruling in this case as a "law-based"--rather than a "fact-based"--denial of summary judgment.  Johnson explicitly directs that "a district court's pretrial rejection of a qualified immunity defense is not immediately appealable to the extent that it turns on ... an issue of fact...."  Stella, 63 F.3d at 74 (citing Johnson, --- U.S. at ----, 115 S.Ct. at 2159).   Determining the presence or absence of discriminatory "intent" based on evidentiary proffers at summary judgment entails a quintessential factual assessment, see Broderick v. Roache, 996 F.2d 1294 (1st Cir.1993) (normally, Sec. 1983 defendants are not entitled to brevis disposition on summary judgment where qualified immunity defense turns on factual determination as to their subjective intent), which is part and parcel of the "merits" dispute on the claims brought by Carter in this case.


19
Second, appellants contend, citing Harris, --- U.S. ----, 114 S.Ct. 367 (1993), that their conduct, as alleged, was not "objectively abusive"--as a matter of law --since it was not sufficiently egregious to support a reasonable inference that appellants were motivated by race or gender discrimination:[Such a standard] would permit any minority [worker] to allege anything against a white male [supervisor] and force that white male to a jury trial.  For example, a minority could allege a violation of the equal protection clause because a white supervisor said hello, one time, to a white worker before saying it to the minority worker.  That lawsuit would obviously allege the violation of a clearly established right [to be free from] racial discrimination), but it would not allege facts that violated that right.


20
Supplemental Brief for Appellants at 4.  Given the evidence adduced by Carter at summary judgment, see Fed.R.Civ.P. 56(e), we reject this artificial characterization as well.


21
For summary judgment purposes, all evidence in genuine dispute must be viewed in the light most favorable to Carter.  The district court found that Carter adduced evidence that (i) each appellant had been given written notice of a pervasive, continuing campaign of workplace harassment and disparate treatment aimed at her, see supra p. 10, (ii) each appellant had authority to redress her complaints, and (iii) all failed to do so.  In this factual setting, Harris does appellants no good, even as an analog.5


22
For one thing, contrary to appellants' contention, see supra pp. 11-12, the Harris Court not only did not purport to prescribe an evidentiary threshold for establishing "objectively abusive conduct," it explicitly noted that merely because an earlier decision "present[ed] some especially egregious examples of harassment, [it did] not mark the [lower] boundary of what is actionable."  Harris, --- U.S. at ----, 114 S.Ct. at 371.   Moreover, the Court noted that


23
whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances.   These may include the frequency of the discriminatory conduct;  its severity;  whether it is physically threatening or humiliating, or a mere offensive utterance;  and whether it unreasonably interferes with an employee's work performance....  [N]o single factor is required.


24
Id. (emphasis added).  The factual allegations attested to by Carter, relating to conduct and context, are presumed true at this stage in the case, see supra p. 10, and must be evaluated by the ultimate factfinder with a view to their adequacy as support for a reasonable inference on the "nebulous" element of discriminatory "intent."   Thus, her factual allegations call for precisely the type of fact-intensive inquiry that Johnson counsels against, as an inappropriate judicial exercise on interlocutory review.


25
Furthermore, the "conduct" we must deem established for summary judgment purposes in this case cannot be confined to the straitjacket designed for it by appellants (viz., "a white supervisor said hello, one time, to a white worker before saying it to the minority worker").  Rather, their hypothetical substantially understates the allegations actually attested to by Carter.  Consequently, we need not address their artificial construct.


26
Carter expressly attests, for example, that repeated racial and gender-based epithets were directed against her, and that appellants condoned this harassment by their knowing inaction.  We can discern no permissible ground for treating the district court ruling--that there was a trialworthy issue of fact as to whether appellants harbored a discriminatory intent--as an immediately appealable law -based decision within the meaning of Johnson, --- U.S. at ----, 115 S.Ct. at 2159.6


27
Johnson announces a jurisdictional rule--signaling a new day in the First Circuit, see Stella, 63 F.3d at 74--and not one to be undone by recasting fact-based rulings denying summary judgment on qualified immunity defenses into law-based "collateral orders" immediately appealable under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).  See Elliott v. Thomas, 937 F.2d 338, 341 (7th Cir.1991) ("By sleight of hand [defendants] can turn any defense on the merits into a defense of qualified immunity."), cert. denied, 502 U.S. 1121, 112 S.Ct. 1242, 117 L.Ed.2d 475 (1992).  The Johnson rule would be undermined--its important aims frustrated, see, e.g., Johnson, --- U.S. at ----, 115 S.Ct. at 2158 (noting, inter alia, "danger of denying justice by delay")--were defendant officials, spurred by the prospect of delay and the leverage it occasions, permitted to contrive insubstantial "issues of law" as grounds for interlocutory review.

