                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS        September 8, 2003

                         FOR THE FIFTH CIRCUIT          Charles R. Fulbruge III
                                                                Clerk
                         _____________________

                              No. 03-10007
                            Summary Calendar
                         _____________________

                            CHARLIE SYLVIE

                         Plaintiff - Appellee

                                versus

                  CITY OF DALLAS TEXAS; ET AL.

                              Defendants

                 TED KILPATRICK; MICHAEL RICKMAN

                        Defendants - Appellants

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                  District Court No. 01-CV-1549-K
_________________________________________________________________



Before HIGGINBOTHAM, EMILIO M. GARZA and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

     The appellants in this interlocutory appeal challenge the

district court’s denial of their motion for summary judgment on

qualified immunity grounds.    In their appeal, the appellants

     1
      Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.

                                   1
maintain the district court misapplied the law for determining

whether a governmental official is entitled to qualified

immunity.   After considering the parties’ arguments, this Court

affirms the district court’s order denying the motion for summary

judgment.

                          Standard of Review

     This Court does not have jurisdiction to review

interlocutory appeals from the denial of summary judgment based

on qualified immunity grounds when the appeal challenges the

district court’s ruling that genuine issues exist concerning

material facts.    See Jones v. Collins, 132 F.3d 1048, 1051-52

(5th Cir. 1998).    The Court, however, has jurisdiction over

appeals that challenge questions of law, such as the materiality

of factual issues.     See Bazan v. Hidalgo County, 246 F.3d 481,

490 (5th Cir. 2001).    The determination of whether a defendant’s

conduct was objectively reasonable is a question of law, but that

question of law can only be reviewed when there are no underlying

genuine issues of material fact.       Id.   This Court may consider

this appeal because the appellants contend the district court

misapplied the law in considering whether their conduct was

objectively reasonable.

                   Whether the District Court Erred

     The defendant-appellants first argue that the district court

misapplied the law for determining whether a governmental


                                   2
official is entitled to qualified immunity.    In considering a

defendant’s entitlement to qualified immunity as grounds for

summary judgment, the district court must first determine whether

the plaintiff alleged a violation of a clearly established right,

and then determine whether the defendant official’s conduct was

objectively reasonable in light of clearly established law at the

time of the alleged violation.     See Fontenot v. Cormier, 56 F.3d

669, 673 (5th Cir. 1995); see also Siegert v. Gilley, 500 U.S.

226, 231-33 (1991).   On appeal, the appellants contend the

district court misapplied this test because the court did not

first determine whether the plaintiff proved a violation of a

clearly established right.   Despite this complaint, the order

denying the motion for summary judgment indicates the district

court correctly applied the law.

     The district court initially denied the appellant’s motion

in an order that stated “the Court finds that there are disputed

issues of material fact.”    The appellants then filed their notice

of interlocutory appeal.    In response, the district court issued

a memorandum opinion clarifying its reason for denying the

appellant’s summary judgment motion.    After setting out the test

for qualified immunity, the district court reviewed the

plaintiff-appellee’s summary judgment evidence in support of his

claims that the appellants violated the appellee’s rights to

equal protection under the law by placing the appellee on


                                   3
administrative leave and later terminating him for violating a

city employment policy for assessing sexually explicit internet

sites on a city computer.   The district court explained that the

appellee claimed the appellants falsely indicated that city

records showed that the appellee was on duty on the particular

dates the sexually explicit material was viewed and that the

appellee was solely responsible for accessing the internet sites

because the appellee was the exclusive user of the computer in

the office.   The district court then detailed the appellee’s

evidence supporting his claims.

     The district court indicated the plaintiff-appellee

presented summary judgment evidence that: (1) the plaintiff did

not have exclusive use of the computer in his office, (2) other

individuals had a key to the office where the plaintiff’s

computer was located, (3) the plaintiff gave the defendant-

appellants records showing that he was not at the office during

the times of day the computer was used to access sexually

explicit sites, and (4) evidence that the defendant-appellants

accepted without question denials from other employees who had

computers with sexually explicit materials while refusing to

accept the plaintiff’s denial.    After detailing this evidence,

the district court concluded, “taking the evidence in the light

most favorable to [the plaintiff-appellee], the facts determining

whether the defendants acted with objective reasonableness are in

dispute.   Specifically, it is disputed whether the defendants

                                  4
were deliberately indifferent in the investigation leading up to

[the plaintiff-appellee’s] suspension and termination by the

City.”   Although the district court’s order did not explicitly

state that the court found the plaintiff alleged the violation of

a clearly established right, that finding is implicit in the

court’s order.    In particular, the order recognized that the

plaintiff had sued the appellants “alleging that because of his

race, African-American, he was denied equal employment

opportunities and [was] discriminated against” and that the

appellants “violated his rights to equal protection under the

law.”

     Title VII protects an employee from unlawful employment

discrimination.    See 42 U.S.C. § 2000e-2(a); see also McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 801 (1973).       The Fourteenth

Amendment to the United States Constitution guarantees a person

equal protection under the law.       See U.S. CONST. amend. 14, § 1;

see also Washington v. Davis, 426 U.S. 229, 239 (1976). Because

the plaintiff alleged unlawful employment discrimination and the

denial of equal protection, the plaintiff alleged the deprivation

of a clearly established right.    Although the appellants maintain

the plaintiff-appellee failed to prove the violation of a clearly

established right, the plaintiff was only required to allege the

violation of a clearly established right.        See Siegert, 500 U.S.

at 231-33.   The district court may not have explicitly addressed


                                  5
the first prong of the qualified-immunity test, but the court’s

order makes it abundantly clear that the district court correctly

applied the law.

     The appellants next argue that the genuine issue of material

fact that the district court identified is not material to the

issue of objective reasonableness.   In particular, the appellants

argue that no objective unreasonableness exists even if the

plaintiff did not have exclusive use of his office, or of his

computer; even if the plaintiff provided documents indicating he

was not in the office at the time of the alleged misuse; and,

even if appellants believed others over the plaintiff.    That

conclusion is especially illogical in light of the plaintiff’s

summary judgment evidence that 24 computers in the same

department showed access to pornographic sites although the

employees using those computers were not disciplined; and that a

white employee in the same department had 312 incidents of access

to sexual materials on his computer, but that he was not

confronted with a claim that he had misused his computer.

     The evidence discussed above is material for the following

reason.   If a supervisor who disciplined an African-American

employee who did not have exclusive use of a computer in an

office to which other individuals had a key, and that employee

had evidence he was not at the office during the times the

computer was used to access sexually explicit sites, the

supervisor would not act with objective reasonableness if he did

                                 6
not discipline other non-African-American employees who had

sexually explicit materials on their computers.   Thus, the

plaintiff’s summary judgment evidence was clearly material to

whether the defendant-appellants raised a question of fact about

the entitlement to qualified immunity.   As such the district

court properly denied the motion for summary judgment.

     Having determined that the district court properly denied

the defendant-appellants’ motion for summary judgment on

qualified immunity grounds, this Court AFFIRMS the district

court’s order and returns this case to the district court for

further proceedings.

AFFIRMED




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