     Case: 08-51279     Document: 00511114437          Page: 1    Date Filed: 05/18/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 18, 2010

                                       No. 08-51279                         Lyle W. Cayce
                                                                                 Clerk

HAROLD PIATT,

                                                   Plaintiff-Appellee
v.

CITY OF AUSTIN; TOBY FUTRELL, In her official capacity as City Manager
of the City of Austin; STANLEY KNEE, In his official capacity as Police Chief
of the City of Austin; ART ACEVEDO, In his official capacity as Police Chief
of the City of Austin,


                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. A-07-CA-520-LY


Before GARWOOD, DAVIS, and DENNIS, Circuit Judges.
PER CURIAM:*
        Defendant City of Austin Chief of Police Stanley Knee (“Knee”) appeals
interlocutorily from the district court’s denial of his motion for summary
judgment. He contends that he is entitled to qualified immunity from suit in his
individual capacity. We conclude that Knee’s motion presents only a genuine


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 08-51279     Document: 00511114437     Page: 2   Date Filed: 05/18/2010

                                   No. 08-51106

issue as to a material issue of fact and therefore dismiss the appeal for lack of
appellate jurisdiction. See, e.g., Johnson v. Jones, 515 U.S. 304, 313-20 (1995).
                                         I.
        Plaintiff Harold Piatt (“Piatt”) was employed by the Austin Police
Department from 1979 until he retired in October 2007. Piatt’s complaint alleges
that he was passed over for promotion to Assistant Chief on two occasions
because he is white. Piatt brought this suit against former Austin Chief of Police
Stanley Knee, in his individual capacity, alleging racial discrimination under 42
U.S.C. § 1983.
        In 2006 (and also in 2003, although that promotion is not subject of this
appeal), Piatt applied and was qualified for a promotion to Assistant Chief of
Police. In both instances, Knee denied Piatt a promotion and instead promoted
officers to Assistant Chief who were not white. Piatt testified at his deposition
that at a meeting in early 2006 Knee explained that he would use his
promotion–appointment authority to maintain the racial balance of his executive
staff of Assistant Chiefs. Knee conceded at his deposition that he had said that
he would be making every effort to reflect the community with his appointments
of the Assistant Chiefs; and that, although what matters most is the ability to
do the job, often it is easier for citizens to talk to somebody of the same race as
an outlet for their complaints. Knee further testified that he did not promote
Piatt because he would not “fit.” Knee said he did not believe he would be able
to establish a sense of trust and loyalty with Piatt, characteristics Knee
considered essential in an Assistant Chief.
        The district court denied Knee’s motion for summary judgment, concluding
that:
        To support his claim for qualified immunity, [Knee ] merely state[s]
        [he] is entitled to qualified immunity because Plaintiff’s Title VII
        claims fail. He also argues that his actions were objectively
        reasonable due to the statutory authority giving him discretion in

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      hiring Assistant Chiefs. He raises no new arguments in support of
      his claim for protection by qualified immunity than he raised in
      defense to Plaintiff’s Title VII claims. As explained above, Plaintiff
      has created a question of fact of whether Knee’s decision not to
      promote him was based on his lack of trust and loyalty or whether
      it was based on his race. Therefore, without more detailed
      assertions by Knee, qualified immunity is not appropriate.

Report and Recommendation at 18, Piatt v. City of Austin, No. A-07-CA-520-LY
(W.D. Tex. Nov. 12, 2008) (citations and record references omitted) (as adopted
by the district court in its December 2, 2008 Order on Report and
Recommendation).