III
CONCLUSION

28
As Johnson precludes interlocutory review of the district court order denying summary judgment on appellants' qualified immunity defenses, founded on the fact-based ruling that there was a trialworthy issue of fact as to whether appellants acted with discriminatory intent, their appeal is dismissed for lack of appellate jurisdiction, with costs to appellee.


29
SO ORDERED.



1
 The material facts are related in the light most favorable to Carter, the party resisting summary judgment.  See Hegarty v. Somerset County, 53 F.3d 1367, 1368 n. 1 (1st Cir.1995)


2
 Only the ruling denying summary judgment on the Sec. 1983 claims is before us on appeal.  An amended complaint additionally alleged civil rights claims under 42 U.S.C. Sec. 1981 (race-based discrimination only ) and Sec. 1985, pendent state-law claims under the Rhode Island Whistleblower Protection Act, see R.I.Gen.Laws Sec. 28-14-18 (1994), and common law tort claims for defamation and intentional infliction of emotional distress.  Later, Carter was allowed to amend the complaint again by including a Title VII claim, see 42 U.S.C. Sec. 2000e-2(a)(1), to conform to the proffered evidence.  Defendants moved for summary judgment on all claims, based on their qualified immunity defenses to the Sec. 1981, Sec. 1983 and Sec. 1985 claims
The district court denied summary judgment to all eight defendants on the Title VII claims, finding trialworthy issues of material fact.  See Carter v. State of Rhode Island, No. 93-0447B, slip op. at 6-7, 18-20 (D.R.I. Nov. 9, 1994) (Report and Recommendation).  The court also dismissed the Sec. 1985 claims against all eight defendants because Carter failed to adduce sufficient evidence to generate a trialworthy issue as to the existence of a "conspiracy."  Id. at 15-17, n. 47.   Finally, except for the defamation claim against "supervisory" defendant Vose, the court denied all motions for summary judgment on the state-law claims.  Id. at 25-27.
Though not at issue in this interlocutory appeal, we note an apparent inconsistency between the district court order and the memorandum explaining its rationale;  viz., there is no foundation in the memorandum and order for the district court's decision to dismiss the Sec. 1981 claims against the four "supervisory" defendants.  The court dismissed the Sec. 1981 claims against the "union" defendants because Carter had adduced insufficient evidence that the union intentionally or purposefully discriminated against Carter by selectively invoking a union policy not to investigate a union member's complaints while the complainant is receiving workers' compensation.  Id. at 11-13.   On the other hand, there is no discussion of the Sec. 1981 claims against appellants, who moved for summary judgment on the Sec. 1981 and Sec. 1983 claims on qualified immunity grounds only, and whose Sec. 1981 liability is in no sense derivative of, nor dependent upon, the union defendants.
Nevertheless, dismissal of the Sec. 1981 claims against the "superior officer" defendants does appear to flow from the dismissal of the Sec. 1983 claims against those defendants based on insufficient evidence of discriminatory intent.  On the other hand, assuming the district court correctly denied summary judgment to the four "supervisory" defendants on the Sec. 1983 claims, we discern no basis for dismissing the Sec. 1981 claims against these "supervisory" defendants.  Although qualified immunity may be available under Sec. 1981, defendants normally are denied the pretrial benefits of an immunity defense where, as here, the court finds trialworthy issues pertaining to their subjective state of mind, i.e., discriminatory intent.  See Alexis v. McDonald's Restaurants of Mass., Inc., 67 F.3d 341, 349 n. 7 (1st Cir.1995).  Accordingly, the parties should explore this apparent inconsistency on remand.


3
 After the motions for summary judgment were referred pursuant to 28 U.S.C. Sec. 636(b)(1)(B), the district court adopted the report and recommendation issued by a magistrate judge three days prior to oral argument in this appeal.  Accordingly, the report and recommendation is cited throughout, as the district court ruling


4
 Although eight "superior officer" and "supervisory" defendants are named in the notice of appeal, the order granting partial summary judgment for the "superior officer" defendants is not immediately appealable, as it has not been certified pursuant to Fed.R.Civ.P. 54(b).  See Hegarty, 53 F.3d at 1372;  see generally Kersey v. Dennison Mfg. Co., 3 F.3d 482, 486 (1st Cir.1993)


5
 We need not test the assumption implicit in appellants' analogy;  viz., that Harris, a sexual harassment case, defines the boundaries of racial harassment claims as well


6
 Likewise, the district court's ruling--that there is a trialworthy issue of fact as to the existence of an "affirmative link" between appellants' acts or omissions and the alleged deprivation of civil rights, see, e.g., Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st Cir.1989)--is not an immediately appealable law-based decision.  Johnson, --- U.S. at ----, 115 S.Ct. at 2159