                                     II.
      At the outset, we must determine whether we have appellate jurisdiction
of this interlocutory appeal. Piatt argues that the order dismissing Knee’s
motion for summary judgment was an interlocutory order, based on the
sufficiency of the evidence, which is not appealable. We agree.
      “District court orders denying summary judgment on the basis of qualified
immunity are immediately appealable under the collateral order doctrine,
notwithstanding their interlocutory character, when based on a conclusion of
law.” Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997)
(citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). “In contrast, such orders
are not immediately appealable if they are based on sufficiency of the evidence.”
Id. (citing Johnson, 515 U.S. at 313). In other words, orders denying qualified
immunity are not appealable if they turn on a district court’s finding that a
genuine factual dispute exists. But we may review purely legal determinations,
including a district court’s finding that a particular factual dispute is material.
Foley v. Univ. of Houston, 355 F.3d 333, 337 (5th Cir. 2003); see also Kinney v.
Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc) (“[I]n an interlocutory appeal
we cannot challenge the district court’s assessments regarding the sufficiency
of the evidence – that is, the question whether there is enough evidence in the



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record for a jury to conclude that certain facts are true.”). “‘Within this limited
appellate jurisdiction, [we] review[] a district court’s denial of a motion for
summary judgment on the basis of qualified immunity in a § 1983 suit de novo.’”
Good v. Curtis, ___ F.3d ____, 2010 WL 1038547, at *3 (5th Cir. 2010) (quoting
Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009)).
      “[T]o state a claim of racial discrimination under the Equal Protection
Clause and § 1983, a plaintiff must demonstrate that the governmental official
was motivated by intentional discrimination on the basis of race.” Coleman, 113
F.3d at 533 (citing Washington v. Davis, 426 U.S. 229, 240-42 (1976); Vera v.
Tue, 73 F.3d 604, 609 (5th Cir. 1996)). Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982), requires courts “to conduct a two-part analysis when state of mind is at
issue: (1) Does the alleged conduct set out a constitutional violation? and (2)
Were the constitutional standards clearly established at the time in question?”
Auriemma v. Rice, 910 F.2d 1449, 1453 (7th Cir. 1990) (citations, quotation
marks and ellipses omitted). Intent is relevant to the first prong but not to the
second prong because officials generally are precluded from proving that
intentionally discriminatory conduct is objectively reasonable. See, e.g., Southard
v. Tex. Bd. of Crim. Justice, 114 F.3d 539, 550 (5th Cir. 1997) (sex
discrimination); Blackwell v. Laque, 275 F. App’x 363, 367 (5th Cir. 2008) (race
discrimination); Auriemma, 910 F.2d at 1453 (race discrimination); Murphy v.
Arkansas, 127 F.3d 750, 755 (8th Cir. 1997) (race discrimination); Mustafa v.
Clark County Sch. Dist., 157 F.3d 1169, 1180 (9th Cir. 1998) (national origin
discrimination); DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 35-37 (1st Cir. 2001)
(ethnic discrimination); Farm Labor Organizing Comm. v. Ohio State Highway
Patrol, 308 F.3d 523, 542-43 (6th Cir. 2002) (racially targeted traffic stops);
Gibson v. Superintendent of N.J. Dep’t of Law and Pub. Safety, 411 F.3d 427, 441
(3d Cir. 2005), cert. denied sub nom. Verniero v. Gibson, 547 U.S. 1035 (2006)
(racially selective enforcement). Thus, generally, where the evidence is sufficient

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to support a claim of intentional gender or race discrimination, any immunity
defense will be foreclosed.
      In sum, we agree with the district court that Piatt raised a genuine issue
of material fact as to “whether Knee’s decision not to promote [Piatt] was based
on his lack of trust and loyalty [as he claims] or whether it was based on [Piatt’s]
race,” Report and Recommendation at 18, Piatt, No. A-07-CA-520-LY, a factual
determination we may not review on this interlocutory appeal, see, e.g., Kinney,
367 F.3d at 346, and we conclude that this appeal must be dismissed for lack of
appellate jurisdiction.
                                        III.
      For the foregoing reasons, we DISMISS the appeal for lack of appellate
jurisdiction and REMAND the case to the district court for further proceedings
consistent with this opinion.




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